EN BANC

[G.R. No. L-36142. March 31, 1973.]
JOSUE JAVELLANA, petitioner, vs. THE EXECUTIVE SECRETARY, THE
SECRETARY OF NATIONAL DEFENSE, THE SECRETARY OF JUSTICE and THE
SECRETARY OF FINANCE, respondents.
[G.R. No. L-36164. March 31, 1973]
VIDAL TAN, J. ANTONIO ARANETA, ALEJANDRO ROCES, MANUEL CRUDO,
ANTONIO U. MIRANDA, EMILIO DE PERALTA and LORENZO M. 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; CONSTANCIO E.
CASTAÑEDA, in his capacity as Secretary of General Services; Senator GIL J. PUYAT,
in his capacity as President of the Senate; and Senator JOSE ROY, in his capacity as
President Pro Tempore of the Senate, respondents.
[G.R. No. L-36236. March 31, 1973]
EDDIE B. MONTECLARO, [personally and in his capacity President of the National
Press Club of the Philippines], petitioner, vs, THE EXECUTIVE SECRETARY, THE
SECRETARY OF PUBLIC INFORMATION, THE AUDITOR GENERAL, THE
BUDGET COMMISSIONER & THE NATIONAL TREASURER, respondent.
[G.R. No. L-36283. March 31, 1973]
NAPOLEON V. DILAG, ALFREDO SALAPANTAN, JR., LEONARDO ASODISEN,
JR., and RAUL M. GONZALEZ, petitioners, vs. THE HONORABLE SECRETARY OF
NATIONAL DEFENSE, THE HONORABLE BUDGET COMMISSIONER, THE
HONORABLE AUDITOR GENERAL, respondents.
Ramon A. Gonzales for petitioner Josue Javellana.
Lorenzo M. Tañada & 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 & Associates for petitioners Napoleon V. Dilag, et al.
Arturo M. Tolentino for respondents Gil J. Puyat and Jose Roy.
Solicitor General Estelito P. Mendoza, Solicitor Vicente V. Mendoza and Solicitor
Reynato S. Puno for other respondents.
RESOLUTION
CONCEPCION, C.J p:
The above entitled five (5) cases are a sequel of cases G.R. Nos. L-35925, L-35929, L35940, 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 plebiscite cases.
Background of the Plebiscite Cases
The factual setting thereof is set forth in the decision rendered, from which We quote:
"On March 16, 1967, Congress of the Philippines passed Resolution No. 2, which was
amended by Resolution No. 4 of said body, adopted on June 17, 1969, calling a
convention to propose amendments to the Constitution of the Philippines. Said
Resolution No. 2, as amended, was implemented by Republic Act No. 6132, approved on
August 24, 1970, pursuant to the provisions of which the election of delegates to said
Convention was held on November 10, 1970, and the, 1971 Constitutional Convention
began to perform its functions on June 1, 1971. While the Convention was in session on
September 21, 1972, the President issued Proclamation No. 1081 placing the entire
Philippines under Martial Law. On November 29, 1972, the Convention approved its
Proposed Constitution of the Republic of the Philippines. The next day, November 30,
1972, the President of the Philippines issued Presidential Decree No. 73, 'submitting to
the Filipino people for 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 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, Director of Printing, the

National Treasurer and the Auditor General (Case G.R. L-35940), by Eddie B.
Monteclaro against the Commission on Elections and the Treasurer of the Philippines
(Case G.R. No L-35941), and by Sedfrey A. 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 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.

"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 proposed new Constitution and when (the tentative
new dates given following postponement of the plebiscite from the original date of
January 15 are February 19 and March 5);
"[4] The opening of the regular session on January 22 in accordance with the existing
Constitution despite Martial Law." [Bulletin Today, January 3, 1973.]
'8.
That it was later reported that the following are to be the forms of the questions to
be asked to the Citizens Assemblies: —
"[1] Do you approve of the New Society?
"[2] Do you approve of the reform measures under martial law?
"[3] Do you think that Congress should meet again in regular session?
"[4] How soon would you like the plebiscite on the new Constitution to be held?"
[Bulletin Today, January 5, 1973].
'9.
That the voting by the so-called Citizens Assemblies was announced to take place
during the period from January 10 to January 15, 1973;
'10.
That on January 10, 1973, it was reported that one more question would be added
to the four (4) questions previously announced, and that the forms of the questions would
be as follows: —
"[1] Do you like the New Society?
"[2] Do you like the reforms under martial law?
"[3] Do you like Congress again to hold sessions?
"[4] Do you like the plebiscite to be held later?
"[5] Do you like the way President Marcos is running the affairs of the government?"
[Bulletin Today, January 10, 1973; additional question italics.]
'11.
That on January 11, 1973, it was reported that six (6) more questions would be
submitted to the so called Assemblies: —
"[1] Do you approve of the citizens assemblies as the base of popular government to
decide issues of national interests?
"[2] Do you approve of the New Constitution?
"[3] Do you want a plebiscite to be called to ratify the new Constitution?
"[4] Do you want the elections to be held in November, 1973 in accordance with the
provisions of the 1935 Constitution?
"[5] If the elections would not be held, when do you want the next elections to be
called?
"[6] Do you want martial law to continue?" [Bulletin Today, January 11, 1973; italics
supplied.]

6 We want President Marcos to continue with Martial Law. 2 But we do not want the Ad Interim Assembly to be convoked. We want him to be strong and firm so that he can accomplish all his reform programs and establish normalcy in the country. 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. 5 Probably a period of at least seven (7) years moratorium on elections will be enough for stability to be established in the country. we want President Marcos to declare a revolutionary government along the lines of the new Constitution without the ad interim Assembly. '15. 3 The vote of the Citizens Assemblies should already be considered the plebiscite on the Constitution. the returns with respect to the six (6) additional questions quoted above will be on a form similar or identical to Annex "A" hereof. and therefore state. We are fed up with politics." 'Attention is respectfully invited to the comments on "Question No." which reads: — "QUESTION No. that the question added in the last list of questions to be asked to the Citizens Assemblies. January 8. of so many debates and so much expenses. '13." This.'12. namely: — "Do you approve of the New Constitution?" — in relation to the question following it: — "Do you still want a plebiscite to becalled to ratify the new Constitution?" — . then the new Constitution should be deemed ratified. '14. We want him to exercise his powers with more authority. That petitioners have reason to fear. QUESTION No. and therefore allege. That according to reports. 3. If all other measures fail. then the new Constitution should be deemed ratified. If the Citizens Assemblies approve of the New Constitution. 4 We are sick and tired of too frequent elections. QUESTION No. speaking on television and over the radio. and which reads: — "COMMENTS ON QUESTION No. we are afraid. 1973]. QUESTION No. in the meantime. 1 In order to broaden the base of citizen participation in government. That attached to page 1 of Annex "A" is another page which we marked as Annex "A-1". QUESTION No. QUESTION No. 1973. 3 The vote of the Citizens Assemblies should be considered the plebiscite on the New Constitution. for reforms to take root and normalcy to return. on January 7. is pregnant with ominous possibilities. If the Citizens Assemblies approve of the Constitution. 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. That.

and therefore allege. et al. a similar prayer was made in a 'manifestation' filed by the petitioners in L-35949. their deputies. that a restraining order be issued enjoining and restraining respondent Commission on Elections. '17.' praying — '. and announcing and reporting to the President or other officials concerned. 1973. That petitioners have reason to fear. That the fait accompli would consist in the supposed expression of the people approving the proposed Constitution. 1973.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. 'Sedfrey Ordoñez. 1973. Guillermo de Vega. v. '16. '18.' 'not later that Tuesday noon. v. become moot because. and they therefore allege. from collecting. both congenital and otherwise. to all intents and purposes. That with the withdrawal by the President of the limited freedom of discussion on the proposed Constitution which was given to the people pursuant to See. if such event would happen. subordinates and substitutes. has been ratified. January 13. 1973. .' "At about the same time. in such a situation. the Philippines will be facing a real crisis and there is likelihood of confusion if not chaos. That. et al. shortly before noon. 73. as well as the Department of Local Governments and its head. That the crisis mentioned above can only be avoided if this Honorable Court will immediately decide and announce its decision on the present petition. because then.R. and all other officials and persons who may be assigned such task. No. petitioners fear. then the case before this Honorable Court could. 3 of Presidential Decree No. Secretary Jose Roño. Secretary Conrado Estrella. the Department of Agrarian Reforms and its head. '19. January 16. or on January 15.' "In support of this prayer. L-35948 filed a 'supplemental motion for issuance of restraining order and inclusion of additional respondents. '20. '21. That petitioners are now before this Honorable Court in order to ask further that this Honorable Court issue a restraining order enjoining herein respondents. . The National Treasurer. it was alleged — '3. That. Commission on Elections. which was a Saturday.' "The next day. certifying. the petitioners in said Case G.' Prior thereto. the National Ratification Coordinating Committee and its Chairman. et al. that on the basis of such supposed expression of the will of the people through the Citizens Assemblies. on the two questions quoted in paragraph 1 of this Supplemental Urgent Motion. the so-called Citizens' Assemblies referendum results allegedly obtained when they were supposed to have met during the period comprised between January 10 and January 15. it would be announced that the proposed Constitution. particularly respondent Commission on Elections as well as the Department of Local Governments . et al. the Court issued a resolution requiring the respondents in said three (3) cases to comment on said 'urgent motion' and 'manifestation. the people and their officials will not know which Constitution is in force. 'Gerardo Roxas. with all its defects..' and L35942. the opposition of respondents to petitioners' prayer that the proposed plebiscite be prohibited has now collapsed and that a free plebiscite can no longer be held. 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.

as prescribed in the Election Code. [b] Elections or plebiscites for the ratification of constitutional amendments contemplated in Article XV of the Constitution have provisions for the secrecy of choice and of vote. 73. 1973. at which the proposed constitutional amendments are to be submitted for ratification. but there were no similar provisions to guide and regulate proceedings of the so called Citizens' Assemblies. 1973]. order or instruction. it is too much to believe that such assemblies could be organized at such a short notice. 1973] to thresh out the mechanics in the formation of the Citizens' Assemblies and the topics for discussion. That the proceedings of the so-called Citizens' Assemblies are illegal. Secretary Jose Roño. But be that as it may. Secretary Conrado Estrella. but also of "any similar decree. the submission of the proposed Constitution to the Citizens' Assemblies was not made known to the public until January 11. 1973. and such provisions are a minimum requirement for elections or plebiscites for the ratification of constitutional amendments. '5. whereas." . announcing and reporting to the President the supposed Citizens' Assemblies referendum results allegedly obtained when they were supposed to have met during the period between January 10 and January 15. 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. 'It should be recalled that the Citizens' Assemblies were ordered formed only at the beginning of the year [Daily Express. Article XV. [c] The Election Code makes ample provisions for free. the Department of Agrarian Reforms and its head. 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. 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. January 1. more than a handful of the so called Citizens' Assemblies have been actually formed. are elections at which only qualified and duly registered voters are permitted to vote. 1973. as noted in the Urgent Motion of January 12. Guillermo de Vega. '4. which is one of the safeguards of freedom of action. subordinates and/or substitutes. regardless of qualifications or lack thereof. January 10.and its head. That for lack of material time. but votes in the Citizens' Assemblies were open and were cast by raising hands. [d] It is seriously to be doubted that. the National Ratification Coordinating Committee and its Chairman. particularly on the two questions quoted in paragraph 1 of this Supplemental Urgent Motion. and considering the lack of experience of the local organizers of said assemblies. as well as the absence of sufficient guidelines for organization. and their deputies. proclamation.' [Bulletin Today. the so called Citizens' Assemblies were participated in by persons 15 years of age and older. orderly and honest elections. for lack of material time. null and void particularly insofar as such proceedings are being made the basis of a supposed consensus for the ratification of the proposed Constitution because: — [a] The elections contemplated in the Constitution. 1973]. from collecting certifying.

together with the officials and government agencies mentioned in paragraph 3 of this Supplemental Urgent Motion are restrained or enjoined from collecting. and the petitioners herein because: [a] After the result of the supposed voting on the questions mentioned in paragraph 1 hereof shall have been announced. irreparable damage will be caused to the Republic of the Philippines. 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. 3]. [p. 1973." [Election Code of 1971. and the instructions incidental thereto clearly fall within the scope of this petition. the cause of freedom and democracy. among others. . furthermore. viewing the case from all angles. on the date last mentioned. '6. 3. on the one hand. Sec. at noontime. that the Commission on Elections has under our laws the power. order. implement. and those who enforce.so that Presidential Decree No. [b] Even the jurisdiction of this Court will be subject to serious attack because the advocates of the theory that the proposed Constitution has been ratified by reason of the announcement of the results of the proceedings of the so-called Citizens' Assemblies will argue that. the officials and government agencies mentioned in paragraph 3 of this Supplemental Urgent Motion. instruction. Tuesday. at 9:30 a. but also "any other similar decree. considering. 86. upon instructions of the President. certifying. the Secretary of Justice called on the writer of this opinion and said that. 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 .m. thereby creating confusion.M.. 73 and 86 beyond the reach and jurisdiction of this Honorable Court. which shall also be deemed ratified pursuant to the Transitory Provisions of the proposed Constitution. of: — "(a) Direct and immediate supervision and control over national. . city. has placed Presidential Decree Nos. January 16. a conflict will arise between those who maintain that the 1935 Constitution is still in force. can lawfully he reached by the processes of this Honorable Court by reason of this petition. insofar at least as it attempts to submit the proposed Constitution to a plebiscite by the so-called Citizens' Assemblies. and finally. on the other. is properly in issue in this case. 39. [b] In their petition. General Order No. he (the Secretary of Justice) was delivering .' "On the same date — January 15. 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. L-35948 to file 'file an answer to the said motion not later than 4 P. provincial. 73. 1973 — the Court passed a resolution requiring the respondents in said case G. 'Therefore. 1972".R. the Filipino people. 1973. or carry out the said Presidential Decree No. or proclamation in relation to the holding of a plebiscite on January 15. Petition]. 86. and those who will maintain that it has been superseded by the proposed Constitution.' While the case was being heard. reporting or announcing to the President the results of the alleged voting of the so-called Citizens' Assemblies. That unless the petition at bar is decided immediately and the Commission on Elections.' and setting the motion for hearing 'on January 17. if not chaos. No. [c] Petitioners prayed for such other relief which may be just and equitable.

while on the question as to whether or not the people would still like a plebiscite to be called to ratify the new Constitution. 'WHEREAS. L-35948 — inasmuch as the hearing in connection therewith was still going on — and the public there present that the President had.869) who voted for its rejection. signed said Proclamation No. the writer read Proclamation No.298. the Katipunan ng Mga Barangay has strongly recommended that the new Constitution should already be deemed ratified by the Filipino people. 1102 'ANNOUNCING THE RATIFICATION BY THE FILIPINO PEOPLE OF THE CONSTITUTION PROPOSED BY THE 1971 CONSTITUTIONAL CONVENTION.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.976. 1972. 'IN WITNESS WHEREOF.R. 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. district or ward for at least six months. 'WHEREAS. the writer returned to the Session Hall and announced to the Court. by virtue of the powers in me vested by the Constitution. the parties in G. which had just been signed by the President. President of the Philippines. I have hereunto set my hand and caused the seal of the Republic of the Philippines to be affixed. 86. as against seven hundred forty-three thousand eight hundred sixty-nine (743. citizens of the Philippines and who are registered in the list of Citizen Assembly members kept by the barrio. according to information conveyed by the Secretary of Justice. THEREFORE. Citizens Assemblies were created in barrios. fourteen million two hundred ninety-eight thousand eight hundred fourteen (14. fifteen years of age or over. 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 following questions were posed before the Citizens Assemblies or Barangays: Do you approve of the New Constitution? Do you still want a plebiscite to be called to ratify the new Constitution? 'WHEREAS. FERDINAND E. 'WHEREAS. MARCOS. the said Citizens Assemblies were established precisely to broaden the base of citizen participation in the democratic process and to afford ample opportunity for the citizenry to express their views on important national issues.to him (the writer) a copy of Proclamation No. composed of all persons who are residents of the barrio. fourteen million nine hundred seventy-six thousand five hundred sixty-one (14. 86-A. Thereupon. 1102. No. Thereupon.561) members of all the Barangays (Citizens Assemblies) voted for the adoption of the proposed Constitution. 1973. earlier that morning. dated January 5. 'NOW. 1102. 'WHEREAS. responding to the clamor of the people and pursuant to Presidential Decree No. and has thereby come into effect. in municipalities and in districts/wards in chartered cities pursuant to Presidential Decree No. 'WHEREAS. 1102 which is of the following tenor: 'BY THE PRESIDENT OF THE PHILIPPINES 'PROCLAMATION NO. dated December 31. district or ward secretary. the Constitution proposed by the nineteen hundred seventy-one Constitutional Convention is subject to ratification by the Filipino people. I.

" Then the writer of said decision expressed his own opinion on the issues involved therein. the Members of the Court have been deliberating on the aforementioned cases and. Barredo. On the validity of the decree itself.'Done in the City of Manila. nineteen hundred and seventy-three. insofar as the freedom essential . Castro. After admitting some of the allegations made in the petition in L-35948 and denying the other allegations thereof. instead of writing their separate opinions. Castro. in the year of Our Lord. "4. after extensive discussions on the merits thereof. "2. 73. MARCOS 'President of the Philippines 'By the President: 'ALEJANDRO MELCHOR 'Executive Secretary' "Such is the background of the cases submitted for Our determination. this 17th day of January. On the question whether the proclamation of Martial Law affected the proper submission of the proposed Constitution to a plebiscite. "Immediately after the hearing held on January 17. 2) that 'the Constitutional Convention acted freely and had plenary authority to propose not only amendments but a Constitution which would supersede the present Constitution' as that 'the President's call for a plebiscite and the appropriation of funds for this purpose are valid'.) FERDINAND E. Makasiar. by way of affirmative defenses: 1) that the 'questions raised' in said petition 'are political in character'. without merit. some Members have preferred to merely concur in the opinion of one of our colleagues. Justices Makalintal. There is unanimity on the justiciable nature of the issue on the legality of Presidential Decree No. 1973. whereas Justices Barredo. (Sgd. or since the afternoon of that date. Hence. Antonio and myself have voted to uphold the authority of the Convention. "5. Justices Fernando. Justice Fernando. are of the opinion that the issue has become moot and academic. Makasiar and Antonio voted to uphold the validity of said Decree. "3. Justices Makalintal.' Identical defenses were set up in the other cases under consideration. makes an unconstitutional delegation of power. or six (6) Members of the Court. . 4) that 'there is not an improper submission' and there can be a plebiscite under Martial Law'. . after which he recapitulated the views of the Members of the Court. Makasiar and Antonio hold the same view. respondents therein alleged in their answer thereto. Teehankee. Teehankee and Esguerra opine that the issue has become moot and academic. Justices Barredo. 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. Fernando. the individual views of my brethren in the Court are set forth in the opinions attached hereto. expressed the view that the 1971 Constitutional Convention had authority to continue in the performance of its functions despite the proclamation of Martial Law. likewise. as follows: "1. On the authority of the 1971 Constitutional Convention to pass the proposed Constitution or to incorporate therein the provisions contested by the petitioners in L35948. and 5) that the 'argument that the Proposed Constitution is vague and incomplete. In effect. except that. includes a referendum on the proclamation of Martial Law and purports to exercise judicial power' is 'not relevant and . Esguerra and myself.

On Presidential Proclamation No. 1102. which. but he believes. Antonio and Esguerra voted in the affirmative. as a "Filipino citizen. L-35948 for the aforementioned purpose.' "c. "b. . or on January 20. that the Court should go farther and decide on the merits everyone of the cases under consideration. 'in the absence of any judicially discoverable and manageable standards. "6.' "7. Justice and Finance. Josue Javellana filed Case G. 'considering all other related relevant circumstances. Makasiar. Justices Fernando. except as regards Case No. based on the referendum among Citizens' Assemblies falls short of being in strict conformity with the requirements of Article XV of the 1935 Constitution. therefore. from implementing any of the provisions of the proposed Constitution not found in the present Constitution' — referring to that of 1935. and another member 3 dissenting. and a qualified and registered voter" and as "a class suit. Teehankee. 1102 has been submitted to and should be determined by the Court. Justice Zaldivar maintains unqualifiedly that the Proposed Constitution has not been ratified in accordance with Article XV of the 1935 Constitution.therefor is concerned Justice Fernando is of the opinion that there is a repugnance between the election contemplated under Art. Justice Zaldivar favors the granting of said period to the petitioners in said Case No. Castro. as regards all of the cases — dismissed the same. grant the petitions were they not moot and academic. L-35948. 1102. . 1973. 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. Justices Makalintal. Justices Makalintal. Barredo. filed by Josue Javellana. . to restrain said respondents "and their subordinates or agents. No.R.' but that such unfortunate drawback notwithstanding. XV of the 1935 Constitution and the existence of Martial Law. the new Constitution is legally recognizable and should be recognized as legitimately in force. should not pass upon such question. for the reasons set forth in their respective opinions. 1 with three (3) members dissenting. Justices Barredo. in effect. Castro.' since the issue 'poses a question of fact.R. accordingly. . The Present Cases Prior thereto. accordingly. On the question whether or not these cases should be dismissed. and that. 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. and the writer similarly voted. L-36142 against the Executive Secretary and the Secretaries of National Defense. Esguerra and myself are of the opinion that the question of validity of said Proclamation has not been properly raised before the Court. Teehankee." Accordingly. Justice Barredo holds that the issue on the constitutionality of Proclamation No. without special pronouncement as to costs. only. the Court — acting in conformity with the position taken by six (6) of its members. Fernando. and that Martial Law per se does not necessarily preclude the factual possibility of adequate freedom for the purposes contemplated. Makasiar. the following views were expressed: "a. and that the purported ratification of the Proposed Constitution . "d. . . for himself. and would. The petition therein. No. Antonio and Esguerra are of the opinion that issue involves questions of fact which cannot be predetermined. 2 with respect to G. it has no force and effect whatsoever.

and on February 12.M. 7 Ramon V. by Vidal Tan. ." was amended on or about January 24. and Eva Estrada-Kalaw. from 10:00 A. thru his Cabinet. Salonga. Gerardo Roxas. In their petition — as amended on January 26. of the said day. Jr. Gonzales. respondent President Pro Tempore Jose Roy were asked by petitioning Senators to perform their duties under the law and the Rules of the Senate. Mitra. Javellana alleged that the President had announced "the immediate implementation of the New Constitution." and the others as "duly elected members" thereof. 1973 — petitioners Gerardo Roxas. and National Defense. that the petitioners "are ready and willing to perform their duties as duly elected members of the Senate of the Philippines.". 1973. which is the regular customary hour of its opening session". that "on said day. in his absence. After reciting in substance the facts set forth in the decision in the plebiscite cases. that pursuant to our 1935 Constitution. hence null and void. Dilag. "which is still in force. is without authority to create the Citizens Assemblies". Jr. filed Case G. respondents including. Jr. the first as "duly elected Senator and Minority Floor Leader of the Senate. No. "that the President is without power to proclaim the ratification by the Filipino people of the proposed Constitution". on January 23. 1973. 1973. 1975.. January 22. the Secretary of Public Information. allege. the Treasurer of the Philippines. that the same "are without power to approve the proposed Constitution . against the Executive Secretary. but unlawfully refrained and continue to refrain from doing so"." said petitioner "along with their other colleagues. on February 3. the Chairman of the Presidential Commission on Reorganization. up to the afternoon. Puyat and. the same having be closed by the authorities in physical possession and control of the Legislative Building'. the Commission on Elections and the Commissioner of Civil Service 4 . the Secretaries of Finance Justice. the Budget Commissioner and the Auditor General. that "(r)espondent Senate President Gil J. personally and as President of the National Press Club of the Philippines. et al. Executive Secretary and Chief of Staff. the Secretary of General Services. by Eddie Monteclaro. Miranda. Likewise. the Secretary of National Defense.. and that of the others 9 on December 31. and "that the election held to ratify the proposed Constitution was not a free election. at 10:00 A. and Raul M. were unlawfully prevent from using the Senate Session Hall.M.M. Laurel. 1973. by Napoleon V. Antonio U. Antonio Araneta. the premises of the entire Legislative Building were ordered cleared by the same authorities. the President and the President Pro Tempore of the Senate. . as Commander-in-Chief of the Armed Forces of the Philippines." but respondents Secretary of National Defense. Leonardo Asodisen. Tañada against the Executive Secretary. J. 1973. the Secretary of National Defense. Budget Commissioner. Ambrosio Padilla. . 6 against the Executive Secretary. on January 23. Land Reform.and in behalf of all citizens and voters similarly situated. Jovito R. the Auditor General. L-36165. or in excess of jurisdiction in implementing the said proposed Constitution" upon the ground: "that the President. the Chief of Staff of the Armed Forces of the Philippines. 1977. Manuel Crudo. 1973." Similar actions were filed. that "(a)t about 5:00 to 6:00 P. Budget Commissioner and the National Treasurer 5 . against the Executive Secretary. Emilio de Peralta and Lorenzo M. that the term of office of three (3) of the aforementioned petitioners 8 would expire en December 31. Salvador H." and that the latter "are acting without. and no one was allowed to enter and have access to said premises"." Congress of the Philippines "must convene for its 8th Session on Monday.R. inter alia. Alfredo Salapantan. the Auditor General. Alejandro Roces.

. the respondents and their "agents. are preventing petitioners from performing their duties as duly elected Senators of the Philippines". representatives and subordinates . "pending hearing on the merits. by a majority vote. 1973. are occupied by and are under the physical control of the elements of military organizations under the direction of said respondents". ."through their agents and representatives. and that "after hearing. . said petitioners prayed that. . 197 '. 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. by acting as they did. that "respondents Gil J. and continue to so exclude and prevent" the petitioners from the performance of their sworn duties. issuing the writs of prohibition and mandamus. ." for the reasons specified in the petition as amended. . as stated in and by virtue of Proclamation No." Premised upon the foregoing allegations. Puyat and Jose Roy directing them to comply with their duties and functions as . that the alleged ratification of the 1972 (1973) Constitution "is illegal. a writ of mandamus is warranted in order to compel them to comply with the duties and functions specifically enjoined by law". that. that. 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. have excluded the petitioners from an office to which" they "are lawfully entitled". can not have superseded and revoked the 1935 Constitution. . 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 "against the above mentioned unlawful acts of the respondents. 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. is now the civilian agent in custody of the premises of the Legislative Building". . decree. . and making the writ of injunction permanent. invoking the alleged approval of the 1972 (1973) Constitution of the Philippines by action of the so-called Citizens' Assemblies on January 10. as prayed for against the above-mentioned respondents. the Department of General Services . upon the ground that the petitions therein had become moot and academic. . . . and that a writ of mandamus be issued against the respondents Gil J. as well as all their agents. . to which reference has been made in the preceding pages" the Supreme Court dismissed said cases on January 22. 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 . . that because of events supervening the institution of the plebiscite cases. 1102 . 1102 signed and issued by the President of the Philippines". 1973 to January 15. that respondents "have unlawfully excluded and prevented. and the . a writ of preliminary mandatory injunction be issued ordering the respondents Executive Secretary. or proclamation having the same import and objective. . that "the Senate premises in the Congress of the Philippines Building . Secretary of General Services. the Secretary of National Defense. unconstitutional and void and . judgment be rendered declaring null and void Proclamation No. . the Chief of Staff of the Armed Forces of the Philippines. and any order. as per "official reports.

1102. under the circumstances. a consolidated comment on said petitions and/or amended petitions.R. 1973. . "further proceedings in this case may only be an academic exercise in futility. 5) "Proclamation No. after which the parties were granted up to February 24. L-36161. The same resolution granted the parties until March 1. and 6) "(t)he amending process outlined in Article XV of the 1935 Constitution is not exclusive of other modes of amendment. likewise. in fact. of the Senate of the Philippines.R. as provided by law and the Rules of the Senate. L-36165. which began on February 12. filed their separate comment therein. and setting the case for hearing on February 12.m. orderly and honest election". this . its alleged lack of authority to incorporate certain contested provisions thereof. likewise. in effect upholding the validity of Proclamation No. is conclusive upon the courts". 2) the questions raised therein are "political in character and therefore non-justiciable". Counsel for the petitioners in G. morning and afternoon. the Court issued a resolution requiring respondents in L 36236 to comment on the petition therein not later than Saturday. No. moved and were . also. certifying the results of the election. controverting petitioners' allegations concerning the alleged lack or impairment of the freedom of the 1971 Constitutional Convention to approve the proposed Constitution. Counsel for the petitioners. Nos. 1973. alleging that the same ought to have been dismissed outright.President and President Pro Tempore. which was granted. 14.m. L-36164 and L-36165 filed their aforementioned notes on February 24. heard. to reply to the notes filed by their respective opponents. L-36164.R. as it was." the alleged "improper or inadequate submission of the proposed constitution. as well as the documents required of them or whose presentation was reserved by them. The hearing. was continued not only that after but. L-36142. on February 13. Court would not be in a position to act upon judicially. 1973. No. and to set said cases for hearing on the same date and time as L-36236. 3) "there was substantial compliance with Article XV of the 1935 Constitution".R. 1973. at 9:30 a. a consolidated comment on said petitions and/or amended petitions. 1973. in view of the opinions expressed by three members of this Court in its decision in the plebiscite cases. L-36165." Required to comment on the above-mentioned petitions and/or amended petitions. 1973. By resolution dated February 7. this Court resolved to consider the comments of the respondents in cases G. Nos. ." On February 5. L-36165 and L 36236. with the understanding that said notes shall include his reply to the notes already filed by the petitioners in G. the alleged lack of authority of the President to create and establish Citizens' Assemblies "for the purpose of submitting to them the matter of ratification of the new Constitution. noon. as motions to dismiss the petitions therein. the parties in G. Nos. respectively. 1973. alleging that "(t)he subject matter" of said case "is a highly political question which." the "procedure for ratification adopted . on which date the Solicitor General sought an extension of time up to March 3. and maintaining that: 1) "(t)he Court is without jurisdiction to act on these petitions". 4) "(t)he Constitution was properly submitted to the people in a free. with the leave of Court first had and obtained. respondents filed.R. within which to file his notes. Nos. within which to submit their notes arguments and additional arguments. in said Case G. On that date. February 10. . 15 and 16. 1102. through the Citizens Assemblies".. 1973. L-36164 and L-36165." and that. L-36142.R. shortly after 9:30 a. heard jointly with the aforementioned cases G. L-36283 10 agreed that the same be. ." Respondents Puyat and Roy.

also. Mr. Puyat and Jose Roy goes on to say that. he thus declared that he had an open mind in connection with the cases at bar. a resume of summary of the votes cast by them in these cases. 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". This defense or theory. set up by counsel for respondents Gil J. accordingly. Writer's Personal Opinion I Alleged academic futility of further proceedings in G. in Our decision in the plebiscite cases. in open court. No. 1973. Justice Barredo expressed the view that the 1935 Constitution had "pro tanto passed into history" and "been legitimately supplanted by the Constitution now in force by virtue of Proclamation No. has been duly ratified. and.granted an extension of time." After deliberating on these cases. Justice Esguerra had postulated that "(w)ithout any competent evidence . under these circumstances. ". and this they did. concurrently with his colleagues in the Court. . Mr. he "cannot say that it was not lawfully held" and that. L-36165. L-36165. No. as they did." Counsel for respondents Gil J. within which to file. 1102 ." apart from the circumstance that "the new constitution has been promulgate and great interests have already arisen under it" and that the political organ of the Government has recognized its provisions. that he was and is willing to be convinced that his aforementioned opinion in the plebiscite cases should be reconsidered and changed. Such individual opinions are appended hereto. 1973.R. . and much less the ten (10) votes required by the 1972 (1973) Constitution. . Justice Barredo announced publicly. No. Mr. 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. In effect. Justice Antonio did not feel "that this Court is competent to act" in said cases "in the absence of any judicially discoverable and manageable standards" and because "the access to relevant information is insufficient to assure the correct determination of the issue. is predicated upon the fact that. . After the exposition of his aforesaid opinion. the members of the Court agreed that each would write his own opinion and serve a copy thereof on his colleagues. by the Solicitor General." whereas the Office of the Solicitor General submitted in all these cases a "Rejoinder to Petitioners' Replies. during the hearing of these cases. Accordingly. L-36165. I am unable to share this view. he assumed "that what the proclamation (No. "it seems remote or improbable that the necessary eight (8) votes under the 1935 Constitution. to expire on March 10. To begin with. about the circumstances attending the holding" of the referendum or plebiscite" thru the Citizens' Assemblies. On March 21. 1972. . whereas. Subsequently. can be obtained for the relief sought in the Amended Petition" in G. the writer will first express his personal opinion on the issues before the Court. 1973. Puyat and Jose Roy in G.R. petitioners in l-36165 filed a "Manifestation and Supplemental Rejoinder. their notes in reply to those submitted by the Solicitor General on March 3. and that he accepted "as a fait accompli that the Constitution adopted (by the 1971 Constitutional Convention) on November 30.R. the writer will make. the Court discussed said opinions and votes were cast thereon. that Mr.

Construing said provision. 1949. regulations or executive orders which are exclusive acts of the President. the dictum applies with equal force to executive proclamations. counsel for the aforesaid respondents had apparently assumed that. was made to apply only to treaty and law. in these cases. to nullify the same. 12 A treaty is entered into by the President with the concurrence of the Senate. 'execution order' and 'regulation' were included among those that required for their nullification the vote of two-thirds of all the members of the Court." 11 The distinction is not without reasonable foundation. The two thirds vote (eight [8] votes) requirement. . indeed. divisions. and so does . 1102. because. while executive orders embody administrative acts or commands of the President. executive proclamations are mainly informative and declaratory in character. I do not believe that this assumption is borne out by any provision of said Constitution. It is very significant that in the previous drafts of section 10. 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. 496). the concurrence of two thirds of all the Members of the Supreme Court is required only to declare a "treaty or law" unconstitutional. inasmuch as the authority to issue the same is governed by section 63 of the Revised Administrative Code. parts. and no treaty or law may be declared unconstitutional without the concurrence of two thirds of all the members of the Court." 14 In fact. the participation of the two other departments of the government — the Executive and the Legislative — is present. voicing the unanimous view of the Members of this Court." Pursuant to this section. or executive orders. whose disapproval cannot be overridden except by the vote of two-thirds (2/3) of all members of each House of Congress. pp. The Framing of the Philippine Constitution. I. Article VIII of the Constitution. like said Proclamation No. But 'executive order' and 'regulation' were later deleted from the final draft (Aruego. Indeed. Vol. or orders are to have or cease to (have) effect and any information concerning matters of public moment determined by law. a law(statute) passed by Congress is subject to the approval or veto of the President.Secondly. postulated: ". 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. under the 1935 Constitution. resolutions. with all the force of an executive order. 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. in a resolution dated September 16. Hence. "Executive orders fixing the dates when specific laws. regulations and executive orders. regulations and executive orders issued by the President. may be promulgated in an executive proclamation. eigth (8) votes are necessary to declare invalid the contested Proclamation No. and thus a mere majority of six members of this Court is enough to nullify them. Although the foregoing refers to rules. then Chief Justice Moran. 13 which is not required in the case of rules. 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. 1102. . resolution. 495. a lesser number of votes is necessary in the Supreme Court than that required to invalidate a law or treaty. which circumstance is absent in the case of rules.

1973. six (6) votes — would suffice. it is obvious to me that We are not being asked to "declare" the new Constitution invalid. in the determination of the question whether or not it is now in force. As regards the applicability of the provisions of the proposed new Constitution. to dispense with said election or plebiscite. 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. 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". or the old Constitution. that the proceedings before the Citizens' Assemblies did not constitution and may not be considered as such plebiscite. Puyat and Jose Roy maintain in G. No. the government has been recognized in accordance with the New Constitution". in violations . because persons disqualified to vote under Article V of the Constitution were allowed to participate therein. that the Chief Executive has not authority. especially that they have done so in accordance with Article XV of the 1935 Constitution. that "In the case of the New Constitution. that "the country's foreign relations are now being conducted in accordance with the new charter". in any event. 15 As consequence. an executive proclamation has no more than "the force of an executive order. approved by the 1971 Constitutional Convention. the proceedings in said Assemblies are null and void as an alleged ratification of the new Constitution proposed by the 1971 Constitutional Convention. that the plebiscite or "election" required in said Article XV has not been held. the same number of votes needed to invalidate an executive order. non-justiciable question? The Solicitor General maintains in his comment the affirmative view and this is his main defense. 16 II Does the issue on the validity of Proclamation No. as the predicates from which said conclusion was drawn. and that "to abstain from judgment on the ultimate issue of constitutionality is not to abdicate duty. 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. that the "plebiscite cases" are "not precedents for holding questions regarding proposal and ratification justiciable". hence. 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. for the Supreme Court to declare such proclamation unconstitutional. The petitioners maintain that the conclusion by the Chief Executive in the dispositive portion of Proclamation No. and. not only because of the circumstances under which said Assemblies had been created and held. but. L-36165. under the 1935 Constitution. 1102 is not borne out by the whereases preceding the same. also. What petitioners dispute is the theory that it has been validly ratified by the people. under the 1935 Constitution. 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". because the provisions of our Election Code were not observed in said Assemblies. that "foreign governments have taken note of it". and that. rule of regulation — namely." At the outset. In support thereof." so that. upon the authority of which said Constitutional Convention was called and approved the proposed Constitution.R. because the same were not held under the supervision of the Commission on Elections.counsel for respondents Gil J. 1102 partake of the nature of a political.

73 calling a plebiscite to be held on January 15. 18 We rejected the theory of the respondents therein that the question whether Presidential Decree No. which were carefully considered by this Court and found by it to be legally unsound and constitutionally untenable. in the aforementioned plebiscite cases. no plausible reason has. our constitutional system in the 1935 Constitution being patterned after that of the United States. 24 The reasons adduced in support thereof are. which gained added weight by its virtual reiteration in the plebiscite cases. and because the existence of Martial Law and General Order No. was valid or not. which view We. 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. We did not apply and expressly modified. withdrawing or suspending the limited freedom to discuss the merits and demerits of said proposed Constitution. such is the position taken by this Court.of section 2 of Article X of the 1935 Constitution. Lopez Vito. substantially the same as those given in support of the political-question theory advanced in said habeas corpus and plebiscite cases. they claimed. We overruled the respondents' contention in the 1971 habeas corpus cases. consistently with the form of government established under said Constitution. One of the principal bases of the nonjusticiability 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. With identical unanimity. Lopez Vito. Commission on Elections. Baker and Mabanag v. impaired the people's freedom in voting thereon. Thus. also. for the ratification or rejection of the proposed new Constitution. 21 insofar as it adhered to the former case. by reason of their nature. 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. Such. is plain and simple. 1971. 2) those concerned mainly with the enforcement of such laws and of judicial decisions applying . particularly. 17 in an endless line of decisions. 1973. has been the consistent position of the courts of the United States of America. For the same reason. I do not hesitate to state that the answer must be in the negative. namely: 1) those involving the making of laws. despite the opposite view taken by this Court in Barcelona v. Besides. been advanced to warrant a departure from said position. a viva voce. however. 20. Our decision in the aforementioned habeas corpus cases partakes of the nature and effect of a stare decisis. whose decisions have a persuasive effect in this jurisdiction. As a consequence. as it was done in many instances. was not a proper subject of judicial inquiry because. into three (8) categories. Castañeda. to my mind. and We unanimously declared that the issue was a justiciable one. which are allocated to the legislative department. The reason why the issue under consideration and other issues of similar character are justiciable. 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. too long to leave any room for possible doubt that said issue is inherently and essentially justiciable. 23 Hence. in Gonzales v. Indeed. 22 the political-question theory adopted in Mabanag v. it partook of a political nature. accordingly abandoned and refused to apply. 19 questioning Our authority to determine the constitutional sufficiency of the factual bases of the Presidential proclamation suspending the privileges of the writ of habeas corpus on August 21. not political. Baker 20 and Montenegro v.

. is that it is a matter which is to be exercised by the people in their primary political capacity. Within its own sphere — but only within such sphere — each department is supreme and independent of the others. 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. his veto power. See State vs. 30 L. 852. duties or prerogatives that are legally demandable and enforceable. — may approve or disapprove some appointments made by the President. and not judicial. 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. and. measures or decisions are within the area allocated thereto by the Constitution. 32 Pac. 155. 16 C. Cunningham. What is generally meant. consequently. 948. the acts in the exercise of such power are said to be political in nature. under which each department is vested by the Fundamental Law with some powers to forestall. Conversely. has the power of appropriation. or that it has been specifically delegated to some other department or particular officer of the government. and apportion the jurisdiction of the various courts. when a power vested in said officer or branch of the government is absolute or unqualified. 25 This principle of separation of powers under the Presidential system goes hand in hand with the system of checks and balances.R. Mills.A. also.R. And so. 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. Otherwise. such inferior courts as may be established by law. etc. restrain or arrest a possible or actual misuse or abuse of powers by the other departments. regardless of the actual vote upon the amendment. The question thus raised is a fundamental one.A. but. to "define.R." may settle or decide with finality. Upon the other hand. on the other. his pardoning power.and/or interpreting the same. xxx xxx xxx "'. or between two (2) officers or branches of service. controversies or conflicts involving rights. which belong to the executive department. 90. . which are apportioned to courts of justice. .A. 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. and not judicial. 470. 561. . when the latter officer or branch is charged with acting without jurisdiction or in excess thereof or in violation of law. Fletcher vs. also." as well as that of impeachment. 26 this Court quoted with approval from In re McConaughy. In re Gunn. with discretionary power to act. the court has no jurisdiction as the certificate of the state canvassing board would then be final. Congress or an agency or arm thereof — such as the Commission on Appointments. 50 Kan. on the one hand. not only justiciable controversies between private individuals or entities. Green vs. 19 L. 724. prescribe. and each is devoid of authority. in Tañada v.W. Hence. 81 Wis. and an officer or branch of the government. but. Hence.A. also. 497. the "Supreme Court and . 69 Fed. not only to encroach upon the powers or field of action assigned to any of the other departments. the appointing power of the Executive. . 15 L. If this is correct.C. N. Cuenco. 27 the following: "'At the threshold of the case we are met with the assertion that the questions involved are political. 516. when it is said that a question is political. 519. disputes or conflicts between a private individual or entity. non-justiciable beyond judicial review. under the judicial power vested by the Constitution. and 3) those dealing with the settlement of disputes. It.

220. 25 L. Rep. this very Court — speaking through . rather than a power". One department is just as representative as the other. is necessary." 29 In fact. His discretionary acts cannot be controllable. St. as members of the highest Court of the land. and the system of checks and balances. not its wisdom. it refers to 'those questions which. We added that ".R. said qualifications. We have neither the authority nor the discretion to decline passing upon said issue. under the Constitution. will declare the amendment invalid. of a particular measure. not merely because they involve political questions. are to be decided by the people in their sovereign capacity.)" and. not primarily because they are of a political nature. 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. 41 37 N. conditional or subject to limitations. if the Constitution provides how it may be amended — as it is in our 1935 Constitution — "then. What is more. understandable to the laymen. conditions or limitations — particularly those prescribed or imposed by the Constitution — would be set at naught. or in regard to which full discretionary authority has been delegated to the Legislature or executive branch of the government. to support and defend the Constitution — to settle it. . free from judicial control. The courts have no judicial control over such matters. so long as he observes the laws and acts within the limits of the power conferred. but because they are matters which the people have by the Constitution delegated to the Legislature. 42 Am. in Miller v. 143. Thus the Legislature may in its discretion determine whether it will pass a law or submit a proposed constitutional amendment to the people. for it must be remembered that the people act through courts. 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. As a consequence. acting through the agency of the judiciary. not legality. as a body politic. but because the Constitution and laws have placed the particular matter under his control. one of its basic predicates.' (Italics supplied. in the language of Corpus Juris Secundum (supra).' It is concerned with issues dependent upon the wisdom. in legal parlance. 28 it was held that courts have a "duty. Otherwise." Not satisfied with this postulate. 683. The Governor may exercise the powers delegated to him. and every departure therefrom or disregard thereof must subject him to that restraining and controlling power of the people. it was hoped. "In other words.A. unknown except in Great Britain and America. it justiciable or non-political. the term 'political question' connotes.E. The recognition of this principle. but are under the ineluctable obligation — made particularly more exacting and peremptory by our oath. a question of policy" in matters concerning the government of a State. But every officer under a constitutional government must act according to law and subject to its restrictions. or the limitations respected. namely. unless the manner is followed. 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. what it means in ordinary parlance. 151 Ill. the judiciary as the interpreter of that constitution. . This explains why. the court went farther and stressed that. when the grant of power is qualified. in an attempt to describe the nature of a political question in terms. as well as through the executive or the Legislature." Accordingly. Johnson.Tuttle. the crux of the problem being one of legality or validity of the contested act. the issue on whether or not the prescribed qualifications or conditions have been met. to determine whether another branch of the government has "kept within constitutional limits.

meetings were held and associations formed — by those who belonged to this segment of the population — which eventually resulted in a convention called for the drafting of a new Constitution to be submitted to the people for their adoption or rejection. Thereupon. This notwithstanding. The convention was not authorized by any law of the existing government. and many citizens assembled to support him. . it adopted a new Constitution. 30 The Solicitor General has invoked Luther v. 1936. who were in the military service of the charter government and were to arrest Luther. In 1843. contested. by subsequently ratifying the Constitution of the United States. prepared to assert authority by force of arms. which was supported by a large number of citizens of the state. as were necessary to adapt it to its subsequent condition as an independent state. 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. as early as July 15. many citizens had become dissatisfied with the charter government. Such authority was the charter government of Rhode Island at the time of the Declaration of Independence. Upon the return of the votes cast by them. for — unlike other states which adopted a new Constitution upon secession from England — Rhode Island retained its form of government under a British Charter. The charter government. the great landmarks of the Constitution are apt to be forgotten or marred. alleged in their defense that they had acted in obedience to the commands of a superior officer. by acts of the Legislature. for engaging in the support of the rebel government — which was never able to exercise any authority in the state — broke into his house. Memorials addressed by them to the Legislature having failed to bring about the desired effect. became a member of the Union. Dorr. however. making only such alterations.Justice Laurel. sometime in 1842. Luther v. one Thomas W. Borden 31 in support of his stand that the issue under consideration is non-justiciable in nature. however. in Rhode Island. The defendants who were in the military service of said former colony of England. the judicial department is the only constitutional organ which can be called upon to determine the proper allocation of powers between the several departments" of the government. 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. the validity of said proceedings. who had been elected governor under the new Constitution of the rebels. Prior thereto. The delegates to such convention framed a new Constitution which was submitted to the people. the charter government passed an Act declaring the state under Martial Law and adopted measures to repel the threatened attack and subdue the rebels. In cases of conflict. if not entirely obliterated. an outstanding authority on Philippine Constitutional Law. It was under this form of government when Rhode Island joined other American states in the Declaration of Independence and. 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. This was the state of affairs when the defendants. as well as one of the highly respected and foremost leaders of the Convention that drafted the 1935 Constitution — declared. 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. that "(i)n times of social disquietude or political excitement.

or in May 1842. which had been in operation uninterruptedly since then. . To begin with. 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. Borden was decided is basically and fundamentally different from that of the cases at bar. "(T)he times and places at which the votes were to be persons who were to be given. whose judicial authority to decide upon the constitution and laws of Rhode Island is not questioned by either party to this controversy. the receive and return them qualifications of the voters having all been previously authorized and provided for by law passed by the charter government. therefore. that the trial of Thomas W. The question relates. Hence. the charter government continued to asset its authority and exercise its powers and to enforce obedience throughout the state . About a year before. . but one purely municipal in nature. It is the decision. but he was repulsed. and the well settled rule in this court is. and thereafter was adopted and ratified by the people. apart from rendering judgment for the defendants. Upon such a question the courts of the United States are bound to follow the decisions of the State tribunals.Meanwhile. stating: "It is worthy of remark. . of a State court. raised here has been already decided by the courts of Rhode Island. established under its authority. the case did not involve a federal question." Having offered to introduce evidence to prove that the constitution of the rebels had been ratified by the majority of the people. "The point. a new constitution was drafted by a convention held under the authority of the charter government. in May 1843. then. Eventually." the latter formally surrendered all of its power to the new government. to the constitution and laws of that State. "Upon what ground could the Circuit Court of United States which tried this case have departed from this rule. at the head of a military force. no further effort was made to establish" his government. had made an unsuccessful attempt to take possession of the state arsenal in Providence. when we are referring to the authority of State decisions. and. and is the lawful and established government." 32 It is thus apparent that the context within which the case of Luther v. Dorr. however. is not one of them. which the Circuit Court rejected. altogether. the plaintiff took the case for review to the Federal Supreme Court which affirmed the action of the Circuit Court. and disregarded and overruled the decisions of the courts of Rhode Island? Undoubtedly the courts of the United States have certain powers under the Constitution and laws of the United States which do not government has been lawfully established. until the Constitution of 1843" — adopted under the auspices of the charter government — "went into operation. the Federal Supreme Court was "bound to follow the decisions of the State tribunals" of . The judges who decided that the case held their authority under that constitution. ". and it is admitted on all hands that it was adopted by the people of the State. although the government under which it acted was framed and adopted under the sanction and laws of the charter government. 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. which the courts of State disown and repudiate. and must therefore regard the charter government as the lawful and established government during the time of this contest. the charter government had taken measures to call its own convention to revise the existing form of government. . Dorr took place after the constitution of 1843 when into operation.

among others. 1. procedure or conditions for its amendment. Borden. involved an action to annul a Tennessee statute apportioning the seats in the General Assembly among the counties of the State. 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 . 12 L. one of them being whether the new Constitution in force at the time of the purported ratification of the former. 7 How. under which our local governments derive their authority from the national government. the views expressed by the Federal Supreme Court in Luther v." Similarly. It is interesting historically. .Rhode Island upholding the constitution adopted under the authority of the charter government. the first being generally conceded to be a political question. In short. In fact. 35 the same Court. antagonistic to each other. the charter or organic law of Rhode Island contained no provision on the manner. or whether the action of that branch exceeds whatever authority has been committed. speaking through then Chief Justice Warren. and there is a fundamental difference between these two (2) types of recognition. nor even persuasive in the present cases. unlike our 1935 Constitution. the Federal Supreme Court reversed the appealed decision and held that said issue was justiciable and non-political. Borden. whereas ours is a unitary form of government. When carefully analyzed. McCormack. There was. which is essentially a justiciable question. reversed a decision of the Court of Appeals of New York affirming that . referring to that case. the case of Luther v. inasmuch as: ". in Luther v. on matters other than those referring to its power to review decisions of a state court concerning the constitution and government of that state. but it has not the slightest application to the case at bar. too. and is a responsibility of this Court as ultimate interpreter of the Constitution . Ed. . Whatever else was said in that case constitutes. . Then. . 34 cited by respondents. 581. upon the theory that the legislation violated the equal protection clause. is itself a delicate exercise in constitutional interpretation. which is absent in the present cases. after a painstaking review of the jurisprudence on the matter." 33 Baker v. Again. Carr. that the issue was a political one. than on recognition of constitution. a conflict between two (2) rival governments. is always cited by those who assert that the courts have no power to determine questions of a political character. . (d)eciding whether a matter has in any measure been committed by the Constitution to another branch of government. whereas the nature of the latter depends upon a number of factors. decided in 1849. Here. Besides. . no decision analogous to that rendered by the State Court of Rhode Island exists in the cases at bar. an obiter dictum. A district court dismissed the case upon the ground. are manifestly neither controlling. therefore. the Government established under the 1935 Constitution is the very same government whose Executive Department has urged the adoption of the new or revised Constitution proposed by the 1971 Constitutional Convention and now alleges that it has been ratified by the people. in Powell v. but. Borden hinged more on the question of recognition of government. not the Federal Constitution or Government. the Supreme Court of Minnesota had the following to say: "Luther v. Secondly. Borden. the states of the Union have a measure of internal sovereignty upon which the Federal Government may not encroach. having — as the Federal Supreme Court admitted — no authority whatsoever to pass upon such matters or to review decisions of said state court thereon.

" 3) that "(t)he period of time between November 30. and even then many of the courts hold that the tribunal cannot be permitted to illegally amend the organic law . 1973. upon the ground: 1) that the President "is without authority to create the Citizens' Assemblies" through which.'" 37 III Has the proposed new or revised Constitution been ratified conformably to said Art. submission to the people. Said dismissal was predicated upon the ground. . . Owing to the lucidity of its appraisal thereof." thereby rendering it "unfit for . also. The Supreme Court of Minnessota undertook a careful review of American jurisprudence on the matter. After an exhaustive analysis of the cases on this subject. 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 Constitution or "to appropriate funds for the holding of said plebiscite"." as well as "contains provisions which are beyond the powers of the 1971 Convention to enact. 2) that the proposed new or revised Constitution "is vague and incomplete. worse still.of a Federal District Court. 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. We append the same to this opinion as Annex A thereof. and 4). 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. that it is the Court's bounden duty to decide such question. and considering that Art. that the issue was political. " 36 In the light of the foregoing. inter alia. 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.that "the election held (in the Citizens' Assemblies) to ratify the proposed Constitution was not a free election. 2) that said Assemblies "are without power to approve the proposed Constitution". the proposed new Constitution has been ratified. respondents maintain. but the Federal Supreme Court held that it was clearly a justiciable one. hence null and void. 3) that the President "is without power to proclaim the ratification by the Filipino people of the proposed Constitution". XV is a justiciable one and non-political in nature.S. . XV of our 1935 Constitution prescribes the method or procedure for its amendment. 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. "was too short. unless a special tribunal has been created to determine the question. There can be little doubt that the consensus of judicial opinion is to the effect that it is the absolute duty of the judiciary to determine whether the Constitution has been amended in the manner required by the Constitution. . but. 1972 when the 1972 draft was approved and January 11-15. there was practically no time for the Citizens' Assemblies to discuss . and that it is not only subject to judicial inquiry." when the Citizens' Assemblies supposedly ratified said draft." Apart from substantially reiterating these grounds support of said negative view. XV of the 1935 Constitution? Petitioners in L-36142 maintain the negative view.

therefore. 1973 plebiscite to either February 19 or March 5." 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. 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. it is unnecessary to reproduce them here. What is the procedure prescribed by the 1935 Constitution for its amendment? Under section 1 of Art. 1102 is null and void "(i)nasmuch as the ratification process" prescribed "in the 1935 Constitution was not followed. on behalf of the other respondents in that case and the respondents in the other cases. on whether or not the last two (2) requirements have been complied with. and 3. That such amendments be "submitted to the people for their ratification" at an "election". with respect to the positions taken in L-36165 by counsel for therein respondents Gil J. who are twenty-one years of age or over and are able to read and write. as arguments in support of the negative view. namely: 1. . That the amendments to the Constitution be proposed either by Congress or by a convention called for that purpose. XV of said Constitution. Has the contested draft of the new or revised Constitution been "submitted to the people for their ratification" conformably to Art. That such amendments be "approved by a majority of the votes cast" in said election. 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. Puyat and Jose Roy — although more will be said later about them — and by the Solicitor General. 2. X of said Constitution. also. that: 1) "(w)ith a government-controlled press. there can never be a fair and proper submission of the proposed Constitution to the people". "by a vote of three-fourths of all the Members of the Senate and the House of Representatives voting separately. section 1 of Art. V and Art. 1. be taken into account." but "in joint session assembled". 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. Compliance with the first requirement is virtually conceded." Besides adopting substantially some of the grounds relied upon by the petitioners in the above mentioned cases." Petitioner in L-36236 added. So it is.the merits of the Constitution which the majority of them have not read and which they never knew would be submitted to them for ratification until they were asked the question — 'do you approve of the New Constitution?' during the said days of the voting". namely. and that "(t)here was altogether no freedom of discussion and no opportunity to concentrate on the matter submitted to them when the 1972 draft was supposedly submitted to the Citizens' Assemblies for ratification. three (3) steps are essential. 1973. XV of the Constitution? In this connection. Hence. other provisions of the 1935 Constitution concerning "elections" must. 2. The former reads: "Section 1. Suffrage may be exercised by male citizens of the Philippines not otherwise disqualified by law. and 2) Proclamation No.

if in a plebiscite which shall be held for that purpose within two years after the adoption of this Constitution. "xxx xxx xxx "Sec. including the determination of the number and location of polling places. "xxx xxx xxx" 39 a. save those involving the right to vote. when so required by the Commission. . and possessing some of the aforesaid disqualifications. affecting elections. 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. prescribed by law. V of the Constitution? Petitioners maintain that section 1 of Art. section 1 of Art. shall act as its deputies for the purpose of insuring free. Republic Act No." who are registered in the list of barrio assembly members. V of the Constitution is a limitation upon the exercise of the right of suffrage. who shall hold office for a term of nine years and may not be reappointed ." Sections 1 and 2 of Art. and the appointment of election inspectors and of other election officials. and the provisions of the Revised Barrio Charter. which report was. V of the Constitution." 40 Said committee had recommended: 1) "That the right of suffrage should be exercised only by male . Who may vote in a plebiscite under Art. 2. Indeed. in turn. The decisions. orders. 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. I cannot accept the Solicitor General's theory. "strongly influenced by the election laws then in force in the Philippines . . not less than three hundred thousand women possessing the necessary qualifications shall vote affirmatively on the question. who are twenty-one years of age or over and are able to read and write. particularly sections 4 and 6 thereof. 3590.The National Assembly shall extend the right of suffrage to women. . Art. This view is borne out by the records of the Constitutional Convention that drafted the 1935 Constitution. he invokes the permissive nature of the language — "(s)uffrage may be exercised" — used in section 1 of Art. Upon the other hand. all administrative questions. In support of this view. orderly. and rulings the Commission shall be subject to review by the Supreme Court. shall be members thereof and may participate as such in the plebiscites prescribed in said Act. V of the Constitution declares who may exercise the right of suffrage. All law enforcement agencies and instrumentalities of the Government. the Solicitor General contends that said provision merely guarantees the right of suffrage to persons possessing the aforementioned qualifications and none of the disqualifications. X of the Constitution ordain in part: "Section 1. They claim that no other persons than "citizen of the Philippines not otherwise disqualified by law. so that those lacking the qualifications therein prescribed may not exercise such right. V of the 1935 Constitution was largely based on the report of the committee on suffrage of the Convention that drafted said Constitution. and honest elections. 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. . providing that citizens of the Philippines "eighteen years of age or over." may exercise the right of suffrage in the Philippines. and that said right may be vested by competent authorities in persons lacking some or all of the aforementioned qualifications. It shall decide.

and. was amended by Act 3387." Our first Election Law was Act 1582. V. shows beyond doubt that the same conferred — not guaranteed — the authority to exercise the right of suffrage to persons . and that. But.citizens of the Philippines. if in a plebiscite to be held for that purpose within two years after the adoption of this Constitution. prescribing." 2) "That it should be limited to those who could read and write. V of the Constitution. may the same partake of the nature of a guarantee. Aruego. 1907. 1709. which were rejected. V of the Constitution." It appears that the first recommendation was discussed extensively in the Convention. and incorporated into the Administrative Code of 1916 — Act 2657 — as chapter 20 thereof. Art. debated upon rather extensively. Sections 431 and 432 of said Code of 1917. one of the Delegates to said Convention — "readily approved in the Convention without any dissenting vote. 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." 3) "That the duty to vote should be made obligatory. which. this does not imply not even remotely. approved on December 3. established by the original Constitution — instead of the bicameral Congress subsequently created by amendment of said Constitution — the duty to "extend the right of suffrage to women. 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. At this juncture. In short. also. after which it was rejected by the Convention. by way of compromise. 42 This accounts." 41 The third recommendation on "compulsory" voting was. respectively. in section 1 of Art. except by constitutional amendment. Jose M. hence. 1927. 44 In all of these legislative acts. 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. constitute a limitation of or restriction to said right. it was eventually agreed to include. be dispensed with. V of the Constitution was "strongly influenced by the election laws then in force in the Philippines. and then in the Administrative Code of 1971 — Act 2711 — as chapter 18 thereof. which in turn. which was partly amended by Acts 1669. it is noteworthy that the committee on suffrage responsible for the adoption of section 1 of Art. the qualifications for and disqualifications from voting. Despite some debates on the age qualification — amendments having been proposed to reduce the same to 18 or 20. are quoted below. in my opinion. as well as the disqualifications to the exercise of the right of suffrage — the second recommendation limiting the right of suffrage who could "read and write" was — in the language of Dr. Obviously. and cannot. not less than three hundred thousand women possessing the necessary qualifications shall vote affirmatively on the question. the history of section 1. and the residence qualification. 1726 and 1768. the provisions concerning the qualifications of voters partook of the nature of a grant or recognition of the right of suffrage. for the permissive language used in the first sentence of said Art. the second sentence thereof imposing upon the National Assembly. in this sense only. accordingly. passed on January 9. of a denial thereof to those who lacked the requisite qualifications and possessed any of the statutory disqualifications." although there was some debate on whether the Fundamental Law should specify the language or dialect that the voter could read and write. in turn.

persons below twenty-one (21) years of age could not exercise the right of suffrage. denied such right to those lacking any of said qualifications or having any of the aforementioned disqualifications. whether 18-year-old members of barrio assemblies may vote in barrio as plebiscites is. supplemental appropriations or special tax ordinances. by reducing the voting age from twenty-one (21) years to eighteen (18) years. pursuant to section 10 of the same Act. did not materialize on account of the decision of this Court in Tolentino v. Indeed. without a previous amendment of the Constitution. a debatable one. to believe that Republic Act No. under the 1935 Constitution. 45 granting the writs of prohibition and injunction therein applied for. it would be illogical. 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. upon the ground that. which. no more than a provisional or temporary amendment. after its ratification had the same taken place. V of the Constitution. to say the least. the question. which is not so as regards said Art. and that the proposed amendment sought to be submitted to a plebiscite was not even a complete but a "partial amendment" of said section 1. lesser qualifications than those prescribed in dealing with ordinary measures for which such plebiscite need not be held. for the most important measures for which it demands — in addition to the favorable action of the barrio council — the approval of the barrio assembly through a plebiscite. Said partial amendment was predicated upon the generally accepted contemporary construction that. duly registered in the list of barrio assembly members) is necessary for the approval. 46 pursuant to which the "majority vote of all the barrio assembly members" (which include all barrio residents 18 years of age or over. or of an . by necessary implication." I believe. for legal purposes. not only because this interpretation is in accord with Art." whereas. so that the aforementioned partial amendment was. but. Upon the other hand. like ours — are generally accorded a mandatory status — unless the intention to the contrary is manifest. 3590. 3590 requires. able to read and write. of "any budgetary.having the qualifications prescribed therein and none of the disqualifications to be specified in ordinary laws and. under the Constitution. there seems to be a conflict between the last paragraph of said section 6 of Rep. 47 "(a)ll duly registered barrio assembly members qualified to vote" — who. V of the 1935 Constitution — "may vote in the plebiscite." — just like the provisions of the present and past election codes of the Philippines and Art. V thereof to apply only to elections of public officers. that the apparent conflict should be resolved in favor of the 21-yearold members of the assembly. duly registered in the list of voters" and "not otherwise disqualified . 48 Besides. Commission on Elections. must be citizens "of the Philippines. not separately or in several or distinct elections. twenty-one years of age or over. V — for otherwise they would not have been considered sufficiently important to be included in the Fundamental Law of the land. . because provisions of a Constitution — particularly of a written and rigid one. It is similarly inconceivable that those who drafted the 1935 Constitution intended section 1 of Art. if not absurd. however. . in an assembly plebiscite." and residents of the barrio "during the six months immediately preceding the election. Act No. however. V of the 1935 Constitution. not to plebiscites for the ratification of amendments to the Fundamental Law or a revision thereof. which could be amended further. according to the paragraph preceding the penultimate one of said section. all of the amendments adopted by the Convention should be submitted in "an election" or a single election. also.

in a case where it is impossible to ascertain with reasonable certainty the true vote. V of the Constitution were allowed to vote in said Assemblies. was less than 12 million.976. notwithstanding the fact that the subject thereof is much more important — if not fundamental. 14. .869 who voted for its rejection. although in a summary proceeding.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. 55 We held: "Several circumstances. accordingly demands greater experience and maturity on the part of the electorate than that required for the election of public officers. should be exercised ." 54 In Usman v. . 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. which are intended to be in force permanently.. the proceedings in the Citizens' Assemblies must be considered null and void. 50 and of whether or not they are disqualified under the provisions of said Constitution and Code. stamp the election returns with the indelible mark of falsity and irregularity.561 "members of all the Barangays (Citizens Assemblies) voted for the adoption of the proposed Constitution. Yet.298. and justify their exclusion from the canvass. defying exact description and dependent mainly on the factual milieu of the particular controversy. . . for many decades." . . ." In other words. such as the basic changes introduced in the draft of the revised Constitution adopted by the 1971 Constitutional Convention. of unreliability. Commission on Elections. If satisfactorily proven." whereas. at least. Proclamation No. And.entirely new Constitution. and to affect the way of life of the nation — and. but below 21 years. 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. 51 or those of Republic Act No. according to the latest official data. and to permit the legislature to require lesser qualifications for such ratification. et al. available in January 1973. the total number of registered voters 21 years of age or over in the entire Philippines. ". . and. have the effect of destroying the integrity and authenticity of disputed election returns and of avoiding their prima facie value and character. It is admitted that persons 15 years of age or over. . or. 743. consequently. In fact. as against . such circumstances as alleged by the affected or interested parties. on the question whether or not the people still wanted a plebiscite to be called to ratify the new Constitution. 53 It has been held that "(t)he power to reject an entire poll . 1102 states that 14. 52 have participated and voted in the Citizens' Assemblies that have allegedly ratified the new or revised Constitution drafted by the 1971 Constitutional Convention. 3590." as where "it is impossible to separate the legal votes from the illegal or spurious . . regardless of whether or not they possessed the other qualifications laid down in both the Constitution and the present Election Code. . 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. 49 whose average term ranges from 2 to 6 years. in that persons lacking the qualifications prescribed in section 1 of Art.

the 1935 Constitution requires "a majority of the votes cast" for a proposed amendment to the Fundamental Law to be "valid" as part thereof. if Art. . with its major characteristics. . for which reason.' ". since the effectivity of said Fundamental Law.'" 57 "It seems to us that a vote is cast when a ballot is deposited indicating a 'choice. and the term "votes cast" has a well-settled meaning. X. pursuant to section 10. we would define a 'vote cast' as the exercise on a ballot of the choice of the voter on the measure proposed. when necessary. . obvious. into the accuracy of the election returns. In simple words. Prior to the creation of the Commission on Elections as a constitutional organ." The point to be stressed here is the term "independent. VII of the Constitution. essential requisites) Just as essential as compliance with said Art. in amending the original 1935 Constitution.W. before the adoption of the 1935 Constitution. was held in Smith v. beyond the field allocated to either Congress or courts of justice. The same — like other departments of the Executive Branch of the Government — was. . . Renville County Commissioners. This is but natural and logical. particularly its sections 1 and 2. namely. And the reason therefor is. on the Commission on Elections. Indeed. would it have been dependent upon either Congress or the Judiciary? The answer must be in the negative. election laws in the Philippines were enforced by the then Department of the Interior. 16. we had adopted the Australian Ballot System. the purpose was to make said Commission independent principally of the Chief Executive. sometime ago — under the control of the President of the Philippines. X thereof did not explicitly declare that it (the Commission) is an "independent" body. one of the offices under the supervision and control of said Department. In other words. Under the provisions thereof. for. 956. X thereof.' . 65 N. 64 Minn. XV envisages — with the term "votes cast" — choices made on ballots — not orally or by raising hands — by the persons taking part in plebiscites. the Commission would be under the "control" of the President. . why was the term used? In the absence of said constitutional provision as to the independence of the Commission. in turn. the Executive could so use his power of control over the Department of the Interior and . and. paragraph (1) of Art. through its Executive Bureau. How should the plebiscite be held? (COMELEC supervision indispensable. b. since the early years of the American regime.Then. . too. also. . and had been — until the abolition of said Department. the viva voce voting in the Citizens' Assemblies was and is null and void ab initio. . Hence. section 1 provides that "(t)here shall be an independent Commission on Elections . because the functions of the Commission — "enforcement and administration" of election laws — are neither legislative nor judicial in nature. to have been used as an equivalent of 'ballots cast. V of the 1935 Constitution is that of Art. "The term 'votes cast' . ." Indeed. under the control of the Chief Executive. The word 'cast' means 'deposit (a ballot) formally or officially . from 1935 to 1967. said Art. uniform official ballots prepared and furnished by the Government and secrecy in the voting. hence.'" 56 "The word 'cast' is defined as 'to deposit formally or officially. And the 1935 Constitution has been so consistently interpreted in all plebiscites for the ratification or rejection of proposed amendments thereto. by inserting therein said Art. with the advantage of keeping records that permit judicial inquiry. Said functions are by their nature essentially executive." 58 In short.

save those involving the right to vote. to protect the secrecy of the ballot. the Vice-President. To forestall this possibility. the establishment of election precincts. inter alia. it declares. except those first appointed 59 — the longest under the Constitution. X ordains that "(t)he Commission on Elections shall have exclusive charge of the enforcement and administration of all laws relative to the conduct of elections.its Executive Bureau as to place the minority party at such a great. Act No. X of the Constitution. detailed provisions regulating contributions and other (corrupt) practices. some of which are enumerated in sections 5 and 6 of said Act. if not decisive. in this respect. on the other. except by the Supreme Court. placing them. the Justices of the Supreme Court and the Auditor General. hence. quoted below. that the decisions of the Commission "shall be subject to review by the Supreme Court" only 61 . the formation of lists of voters. and that its chairman and members "shall not. section 2 of said Art. the framers of the amendment to the original Constitution of 1935 endeavored to do everything possible to protect and insure the independence of each member of the Commission. by providing that they may not be removed from office except by impeachment. on the same plane as the President. and the other offices or agencies of the executive department. and. and honest elections. or suspension of sentence for the violation of any election law may be granted without the favorable recommendation of the Commission" 62 . including voting booths. and rulings of the Commission" shall not be subject to review. or exclusion or cancellation from said list and the publication . in the management or control of any private enterprise which in anyway may be affected by the functions of their office. that their salaries "shall be neither increased nor diminished during their term of office". affecting elections. said Act contains. nor shall they. as well as for the inclusion in. of the opportunity to defeat the political party in power." And. said section 2 postulates that "(a)ll law enforcement agencies and instrumentalities of the Government." Not satisfied with this. Rep. as to deprive it. that "(n)o pardon. the proceedings therefor. parole. that they may not be reappointed. including the determination of the number and location of polling places." apart from such other "functions which may be conferred upon it by law. during their continuance in office. implements the constitutional powers of the Commission on Elections and grants additional powers thereto. With respect to the functions thereof as a body. orders. in effect. In accordance with the letter and spirit of said Art. be financially interested in any contract with the Government or any subdivision or instrumentality thereof. when so required by the Commission. 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. in effect. and the appointment of election inspectors and of other election officials. otherwise known as Election Code of 1971. 6388. the identification and registration of voters. that "(t)he decisions. the designation and arrangement of polling places. The independence of the Commission was sought to be strengthened by the long term of office of its members — nine (9) years. 64 Moreover. orderly." 63 Thus. all administrative questions. engage in the practice of any profession. shall act as its deputies for the purpose of insuring free. or intervene." It further provides that the Commission "shall decide. to forestall possible conflicts or frictions between the Commission. to enable the same to perpetuate itself therein. second only to that of the Auditor General 60 . directly or indirectly. disadvantage. on the one hand. directly or indirectly.

or even sought to be given therefor. including the one that the vote shall be by secret ballot. Few laws may be found with such a meticulous and elaborate set of provisions aimed at "insuring free. at which the proposed Constitution would be submitted to the people for ratification or rejection. 73 (on the validity of which — was contested in the plebiscite cases. inter alia. the representation of political parties and/or their candidates in each election precinct. expressly or impliedly repealing the provisions of Presidential Decree No. . Upon the other hand. provincial and national boards of canvassers. that "(t)he provisions of the Election Code of 1971. the proclamation of the results." Indeed. orderly. section 2 of said Election Code of 1971 provides that "(a)ll elections of public officers except barrio officials and plebiscites shall be conducted in the manner provided by this Code. Presidential Decree No. the constitution and operation of municipal. 20 expressly suspended "the provisions of Section 3 of Presidential Decree No. upon the formal presentation to the Executive of the proposed Constitution drafted by the 1971 Constitutional Convention. and honest elections. 1973. instances. . insofar as said procedure is concerned. or on December 1. the particulars of the official ballots to be used and the precautions to be taken to insure the authenticity thereof. in the case of election of public officers. Yet." as envisaged in section 2 of Art. 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." said nothing about the procedure to be followed in the plebiscite to take place at such notice. it was held that the "election officers" involved "cannot be too strongly condemned" therefor and that if they 'could legally dispense with such requirement xxx they could with equal propriety dispense with all of them. "the plebiscite scheduled to be held on January 15. said General Order No. the rules for the appreciation of ballots and the preparation and disposition of election returns. without complying with the requirements of the law pertinent thereto." General Order No. Gnau. In Glenn v. 1973. 73 insofar as they allow free public discussion of the proposed Constitution . calling a plebiscite. owing to the existence of Martial Law. 20. the elections were held a viva voce. the composition and appointment of boards of election inspectors. 65 involving the casting of many votes. none of the foregoing constitutional and statutory provisions was followed by the so-called Barangays or Citizens' Assemblies. . openly. as well as in the 1972 habeas corpus case 66 — We need not. 73." This specific mention of the portions of the decrees or orders or instructions suspended by General .thereof. insofar as they are not inconsistent" with said decree — excepting those "regarding rights and obligations of political parties and candidates" — "shall apply to the conduct of the plebiscite. election contests. postponing. the establishment of municipal. if not most. temporarily suspending the effects of Proclamation No. dated January 7. and no other order or decree has been brought to Our attention." Moreover. 1081 for the purposes of free and open debate on the proposed Constitution . in the cases at bar. or even by ballot at all . . . express any opinion) was issued. the procedure for the casting of votes. provincial and national files of registered voters. 1973. and the jurisdiction of courts of justice in cases of violations of the provisions of said Election Code and penalties for such violations. and declaring. until further notice. X of the Constitution. the counting of votes by boards of inspectors. 1972. And no reasons have been given. to be held on January 15. directing the publication of said proposed Constitution. In many. including. .

" As in Presidential Decree No. 1973 and that the initial referendum shall include the matter of ratification of the Constitution proposed by the 1971 Constitutional Convention" and that "(t)he Secretary of the Department of Local Governments and Community Development shall insure the implementation of this order. 20 necessarily implies that all other portions of said decrees. orders or instructions — and. 1973. It is claimed that by virtue of Presidential Decree No." As in the case of Presidential Decrees Nos. even if the Executive had the authority to repeal Art. Worse still. Copy of Presidential Decree No. The provision of Presidential Decree No. The point is that. . What is more. the provisions of Presidential 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. they were held under the supervision of the very officers and agencies of the Executive Department sought to be excluded therefrom by Art. said officers and agencies of the Executive Department. that the collective views expressed in the Citizens' Assemblies "shall be considered in the formulation of national policies or programs and. 86 and 86-A. and must be subordinate to the constitutional power of the Commission on Elections to exercise its "exclusive" authority over the "enforcement and administration of all laws relative to the conduct of elections. . X of our Fundamental Law — which he does not possess. 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. 1973. 73 outlining the procedure to be followed in the plebiscite for the ratification or rejection of the proposed Constitution — remained in force. 86-A — the text of which is quoted below 67 — the Executive declared. owing to the practically indefinite extension of their respective terms of office in consequence of section 9 of the . that such Citizens' Assemblies "shall consider vital national issues . including those specified in paragraph 2 hereof. shall be translated into concrete and specific decision". who had been publicly urged and ostensibly promised to work for the ratification of the proposed revised Constitution would be favored thereby. the foregoing directives do not necessarily exclude the exercise of the powers vested by the 1935 Constitution in the Commission on Elections. . such of the Barrio Assemblies as were held took place without the intervention of the Commission on Elections. wherever practicable. We are told that Presidential Decree No. 86-A directing the immediate submission of the result thereof to the Department of Local Governments and Community Development is not necessarily inconsistent with. this Decree No. dated January 7. . ." 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. assuming that said Decree is valid. 86 was further amended by Presidential Decree No. V of the 1935 Constitution. hence. X of the 1935 Constitution. 86-B. if the same had been intended to constitute the "election" or plebiscite required in Art. 86-A dated January 5.Order No. . and others in the future. 86. and submit the results thereof to the Department of Local Governments and Community Development immediately thereafter. and without complying with the provisions of the Election Code of 1971 or even of those of Presidential Decree No. 86B is appended hereto as Annex B hereof. a referendum on important national issues. inter alia. . and that the Citizens' Assemblies "shall conduct between January 10 and 15. 73. like the holding of the plebiscite on the new Constitution . which shall serve as guide or basis for action or decision by the national government".

and honest" expression of the people's will. moreover. Haynes. entitled to full faith and credence. or is. insofar as the same are claimed to have ratified the revised Constitution proposed by the 1971 Constitutional Convention. the validity of which is precisely being contested by petitioners herein. orderly. the very premise on which it is predicated. Boynton.R. 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. in fact. 13 Cal. 486. XV of the 1935 Constitution has thus been "substantially" complied with. 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 . without any elections therefor. 1102. 125 Ind. as well as through the executive or the Legislature. The major flaw in this process of rationalization is that it assumes. acting through the agency of the judiciary. 145." 68 IV Has the proposed Constitution aforementioned been approved by a majority of the people in the Citizen's Assemblies allegedly held throughout the Philippines? Respondents maintain the affirmative. the former would. . Respondents claim that said proclamation is "conclusive" upon this Court. found in Art. 1062. . also. every officer under a constitutional government must act according to law and subject to its restrictions. X of the Constitution which can hardly be sanctioned. is contested by the petitioners.W. and which. 25 Colo. . . 11 L. that the proposed Constitution has been. is a choosing or a selection by those having a right to participate (in the selection) of those who shall fill the offices. 279. Hirsh. in effect. approved or adopted by the "overwhelming" majority of the people. Seaman v.E. One department is just as representative as the other. and every departure therefrom or disregard thereof must subject him to the restraining and controlling power of the people. Saunders v. .A. 170.A. the issue boils down to whether or not the Executive acted within the limits of his authority when he certified in Proclamation No. for it must be remembered that the people act through courts. XVII of the proposed Constitution. . As the Supreme Court of Minnessota has aptly put it — ". Baughman. 207. that Art. at least. 732.R. This is another patent violation of Art. . veto the action of the people in whom sovereignty resides and from whom its powers are derived. as an enrolled bill. but. since the provisions of this article form part of the fundamental scheme set forth in the 1935 Constitution. 24 N. to insure the "free. And the procedure therein mostly followed is such that there is no reasonable means of checking the accuracy of the returns filed by the officers who conducted said plebiscites. as a fact. because should the Court invalidate the proclamation. ". or of the adoption or rejection of any public measures affecting the territory involved. Lewis v. Bouvier's Law Dictionary.Transitory Provisions. 1091. 9 L. (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. State v. and that the Court should refrain from passing upon the validity of Proclamation No. And. as amended. 82 Iowa 216. 47 N. the aforementioned violation thereof renders null and void the contested proceedings or alleged plebiscite in the Citizens' Assemblies. not only because such question is political in nature. 55 Pac. 1102. ratified. relying upon Proclamation No. 354." Accordingly. 15 Cyc.

" In this connection. it is not claimed that the Chief Executive had personal knowledge of the data he certified in said proclamation. 1973. of a municipal association of presidents of barrio or ward citizens' assemblies. issued Proclamation No. and has thereby come into effect. decree. order. . hence. cannot possibly have any legal effect or value. establishment or organization" of said municipal. together with his notes on his oral argument. Cruz. who. referred to in said Art. that the president of each such municipal association formed part of a provincial or city association of presidents of such municipal associations. 80 that he could not possibly have been a member on January 17. The record shows. 1102 is devoid of any factual and legal foundation.the Barangays (Citizens Assemblies) throughout the Philippines. at the conclusion of the hearing of these cases on February 16. accordingly. and that one Francisco Cruz from Pasig. 1973. whereupon Mr. but neither a copy of said alleged report to the President. "(p)roclamation. Cruz to the President and of the "(p)roclamation. In the absence of said report. decree. or revision of the Fundamental Law. which. creating or directing or authorizing the creation. that Mr. transmitted the results of the voting in the province to the Department of Local Governments and Community Development." and. regulation or circular. order. much less of a Provincial. if any. XV as "elections. provincial and national associations. 1102. to the effect that the proposed new or revised Constitution had been ratified by the majority of the votes cast by the people. 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. decree. 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. and in the resolution of this Court of the same date. instruction. as President of said National Association or Federation. regulation or circular. the Solicitor General was asked to submit. nor a copy of any said "(p)roclamation." The Solicitor General stated. Art. a true copy of the aforementioned report of Mr. reported said results (tabulated by the Department of Local Governments and Community Development) to the Chief Executive. Hence. Moreover. 1973. Proclamation No." etc. acting in a ceremonial capacity. City or National Association or Federation of Presidents of any such provincial or city associations. also. Cruz was not even a member of any barrio council since 1972. 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." has been submitted to this Court. however. whether the elections are for the choice or selection of public officers or for the ratification or rejection of any proposed amendment. 1102. the total result of the voting in the citizens' assemblies all over the country from January 10 to January 15. Secondly. 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. which tabulated the results of the voting in the citizens' assemblies throughout the Philippines and then turned them over to Mr. Francisco Cruz. 1973. in his argument before this Court. the conclusion is set forth in the dispositive portion of said Proclamation No. Rizal. since the proceedings for the latter are. instruction.. as President or acting President of the National Association or Federation. in the morning of January 17. reported to the President of the Philippines. in turn. instruction.

and on this appeal" the Supreme Court was "required to determine the correctness of that conclusion. such is not the case. acts of the Executive and those of Congress could not possibly be annulled or invalidated by courts of justice. unless the law declares that the decisions of the board shall be final" — and there is no such law in the cases at bar. (4th Ed.R. This proposed amendment was submitted at the general election held in November. 70 If assailed directly in appropriate proceedings. it was not because the resolution of Congress declaring those had been elected President or Vice-President was conclusive upon courts of justice. the Court may receive evidence and declare. Acting upon the assumption that the amendment had become a part of the Constitution. 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. and canvassing boards are not conclusive and that the final decision must rest with the courts. 45 Wash. State v. . the Legislature enacted statutes providing for a State Tax Commission and a mortgage registry tax. 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. Mason.A. 9 L. upon the same theory. 234. 1906.S. even a resolution of Congress declaring that a given person has been elected President or Vice-President of the Philippines as provided in the Constitution 69 is not conclusive upon the courts. and in due time it was certified by the state canvassing board and proclaimed by the Governor as having been legally adopted. but because there was no law permitting the filing of such protest and declaring what court or body would hear and decide the same. may be duly assailed in court and be the object of judicial inquiry. The case of In re McConaughy 72 is squarely in point. . in accordance therewith. 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. and the latter statute. So. was held constitutional" by said Court. 523." Referring to the effect of the certification of the State Board of Canvassers created by the Legislature and of the proclamation made by the Governor based thereon. who was duly elected to the office involved. Conv. It is no more than prima facie evidence of what is attested to by said resolution. James on Const. too. Yet. as it is in the Philippines.The theory that said proclamation is "conclusive" upon the Court is clearly untenable.) 1221. 71 If prior to the creation of the Presidential Electoral Tribunal. "As the Constitution stood from the organization of the state" — of Minnesota — "all taxes were required to be raised under the system known as the 'general property tax. It is settled law that the decisions of election officers.) sec. such as an election protest." . ". if and when authorized by law.' Dissatisfaction with the results of this method and the development of more scientific and satisfactory methods of raising venue induced the Legislature to submit to the people an amendment to the Constitution which provided merely that taxes shall be uniform upon the same class of subjects. The proclamation of the Governor adds nothing in the way of conclusiveness to the legal effect of the action of the canvassing board. If it were. In fact. 126. Its purpose is to formally notify the people of the state of the result of the voting as found by the canvassing board. no such protest could be filed. 88 Pac. "The district court found that the amendment had not in fact been adopted. the Court held: "It will be noted that this board does no more than tabulate the reports received from the various county boards and add up and certify the results. (U.

from a constitutional and legal viewpoint. and decisive. and the phrase "votes cast" has been construed to mean "votes made in writing. if not most. it has not even been ratified in accordance with said proposed Constitution. it will be noted that. 1081. And so did the court in Rice v. 74 Inasmuch as Art. X of the 1935 Constitution places under the "exclusive" charge of the Commission on Elections.In Bott v. Otherwise. to receive the pertinent evidence and then proceed to the determination of the issues raised thereby. if not most. 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. as it was in many Citizens' Assemblies. who have not so far established the truth of such defense. apart from the fact that Art. Referring particularly to the cases before Us. the burden of proving such defense — which. 1972. asserts openly that Art." not orally. plebiscites for the ratification or rejection of the proposed Constitution. XV of the Constitution has not been complied with. we would be placing upon the petitioners the burden of disproving a defense set up by the respondents. at the time they were held. the President had issued an order temporarily suspending the effects of Proclamation No. should be within their peculiar knowledge — is clearly on such respondents. "the enforcement and administration of all laws relative to the conduct of elections. as pointed out in the discussion of the preceding topic. 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. Besides. in Our decision in the plebiscite cases. inter alia: "Meanwhile." independently of the Executive. than the foregoing is the circumstance that there is ample reason to believe that many. Palmer. Even more important. 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. the minimum age requirement therein for the exercise of the right of suffrage being eighteen (18) years. and the plaintiffs their reply. Puyat and Jose Roy. Citizens' Assemblies. 1102 — apart from the fact that on January 17. of the people did not know that the Citizens' Assemblies were. We said. if true. the logical step would be to give due course to these cases. if despite the extensive notes and documents submitted by the parties herein. Wartz. VI of the proposed Constitution requires "secret" voting. require the respondents to file their answers. Hence. thereafter. 73 the Court reviewed the statement of results of the election made by the canvassing board. Proclamation No. the new or revised Constitution proposed by the 1971 Constitutional Convention was not ratified in accordance with the provisions of the 1935 Constitution. Accordingly. 75 Even counsel for Gil J. and. for the purpose of free and open debate . which was not observed in many. 1102 is not even prima facie evidence of the alleged ratification of the proposed Constitution. 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. In fact. in order that the true results could be judicially determined. or on December 17. as respondents in L-36165. 1973 neither the alleged president of the Federation of Provincial or City Barangays nor the Department of Local Governments had certified to the President of the alleged result of the citizen's assemblies all over the Philippines — it follows necessarily that.

20? Under these circumstances. Then again. the Court deemed it fit to refrain. additional question italics. when General Order No. on December 23. 1973. scheduled to meet in regular session on January 22. among others. 73 to be held on January 15. temporarily suspending the effects of Proclamation No. as well as to afford the people a reasonable opportunity to be posted on the contents and implications of said transcendental document." in effect. 1973. On December 23. 1973. 'suspended in the meantime' the 'order of December 17. 1972. 1081 for purposes of free and open debate on the proposed Constitution. 1973. 20 was issued formally. what. 1973. moreover. And. he postponed until further notice. 20 was issued.on the Proposed Constitution. directing 'that the plebiscite scheduled to be held on January 15. 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. according to the theory of the Solicitor General.] "[6] Do you approve of the citizens assemblies as the base of popular government to decide issues of national interests? . after consultation with the Commission on Elections and the leaders of Congress.and since the main objection to Presidential Decree No. was the "plebiscite" postponed by General Order No. General Order No. the President announced the postponement of the plebiscite for the ratification or rejection of the Proposed Constitution. 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. were "plebiscites. then." How can said postponement be reconciled with the theory that the proceedings in the Citizens' Assemblies scheduled to be held from January 10. the parties in said cases entertained the same belief. which Congress unquestionably could do. 73 was that the President does not have the legislative authority to call a plebiscite and appropriate funds therefor. January 10. Congress was. pursuant to the 1935 Constitution.' "In view of these events relative to the postponement of the aforementioned plebiscite. postponing said plebiscite "until further notice. XV of the Constitution. 1973. this belief is further bolstered up by the questions propounded in the Citizens' Assemblies. 1973. 20. for the ratification of the proposed Constitution? If said Assemblies were meant to be the plebiscites or elections envisaged in Art. to January 15. accelerated. for the time being. the leaders of Congress and the Commission on Elections — the Court deemed it more imperative to defer its final action on these cases. 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. On January 7. particularly in view of the formal postponement of the plebiscite by the President — reportedly after consultation with. No formal action to this effect was taken until January 7. from deciding the aforementioned cases. for. for neither the date nor the conditions under which said plebiscite would be held were known or announced officially.' Said General Order No." And. apparently. 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.

"On January 11. however. 10 and 11 are not proper in a plebiscite for the ratification of a proposed Constitution or of a proposed amendment thereto. not more than one plebiscite could be held for the ratification or rejection of the proposed Constitution. Pascual of Bataan. a matter of judicial knowledge that there have been no such citizens' assemblies in many parts of Manila and suburbs. If the majority of the answers to question No. In a letter of Governor Efren B. declare that the proposed Constitution has been approved or adopted by the people in the citizens' assemblies all over the Philippines. Thirdly. In either case. we urgently suspended all scheduled Citizens' Assembly meetings on that day and called all Mayors. to the Chief Executive. 7 — "Do you approve of the new Constitution?" One approves "of" the act of another. 8 would have been unnecessary and improper. Our initial plans and preparations. dealt only on the original five questions. . . if the proceedings in the Citizens' Assemblies constituted a plebiscite. Secondly. 7 were in the negative. to my mind. essential for an amendment to the Constitution to be valid as part thereof. question No. I can not. neither may another plebiscite be held. when it is. January 11. the former reported: ". in good conscience. 6. Consequently. 8 were in the affirmative. Indeed. . not to say. however. In short."[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. . 3. when do you want the next elections to be called? "[11] Do you want martial law to continue?" [Bulletin Today. neither is the language of question No. . finds to be good. also. also. 4. Chiefs of Offices and other government officials to another conference to discuss with them the new set of guidelines and materials to be used. The approval of the majority of the votes cast in a plebiscite is. when we received an instruction on January 10 to change the questions. even if the majority of the answers to question No. the Constitution would have become effective and no other plebiscite could be held thereafter in connection therewith. With this latest order. dated January 15. 7 were answered affirmatively or negatively. wise or satisfactory. in the affirmative. 7 were in the affirmative. questions nos. even if the majority of the answers to question No. however. 1. 1973 in accordance with the provisions of the 1935 Constitution? "[10] If the elections would not be held. 2. 8 were. in other parts of the Philippines. If the majority of the answers to question No. 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. 5. 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. which does not need such approval for the effectivity of said act. we again had to make modifications in our instructions to all those managing and supervising the holding of the Citizens' Assembly meetings . 9. 1973. This report includes a resume (sic) of the activities we undertook in effecting the referendum on the eleven questions you wanted our people consulted on and the Summary of Results thereof for each municipality and for the whole province. which the first person. . 1973] To begin with. . regardless of whether question No. "xxx xxx xxx ".

when the validity of the law depends upon the truth of what is declared. 1973. . the splendid cooperation and support extended by almost all government officials and employees in the province." In line with its own pronouncement in another case.throughout the province . several members of the Court. "." Then. were not even notified that citizens' assemblies would be held in the places where their respective residences were located. PC and PACD personnel. once the proposed Constitution shall have been ratified. . provided us with enough hands to trouble shoot and implement sudden changes in the instructions anytime and anywhere needed . . as late as January 10. 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 . If this was the situation in Bataan — one of the provinces nearest to Manila — as late as January 11. in general. . 78 that "a court is not at liberty to shut its eyes to an obvious mistake. . and did not. their enthusiastic participation showed their preference and readiness to accept this new method of government to people consultation in shaping up government policies. 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. . in Baker v. as a nation. With this latest order. in general." In the light of the foregoing. ." and call all available officials ". In fact. 1973. one can easily imagine the predicament of the local officials and people in the remote barrios in northern and southern Luzon. . 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 . as late as January 11. . what to do therein and even what questions or topics to propound or touch in said assemblies. V . ." This communication manifestly shows: 1) that. to discuss with them the new set of guidelines and materials to be used . 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. I cannot see how the question under consideration can be answered or resolved otherwise than in the negative. . . In the Prohibition and Amendment case. could not. Carr. in the Visayan Islands and Mindanao. 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. they wish to have. 2) that the assemblies would involve no more than consultations or dialogues between people and government — not decisions to be made by the people. the Bataan officials had to suspend "all scheduled Citizens' Assembly meetings . the Federal Supreme Court of the United States stressed." Thus. . As to our people. . including those of their immediate families and their household. particularly of the Department of Education. their enthusiastic participation showed their preference and readiness to accept the new method of government to people consultation in shaping up government policies. hence. . . and 3) that said consultations were aimed only at "shaping up government policies" and. although duly registered voters in the area of Greater Manila. As to our people. but the making of a decision by the people on the new way of life. Aside from the coordinators we had from the Office of the Governor. 1973. . "on January 11 . . in the Bicol region.

in line with Proclamation No. the political organ of a government that purports to be republican is essentially the Congress or Legislative Department. under whose supervision and control he or it is. a given department of the Government cannot generally be said to have "recognized" its own acts. Besides. he had assumed all powers of Government — although some question his authority to do so — and. They have absolutely no other choice. that our foreign relations are being conducted under such new or revised Constitution. pursuant to the 1935 Constitution. Then. 1973 — declaring that the Constitution proposed by the 1971 Constitutional Convention has been ratified by the overwhelming majority of the people — that he could not do under the authority he claimed to have under Martial Law. rigid Constitution. except the power of supervision over inferior courts and its personnel. Accordingly. much less necessarily or even normally. . expressly or impliedly. I gather that respondents refer mainly to the offices under the Executive Department. be deduced from their acts in accordance therewith. notwithstanding. except as to some minor routine matters. have. such as in recognizing a new state or government. the former merely obeys the latter." in the language of our 1935 Constitution. the latter performs some functions which. 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. in general. that the political department of the Government has recognized said revised Constitution. this Court having preferred to maintain the status quo in connection therewith pending final determination of these cases. 1102. and even in devising administrative means and ways to better carry into effect Acts of Congress which define the goals or objectives thereof. there is hardly anything he has done since the issuance of Proclamation No. Strictly speaking. that the Legislative Department has recognized the same. I am not prepared to concede that the acts of the officers and offices of the Executive Department. 1102. since January 17. 1973. which the Department of Justice has continued to handle. orders and instructions issued by the President thereafter. because they are bound to obey and act in conformity with the orders of the President. under the Constitution drafted by the 1971 Constitutional Convention. specially in view of Proclamation No. As regards the so called political organs of the Government. 1081 placing the Philippines under Martial Law. 1972. in accepting diplomatic representatives accredited to our Government.Have the people acquiesced in the proposed Constitution? It is urged that the present Government of the Philippines is now and has been run. again. basically and fundamentally executive in nature — to "take care that the laws be faithfully executed. In a sense. with a republican system of Government like ours — the role of that Department is inherently. to the Executive. consequently. Recognition normally connotes the acknowledgment by a party of the acts of another. Whether they recognized the proposed Constitution or acquiesce thereto or not is something that cannot legally. from a constitutional viewpoint. by virtue of the very decrees. and which the President has not ostensibly exercised. which said proposed Constitution would place under the Supreme Court. This. 79 Consequently. Whatever may be the functions allocated to the Executive Department — specially under a written. in which the effectivity of the aforementioned Constitution is disputed. and that the people. indicated their conformity thereto. connote a recognition thereof or an acquiescence thereto. are political in nature. when a subordinate officer or office of the Government complies with the commands of a superior officer or office. since September 21. on January 17. by their acts or omissions. under whose "control" they are.

". 3. and by its having been engaged for nearly a year. as well as of other collegiate bodies under the government. 1902. not by the convention itself. in the Taylor case. if he or it acted otherwise. . Thus. 1102. . and by voting. the Legislature — not merely by individual acts of its members." Note that the New Constitution of Virginia. The "judiciary in taking the oath prescribed thereby to support it and by enforcing its provisions . formally and officially suspending the plebiscite until further notice — was impugned as early as January 20. under its provisions. But. drafted by a convention whose members were elected directly by the people. would just be guilty of insubordination. the effectivity of the contested amendment was not contested judicially until about one (1) year after the amendment had been put into operation in all branches of the Government. and 5. issued on January 7. ". 1973. as directed thereby". 1973. . Indeed. there is martial law. accepted and acted upon as the only valid Constitution of the State" by — 1. and by the people. July 15. Commonwealth 80 — cited by respondents herein in support of the theory of the people's acquiescence — involved a constitution ordained in 1902 and "proclaimed by a convention duly called by a direct vote of the people of the state to revise and amend the Constitution of 1869. 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. . 1102 declaring on January 17. The "Governor of the State in swearing fidelity to it and proclaiming it. What is more. whereas the validity of Proclamation No. there is no act of recognition involved therein. 2. The result of the work of that Convention has been recognized. there was no martial law. when L-36142 was filed. 1972. for instance. or three (3) days after the issuance of Proclamation No. the legality of Presidential Decree No. none of the foregoing acts of acquiescence was present. The "people in their primary capacity by peacefully accepting it and acquiescing in it. The "Legislature in its formal official act adopting a joint resolution. the lower officer or office. 20. . but by formal joint resolution of its two (2) chambers. are invalid as acts of said legislature or . 73 calling a plebiscite to be held on January 15.". it was recognized. recognizing the Constitution ordained by the Convention . the Governor. the case of Taylor v. and complied with by the people who participated in the elections held pursuant to the provisions of the new Constitution. by the judiciary. The "individual oaths of its members to support it. at a general election for their representatives in the Congress of the United States. namely. 1973. In the cases under consideration. but by other sectors of the Government. that the proposed Constitution had been ratified — despite General Order No. 1972. the strict enforcement of which was announced shortly before the alleged citizens' assemblies. . or five (5) weeks before the scheduled plebiscite. To top it all. 4. by registering as voters under it to the extent of thousands throughout the State. in legislating under it and putting its provisions into operation . was impugned as early as December 7. In the present cases.and from a legal and constitutional viewpoint. was not submitted to the people for ratification or rejection thereof. 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. in the various ways specified above. Worse still.

and there is no such law in the Philippines. or unless the law provides otherwise." 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. the members of Congress. 81 Indeed. . and compulsion and intimidation. immediately after a conference between the Executive. or merely kept in its holster. or its alleged ratification. reasonable and wholesome attitude of the person who has the gun. is not necessarily an act of conformity or acquiescence. 1973. Still. holding or taking part in a session of Congress. was due to their recognition. adoption or approval of said Proclamation No. 1972. without pulling the trigger. This is a wellestablished principle of Administrative Law and of the Law of Public Officers. either pointed at others. under these conditions. however. by and large. which may result in the exercise by me of authority I have not exercised. and thereafter as provided in the 1935 Constitution? It is true that. 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. 1102. . 1972. and no plausible reason has been adduced to warrant departure therefrom. acquiescence in or conformity with the provisions of the aforementioned Constitution. meant coercion by the military. why did it become necessary to padlock its premises to prevent its meeting in session on January 22. on or about December 27. The force of this argument is. This is specially so when we consider that the masses are.bodies. decrees and/or instructions — some or many of which have admittedly had salutary effects — issued subsequently thereto amounts. the intimidation is there. I do not feel justified in holding that the failure of the members of Congress to meet since January 22. offset or dissipated by the fact that. could have met in any other place. if bent on discharging their functions under said Constitution. as provided in the 1935 Constitution. 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 . if the members of Congress were generally agreeable to the proposed Constitution. on the other. Under these conditions. constitutes or attests to a ratification. in its issue of December 29. on its front page." The Daily Express of that date." Then. the building in which they perform their duties being immaterial to the legality of their official acts. the idea implied therein was too clear and ominous for any member of Congress who thought of organizing. It may reflect the good. and their compliance with a number of Presidential orders. 82 likewise. "martial law connotes power of the gun. placing the entire Philippines under Martial Law. but not without warning that he may or would use it if he deemed it necessary. 1081. some of whom expressed the wish to meet in session on January 22. 1973. especially because of Proclamation No. neither am I prepared to declare that the people's inaction as regards Proclamation No. 1973." No matter how good the intention behind these statements may have been. and members of Congress. theoretically. headlined. For the same reasons. unless its members have performed said acts in session duly assembled. In the words of the Chief Executive. . and inaction or obedience of the people. a "Senatorial Plot Against 'Martial Law Government' Disclosed. not to get the impression that he could hardly do so without inviting or risking the application of Martial Law to him. 1102. on the one hand.

As regards the applicability to these cases of the "enrolled bill" rule. hence. roughly. with the particularity that it is not even identical to that existing in England and other parts of the world. the new form of government introduced in the proposed Constitution. this: If the enrolled bill is entitled to full faith and credence and. that the people have impliedly or expressly indicated their conformity to the proposed Constitution. particularly. Why? Simply. which even prepared the draft of said legislation. 1102 merit less consideration than in enrolled bill? Before answering this question. 84 the Highest Court of the United States declared that courts "will not stand impotent before an obvious instance of a manifestly unauthorized exercise of power. therefore. why should Proclamation No. it is conclusive upon the President and the judicial branch of the Government. 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. legally and constitutionally. for which reason the officers of the Association. and that even experienced lawyers and social scientists find it difficult to grasp the full implications of some provisions incorporated therein. to this extent. the so-called enrolled bill were certified by. to tabulate the results thereof. legally. concerning legislative measures approved by the two Houses of Congress. would the enrolled bill rule apply thereto? Surely.unfamiliar with the parliamentary system. Worse still. its aforementioned president — whose honesty and integrity are unquestionable — were present at the deliberations in Congress when the same approved the proposed legislation. the President of the Association of Sugar Planters and/or Millers of the Philippines. as good as non-existent. say. The argument of the Solicitor General is. should not and must not be allowed to participate in said plebiscite — if plebiscite there was. 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. and. Similarly. I would like to ask the following: If. the answer would have to be in the negative. according to Article X of the 1935 Constitution. 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. VI Are the Parties entitled to any relief? . and attested to by the Secretary of the Senate and the Secretary of the House of Representatives. and the measure in question were a proposed legislation concerning Sugar Plantations and Mills sponsored by said Association. if any. instead of being certified by the aforementioned officers of Congress. a certification. either to the President of the Philippines or to the President of the Federation or National Association of presidents of Provincial Associations of presidents of municipal associations of presidents of barrio or ward assemblies of citizens — would not. Sandoval. because said Association President has absolutely no official authority to perform in connection therewith. as well as lobbied actually for its approval." 85 I cannot honestly say. it is the officer or department which. be worth the paper on which it is written. his certification is. hence. After citing approvingly its ruling in United States v.

Hence. submitted have been so extensive and exhaustive. a reasoned resolution was demanded by public interest. aside from a sizeable number of documents in support of their respective contentions. for all intents and purposes. which were dismissed as moot and academic. owing to the issuance of Proclamation No. three (3) members of the Court — Justices Barredo. beyond the ambit of judicial inquiry and determination. The arguments. although before the rendition of judgment therein. Accordingly. 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. owing to the importance of the questions involved." 86 When the petitions at bar were filed. and the main defense set up by respondents herein. as well as set the same for hearing. In this connection. it was claimed. the alleged political nature of said issue.Before attempting to answer this question. placing the same. which would result from a decision thereon. however. the situation is as if — disregarding forms — the petitions had been given due course and the cases had been submitted for decision. the cases could readily be dismissed. voted for the dismissal of said petitions. and he. a few words must be said about the procedure followed in these five (5) cases. At the same time. Still one of the members of the Court (Justice Zaldivar) was of the opinion that the aforementioned issues should be settled in said cases. or as required by the Court. and reply notes or memoranda. that. 1102 subsequently to the filing of said cases. Instead. the resume of . according to respondents. it should be noted that the Court has not as yet decided whether or not to give due course to the petitions herein or to require the respondents to answer thereto. and they have done so in their individual opinions attached hereto. and the documents filed in support thereof so numerous and bulky. but. Antonio and Esguerra — filed separate opinions favorable to the respondents in the plebiscite cases. the same three (3) members of the Court. the necessity of deciding the same with utmost dispatch. The majority of the members of the Court did not share. namely. On the other hand. As a matter of fact. either view. The parties in the cases at bar were accordingly given every possible opportunity to do so and to elucidate on and discuss said question. respondents had cautioned against a judicial inquiry into the merits of the issues posed on account of the magnitude of the evil consequences. 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. apart from hearing the parties in oral argument for five (5) consecutive days — morning and afternoon. This was due to the transcendental nature of the main issue raised. some of those issues had been raised in the plebiscite cases. if adverse to the Government. as well as on such additional arguments as they wished to submit. consequently. oral and written. filed an opinion passing upon the merits thereof. 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. accordingly. it has required the respondents to comment on the respective petitions — with three (3) members of the Court voting to dismiss them outright — and then considered the comments thus submitted by the respondents as motions to dismiss. Thus. If this defense was sustained. or a total of exactly 26 hours and 31 minutes — their respective counsel filed extensive notes on their oral arguments. in addition to rejoinders thereto.

as President and President Pro Tempore respectively of the Senate. formally given due course to the petitions herein. here are my views on the reliefs sought by the parties. We must realize that the New Society has many achievements which would have been very difficult. question? . In L-36165. a resume or summary of the votes cast by each of them." whatever may be the meaning of such phrase. X and XV of the 1935 Constitution and the provisions of the Revised Election Code in force at the time of such plebiscite. In all other respects and with regard to the other respondents in said case. and that the 1935 Constitution is still the Fundamental Law of the Land. the writer will now make. statesmanship should not prevail over the Rule of Law. now. Indeed. Among consistent ends or consistent values. after the submittal by the members of the Court of their individual opinions and/or concurrences as appended hereto. it being settled in our jurisdiction. there being more than prima facie showing that the proposed Constitution has not been ratified in accordance with Article XV of the 1935 Constitution. my vote is that the petitions therein should be given due course. but "judicial statesmanship. The five questions thus agreed upon as reflecting the basic issues herein involved are the following: 1." though consistent with Rule of Law. to accomplish under the old dispensation. 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. in and for the judiciary. fundamental and essential parts of statesmanship itself. And. Resume of the Votes Cast and the Court's Resolution As earlier stated. as well as in eases L-36142. it was agreed to synthesize the basic issues at bar in broad general terms in five questions for purposes of taking the votes. despite the fact that technically the Court has not. there always is a hierarchy.the votes east and the tenor of the resolution. as yet. a rule of priority. based upon the theory of separation of powers. Is the issue of the validity of Proclamation No. if not impossible. in the last pages hereof. It should be stated that by virtue of the various approaches and views expressed during the deliberations. or has been acquiesced in by the people or a majority thereof. that said proposed Constitution is not in force and effect. Puyat and Jose Roy. the primacy of the law or of the Rule of Law and faithful adherence thereto are basic. if not probability. or political and therefore non-justiciable. 1102 a justiciable. like the aforementioned officers of the Senate. or substantially. I am aware of this possibility. it is clear that we should not issue the writ of mandamus prayed for against Gil J. 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. But. either strictly. Perhaps others would feel that my position in these cases overlooks what they might consider to be the demands of "judicial statesmanship. L-36236 and L-36283. qualifications and modifications as he may deem proper. with the concurrence of his colleagues. cannot prevail over the latter. as well as discuss thereon other related issues which he may consider vital and relevant to the cases at bar. L-36164. that the judiciary will not issue such writ to the head of a co-equal department.

1102 presents a justiciable and nonpolitical question. Teehankee and myself. Castro. in the affirmative. reported and canvassed. On the first issue involving the political-question doctrine. the Court should keep its hands-off out of respect to the people's will. hence.e. premised on the individual views expressed by the members of the Court in their respective opinions and/or concurrences. "in an election or plebiscite held in accordance with law and participated in only by qualified and duly registered voters. Castro. the Court may determine from both factual and legal angles whether or not Article XV of the 1935 Constitution has been complied with. which provides only one way for ratification." Justices Makasiar. and. after all." Justices Makasiar. but. On the third question of acquiescence by the Filipino people in the aforementioned proposed Constitution. are as follows: 1. and. or six (6) members of the Court. falls short of the requirements thereof. if not strict. or three (3) members of the Court hold that the issue is political and "beyond the ambit of judicial inquiry. it may be said that in its political aspect. Justices Makalintal. 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. i. On the second question of validity of the ratification. Antonio and Esguerra. I am constrained to hold that. the Court may inquire into the question of whether or not there has actually been such an approval. Is the aforementioned proposed Constitution in force? The results of the voting. 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. Zaldivar.2. the referendum in the Citizens' Assemblies. in effect. Fernando. in their discussion of the second question." 87 Justice Barredo qualified his vote. Justice Barredo qualified his vote. I still maintain that in the light of traditional concepts regarding the meaning and intent of said Article. said Article has been substantially complied with. Has the aforementioned proposed Constitution been acquiesced in (with or without valid ratification) by the people? 4. if not in the orthodox legal sense. Justices Makalintal and Castro did not vote squarely on this question. Antonio and Esguerra. Fernando. no majority vote has been reached by the Court.." 2. stating that "(A)s to whether or not the 1973 Constitution has been validly ratified pursuant to Article XV. In view. specially in the manner the votes therein were cast. Are petitioners entitled to relief? and 5. in the political sense. only inferentially. Has the Constitution proposed by the 1971 Constitutional Convention been ratified validly (with substantial. hold that the issue of the validity of Proclamation No. compliance) conformably to the applicable constitutional and statutory provisions? 3. Teehankee and myself. however. 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. . 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. Justices Makalintal. section 1 of the 1935 Constitution. in the negative. Zaldivar. but. the 1973 Constitution has been constitutionally ratified. 3. which is what counts most. stating that "inasmuch as it is claimed that there has been approval by the people.

Concepcion. Justices Barredo. Barredo. (they) have no means of knowing. 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. Makasiar. 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. Fernando. Teehankee and myself voted to deny respondents' motion to dismiss and to give due course to the petitions. . in the final analysis. there is no further judicial obstacle to the new Constitution being considered in force and effect. to the point of judicial certainty. On the fifth question of whether the new Constitution of 1973 is in force: Four (4) members of the Court. namely. concur. Fernando and Teehankee. and therefore beyond the competence of this Court. Makasiar. ACCORDINGLY. Makasiar. dissents. namely. and Two (2) members of the Court." Three (3) members of the Court express their lack of knowledge and/or competence to rule on the question. with the result that there are not enough votes to declare that the new Constitution is not in force. 90 are relevant and unavoidable. namely. Four (4) members of the Court. by the people qualified to vote all over the Philippines. Justices Makalintal. On the fourth question of relief. Justices Barredo. and there has even been no expression. of their acceptance or repudiation of the proposed Constitution under Martial Law. Justices Makalintal and Castro so voted on the strength of their view that "(T)he effectivity of the said Constitution. 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." 88 Two (2) members of the Court.Four (4) of its members." 91 Four (4) members of the Court.. Castro. Justice Zaldivar and myself hold that there can be no free expression. namely. 5. six (6) members of the Court. Makasiar. whether the people have accepted the Constitution. Justices Makalintal. Makasiar. namely. is the basic and ultimate question posed by these cases to resolve which considerations other than judicial. Barredo. JJ." 89 4. Antonio and Esguerra with the four (4) dissenting votes of the Chief Justice and Justices Zaldivar. Castro. Castro. Castro. a new Constitution once accepted or acquiesced in by the people must be accorded recognition by the Court. all the aforementioned cases are hereby dismissed.J. by virtue of the majority of six (6) votes of Justices Makalintal. Barredo. It is so ordered.. C. namely. Antonio and Esguerra hold that it is in force by virtue of the people's acceptance thereof. Justice Zaldivar and myself voted that the Constitution proposed by the 1971 Constitutional Convention is not in force. Antonio and Esguerra voted to DISMISS the petition. This being the vote of the majority. Justices Zaldivar. with the free expression of opinions through the usual media vehicles restricted. Makalintal. Justices Makalintal and Castro are joined by Justice Teehankee in their statement that "Under a regime of martial law. Antonio and Esguerra hold that "the people have already accepted the 1973 Constitution. namely. Antonio and Esguerra.

12 Pac. Rice v. 96 S. 422.W. .D.R. Powell. 60 Iowa. 568.] 110 N. Russell v. 10 S. 69 Cal. 543. 68 N. 582. Winnett [ Neb. People v.. 71 N. 881. 359. 46 Ohio St. 738. 44. 56 Pac. 156 Ind. and also dissents in a separate opinion. 418. Ferguson. Paul. 104.W. 46 Atl. 891.W.R. 396. Warfield v. Green v.] 134 Fed. 1130. whether the description of the amendment and the form of the ballot are sufficient (Rugsell v. 33 S. St. J. 6 L. 77 Miss. dissents in line with the personal opinion of the Chief Justice.A. 391. Edward v. Board. 1121. Law. 156 Ind. State Board. 69. 927. 59 N. Chicago. 34 Mont. 505.W. 164 Mo. 169. v. 50 L.D. etc. 130 Cal.W. at what election the amendment must be submitted (People v. Griest. Hilton. Tecumseh National Bank v. 50 Fla. except as to such portions thereof on which he expresses his own thoughts as set forth in his dissenting opinion.A. 154. 62 Pac. 505. 765. 5 Idaho. whether the publication of the amendment or of a notice relative to it is sufficient (Com. 609.W. 318. 543. 23 N. 849). Hays v. 127).A. Palmer. 45 L.J. Fernando.R. 491. State v. It has been judicially determined whether a proposed amendment received the constitutional majority of votes (Dayton v. Teehankee.S.S.. 181. 426. 6 N. 95 Am.E. 63 S.R. 412. 60 Atl. within the constitutional requirement that every amendment must be separately submitted (State v.R. 54 Wis. 479. Rep. West v. 196 Pa.E. 744. 87 Pac. Tufly. Cook. 354.W. or ratification of constitutional amendments.102 N. Sours.A.R.W.W.102 Am.W. 82. whether the method of submission is sufficient (Lovett v. Lesueur. whether the failure to enter the resolution of submission upon the legislative journals invalidates the amendment (Koehler v.R. 835. Dahl.. Croy. 22 Mont. 14 N. 289.W. v. Knight v. 164 Mo. Shelton [C.W. 396. 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. 78. 97). 396. Co. 132 Mo.W. J. v. Rep. 74 Pac. 51 L. 71 N. 410. Winnett [Neb. 63 N. 164 Mo. 46 Atl. 154. 259. Russell v. 3 Am. 815. Murphy Chair Co.A. 31 L.. 104. 63 S.W. 895). 538.11 Pac. 51 Neb. 39 South.A. [N. [N. Vandiver. 1113. 63 S. State v. Attorney General [Mich.] 112 N. Oakland Paving Co.R. 400. 27 South. Saunders. 3. 785. Foraker. J. 722.11 N. Croy. whether the submission may be as well by resolution as by a legislative act approved by the executive (Com. 450. 34 L. In re Denny. whether a proposed amendment is a single amendment. Timme. Wurtz.W. 568.] 110 N. 19 Nev. 127 Iowa. 101 Md.A. 10 L. 10 L. 171 Mo.R. Hays. St. 849). State. State v. 50 L. 34. Gabbert v. 130. 359.A.E. 81. State v. State v. 84.R. 31 Colo. dissents in conformity with the Chief Justice's personal opinion and files a separate dissent. Croy. St. 722. 732. 849. In re Denny. 47 Pac.15 N. 779. 516). 5 Idaho. 59 N. Durfee v. Bott v. 22 Minn. 69. Hill. 369. 69. 51 L. Lobaugh v. v.C. State v. 1113. Harper. Curry.. 70 S. 43 Atl. Griest.W.A.Zaldivar. 251. 47 Pac. 801. State v. 78 Ark. 167. St.] 149).A. 677. submission. 423). dissents in conformity with the personal views of the Chief Justice. 432. R.] 149. Rep. 196 Pa.

but. and that it was the duty of the court to determine whether all prerequisites had been complied with. 183. It is the fact of a majority vote which makes the amendment a part of the Constitution. 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. certain requisitions are to be observed. that 'we entertain no doubt that. without any political restriction. 11 N. that it is within the power of the judiciary to inquire into the question. 'It has been said. they can do it only by the method pointed out by the Constitution to which the amendment is added. . it follows that the promulgation of any purported amendment by the executive or any executive department is final. If this be so. The courts have not all agreed as to the strictness of compliance which should be required. 458.' says the court. but if they undertake to add an amendment. 100. In Collier v. before a change can be effected. 100. by the authority of legislation to a Constitution already in existence. both in the passage of such amendment by the Legislature and the manner of submitting it to the people. or these requisitions enjoined. ."In Rich v. Timme. the court determined judicially whether an amendment to the Constitution had been legally adopted. 24 Ala. Board of Canvassers. and that the action cannot be questioned by the judiciary. 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. power.' that certain acts are to be done. it was held that a Constitution can be changed only by the people in convention or in a mode described by the Constitution itself. but to what purpose are these acts required. it was held that no amendments can be made to the Constitution of the state without a compliance with the provisions thereof. 69 Ind. . The power to amend a Constitution by legislative action does not confer the power to break it. it has been repeatedly held.W. except the Constitution of the United States. even in a collateral proceeding. 636. and afterwards be adopted by the requisite vote . Frierson. Frierson. under the power granted by the Constitution. and not judicial. 100 Mich. it was said that: 'The people of a state may form an original Constitution. Swift. 505. 24 Kan. "In the Prohibition and Amendment Case. To do so would be to violate the instrument which they are sworn to support. 29 Am. could change the Constitution only in the manner prescribed by it. by courts of the highest respectability.' "In State v. any more than it confers the power to legislate on any other subject contrary to its prohibitions. In re State v. or whether the Legislature. 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. and that if the latter mode is adopted every requisite of the Constitution must be observed.' So.W. 4 Mo. or abrogate an old one and form a new one. After approving the statement quoted from Collier v. McBride. 303. The amendment must first receive the requisite majority in the Legislature. 318. 54 Wis. it was held that the General Assembly. . if the Legislature or any other department of the government can dispense with them.' "In considering the cases it is necessary to note whether in the particular case the court was called upon to determine between rival governments. 785. 59 N. with reference to the conditions precedent to submitting a proposed amendment to a vote of the people. . supra. had legally performed the duty imposed by the Constitution or statutes. One prerequisite is equally as essential as the other. or some board or official. to . at any time. Dec. in State v.

the court. 113. It did not declare that the machinery of the general election law should control. been entered in full upon the legislative journals. in People v Sours. counted. The Supreme Court of Colorado. every requisite which is demanded by the instrument itself must be observed.) 110 N. 'as substance of right is grander and more potent than methods of form. 74 Pac. 424. In Livermore v. also. conceding the irregularity of the proceedings of the Legislature and the doubtful scope of the provisions for the election. and not mandatory. and in view of the duty cast upon the court of taking judicial knowledge of anything affecting the existence and validity of any law or portion of the Constitution. supra. but contrary to them.A. at the instance of a citizen and a taxpayer. before its submission. and the popular and unchallenged acceptance of the legal pendency before the people of the question of the amendment for decision. Winnett (Neb.) 149. the universal prior acquiescence in the same forms of procedure. 479. 543. 3. or that any particular officers or board would receive. All these cases concede the jurisdiction of the court to determine whether. 710. 10 L. 69 Cal. 102 Cal. and the votes were received. 609. But it has not been universally accepted. and the result declared as fully as though it had been in terms so ordered. and People v. as required by the Constitution. and rests merely on assumption. 31 Colo. it must be adjudged that the proposed amendment became part of the Constitution. 222. 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. or canvass the votes cast. 34. yet in view of the very uncertainty of such provisions. the court. and that the amendment did not.S. 1113. had not.A. which concededly had been adopted by the people. . Hill.R. 44 Or. 11 Pac. 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. 118. and it was held that this was a material variance in both form and substance from the constitutional requirements. 60 Iowa. Hilton.change the Constitution in any other mode than by a convention. in submitting a proposed amendment to the people.R. These methods had been followed in the adoption of previous amendments.W. 75 Pac. St.W. refused to exercise this authority. the well-considered case of Kadderly v.' the court held that. 14 N. and canvassed. Sours. and the omission of any one is fatal to the amendment.W. 369. It appears that the joint resolution making a submission simply provided that a proposition should be submitted to the electors at the general election of 1880. 102 Am. Rep. Portland. 312. 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. Waite.' See. (N. and based on premises which are without any sound foundation. and it was held that. Neither the argument nor the conclusion can command our assent or approval. 25 L. The argument is illogical. v. count. "The entire question received elaborate consideration in Koehler v. This liberal view was approved in State v.' 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. the Legislature legally observed the constitutional provisions as to the manner of procedure. "In Oakland Paving Co. But the existing election machinery was adequate. 738. 74 Pac. The amendment. 36 Pac. the past legislative history of similar propositions. 167. 15 N.

in the adoption of the amendment. and. and that it did not follow that. By the Constitution a proposed amendment was required to be approved by two Legislatures before its submission to the people. and 8. to inquire whether. it resolved 'that said amendment be. to declare the amendment invalid and of no force. 84 N. as required by the Constitution. and it is the duty of the courts in a proper case. and from the very nature of the thing the Legislature must be . the amendment was not submitted in the manner prescribed by the Constitution. the amendment. become a part of the Constitution. People. the provisions of the existing Constitution have been observed. they became a part of the Constitution. it had been legally submitted and adopted. This case was followed in State v. the question whether a proposed amendment to the Constitution had been legally adopted was treated as a judicial question. 543. 927.C. where the existing Constitution prescribes a method for its own amendment.643 votes against.W. In this instance a bill was passed which contained 17 amendments. 6 N. and. yet. 641. according to the letter and spirit of the Constitution. 27 South. 113 Iowa. It was contended that the amendments had been improperly submitted. as the people had spoken and ratified the amendments. and from which they derive their powers. "In Westinghausen v. 44 Mich. 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. the question whether an amendment to the Constitution had been legally submitted and adopted by the people was held to be judicial. 250. The majority of the people voted for their adoption. to be valid. McIver. as it appeared from the returns made to the Secretary of State.therefore. it was held that prior to 1876 a proposed amendment to the Constitution could not be submitted to the people at any other than a general election.W. judiciary. The court held that the power of the Legislature in submitting amendments could not be distinguished from the powers of the convention. The next Legislature rejected 9 and adopted 8 of these amendments. as the amendment under consideration had been submitted after the Constitution had been changed. and submitted them to the people. should be approved by both Legislatures. The law did not direct how the result of the election should be determined. when an amendment does not relate to their own power or functions. if not. it would have adopted the 17. 72 N. instead of an appointive. or any of them. The Legislature by joint resolution recited that the election had been duly held throughout the state. but. Brookhart. Powell. "In State v. As to the claim that the question was political. an amendment thereto. The substance of the contention was that there had not been a concurrence of the two Legislatures on the same amendments. 265. The amendment under consideration changed the Constitution by providing for an elective.169 votes were cast in favor of. that 21. and not judicial. but it was contended that the Constitution contemplated and required that the same bill and the same amendments. and that. because the second Legislature adopted separately 8 out of the 17 amendments adopted by the first Legislature. 1064. ?6. inserted into the Constitution of the state of Mississippi as a part of the Constitution.' In fact. and not adopted by a majority of the qualified voters voting at the election. and not political. if they had been voted upon by the second in the form adopted by the first body. in its nature. it was said that. 77 Miss. It was argued that the rules prescribed by the Constitution 'are all for the guidance of the Legislature. and it did not receive a majority of all the qualified voters voting at the election. without change. and hereby is. must be adopted in strict conformity to that method. "In University v.

confides to the separate magistracy of the legislative department full power to hear.R. 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.A. were all judicial. having agreed to certain proposed amendments. and made it the duty of the Governor at the designated time to summon four or more Senators. and it shall be the duty of the Governor of the state forthwith. to issue a proclamation declaring which of the said proposed amendments have been adopted by the people. imposed on us a most difficult and embarrassing duty. the amendment is inserted and made a part of the Constitution. 289.' This board was required to file a statement of the result of the election. 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. should constitute a board of state canvassers to canvass and estimate the votes for and against each amendment. 'We do not. in order that it might be judicially . The Constitution provided the manner in which proposed amendments should be submitted to the people.' But it was held that the question whether the proposition submitted to the voters constituted one. but of final judgment as well. 63 N. Law. The Legislature. 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 whether the proposition was in fact adopted. Wurtz. 'seek a jurisdiction not imposed upon us by the Constitution. shall from the time of filing such certificate be and become an amendment to and a part of the Constitution of the state. and the judiciary is as powerless to interfere as the executive. or judicial. to be determined by the courts. 881. if we would. questions. escape the exercise of that jurisdiction which the Constitution has imposed upon us. The qualified electors answer back to the Legislature. amendment. The case is an interesting and well-considered one. Whether the question be political. and the Governor to issue his proclamation declaring that the amendment had been adopted and become a part of the Constitution. after such a determination. whether the submission was according to the requirements of the Constitution. In the particular instance in which we are now acting. 46 L. 744. and adjudge that question. The Legislature puts the question to the qualified electors. our duty to know what the Constitution of the state is.the exclusive judge of all questions to be measured or determined by these rules. passed an act for submitting the same to the people.J. and in accordance with our oaths to support and maintain it in its integrity. with the Governor. and certainly a legislative one. not only of procedure. one which we have not sought. 251. this section of rules. 43 Atl. but did not provide a method for canvassing the votes. The Governor and the courts have no authority to speak at any stage of the proceedings between the sovereign and the Legislature. but one which. must be discharged. like all others. "If it shall appear" to the Legislature that its question has been answered in the affirmative. who.' "In Bott v. and when the matter is thus concluded it is closed. This statute provided for the transmission to the Secretary of State of certificates showing the result of the voting throughout the state.' said Chief Justice Whitfield. or more than one. consider. and 'any proposed amendment. and not political. and to annul their acts if they had not done so. We could not. 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.

and it is found in many dissenting opinions. said: 'It thus becomes manifest that there was present in the Supreme Court.' "In State v. 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. and that the question was political. Tooker. after a full review of the authorities. 86-B Defining Further the Role of Barangays (Citizens Assemblies) WHEREAS. after considering the case on the merits.A. 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. That such a proposition is not true seems to be indicated by the whole history of jurisprudence in this country. The Court of Appeals. with probably a few exceptions. 96 S. 396. 432. presented the identical question which we have under consideration.R. and that the amendment in question was legally submitted and adopted. 1972. and to annul their acts in case that they have not done so. 37 Pac. and properly determinable by the court on their merits. it is not found in any prevailing opinion. every element tending to maintain jurisdiction over the subject-matter. economic and social fields. Palmer. as insisted. and held that the questions were of a judicial nature.W. "The recent case of Rice v. held that the proper conclusion had been drawn therefrom. 840. since their creation pursuant to Presidential Decree No. and not judicial. 86 dated December 31. 560. the court observed: 'The argument has often been made in similar cases to the courts. Mr. and that it is now necessary to bring this down to the level of the people themselves through the Barangays or Citizens Assemblies. 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. but.determined whether on the facts shown in that statement the board had legally determined that the proposed amendment had been adopted." ANNEX B MALACAÑANG MANILA BY THE PRESIDENT OF THE PHILIPPINES PRESIDENTIAL DECREE NO. on the basis of the said petitions. unless it be true. . WHEREAS. the Barangays (Citizens Assemblies) have petitioned the Office of the President to submit to them for resolution important national issues. 25 L. 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. one of the questions persistently mentioned refers to the ratification of the Constitution proposed by the 1971 Constitutional Convention. Justice Dixon. 8. and is now pending in this court. 15 Mont. reversed this decision. after stating the facts. 78 Ark.' The court. 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. WHEREAS.

As it turned out." At the time that Constitution was approved by the Constitutional Convention on February 8. or their will on important matters submitted to them. nineteen hundred and seventy-three. Section 1. 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. but to our mind they are merely subordinate and peripheral. Other grounds are relied upon by the petitioners in support of their basic proposition. 1940 (establishment of a bicameral legislature. 1947 (Parity Amendment). The major thrust of the petitions is that the act of the Citizens Assemblies as certified and proclaimed by the President on January 17. the hearing lasted five days. and 1967 (increase in membership of the House of Representatives . morning and afternoon. MARCOS. The Secretary of the Department of Local Government and Community Development shall insure the implementation of this Order. for approval. which suggested the need for hearing the side of the respondents before that preliminary question was resolved. Considering on the one hand the urgency of the matter and on the other hand its transcendental importance. eligibility of the President and the Vice President for re election: creation of the Commission of Elections). Done in the City of Manila. Article XV. thus: in 1939 (Ordinance appended to the Constitution). President of the Philippines. After the comments were filed We considered them as motions to dismiss so that they could be orally argued. pursuant to law.) FERDINAND E. It was in this sense that the word was used by the framers in Article XV (also in Articles VI and VII).) ALEJANDRO MELCHOR Executive Secretary MAKALINTAL and CASTRO. 1935. JJ.: The preliminary question before this Court was whether or not the petitioners had made out a sufficient prima facie case in their petitions to justify their being given due course. let alone a valid one. (SGD. THEREFORE. It was not a vague and amorphous concept. this 7th day of January in the year of Our Lord. of the 1935 Constitution provides that amendments (proposed either by Congress in joint session or by a Convention called by it for the purpose) "shall be valid as part of this Constitution when approved by a majority of the votes cast at an election at which the amendments are submitted to the people for their ratification. 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. by virtue of the powers in me vested by the Constitution. and could not have been more exhaustive if the petitions had been given due course from the beginning. We required them to submit their comments on the petitions. 86-A dated January 5. FERDINAND E. 1973 and that the initial referendum shall include the matter of ratification of the Constitution proposed by the 1971 Constitutional Convention. but a procedure prescribed by statute for ascertaining the people's choices among candidates for public offices. the word "election" had already a definite meaning in our law and jurisprudence. because it was not in accordance with the existing Constitution (of 1935) and the Election Code of 1971. and ratified in a plebiscite held on the following May 14. of the proposed Constitution. I.NOW. MARCOS By the President: (SGD. 1973 (Proclamation No 1102) was not an act of ratification.

in its Section 2. literacy and residence. and (h) in general. 7. (c) registration of voters: (d) appointment of boards of election inspectors and designation of watchers in each precinct. 16. 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. (3) After the draft Constitution was approved by the Constitutional Convention on November 30. Section 99 requires that qualified voters be registered in a permanent list. Section 102 enumerates the classes of persons disqualified to vote. the records of registration and the custody thereof. With specific reference to the ratification of the 1972 draft Constitution. and with specific reference to the term "plebiscites. prescribing in detail the different steps to be taken to carry out the process of ratification. (e) printing of official ballots. the description and printing of official ballots. 1973. the rules for appreciation of ballots. (g) canvass of plebiscite returns. Section 2. Section 16. and then the canvass and proclamation of the results." The same procedure is prescribed in Article XVI. states that "all elections of public officers except barrio officials and plebiscites shall be conducted in the manner provided by this Code. 1967. 1972 the said body adopted Resolution No. several additional circumstances should be considered: (1) This draft was prepared and approved by a Convention which had been convened pursuant to Resolution No. (f) manner of voting to insure freedom and secrecy thereof. shall supersede the Constitution of nineteen hundred and thirty-five and all amendments thereto. 5843. to carry out the constitutional mandate relative to the exercise of the right of suffrage. (b) freedom of information and discussion. 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. which provides: "Sec. These qualifications are reiterated in Section 101 of the Election Code. of the 1935 Constitution on the basis of age (21). for the ratification of any future amendment to or revision of the said Constitution. . calling a plebiscite to be held on January 15. The Election Code of 1971. 2 passed by Congress on March 16. such as: (a) publication of the proposed Constitution in English and Pilipino. of the draft itself states: "Sec. The manner of conducting elections and plebiscites provided by the Code is spelled out in other sections thereof. 73 on the same day." This is a statutory requirement designed. the actual casting of votes and their subsequent counting by the boards of inspectors. the procedure for registering voters. proposing "to President Ferdinand E." Pursuant to said Resolution the President issued Decree No. at which the proposed Constitution "shall be submitted to the people for ratification or rejection. Succeeding sections prescribe the election paraphernalia to be used. Section 1. except as herein provided. the qualifications being those set forth in Article V." The Decree had eighteen (18) sections in all. as were the other election laws previously in force. This Constitution shall take effect immediately upon its ratification by a majority of the votes cast in a plebiscite called for the purpose and." the provision of Article XV regarding ratification of constitutional amendments.and eligibility of members of Congress to run for the Constitutional Convention without forfeiture of their offices)." (2) Article XVII.

No. and the holding of elections in November 1973. L-34150." * Thus a grammatical construction based on a singular. 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. that is. 86-A." On January 5. but the ratification of an entire charter setting up a new form of government. 1973. as in Tolentino vs. fifteen years of age or over. "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. In the cases now before Us what is at issue is not merely the ratification of just one amendment. in an election or plebiscite held in accordance with law and participated in only by qualified and duly registered voters. COMELEC. like the holding of the plebiscite on the new Constitution. district or ward secretary. This Court held that such separate submission was violative of Article XV. citizens of the Philippines and who are registered in the lists of Citizen Assembly members kept by the barrio. 86 dated December 31. October 16. The Citizens Assemblies which purportedly ratified the draft Constitution were created by Presidential Decree No. 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. 1973 the newspapers came out with a list of four questions to be submitted to the Citizens Assemblies. the fourth one being as follows: "How soon would you like the plebiscite on the new Constitution to be held?" It should be noted in this connection that the President had previously announced that he had ordered the postponement of the . 1973. 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. 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. of the Constitution. the continuation of martial rule. the convening of Congress on January 22. to "consider vital national issues now confronting the country." By Presidential Decree No.compliance with the provisions of the Election Code of 1971. 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. Commission on Elections. 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. and the issue has arisen not because of a disputed construction of one word or one provision in the 1935 Constitution but because no election or plebiscite in accordance with that Constitution and with the Election Code of 1971 was held for the purpose of such ratification. the Assemblies were convened for a referendum between January 10 and 15. 1971 (41 SCRA 702). 1972. dated January 5. so as to enable the youth to be thus enfranchised to participate in the plebiscite for the ratification of such other amendments later. instead of plural." The Assemblies "shall consist of all persons who are residents of the barrio. district or ward for at least six months. with the Commission on Elections exercising its constitutional and statutory powers of supervision of the entire process. Section 1.

1 In order to broaden the base of citizens' participation in government. 1973 in accordance with the provisions of the 1935 Constitution? "(5) If the elections would not be held. 1972. for reforms to take root and normalcy to return. not as to whether or not it should be held at all. then the new Constitution should be deemed ratified. of so many debates and so much expenses. (Bulletin Today. that he had ordered that the registration of voters (pursuant to Decree No.plebiscite which he had called for January 15. QUESTION No. 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. 73) be extended to accommodate new voters. The vote of the Citizens Assemblies should already be considered the plebiscite on the New Constitution. 73) for the ratification of the draft Constitution. Appended to the six additional questions above quoted were the suggested answers. We want him to exercise his powers with more authority. namely: "(1) Do you approve of the citizens assemblies as the base of popular government to decide issues of national interest? "(2) Do you approve of the new Constitution? "(3) Do you want a plebiscite to be called to ratify the new Constitution? "(4) Do you want the elections to be held in November. January 11. 1973 it was reported that one more question would be added to the original four which were to be submitted to the Citizens Assemblies. it may likewise be noted. The question concerning the plebiscite was reworded as follows: "Do yon like the plebiscite to be held later?" The implication. January 11. 4 We are sick and tired of too frequent elections. 1973: italics supplied]. We are fed up with politics. December 24. it was reported that six additional questions would be submitted. and that copies of the new Constitution would be distributed in eight dialects to the people. 3 If the Citizens Assemblies approve of the New Constitution. and that he was considering two new dates for the purpose — February 19 or March 5. was that the Assemblies should express their views as to when the plebiscite should be held. QUESTION No. QUESTION No.) On January 10. 5 Probably a period of at least seven (7) years moratorium on elections will be enough for stability to be established in the country. QUESTION No. 6 We want President Marcos to continue with Martial Law. The next day. 1973 (Presidential Decree No. when do you want the next elections to be called? "(6) Do you want martial law to continue?" [Bulletin Today. QUESTION No. We want him to he strong and firm so that he can . thus: "COMMENTS ON QUESTION No. 2 But we do not want the Ad Interim Assembly to be convoked.

that the plebiscite should be done away with and a favorable vote by the Assemblies deemed equivalent to ratification. Section 1. of the draft Constitution itself. or as the election intended by Congress when it passed Resolution No. took no part at all. but in the suggested answer to question No. let alone registered. that is. feeble-minded. the suggestion was broached. but included all citizens from the age of fifteen. Section 1. of the 1935 Constitution and with the Election Code of 1971. either by way of supervision or in the assessment of the results. 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. not in the questionnaire itself. voters. No official ballots were used in the voting. it was not similarly suggested that an unfavorable vote be considered as rejection. and to conclude that it exists even if it has not been ascertained according to law is simply to beg the issue. 2 on March 16. as certified by the President in Proclamation No. Such a finding. Section 16. assuming that such voting was held. the second day of the purported referendum. If all other measures fail. which is the constitutional body charged with the enforcement and administration of all laws relative to the conduct of elections. of the 1935 Constitution nor in accordance with the Election Code of 1971. 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 short. There should be no serious dispute as to the fact that the manner in which the voting was conducted in the Citizens' Assemblies. Strangely. 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.accomplish all his reform program and establish normalcy in the country. The Citizens Assemblies were not limited to qualified. within the power of this Court to inquire . a finding that the ratification of the draft Constitution by the Citizens Assemblies. The referendum can by no means be considered as the plebiscite contemplated in Section 2 of said Code and in Article XVII. was not within the intendment of Article XV. It has been suggested that since according to Proclamation No. for the first time. the constitutional and statutory qualifications were not considered in the determination of who should participate. 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. In other words the very existence of such majority or plurality depends upon the manner of its ascertainment. 1973. 3. and regardless of whether or not they were illiterates. we want President Marcos to declare a revolutionary government along the lines of the new Constitution without the ad interim Assembly. The suggestion misses the point entirely." So it was that on January 11. 1102. This was done. or ex-convicts * — these being the classes of persons expressly disqualified from voting by Section 102 of the Election Code. was not therefore observed. Secrecy. which is one of the essential features of the election process. 1967 calling a Convention for the revision of the 1935 Constitution. No set of rules for counting the votes or of tabulating them and reporting the figures was prescribed or followed. or to assume the very fact to be established. However. The Commission on Elections. it was done mostly by acclamation or open show of hands. in our opinion. is on a matter which is essentially justiciable. however.

are relevant and unavoidable." Heretofore. Respondents Gil J. the most convenient ground for the invocation of the political-question doctrine. to resolve which considerations other than judicial. if sustained. 1081) he established a revolutionary government when he issued General Order No. as ordained by the 1935 Constitution. No question of wisdom or of policy is involved. and in the case of a majority of the members by expressing their option to serve in the Interim National Assembly in accordance with Article XVII. likewise invoke the political question doctrine. The respondents represented by the Solicitor General. and through their counsel. but on a ground not concurred in by the Solicitor General. In the cases at bar there is no such assumption: the Constitution (1935) has been derogated and its continued existence as well as the validity of the act of derogation is the issue. namely. Senator Tolentino contends that after President Marcos declared martial law on September 21. But from this finding it does not necessarily follow that this Court may justifiably declare that the Constitution has not become. and the latter by convening on January 22.into. 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. of the 1973 Constitution. 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. Several theories have been advanced respectively by the parties. may be taken up and restated at some length if only because it would constitute. Section 2. 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. effective. challenge the jurisdiction of this Court on the ground that the questions raised in the petitions are political and therefore non-justiciable. * The theory advanced by Senator Tolentino. The effectivity of the said Constitution. conceded by all. in the course of a successful political revolution. wherein he proclaimed "that I shall govern the nation and direct the operation of the entire . 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. that "the approval of the 1973 Constitution by the people was made under a revolutionary government. as counsel for respondents Puyat and Roy. 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. constitutional disputes which have come before this Court for adjudication proceeded on the assumption. in the final analysis. with the power and authority of the entire Government behind it. 1 the next day. 1973 or at any time thereafter. The process employed was one of interpretation and synthesis. In support of his theory. and therefore beyond the competence of this Court. is the basic and ultimate question posed by these cases. and for that reason give due course to these petitions or grant the writs herein prayed for. that the Constitution was in full force and effect. which was converted by act of the people to the present de jure government under the 1973 Constitution. whose theory may be taken as the official position of the Government. Puyat and Jose Roy (in L 36165) in their respective capacities as President and President Pro Tempore of the Senate of the Philippines. 1972 (Proclamation No. Senator Arturo Tolentino.

whether or not the government legitimately functions under it instead of under the 1935 Constitution." By this order. 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. such as "those involving the validity. promulgated or performed by me or by my duly designated representative pursuant thereto. legislative. If a new government gains authority and dominance through force. it is pointed out. in some instances. in the context just set forth. by removing from its jurisdiction certain classes of cases." (General Order No. Supreme Court in a case relied upon.S. who disagrees with the revolutionary government theory of Senator Tolentino. if no force had been resorted to and the people. or of any decree.judicial in nature. The case involved the issue of which of two opposing governments struggling for supremacy in the State of Rhode Island was the lawful one. it can be effectively challenged only by a stronger force. dated September 24. it is averred. . We do not see that the situation would be any different. 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. legality. 3 as amended by General Order No. the U. ordained a new Constitution and succeeded in having the government operate under it. Supreme Court said: "And if a State court should enter upon the inquiry proposed in this case. The logic of the political-question doctrine is illustrated in a statement of the U. order or act issued. then the issue of whether or not that Constitution has become effective and. in defiance of the existing Constitution not peacefully because of the absence of any appreciable opposition. The issue had previously come up in several other cases before the courts of the State.S." In other words.government. and judicial. 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. which uniformly held that the inquiry belonged to the political power and not to the judicial. 1081. Under such a postulate what the people did in the Citizens Assemblies should be taken as an exercise of the ultimate sovereign power. and so courts forbear to take cognizance of the question but leave it to be decided through political means. it necessarily affirms the existence and authority of the government under which it is exercising judicial power. the Commander-in-Chief of the Armed Forces assumed all the powers of government — executive. was the culminating act of the revolution. it would cease to be a court. in my capacity. or constitutionality of Proclamation No. Commenting on the ruling thus arrived at. which thereupon converted the government into a de jure one under the 1973 Constitution. by the Solicitor General. no judicial dictum can prevail against it. is based on realities. is political and therefore non. including all its agencies and instrumentalities.) The ratification by the Citizens Assemblies. as far as the doctrine of judicial review is concerned. curiously enough. 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. If it decides at all as a court. and should come to the conclusion that the government under which it acted had been put aside and displaced by an opposing government. trenched upon the domain of the judiciary. 1972. as a necessary corollary. Against such a reality there can be no adequate judicial relief. and incapable of pronouncing a judicial decision upon the question it undertook to try. If they had risen up in arms and by force deposed the then existing government and set up a new government in its place. albeit peaceful. 3-A.

" (2) The President announced. therefore. was "Do you approve of the Constitution?" (4) President Marcos. In fact the plebiscite planned for January 15. (1) The Citizens Assemblies were created. did proclaim that the Constitution had been ratified and had come into effect. according to the Daily Express of January 2. However. 24. "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. It should be noted that the above statement from Luther vs. 1972). according to Presidential Decree No. that "there was little time to campaign for or against ratification" (Daily Express. Indeed. submitting the Constitution to them and proclaiming that the favorable expression of their views was an act of ratification. as far as we can see. in proclaiming that the Constitution had been ratified. should be as to what the President had in mind in convening the Citizens Assemblies. 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 under it is the product of such revolution. Dec. which defy judicial analysis and adjudication. with specific reference to the questioned ratification. much less with the many other subjects that were submitted to them. But then the President. the reasons for the postponement being." (Bulletin Today. that "the referendum will be in the nature of a loose consultation with the people. for recommendation imports recognition of some higher authority in whom the final decision rests." (3) The question. as attributed to the President in the newspapers. 1972.since the court would have no choice but to decide in one way alone in order to be able to decide at all. the Katipunan ng mga Barangay has strongly recommended that the new Constitution should already be deemed ratified by the Filipino people. but only for the expression of their views on a consultative basis. 86.) 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. 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 more relevant consideration. 1973. 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 . 22. and that "the postponement would give us more time to debate on the merits of the Charter. In the first place. are necessarily involved. Dec. pursuant to such recommendation. In this respect subjective factors. the question could not be considered proper for judicial determination. Dec. 1972)." (5) There was not enough time for the Citizens Assemblies to really familiarize themselves with the Constitution. 1973 under Presidential Decree No. 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. we are not prepared to agree that the premise is justified. several significant circumstances may be noted. 73 had been postponed to an indefinite date. 23. 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. as submitted to them on the particular point at issue here.

The pivotal question is rather whether or not the effectivity of the said Constitution by virtue of Presidential Proclamation No. . the Constitution. . upon the recommendation of the Katipunan ng mga Barangay. 1102. . we ratify the Constitution. that when all other measures should fail. the latter being . they will rise up in arms not in revolt against the Republic but in protection of the Republic which they have installed. . ." ". from which the following portion is quoted: ". . 1973. Jan. our destiny. that the President be directed to organize and establish a Revolutionary Government. On one hand we read. For if any power in government should even dare to disregard the people's will there would be valid ground for revolt." (A Report to the National.) On the occasion of the signing of Proclamation No. 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. . our lives. if we do ratify the Constitution how can we speak of a Revolutionary Government? They cannot be compatible ." he said. was intended to be definite and irrevocable. President said the following. The implications of disregarding the people's will are too awesome to be even considered. that they mean they will not discard. the times are too grave and the stakes too high for us to permit the customary concessions to traditional democratic process to hold back our people's clear and unequivocal resolve and mandate to meet and overcome the extraordinary challenges presented by these extraordinary times. . . perhaps delimit the power of the people to speak on legal matters. . 7. confusion and misery to the masses ." "(I)t is my feeling. . he said: "I reiterate what I have said in the past: there is no turning back for our people. for instance. . "that the Citizens' Assemblies which submitted this recommendation merely sought to articulate their impatience with the status quo that has brought about anarchy. We can. 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. We have burned our bridges behind us. the following public statements of the President: Speaking about the proclamation of martial law. 1102 on January 17. 1102 the President made pointed reference to "the demand of some of our citizens ." 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. It is quite clear when the people say. 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. We have pledged to it our future. . regardless of non-compliance with the pertinent constitutional and statutory provisions prescribing the procedure for ratification.martial law and under which the new Constitution was submitted to the Citizens Assemblies was a revolutionary one. "We have committed ourselves to this revolution." On the same occasion of the signing of Proclamation No. on justiciable matters." On January 19. . 1973 the Daily Express published a statement of the President made the day before. on matters that may come before the experts and interpreters of the law. . . among other things: ". 1913. Let no man misunderstand the strength of our resolution. our fortunes. . ". . The political questions that were presented to the people are exactly those that refer to the form of government which the people want ." but in the next breath added: ".

pp. but that in a democratic society. confusion and misery. And if this is a correct and accurate assessment of the situation. The only thing is that instead of 18 year olds voting. But the 15-year-olds of today are high school students. President Marcos has professed fealty to the Constitution. In "Today's Revolution: Democracy" he says: "I believe. in his opinion. revolution is of necessity. We are against the wall. if not graduates. we have allowed 15-year-olds the night to vote. and certainly unmistakable." The message seems clear: rather than return to such status quo. for it was the status quo under that Constitution that had caused "anarchy. . and they are better informed than my contemporaries at that age. We must now defend the Republic with the stronger powers of the Constitution. Everything I am doing is in accordance with the 1930 Constitution. in the foregoing pronouncements. it is that the step taken in connection with the ratification of the Constitution was meant to be irreversible. "I have had to use this constitutional power in order that we may not completely lose the civil rights and freedom which we cherish . because that would be the only other way to carry out the reforms he had envisioned and initiated — reforms which. both explicit and implicit. won't you be in serious trouble if you run into critical problems with your programs? "A. because precisely the Constitution had been ratified. . this is not a military takeover of civil government functions. I have never gotten off the constitutional track. and legal. by avowals no less significant if not so emphatic in terms. peaceful. a return to the 1935 Constitution. and that nothing anyone could say would make the least difference. President Marcos told the nation: "I have proclaimed martial law in accordance with the powers vested in the President by the Constitution of the Philippines. italics supplied) In the report of an interview granted by the President to the Newsweek Magazine (published in the issue of January 29. "xxx xxx xxx "I repeat. 1972. . .unnecessary. . except only in the field of civil liberties. Now that you have gotten off the constitutional track." (Vital Documents. On the matter of whether it is constitutional to proclaim . . therefore. If there is any significance. he would need the recommendation of the Citizens' Assemblies to establish a revolutionary government. constitutional. 1973). in the necessity of Revolution as an instrument of individual and social change . in all fairness and honesty. the matter lies beyond the power of judicial review. the following appears: "xxx xxx xxx "Q. namely. . must be given credit for the improved quality of life in its many aspects. On the other hand. ." In his TV address of September 23. 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. "xxx xxx xxx "I assure you that I am utilizing this power vested in me by the Constitution to save the Republic and reform our society . The Government of the Republic of the Philippines which was established by our people in 1946 continues. The third obvious alternative was entirely ruled out. ". 1-12.

is in no position to pass judgment. if he has not already decided. we have no means of knowing. We therefore vote not to give due course to the instant petitions. that what the people recommended through the Citizens Assemblies. To interpret the Constitution — that is judicial.martial law. whether adherence to such procedure is weighty enough a consideration. insurrection. has found acceptance among the people. We may quarrel about whether what we have gone through is sufficient cause to proclaim martial law but at the very least there is a danger of rebellion because so many of our soldiers have been killed. we have discharged our sworn duty as we conceive it to be. nothing more cogent and compelling than what had already been previously presented by Counsel . then judicial review is out of the question. That the Constitution should be deemed in effect because of popular acquiescence — that is political. The President should now perhaps decide. and in the course of the unprecedented five day hearing that was held from February 12 to 16 last. and therefore beyond the domain of judicial review. we do not find the issue decisive insofar as our vote in these cases is concerned. In articulating our view that the procedure of ratification that was followed was not in accordance with the 1935 Constitution and related statutes. J. We have not tarried on the point at all since we find no reliable basis on which to form a judgment. Separate Opinions BARREDO. 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. there are amplifications of some of the grounds previously alleged. and with due recognition of the sincerity. as they were reported to him. 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. demanded that the action he took pursuant thereto be final and irrevocable. 1973. You must remember this (martial law provision) was lifted from the American legislation that was the fundamental law of our country. more extensive and illuminating arguments were heard by Us. to our mind. in my estimation. In any event. whether the people have accepted the Constitution. "xxx xxx xxx" In the light of this seeming ambivalence. rebellion or immediate danger thereof. if only to dispel any cloud of doubt that may now and in the future shroud the nation's Charter.: As far as I am concerned. If he should decide that there is no turning back. Under a regime of martial law. with the free expression of opinions through the usual media vehicles restricted. Tañada on January 15. to the point of judicial certainty. but. I regard the present petitions as no more than mere reiterations of the Supplemental Petitions filed by Counsel Lorenzo M. Of course. since its submission to the Citizens Assemblies. it is constitutional because the Constitution provides for it in the event of invasion. In the deliberations of this Court one of the issues formulated for resolution is whether or not the new Constitution. such issue being related to the political question theory propounded by the respondents. 1973 in the so called Plebiscite Cases decided by this Court on January 22. brilliance and eloquence of counsels.

the assembly began its sessions on June 1. the vote I cast when these petitions were initially considered by the Court. yet abruptly. 1937 of women's suffrage. They revolve around the purported ratification of the Constitution of 1973 declared in Proclamation 1102 issued by the President on January 17. and considering that I reserved before the filing of a more extended opinion. they may be taken judicial notice of. 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. 1971. upon the result of which Proclamation 1102 is based. I. 1967. As I shall elucidate anon. r can see now. After encountering a lot of difficulties. 1973. I cannot see any reason why I should change the position I took in regard to the earlier cases. if only to clarify that apart from the people's right of revolution to which I made pointed reference in my previous opinion. act of the people. 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. the bicameral legislature and the Commission on Elections. may be viewed more importantly as a political act than as a purely legal one. Republic Act 6132. and by the third quarter of 1972 had finished deliberations and second-reading voting only on an insignificant number of proposals — until September 21. namely. 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. 1940 of the reelection of the President. 1947 of the parity amendments and 1967. due to bitter rivalries over important positions and committees and an incomprehensible fear of overconcentrating powers in their officers. not altogether unexpectedly. delegates to a constitutional convention to propose amendments to the Constitution of 1935 were elected in accordance with the implementing law. The facts that gave rise to these proceedings are historical and well known. Pursuant to a joint resolution of the Congress sitting as a constituent assembly approved on March 16. 1973. rejecting the proposed increase in the members of the House of Representatives and eligibility of members of Congress to the Constitutional Convention. not necessarily as a consequence of the revolutionary concept previously suggested by me. issued Proclamation 1081 declaring martial law throughout the country. on November 10. to dismiss them. 1970. Known as the Constitutional Convention of 1971. If indeed this explanation may be considered as a modification of my rationalization then. however. the delegates went about their work in comparatively slow pace. Generally. therefore.Tañada is before Us now. when the President. the result of the referendum may be construed as a compliance with the substantiality of Article XV of the 1935 Constitution. In view. 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. I will take this opportunity to explain further why I hold that the 1973 Constitution is already in force. An attempt was made to . Accordingly. 1939 of the amendments to the Ordinance Appended to the Constitution. after further reflection. 1972. that the vote of the people in the referendum in the Citizens Assemblies held on January 10 to 15. I reiterate. but upon the ground that as a political. may be deemed as a valid ratification substantially in compliance with the basic intent of Article XV of the 1935 Constitution. more than as a legal.

and not long after the motion of Delegate Kalaw to such effect was turned down. Earlier. the Convention had approved Resolution No. before martial law was declared. the President. In connection with the plebiscite thus contemplated. in the same order of January 7. 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. to last very long. on November 22. In the meantime. on the basis of preliminary and initial reports from the field as gathered from barangays (citizens assemblies) that have so far been established. be postponed until further notice. 86-A STRENGTHENING AND DEFINING THE ROLE OF BARANGAYS (CITIZENS ASSEMBLIES ) WHEREAS. the President ordered the suspension of the effects of martial law and lifted the suspension of the privilege of the writ of habeas corpus insofar as activities connected with the ratification of the draft constitution were concerned. affecting their day to day lives and their future. 1972. "that the plebiscite scheduled to be held on January 15. the President had issued on December 31. the President ordered. 20. under date of December 17. Not only this. the President issued Presidential Decree No. As if unmindful of the arrest and continued detention of several of its members. 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 there for. 1973. 17 was issued ordering and enjoining the authorities to allow and encourage public and free discussions on the proposed constitution. it approved by overwhelming vote the draft of a complete constitution. there was full and unlimited coverage of the workings in the convention by the mass media. 86-A providing as follows: "PRESIDENTIAL DECREE NO. withdrew said orders and enjoined full and stricter implementation of martial law. instead of mere specific amendments of particular portions of the Constitution of 1935. General Order No. 1972. however. General Order No. 1972. the President issued Presidential Decree No. the activities within the assembly shifted to high gear. 1972.have the Convention recessed until after the lifting of martial law. Needless to say. 1973. the convention gathered swift momentum in its work. 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. subsequently. 5843 proposing "to President Ferdinand E. 1973. on January 5. public debates and discussions on various aspects of proposed amendments were not uncommon. on December 1. 1972 Presidential Decree No. 1973. both local and national. On January 7. ." In the meanwhile also. These two orders were not. invoking information related to him that the area of public debate and discussion he had opened by his previous orders was being taken advantage of by subversive elements to defeat the purposes for which they were issued and to foment public confusion. the people would like to decide for themselves questions or issues. and on November 30. 73 submitting the draft constitution for ratification by the people at a plebiscite set for January 15. 1973." Acting under this authority. At the same time.

President of the Philippines." And on January 7. 3. economic and social fields. the Barangays (Citizens Assemblies) have petitioned the Office of the President to submit to them for resolution important national issues. 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. such barangays (citizens assemblies) desire that they be given legal status and due recognition as constituting the genuine. and submit the results thereof to the Department of Local Governments and Community Development immediately thereafter. 1973. 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. shall be translated into concrete and specific decision. the barangays (citizens assemblies) would like themselves to be the vehicle for expressing the views of the people on important national issues. a referendum on important national issues. 1973. and others in the future. the convening of Congress on January 22. FERDINAND E. one of the questions persistently mentioned refers to the ratification of the Constitution proposed by the 1971 Constitutional Convention. and WHEREAS. like the holding of the plebiscite on the new Constitution. "WHEREAS. 1972. the convening of Congress on January 22. do hereby declare as part of the law of the land the following: 1. WHEREAS. which shall serve as guide or basis for action or decision by the national government. and that it is now necessary to bring this down to the level of the people themselves through the Barangays or Citizens Assemblies. This Decree shall take effect immediately. nineteen hundred and seventy three. NOW. The present barangays (citizens assemblies) are created under Presidential Decree No. pursuant to the express will of the people as reflected in the reports gathered from the many thousands of barangays (citizens assemblies) throughout the country. THEREFORE. 86 dated December 31. on the basis of the said petitions. MARCOS. . 1973. 2. Such barangays (citizens assemblies) shall consider vital national issues now confronting the country. continuance of martial law. since their creation pursuant to Presidential Decree No. 86 dated December 31. by virtue of the powers vested in me by the constitution as Commander-in-Chief of all Armed Forces of the Philippines. 86-B DEFINING FURTHER THE ROLE OF BARANGAYS (CITIZENS ASSEMBLIES) WHEREAS.WHEREAS. 86-B reading thus: "PRESIDENTIAL DECREE NO. Done in the City of Manila. 1973. 4. and the elections in November 1973 pursuant to the 1935 Constitution. I. and the holding of elections in November 1973. this was followed by Presidential Decree No. including those specified in paragraph 2 hereof. the people would like the citizens assemblies to conduct immediately a referendum on certain specified questions such as the ratification of the new Constitution. in the year of Our Lord. this 5th day of January. 1972. legitimate and valid expression of the popular will. wherever practicable. The barangays (citizens assemblies) shall conduct between January 10 and 15. WHEREAS. the continuation of martial rule.

and there seems to be no showing otherwise. If the Citizens Assemblies approve of the new Constitution." And so it was that by January 10. 1973 in accordance with the provisions of the 1935 Constitution? "(5) If the elections would not be held. 2 But we do not want the Ad Interim Assembly to be convoked. the voters were furnished "comments" on the said questions more or less suggestive of the answer desired. Or if it is to be convened at all. 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?. QUESTION No." but on January 11. I. 1973. when do you want the next elections to be called? "(6) Do you want martial law to continue?" It is not seriously denied that together with the questions. FERDINAND E. President of the Philippines. 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. 1973. 86-A dated January 5. nineteen hundred and seventy three. 3 The vote of the Citizens Assemblies should already be considered the plebiscite on the New Constitution. the most relevant of these "comments" were the following: "COMMENTS ON QUESTION No. that the results of the referendum were determined in the following manner: . this 7th day of January in the year of Our Lord. then the new Constitution should be deemed ratified " The Solicitor General claims. 1973. Done in the City of Manila. it should not be done so until after at least seven (7) years from the approval of the New Constitution by the Citizens Assemblies. 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.NOW THEREFORE. when the Citizens Assemblies thus created started the referendum which was held from said date to January 15. As petitioners point out. l973 and that the initial referendum shall include the matter of ratification of the Constitution proposed by the 1971 Constitutional Convention. by virtue of the powers in me vested by the Constitution. MARCOS. It may be assumed that the said "comments" came from official sources. albeit specifically unidentified. The Secretary of the Department of Local Governments and Community Development shall insure the implementation of this Order.

telephone. the Weather Bureau Communication System connecting provincial capitals and the National Civil Defense Network connecting all provincial capitals. 1972. WHEREAS. WHEREAS. Citizens Assemblies were created in barrios in municipalities and in districts/wards in chartered cities pursuant to Presidential Decree No. The certificates of results were then flown to Manila to confirm the previous figures received by the aforementioned means of transmission."Thereafter. responding to the clamor of the people and pursuant to Presidential Decree No. since the referendum results show that more than ninety five (95) percent of the members of the Barangays (Citizens Assemblies) are in favor of the New . composed of all persons who are residents of the barrio. The last figures were tabulated at 12 midnight of January 16. 1973 and were then communicated to the President by the Department of Local Governments. Said proclamation reads: "PROCLAMATION NO. while on the question as to whether or not the people would still like a plebiscite to be called to ratify the new Constitution. dated December 31. the SSB communication of the PACD connecting most provinces. fifteen years of age or over.869) who voted for its rejection.976. WHEREAS. The transmission of the results was made by telegram. the 11 regions submitted the figures they received from the field to the central committee to tabulate the returns. "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. district or ward for at least six months. fourteen million two hundred ninety eight thousand eight hundred fourteen (14. 1102 ANNOUNCING THE RATIFICATION BY THE FILIPINO PEOPLE OF THE CONSTITUTION PROPOSED BY THE 1971 CONSTITUTIONAL CONVENTION. the said Citizens Assemblies were established precisely to broaden the base of citizen participation in the democratic process and to afford ample opportunity for the citizenry to express their views on important national issues. fourteen million nine hundred seventy six thousand five hundred sixty one (14. 1973 and early morning of January 17. "WHEREAS. 1978." The development culminated in the issuance by the President of Proclamation 1102 on January 17. WHEREAS. the Department of Public Information Network System. the provincial government SSB System in each province connecting all towns.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. Every afternoon at 2:00 o'clock. the results of the voting were collated and sent to the Department of Local Governments. citizens of the Philippines and who are registered in the list of Citizen Assembly members kept by the barrio. 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. 86-A.298. 6. as against seven hundred forty-three thousand eight hundred sixty nine (743.561) members of all the Barangays (Citizens Assemblies) voted for the adoption of the proposed Constitution. 1973. The certificates of results tallied with the previous figures taken with the exception of few cases of clerical errors. dated January 5. district or ward secretary. the Constitution proposed by the nineteen hundred seventy-one Constitutional Convention is subject to ratification by the Filipino people.

not being satisfied with the fate of his urgent motion for early decision of the above ten cases dated January 12. MARCOS. FERDINAND E. IN WITNESS WHEREOF. quoted above. was issued and the six additional questions which were first publicized on January 11. 1973 were known. the Katipunan ng Mga Barangay has strongly recommended that the new Constitution should already be deemed ratified by the Filipino people. Antonio and Esguerra also believed. inasmuch as Counsel Tañada's pleading and argument had anticipated its issuance. the valiant and persistent efforts of petitioners and their counsels were overtaken by adverse developments. but before the said cases could be decided. hence Counsel Tañada. For my part. 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. filed on January 15. also above quoted. but the majority felt it was not ready . In other words. together with the "comments". and in the mind of the majority of the members of the Court. nineteen hundred and seventy-three. the Court could already decide on the fundamental issue of the validity of Proclamation 1102. The details of what happened that morning form part of the recital of facts in the decision rendered by this Court in the ten cases on January 22. ten in number. by virtue of the powers in me vested by the Constitution. this 17th day of January. THEREFORE. which was Monday. as Justices Zaldivar. 1973. to consider the supplemental motion as a supplemental petition and to require the respondents to answer the same the next Wednesday. which were filed by different petitioners during the first half of December 1972. Suffice it to state now that before the hearing could be closed and while Counsel Tañada was still insisting on his payer for preliminary injunction or restraining order. 73. 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. declaring that the new Constitution had been ratified." The first attempt to question the steps just enumerated taken by the President was in the so called Plebiscite Cases. the Secretary of Justice arrived and personally handed to the Chief Justice a copy of Proclamation 1102 which had been issued at about 11:00 o'clock that same morning. 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. Reacting swiftly. before the hour of the hearing of the petition which was set for 9:30 o'clock in the morning of that day. 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. 1973 and need not be repeated here. order or decree. and has thereby come into effect. 1973. 86-B. President of the Philippines. petitioners sensed that a new and unorthodox procedure was being adopted to secure approval by the people of the new Constitution.Constitution. the Court resolved on the same day. January 17th. his supplemental motion seeking the prohibition against and injunction of the proceedings going on. I. And when Presidential Decree No. 1 Their common target then was Presidential Decree No. 86A. January 15. in the year of Our Lord. I took the view that even on the basis of the supplemental petition and the answer thereto filed by respondents. the cases had become academic. "NOW.

in which event. it would be choosing between two constitutions. of full ventilation. and. II. 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. I strongly feel needs special attention. there had been the requisite number of votes for a valid collegiate action. who have been sued as President and President Pro Tempore of the Senate. I find myself confronted by a matter which. even if we have it understood that by the vote of six justices in favor of such dismissal. Tolentino for respondents Gil J. the date when Proclamation 1102 declared the new Constitution as ratified. What a disgrace it would be to admit that this Supreme Court does not know. it would be faced with the dilemma that if it acts either as the former or as the latter. I feel very strongly that the issue should not be ignored or dodged. in effect. which is a political determination not within the Court's competence. evidently. the decision reserved to petitioners the filing of the "appropriate" cases. the Court would have to resolve first as a prejudicial question whether the Court is acting in these cases as the 15man or the 11-man Court. and as a member of the Supreme . 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. it may be argued that the present cases do not involve an issue of unconstitutionality. much less lacking in courage or wisdom to resolve an issue that relates directly to its own composition. whether it is fish or fowl. hence. a cloud would exist as to the efficacy of the dispositive portion of Our decision dismissing these cases. for lack. By nature I am averse to ambiguity and equivocation. to use a common apt expression. from the 11-man tribunal under the 1935 Constitution to a 15-man Court. doubts may arise as to whether or not. despite the general result we might announce. makes of these cases which were filed after January 17. 1973. I refer to the point raised by Counsel Arturo M. I am against leaving such an important point open to speculation. indeed. to the effect that the change in the composition of the Supreme Court provided for in the 1973 Constitution. according to them. although believed to be inconsequential by my learned brethren. only six votes would suffice to declare Proclamation 1102 ineffective. We intended to mean that the implementation or enforcement of the new Constitution now being done could continue Be that as it may. The main consideration submitted in this connection is that inasmuch as the number of votes needed for a decision of this Court has been increased from six to eight in ordinary cases and from eight to ten for the declaration of unconstitutionality of a treaty. At the threshold. it would be prejudging the very matter in issue one way or the other. 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. and. political in nature and beyond our jurisdiction.to resolve the matter. While I agree that the problem is at first blush rather involved. and so. For instance. 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 86A and 86-B and related orders of the President as not being in conformity with Article XV of the old Constitution. Puyat and Jose Roy. the present ones. executive agreement 2 or law. Withal. if we are acting as the 11-man Court.

which even unreasoning obstinacy cannot ignore. unless it is assumed that only the judges have the exclusive prerogative of making and enforcing the law.Court. with full consciousness of my limitations but compelled by my sense of duty and propriety to straighten out this grave issue touching on the capacity in which the Court is acting in these cases. the same is allowed to have effect until the Supreme Court rules that it is unconstitutional. which is contrary to all norms of juridical and political thinking. Accordingly. municipal and barrio units and not excluding the lower courts up to the Court of Appeals. Almost daily. as otherwise. The truth of the matter is simply that in the normal and logical conduct of governmental activities. 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. including the provincial. from the very nature of things. I hold that we have no alternative but to adopt in the present situation the orthodox rule that when the validity of an act or law is challenged as being repugnant to a constitutional mandate. Besides. which is hardly possible. 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. We have to proceed on the assumption that the new Constitution is in force and that We are acting in these present cases as the 15-man Supreme Court provided for therein. aside from being its sole interpreter. let . Stated differently. For the ten justices of the Supreme Court to constitute an island of resistance in the midst of these developments. the 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. taxes are being exacted and penalties in connection therewith are being imposed under said orders and decrees. no matter how desirable we might believe the idea to be. Displacements of public officials and employees in big numbers are going on in obedience to them. there is here no prejudgment for or against any of the two constitutions. the smooth running of the government would have to depend entirely on the unanimity of opinions among all its departments. I cannot bear the thought that someone may someday say that the Supreme Court of the Philippines once decided a case without knowing the basis of its authority to act or that it was ever wanting in judicial courage to define the same. because the courts must at the first instance accord due respect to the acts of the other departments. It is undeniable that the whole government. is unimaginable. Obligations have been contracted and business and industrial plans have been and are being projected pursuant to them. according to what law and other considerations inherent to our function dictate. the functioning of government would correspondingly be undesirably hesitative and cumbersome. much less impede. Our inescapable duty is to make a choice between them. To my knowledge. not only because if that were to be the rule. On the other hand. there is yet no country in the world that has recognized judicial supremacy as its basic governmental principle. it is neither practical nor wise to defer the course of any action until after the courts have ascertained their legality. Indeed. in like manner that it is inconceivable that the 1935 and 1973 Constitution can be considered by Us as both in force. is operating under the 1973 Constitution. Contrary to counsel's contention. but more importantly. 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.

he considers the Supreme Court as still operating under the Old Constitution. One cannot but note that the change embraces practically every part of the old charter. While it does retain republicanism as the basic governmental tenet. decrees and acts previously . and as far as I know. the 1973 Constitution is the same 1935 Constitution. of no consequence. is that We are dealing here with a whole constitution that radically modifies or alters not only the form of our government from presidential to parliamentary but also other constitutionally based institutions vitally affecting all levels of society. orders. 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. since they cannot by any standard be expected to vote against the legality of the very Constitution under which they would be appointed. 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. considering that with the presence of ten justices who are in the Court now. from its preamble down to its amending and effectivity clauses. it does not necessarily follow that by this attitude of the President. the Secretary of Justice. since January 18. What is more. unrealistic to insist on that. is committed to abide by the decision of the Supreme Court. to my mind. the President has not countermanded the Secretary's steps in that direction. the articles on the form of government. involving as they do the statement of general principles. 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. even imperative. the express ratification of all proclamations. not to mention the distinctive features of the general provisions. their effectivity at bay if it is not being indifferent to or ignoring them. the votes of the justices to be added would only be committed to upholding the same. there is a working quorum. Moreover. being a man of law. It is suggested that the President. the President has not augmented the justices of the Court to complete the prescribed number of fifteen is. 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. Quite on the contrary. his official alter ego. while there are sufficient justices to declare by their unanimous vote the illegality of Proclamation 1102. in my appraisal. Notably. to the extent that the continuation or discontinuance of what is now practically a one-man-rule. A cursory perusal of the former should convince anyone that it is in essence a new one. whereas the Supreme Court is holding. has been shoving to this Court.alone the absurd and complicated consequences such a position entails in the internal workings within the judiciary amount its different components. what makes the premise of presumptive validity preferable and. in general. fundamentally. the powers of government during the interim period are more or less concentrated in the President. Not only that. he can wait for its decision. as it were. It is. is even left to his discretion. the judiciary provisions. and the addition of new justices cannot in anyway affect the voting on the constitutional questions now before Us because. 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. That. on the other hand. the transitory provisions notably depart from traditional and orthodox views in that. with a few improvements. the citizenship and suffrage qualifications. Accepting the truth of this assertion. 1973. and if the Court feels that it cannot in the meantime consider the enforcement of the new Constitution.

otherwise. 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. 1940. unless We feel We cannot in conscience accept the legality of its existence. the best proofs that by its expressed and implied intent. considering that Mr. We have in legal contemplation. tabulate and canvass the 15 million votes allegedly . 1946 and 1967. in its Section 10. in defiance of traditional views and prevailing jurisprudence. More specifically. who is supposed to have submitted the final report to the President. according to them the referendum was a farce and its results were manufactured or prefabricated. provides that "(T)he incumbent members of the Judiciary (which include the Chief Justice and Associate Justices of the Supreme Court) may continue in office (under the new constitution) until they reach the age of seventy years. The new Constitution. We would just continue to be in our membership in the 15 man-Court. obviously meant to encompass those issued during martial law. which served as basis for Proclamation 1102. offices and courts as well as the tenure of all incumbent officials. the new constitution unlike any other constitution countenances the institution by the executive of reforms which normally is the exclusive attribute of the legislature. etc. Furthermore. they emphatically deny the veracity of the proclaimed results of the referendum because. ceased in the meanwhile to be members of the 11-man-Court in the 1935 Constitution. then We would automatically revert to our positions in the 11-man Court. which would have been unnecessary if the old constitution were being merely amended. Francisco Cruz. 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. and it is inconceivable and humanly impossible for anyone to have been able to gather. not adversely affected by it. 1937. On the other hand. III In brief. the Constitution of 1973 is a new one. is a commitment to the concept of martial law powers being implemented by president Marcos. Withal. since that would be tantamount to accepting a position he does not honestly believe exists. if it is assumed that We are still the 11-man-Court and it happens that Our collective decision is in favor of the new constitution. 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. it would be problematical for any dissenting justice to consider himself as included automatically in the 15-man-Court. 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. no other form of ratification can be considered contemplated by the framers of the Old Constitution than that which had been followed in 1935. 1939. Article XVII. had no official authority to render the same. correspondingly. all of Us form part of the 15-man-Court provided for therein and." By virtue of the presumptive validity of the new charter. the last three or four of which were held under the supervision of the Commission on Elections. In other words. and accordingly. Should the Court finally decide that the new Constitution is invalid.issued or done by the President. Since it cannot be said on the basis of the said referendum that said Constitution has been "approved by a majority of the votes cast at an election" in the manner prescribed by Article XV of the Constitution of 1935.

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 taken judicial notice of, I am in no position to deny that
the result of the referendum was as the President had stated. I can believe that the figures
referred to in the proclamation may not be accurate, but I cannot say in conscience that
all of them are manufactured or prefabricated, simply because I saw with my own eyes
that people did actually gather and listen to discussions, if brief and inadequate for those
who are not abreast of current events and general occurrences, and that they did vote. I
believe I can safely say that what I have seen have also been seen by many others
throughout the country and unless it can be assumed, which honestly, I do not believe to
be possible, that in fact there were actually no meetings held and no voting done in more
places than those wherein there were such meetings and votings, I am not prepared to
discredit entirely the declaration that there was voting and that the majority of the votes
were in favor of the New Constitution. If in fact there were substantially less than 14
million votes of approval, the real figure, in my estimate, could still be significant enough
and legally sufficient to serve as basis for a valid ratification.
It is contended, however, that the understanding was that the referendum among the
Citizens Assemblies was to be in the nature merely of a loose consultation and not an
outright submission for purposes of ratification. I can see that at the outset, when the first
set of questions was released, such may have been the idea. It must not be lost sight of,
however, that if the newspaper reports are to be believed, and I say this only because
petitioners would consider the newspapers as the official gazettes of the administration,
the last set of six questions were included precisely because the reaction to the idea of
mere consultation was that the people wanted greater direct participation, thru the
Citizens Assemblies, in decision-making regarding matters of vital national interest.
Thus, looking at things more understandingly and realistically, the two questions

emphasized by counsel, namely, (1) Do you approve of the New Constitution? and (2) Do
you want a plebiscite to be called to ratify the new Constitution? should be considered no
longer as loose consultations but as direct inquiries about the desire of the voters
regarding the matters mentioned. Accordingly, I take it that if the majority had expressed
disapproval of the new Constitution, the logical consequence would have been the
complete abandonment of the idea of holding any plebiscite at all. On the other hand, it is
very plain to see that since the majority has already approved the new Constitution, a
plebiscite would be 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, his 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 the answer to that question to the
deferment of the convening of the interim assembly, the said answer is at best a
conditional approval not proper nor acceptable for purposes of a ratification plebiscite.
The contention has no basis. In the interest of accuracy, the additional answer proposed in
the pertinent "comment" reads as follows: "But we do not want the Ad Interim Assembly
to be convoked etc." On the assumption that the actual answer, as reported, was of similar
tenor, it is not fair to ascribe to it the imposition of a condition. At the most, the intention
is no more than a suggestion or a wish.
As regards said "comments", it must be considered that after martial law was declared,
the circumstances surrounding the making of the Constitution acquired a 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 the 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 social 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 the rebellious movement that threatened the Quirino
Administration, the remedy was far from using bullets alone. If a constitution was to be
approved as an 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 the suspension of the privilege of

the writ of habeas corpus. The reason is simply that a man may freely and correctly vote
even if the needed information he possesses as to the candidates or issues being voted
upon is more or less incomplete, but when he is subject to arrest and detention without
investigation and without being informed of the cause thereof, that is something else
which may actually cause him to cast a captive vote. Thus it is the suspension of the writ
of habeas corpus accompanying martial law that can cause possible restraint on the
freedom of choice in an election held during martial law. It is a fact, however, borne by
history and actual experience, that in the Philippines, the suspension of the privilege of
the writ of habeas corpus has never produced any chilling effect upon the voters, since it
is known by all that only those who run afoul of the law, saving inconsequential
instances, have any cause for apprehension in regard to the conduct by them of the
normal activities of life. And so it is recorded that in the elections of 1951 and 1971, held
while the privilege of writ of habeas corpus was under suspension, the Filipino voters
gave the then opposition parties overwhelming if not sweeping victories, in 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 be considered as sufficient basis for declaring that the New
Constitution has been ratified in accordance with the amending clause of the 1935
Constitution. I reiterate that in point of law, I find neither strict nor substantial
compliance. The foregoing discussion is only to counter, if I may, certain impressions
regarding the general conditions obtaining during and in relation to the referendum which
could have in one way or another affected the exercise of the freedom of choice and the
use of discretion by the members of the Citizens Assemblies, to the end that as far as the
same conditions may be relevant in my subsequent discussions of the acceptance by the
people of the New Constitution they may also be considered.
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,

after all. as I have discussed earlier above. At this point. which are entirely different from those in the backdrop of the Tolentino rulings I have referred to. What is more. there would have been already demonstrative and significant indications of a rather widespread. 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. for the purposes of these cases. This important circumstance makes a great deal of difference. even if extrapolated will not. After all. how can a whole new constitution be by any manner of reasoning an amendment to any . I made strong and unequivocal pronouncements to the effect that any amendment to the Constitution of 1935. to find out with absolute precision the veracity of the total number of votes actually cast. I submit the following considerations in the context of the peculiar circumstances of the cases now at bar. Much as they are to be given due recognition as magnificent manifestations of loyalty and devotion to principles. as far as I can figure out. 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. however. cases of excess votes may be found. Rather than try to form a conclusion out of the raw evidence before Us which the parties did not care to really complete. 1. it is. the claims that upon a comparison of conflicting reports. that decision asserted judicial competence to inquire into the matter of compliance or non compliance as a justiciable matter. an entirely new Constitution that is being proposed. to be valid. which in these cases does not exist. based on official reports submitted to him in due course of the performance of duty of appropriate subordinate officials. 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. suffice to overcome the outcome officially announced. In any event. until overcome by better evidence. I have no alternative but to rely on what has been officially declared. must appear to have been made in strict conformity with the requirements of Article XV thereof. if not organized resistance in one form or another. Without trying to strain any point. here. Consider that in the present case what is involved is not just an amendment or a particular provision of an existing Constitution. 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. who was himself the petitioner in the case I have just referred to is. Giving substantial allowances for possible error and downright manipulation. 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. 41 SCRA 702.it is not for me to resort. their having been accepted and adopted by the President. Comelec. It is true that in the opinion I had the privilege of penning for the Court in Tolentino vs." Indeed. I feel safer by referring to the results announced in the proclamation itself. I cannot accord to the filing of these cases as indicative enough of the general attitude of the people. has elevated them to the category of an act of a coordinate department of the government which under the principle of separation of powers is clothed with presumptive correctness or at least entitled to a high degree of acceptability. No less than counsel Tolentino for herein respondents Puyat and Roy. it must not be overlooked that. to judicial tape and measure. by this time.

by virtue of any provision of another constitution. From the very nature of things. 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. there was noting to stop the senators and . 2. As counsel Tolentino has informed the court. in such instances. 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." Said resolution even added. 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. 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. so that if. a meaningful transformation of the old society and a responsive reformation of the contemporary institutions and principles. the new Constitution would subject its going into effect to any provision of the constitution it is to supersede. 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. regardless of the form by which it is expressed. Article XVII. knowledgeable and courageous members. and as a matter of policy should consider the matter nonjusticiable. "(T)his is not to say that the people may not." 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. 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. Frankly. we cannot but take into consideration the forces and the circumstances dictating the replacement. come into being. I would have had serious doubts as to whether Article XV could have had priority of application.other constitution and how can it. My understanding is that generally. It must be assumed that being composed of experienced. and what would be really incongrous is the idea that in such an eventuality. When an entirely new constitution is proposed to supersede the existing one. if at all. I would hold that the better rule is for the courts to defer to the people's judgment. provided it be reasonably feasible and reliable. constitutions are self-born. form part of such other constitution? In fact. I refer to the ostensible reaction of the component elements. the effectivity clause. they very rarely. Accordingly. for the very fact that a new constitution is being adopted implies a general intent to put aside the whole of the old one. amend the Constitution or promulgate an entirely new one otherwise. 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. in the Tolentino case I already somehow hinted this point. both collective and individual. Otherwise stated. so long as they are convinced of the fact of their approval. 3 This must be the reason why every constitution has its own effectivity clause. to use the language precisely of Section 6. if ratified. 3. 1973 for the regular session. of the Congress of the Philippines. the courts should not bother about inquiring into compliance with technical requisites. of the New Constitution. I do not feel warranted to accord such act as enough token of resistance. in the exercise of their inherent revolutionary powers. There is still another circumstance which I consider to be of great relevancy.

have taken the same oath of loyalty to the Constitution that we. In other words. no less than the President. principally the political. If as the elected representatives of the people. there has been at least substantial compliance with Article XV of the 1935 Constitution. 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. 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. a decision more political than legal. any smaller group could have ordered the arrest of the absent members. I cannot agree with the Solicitor General that in the legal sense. Now. thereby manifesting their acceptance of the new charter. they have already opted to accept the New Constitution as the more effective instrument for the 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. which to me is in reality the real meaning of our oath of office. More than that. equally bound with Us to preserve and protect the Constitution. And with particular relevance to the present cases. have taken and they are. and it being obvious that of the three great departments of the government under the 1935 Constitution. Counsel Tolentino even pointed out that if there were not enough members to form a quorum. 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. 4.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. Viewed from the strictly legal angle and in the light of judicial methods of ascertainment. Conscious of the declared objectives of the new dispensation and cognizant of the decisive steps being taken. with the least loss of time. hence the present prayers for mandamus have no legal and factual bases. quite to the contrary. therefore. And to top it all. but what I can see is that in a political sense. it is my conviction that what these cases demand most of all is not a decision demonstrative of our legal erudition and Solomonic wisdom. in brief. I take it that when they answered that by their signified approval of the New Constitution. there is the stark reality that the Senators and the Congressmen. having these facts in mind. they do not consider it necessary to hold a plebiscite. even if nothing were done than to merely call the roll and disperse. two. it was not constitutionally indispensable for the presiding officers to issue any call to the members to convene. towards their accomplishment. or. the Court might be standing in the way of the very thing our beloved country needs to retrieve its past glory and greatness. they could not have had in mind any intent to do what was constitutionally . I cannot but feel apprehensive that instead of serving the best interests of our people. have officially and in writing exercised the option given to them to join the Interim National Assembly under the New Constitution. the Executive and the Legislative. but an all rounded judgment resulting from the consideration of all relevant circumstances. the Justices. have already accepted the New Constitution and recognized its enforceability and enforcement. It is not alone the physical futility of such a gesture that concerns me. the answers to the referendum questions were not given by the people as legal conclusions.

More. would be well advised to bear in mind that that case was decided in the context of submission. a truth that is self-evident. 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. and this would amount. What seems to me to be bothering many of our countrymen now is that by denying the present petitions. to a . and it behooves this Court to render judgment herein in that context. In other words. the moment they are convinced that the existing one is no longer responsive to their fundamental. 5. particularly. with all its excellent features.. which constitute the totality of the reasons for national existence. The sacred liberties and freedoms enshrined in it and the commitment and consecration thereof to the forms of democracy we have hitherto observed are mere integral parts of this totality. More important than even the Constitution itself. the latter may be deemed as constitutionally permissible even from the point of view of the preceding constitution. once the people have given their sanction to a new charter. This is not only the teaching of the American Declaration of Independence but is indeed. not of accomplished ratification. they are less important by themselves. even if only in a broad sense. their liberties and their fortunes shall be safeguarded. It is my considered opinion that viewed understandingly and realistically. judged by such intent and. Basically accustomed to proceed along constitutional channels. it is feared. the Court would be deemed as sanctioning. There is nothing that cannot be sacrificed in the pursuit of these objectives. Those who may feel restrained to consider this view out of respect to the import of Tolentino vs. oft-referred to above. political and social needs nor conducive to the timely attainment of their national destiny. are the people living under it — their happiness. Finally. there is more than sufficient ground to hold that. their posterity and their national destiny.improper. therefore. under the leadership of President Marcos. from the political standpoint. it should be regarded as implied in every constitution that regardless of the language of its amending clause. we must perforce infer that they meant their decision to count. supra. so long as such approval is reasonably ascertained. 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. specially when it is considered that the most important element of the ratification therein contemplated is not in the word "election". it can be rightly said. that the ratification here in question was constitutionally justified and justifiable. if any doubt should still linger as to the legitimacy of the New Constitution on legal grounds. the ratification of the 1973 Constitution declared in Proclamation 1102 complies substantially with Article XV of the 1935 Charter. 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. Comelec. V The language of the disputed amending clause of the 1935 Constitution should not be deemed as the be all and end all of the nation. they must have acted in the honest conviction that what was being done was in conformity with prevailing constitutional standards. not only the deviations from traditional democratic concepts and principles but also the qualified curtailment of individual liberties now being practiced. as an extra constitutional exercise by the people. In the last analysis. of their inalienable right to change their fundamental charter by any means they may deem appropriate. in the Plebiscite Cases — that is.

albeit my admiration and respect are all theirs for their zeal and tenacity. what is imperative is national unity. Antonio Luna. that the President. the attainment of our national aspirations. Laurel and Recto. whether sophisticatedly or crudely. as well as all the lower courts. including the Court of Appeals. Our heroes of the past. if necessary. not arising from foreign invasion. as long as we are all animated by sincere love of country and aim exclusively at the attainment of the national destiny. IN VIEW OF ALL THE FOREGOING. And once they have made their decision in that respect. unless they act in strict conformity therewith. In any event. to mention only some of them. Mabini and so also with our patriots of the recent generations. as members of the Supreme Court are being true to our duty to our people by refusing to follow suit and to accept the realities of the moment. despite our being convinced of the sincerity and laudableness of their objectives. they have brought out everything in the Filipino that these cases demand. only because we feel that by the people's own act of ratifying the Constitution of 1935. the Vice President. In this momentous juncture of our history. I cannot believe that any people can be so stifled and enchained. 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. they have so encased themselves within its provisions and may. therefore.repudiation of our oath to support and defend the Constitution of 1935. whether in legal form or otherwise. I consider it a God-given attribute of the people to disengage themselves. 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. Bonifacio. That is exactly what I am doing. In times of national emergencies and crises. their industry and wisdom. there can be no court or power on earth that can reverse them. however. but all of them are admired and venerated. no longer take measures to redeem themselves from the situation brought about by the deficiencies of the old order. the members of both Houses of Congress. Roxas. I cannot agree. had their differences of views — and they did not hesitate to take diametrically opposing sides — that even reached tragic proportions. 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. not to speak of all executive departments and bureaus under them. 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. . whether or not we. Verily. certainly. Quezon. we need not fear playing opposite roles. 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. Aguinaldo. rather than idealistic and cumbersomely deliberative. their patriotism and devotion to principle. This is certainly something one must gravely ponder upon. Osmeña. When I consider. May God grant that the controversies the events leading to these cases have entailed will heal after the decision herein is promulgated. so that all of us Filipinos may forever join hands in the pursuit of our national destiny. I vote to dismiss all these petitions for mandamus and prohibition without costs. 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. I am led to wonder. Rizal.

as well as exercising the rights and performing the obligations defined by the new Constitution. Cuenco. The nullification of Proclamation No. Chief Justice Roberto Concepcion. this Court is precluded from inquiring into the validity of such ratification. 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. in behalf as the court. economic and political system as re-structured by the 1973 Constitution and by the implementing decrees and orders (see Miller vs. 1102 would inevitably render inoperative the 1973 Constitution. defined a political question as one which. then Associate Justice. et al. adopted and/or acquiesced in by the people or ratified even by a body or agency not duly authorized there for 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. et al. the validity of the ratification and adoption of. the power to propose constitutional amendments is vested in Congress or in a constitutional convention. the validity of Presidential Proclamation No. 522-526. adoption or acquiescence and of the consequent effectivity of the new Constitution. No. 1892).MAKASIAR. vs. Johnson. the 1973 Constitution and the legitimacy of the government organized and operating thereunder. for it is inseparably or inextricably linked with and strikes at. Gray.R. This basic democratic concept is expressly restated in Section 1 of Article II of the Declaration of Principles of the 1935 and 1973 Constitutions." (Tañada. et al. et al. and will dissipate any confusion in the minds of the citizenry. vs. (103 Phil. J." Under Article XV of the 1935 Constitution." . 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. or in regard to which full discretionary authority had been delegated to the Legislature or Executive branch of the government.. because it is decisive of. tested by the definition of a political question enunciated in Tañada. issue.: Assuming. supra). aside from the fact that this view will not do violence to rights vested under the new Constitution. Cuenco. to international commitments forged pursuant thereto and to decisions rendered by the judicial as well as quasi-judicial tribunals organized and functioning or whose jurisdiction has been altered by the 1973 Constitution and by the government established thereunder. who have been obeying the mandates of the new Constitution. L-36164. which is in fact the express prayer of the petitioners in G. not a justiciable. 104 SO 2nd 841 [1958]). as well as acquiescence of the people in. This is as it should be in a democracy. 18 SW 522. for the people are the repository of all sovereign powers as well as the source of all governmental authority (Pole vs. thus: "Sovereignty resides in the people and all government authority emanates from them. 1102 is a political. without conceding. And being political. while the power to ratify or reject such proposed amendments or new Constitution is reserved by the sovereign people. 1051). Mr. and decrees and orders issued in implementation of the same and cooperating with the administration in the renovation of our social. it is beyond the ambit of judicial inquiry. Regardless of the modality of submission or ratification or adoption — even if it deviates from or violates the procedure delineated there for by the old Constitution — once the new Constitution is ratified. In 1957. is "to be decided by the people in their sovereign capacity. under the Constitution.

1).ed. is governed by the Constitution. However. intervening procedure or Congressional determination of ratification conforms to the commands of the Constitution. stated that: ". we are unable to agree . . by Pritchett. 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. 83 L. Justice Black in his concurring opinion. 61-64. and Douglas join. where Chief Justice Hughes. Upon this assurance a proclaimed amendment must be accepted as a part of the Constitution. 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. 1385). . They may not be disregarded. then of the Kansas State Supreme Court and later Associate Justice of the Federal Supreme Court. " (Cited in Lark en vs. As Mr. whether submission. . other provisions are mere machineries and forms. in the light of previous rejection or attempted withdrawal. .' Proclamation under authority of Congress that an amendment has been ratified via carry with it a solemn assurance by the Congress that ratification has taken place as the Constitution commands.The legality of the submission is no longer relevant. of course. Justices Roberts. and a majority of the popular vote. p.' In the exercise of that power Congress. . Lopez Vito (78 Phil. . as well as all other officers. 44). Reprint 499. . Gronna. government. 506): "The two important. "We think that in accordance with this historic precedent the question of the efficacy of ratifications by state legislatures. speaking for the majority. This decision by the political departments of the Government as to the validity of the adoption of the Fourteenth amendment has been accepted. stated in re Prohibitory Amendment Cases (24 Kansas 700 & 710.. because by them certainty as to the essential is secured. with the ultimate authority in the Congress in the exercise of its control over the promulgation of the adoption of the amendment. in which Mr. Final determination by Congress that ratification by threefourths of the States has taken place 'is conclusive upon the courts. Miller was adopted by Our Supreme Court in toto in Mabanag vs. leaving to the judiciary its traditional authority of interpretation." (American Constitutional Issues. Beyond these. . 433. 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 .S." This view was likewise emphasized by Mr. should be regarded as a political question pertaining to the political departments. .' And decision of a 'political question' by the 'political department' to which the Constitution has committed it 'conclusively binds the judges. because the ratification. vital elements of the Legislature. The doctrine in the aforesaid case of Coleman vs. 1962 Ed. thus: "The Constitution grants Congress exclusive power to control submission of constitutional amendments. Justice Brewer. Frankfurter. Miller (307 U. citizens and subjects of . calls for decisions by a 'political department' of questions of a type which this Court has frequently designated 'political. This was the ruling by the American Supreme Court in the 1939 case of Coleman vs. 1939). But they are not themselves the essentials. 285 N W 59.

not of that of the Senate President. upon the ground that the apportionment had not been made . 16. the members of Congress derive their authority from the Constitution. et al. 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. Avelino vs. it is said that Senators ad Members of the House of Representatives act. 21 SCRA 774) and Tolentino vs. however. we declared unconstitutional an act of Congress purporting to apportion the representative districts of the House of Representatives. "It is true that in Mabanag vs. 29. and hence. 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. in the third we nullified the election. Thus. we held that the Officers and employees of the Senate Electoral Tribunal are supervision and control. 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. and in the fourth. Oct. Cuenco. Chief Accountant of the Senate. It should be stressed that even in the Gonzales case. this Court characterizing the issue submitted thereto as a political one. Comelec. when exercising the same. Comelec. and Macias vs. 1971. Congress may propose amendments to the Constitution merely because the same explicitly grants such power. WE merely stated therein that the force of the ruling in the said case of Mabanag vs. as claimed by the latter. When acting as such. unlike the present petitions. (L-28224. of the Senate Electoral Tribunal. As heretofore stated. in the second. for the second party. Tañada vs. of two (2) Senators belonging to the first party. by Suanes us. the power to amend the Constitution or to propose amendments thereto is not included in the general grant of legislative powers to Congress. but as component elements of a constituent assembly. unlike the peop1e. We pronounced therein. as members. purporting to act on behalf of the party having the second largest number of votes therein. 1967. when performing the same function. this Court proceeded to determine the number of Senators necessary for a quorum in the Senate. to amend their own Fundamental Law. It is part of the inherent powers of the people — as the repository of sovereignty in a republicans state. Lopez Vito. et al. hardly applies to the cases at bar. 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. supra." (21 SCRA 787) WE did not categorically and entitle overturn the doctrine in Mabanag vs. Commission on Elections. We held that: "Indeed. (L-34150. Lopez Vito (78 Phil. 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. Hence. In the first. The force of this precedent has been weakened. Nov. Cuenco. for their authority does not emanate from the Constitution — they are the source of all powers of government including the Constitution itself.The ruling in the cases of Gonzales vs. which challenge inevitably the validity of the 1973 Constitution after its ratification or adoption thru acquiescence by the sovereign people. by Senators belonging to the party having the largest number of votes in said chamber. not as members of Congress. such as ours — to make. Lopez Vito has been weakened by subsequent cases.

the latter should be deemed modified accordingly. Virginia.. We reiterated the foregoing comments (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. Judicial wisdom is not to be pitted against the wisdom of the political department of the government. Fearful that the said Federal Constitution would not be ratified by the state legislatures as prescribed. Both primarily stressed on the impropriety of the submission of a proposed constitutional amendment. 1781 (Encyclopedia Brit. and. p. Massachusetts and ended with the surrender of General Cornwall is at Yorktown. The Federalist. italics supplied). nor shall any alteration at any time hereafter be made in any of them. I. One more word about the Gonzales and Tolentino cases. II. that was written from 1776 to 1777 and ratified on March 1. the Congress of the Confederation passed a resolution on February 21. Judicial power concerns only with the legality or illegality. unless such alteration be agreed to in a congress of the united states. 787. 776) — adopted their Articles of Confederation and Perpetual Union. 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. Modern Library ed. About six years thereafter.as may be possible according to the number of inhabitants of each province. " (Appendix I. subject to judicial review. Courts do not deal with propriety or wisdom or absence of either of an official act or of a law. hence." (21 SCRA pp. not political. Lopez Vito. 1787 calling for a Federal Constitutional Convention " for the sole and express purpose of revising the articles of confederation . italics supplied. .. 1937. the Philadelphia Convention adopted a resolution requesting the Congress of the Confederation to pass a resolution providing that the Federal Constitution should be submitted to elected state conventions . 577. The Convention convened at Philadelphia on May 14. p.) In the Tolentino case. constitutionality or unconstitutionality of an act. Modern Library Ed.. supra.. remains a political issue removed from the jurisdiction of this Court to review. p. " (p.. p.. and the union shall be perpetual. 1781 (Encyclopedia Brit. 785-786). on October 19. italics supplied. Vol. it inquires into the existence of power or lack of it.584. 1966 Ed. and be afterwards confirmed by the legislatures of every statute. Thus we rejected the theory advanced in these four (4) cases. Vol. 525). 1933 Ed.) But the foregoing requirements prescribed by the Articles of Confederation and Perpetual Union for the alteration and for the ratification of the Federal Constitution as drafted by the Philadelphia Convention were not followed. . Appendix II. 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. 1787. Article XIII of the Articles of Confederation and Perpetual Union stated specifically: "The articles of this confederation shall be inviolably observed by every state. 1775 with the skirmish at Lexington. that the issues therein raised were political questions the determination of which is beyond judicial review. and to the extent that this view may be consistent with the stand taken in Mabanag vs." (See the Federalist.

provided for ratification of the Constitution by popularly elected conventions in each state.J. thus: "No case identical in its facts with the case now under consideration has been called to our attention. The convention method had the further advantage that judges.. of course. the said Constitution shall take effect. italics supplied). Until this date. Modern Library Ed. or against the legitimacy of the government organized and functioning thereunder. Experience clearly indicated that ratification then would have had the some chance as the scriptural camel passing thru the eye of a needle. Historian Samuel Eliot Morison similarly recounted: "The Convention. the absence of a bill of rights and of a provision affirming the power of judicial review. Board of Trustees (37 SE 2nd 322. 326-330). People. The liberties of the American people were guaranteed by subsequent amendments to the Federal Constitution. 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 . . And so the American Constitution was ratified by nine (9) states on June 21." (The Federalist. but on the fact of fiat or approval or all option or acquiescence by the people. p. by Samuel Eliot Morison. and we have found none. 312). 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. the new government should go into effect if and when it should be ratified by nine of the thirteen states . viii-ix. 16 C. the Court cited precisely the case of the irregular revision and ratification by state conventions of the Federal Constitution.and if ratified by the conventions in nine (9) states. mildly revolutionary. . 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. 1965 ed. Madison (1803. which fact of ratification or adoption or acquiescence is all that is essential. The nine-state provision was. would prove recalcitrant. p. no challenge has been launched against the validity of the ratification of the American Constitution. not necessarily in all thirteen (13) states. furthermore. Introduction by Edward Earle Mead. it declared that the Constitution would go into effect as soon as nine states ratified. 1790 (12 C. and others ineligible to state legislatures. 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." (The Oxford History of the Am. ministers. namely. But the Congress of the Confederation. 1788 and by the last four states on May 29. 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. anticipating that the influence of many state politicians would be Antifederalist.J. Suspecting that Rhode Island. In the 1946 case of Wheeler vs. at least.. pp. 1 Cranch 137). It was therefore determined to recommend to Congress that the new Constitution be submitted to conventions as in the several states specially elected to pass upon it and that.S. Thus. still sitting in New York to carry on federal government until relieved. 679 footnote. could be elected to a convention. formally submitted the new constitution to the states and politely faded out before the first presidential inauguration. 1937.

and no authority whatever. Commonwealth (Va.' xxx xxx xxx ". the Supreme Court of Virginia hold that their state Constitution of 1902. 754. but submitted to the sovereign power. has this to say: 'The convention proceeded to do. amend the articles of confederation. The fiat of the people. and one only.) In the 1903 case of Weston vs. by any means follow that the amendment is not a part of our state Constitution. . It was objected by some members. and did accomplish. and by the people. and afterwards ratified by all the State legislatures. is unconstitutional and void.States. can breathe life into a constitution. 519. no authority. the Indiana Supreme Court said: 'The people of a State may form an original constitution. Ryan. to construct a new government. But they knew that their labors were only to be suggestions. In . and being in force without opposition. 69 Ind. This would be an authorized exercise of sovereign power by the court. When the people adopt a completely revised or new Constitution. in fact. . transformed this suggestion. Hamilton in his office. to be submitted to and passed by the Congress. the framing or submission of the instrument is not what gives it binding force and effect. xxx xxx xxx ". But the convention soon became convinced that any amendments were powerless to effect a cure. into an organic law. a new constitution. would have had. That resolution plainly contemplated amendments to the articles of confederation. at any time. and that the national idea must be re-established at the center of their political society. This they did not do. this proposal. They had no authority. the Court held: "It remains to be said that if we felt at liberty to pass upon this question. In the recent case of Taylor vs. in our opinion. and that they as well as any private individuals. had a right to propose a plan of government to the people for their adoption." (37 SE 327-328. to adopt the course they did. . discussing the convention that formulated the constitution of the United States. We do not hesitate to say that a court is never justified in placing by implication a limitation upon the sovereign. They were. 329. The people. and the people might have done the same with a constitution submitted to them by a single citizen.) 44 S. In State v. having been acknowledged and accepted by the officers administering the state government. 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. or abrogate an old one and form a new one. must be regarded as an existing Constitution. The convention created by a resolution of Congress had authority to do one thing.E. 55. italics supplied. . under the articles of confederation. Swift. a mere assemblage of private citizens. "Pomeroy's Constitutional Law. . the people. p. and their work had no more binding sanction than a constitution drafted by Mr. without any political restriction except the constitution of the United States. They saw that the system they were called to improve must be totally abandoned. it would not. in the manner pointed out by the existing organic law. that the disease was too deeply seated to be reached by such tentative means. by their expressed will. and any private individuals as well as they. to wit. that they had no power. and only the that of the people. and were compelled to hold that the act of February 23. . 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. if their decisions were to be final. . 505. 1887. what they were not authorized to do by a resolution of Congress that called them together.

1102 is nullified. That the issue of the legitimacy of a government is likewise political and not justiciable. 16. If Proclamation No. This opinion does not cite any decided case. . the Articles of Confederation and Perpetual Union. 270-316 of the Oxford History of the American People. 203). MacIver. the issue as to the validity of Proclamation No. invoking the opinion expressed in Vol. italics supplied).. The Web of Government. but merely refers to the footnotes on the brief historical account of the United States Constitution on p. 297-316). 1785-1788. 12." (97 NW 349-350. but does not refer to it even implicitly as a revolutionary constitution (pp. As heretofore stated. . The Federal Constitution was a "creation of the brain and purpose of man" in an era of peace. which were added by the Legislature at the requirement of Congress. L-36165 dismissed this most significant historical fact by calling the Federal Constitution of the United States as a revolutionary one. p. 12 L.Brittle v. forged as it was during the war of independence was a revolutionary constitution of the thirteen (13) states. Borden (7 How. 1775 1781" (pp. It is rather ridiculous to refer to the American Constitution as a revolutionary constitution. confirming the validity of the ratification and adoption of the American Constitution. who discusses the Articles of Confederation and Perpetual Union in Chapter XVIII captioned "Revolutionary Constitution Making. supra. 1965 Ed. In Chapter XX on "The Creative Period in Politics. 18 of their main Notes. 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. 2 Neb. in spite of the fact that such ratification was a clear violation of the prescription on alteration and ratification of the Articles of Confederation and Perpetual Union.R. 1776 to 1788. 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. even though they do not involve the violent overthrow of an established order.M. on p. 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..ed. It can only be considered revolutionary in the sense that it is a radical departure from its predecessor." Professor Morison delineates the generals of the Federal Constitution. had long been decided as early as the 1849 case of Luther vs. refer US to pp. The fallacy of the statement is so obvious that no further refutation is needed. . Against the decision in the Wheeler case. 198. 1965 ed. Petitioners. 679 of Vol. Petitioners pray for a declaration that the 1973 Constitution is inoperative (L-36164). by Samuel Eliot Morison. 1. . 270-281). However. No. Corpus Juris Secundum. The Articles of Confederation and Perpetual Union that was in force from July 12. p. is a similar holding as to certain provisions of the Nebraska Constitution of 1886. though never submitted to the people for their approval. 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. 27." (R. petitioners in G. CJS. 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. People. 1102 strikes at the validity and enforceability of the 1973 Constitution and of the government established and operating thereunder.

as the United State guarantee to each state a republican government.ed. in Taylor vs. if this court is authorized to enter upon this inquiry. its taxes wrongfully collected. 578): . 133-151. 1187) and re-enunciated in 1912 in the case of Pacific States Telephone and Telegraph Company vs. Beckham. who restated: "In view of the importance of the subject. Dorr was the head. 7 How. Rep. " 'Under this article of the Constitution it rests with Congress to decide what government is the established one in a state. and the judgments and sentences of its courts in civil and criminal cases null and void. Yet the right to decide is placed there. . And when the senators and representatives of a state are admitted into the councils of the Union. 1187. it is sufficient for us to quote the decision in Pacific States Telephone and Telegraph Co. is recognized by the proper constitutional authority. On this subject it was said (p. Oregon (223 U. And its decision is binding on every other department of the government. 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. Chief Justice Fuller. 44 L.' 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.S.S. supra. It is true that the contest in this case did not last long enough to bring the matter to this issue.' xxx xxx xxx ". as well as its republican character. and the officers who carried their decisions into operation answerable as trespassers. affirmed in the 1900 case of Taylor vs. Chief Justice White. after disposing of a contention made concerning the 14th Amendment. and on the application of the Legislature or of the Executive (when the legislature cannot be convened) against domestic violence. it was said (p.S.ed.ed. — if it had been annulled by the adoption of the opposing government. penned by Mr. but state more at length than we otherwise would the issues and the doctrine and the doctrine expounded in the leading and absolutely controlling case — Luther v. — then the laws passed by its legislature during that time were nullities. the authority of the government under which they are appointed. and not in the courts. 377-386). . xxx xxx xxx ". 20 Sup. and shall protect each of them against invasion. suggested by the argument as to the full significance of the previous doctrine. 890. 178 U. 118. 56 L. Because it reaffirmed the pronouncements in both Borden and Beckham cases. 1009. We do not stop to cite other cases which indirectly or incidentally refer to the subject. .581). . 44 L.. Congress was not called upon to decide the controversy. Ct. as proposed by the plaintiff. and it should be decided that the charter government had no legal existence during the period of time above mentioned. if not in some cases as criminals. we do not content ourselves with a mere citation of the cases. its salaries and compensation to its officers illegally paid. Borden. where. its public accounts improperly settled. Beckham (178 U. For. ed 581. 548. the apparent misapprehension on one side and seeming misconception on the other. Congress must necessarily decide what government is established in the state before it can determine whether it is republican or not. speaking through Mr. but conclude by directing attention to the statement by the court. 548. and could not be questioned in a judicial tribunal. 38): "'For. and as no senators or representatives were elected under the authority of the government of which Mr. 1. 12 L.

"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. pp. unless satisfied that the constitution was violated in submitting the proposal . without omitting any requisite steps. are.S. by registering as voters under it to the extent of thousands throughout the state. it follows that the case presented is not within our jurisdiction. the courts were bound to take notice of the decision and follow it ' xxx xxx xxx "As the issues presented. and it is. italics supplied). and acted upon as the only valid Constitution of the state by the Governor in swearing fidelity to it and proclaiming it. when recognized. Even a constitutional amendment that is only promulgated by the Constitutional Convention without authority there for and without submitting the same to the people for ratification. definitely determined to be political and governmental. 142-151. In that case it was held that the question. and shall protect each of them against invasion. 1901. .12 L. " (223 U. The result of the work of that convention has been recognized. and on application of the legislature. Luther v. and by its having been engaged for nearly a year in legislating under it and putting its provisions into operation. against domestic violence. 1902. July 15. 7 How. accepted and acted upon by the Chief of State an a other government functionaries as well as by the people. the charter government or the government established by a voluntary convention. was the legitimate one.' xxx xxx xxx " 'It was long ago settled that the enforcement of this guaranty belonged to the political department. Commonwealth (44 SE 754-755). and by enforcing its provisions. courts should uphold amendment. becomes valid. and the writ of error must therefore be. as the Constitution of Virginia. . and by the people in their primary capacity by peacefully accepting it and acquiescing in it. In the 1903 case of Taylor vs. and have long since by this court been. 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. in their very essence. as directed thereby. and by voting. by the Legislature in its formal official act adopting a joint resolution. which of the two opposing governments of Rhode Island. . within the reach of judicial power. and when that department had decided. at a general election for their representatives in the Congress of the United States. dismissed for want of jurisdiction. the Court ruled: "The sole ground urged in support of the contention that the Constitution proclaimed in 1902 is invalid is that it was ordained and promulgated by the convention without being submitted for ratification or rejection by the people of the commonwealth. under its provisions. namely. 581. of the Constitution. accepted. was a question for the determination of the political department. and embraced within the scope of the powers conferred upon Congress.ed. but the judiciary in taking the oath prescribed thereby to support it. 755). therefore. by the individual oaths of its members to support it." (p. and not. or the Executive (when the legislature cannot be convened). 1." 'But it is said that the 14th Amendment must be read with S 4 of article 4. recognizing the Constitution ordained by the convention which assembled in the city of Richmond on the 12th day of June. Borden. providing that 'the United States shall guarantee to every state in this Union a republican form of government.

Ladner (131) SO 2nd 458. 1970 of delegates to the Constitutional Convention and during the deliberations of the Constitutional Convention from June 1. Legal complaints to the submission may be made prior to taking the vote but. in the 1958 case of Swaim vs. 118 & 123). 408 410). in the 1905 case of Ex parte Birmingham and A. Armstrong v. 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. 45 LRA 251. because of any mistake antecedent thereto. if once sanctioned. 281 Pa. unobjected to. Thus. italics supplied). by approval of the electors. 207. the amendment is embodied therein and cannot be attacked. see also Sylvester vs. 126 A. Even prior to the election in November. (Bott vs. 263. act. Even if the act of the Constitutional Convention is beyond its authority. 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." In the 1925 case of Taylor vs. Code of 1942. Wurts. in civic forums and in all the media of information..Substance more than form must be regarded in considering whether the complete constitutional system or submitting the proposal to amend the constitution was observed. yet if followed. Peoples State Bank (75 NW 2nd 370. 375)." It has likewise been held that it is not necessary that voters ratifying the new Constitution are registered in the book of voters. In the 1956 case of Thomson vs. King. the Court stated: "There may be technical error in the manner in which a proposed amendment is adopted or in its advertisement. 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. Many of the . the salient reforms contained in the 1973 Constitution which have long been desired by the people." Again." (130 A 409). Rec. where the admitted irregularities or illegalities committed in the procedure for submission of the proposed constitutional amendment to the people for ratification consisted of: "(a) the alleged failure of the county election commissioners of the several counties to provide a sufficient. number of ballot boxes 'secured by good and substantial locks.R. such act becomes valid upon ratification or adoption or acquiescence by the people. it is enough that they are electors voting on the new Constitution. to be used in the holding of the special election on the constitutional amendment. 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. 1972. either directly or collaterally. did not invalidate the amendment which was ratified by the people. Company (42 SO pp. v. King (130 A 407. Even though it be submitted at an improper time. were not such irregularities as would have invalidated the election. " (Italics supplied. Tuscaloosa County (103 SO 2nd 769). 8 SO 2nd 892. it becomes part of the Constitution. even if proved. Tindall. 663). 40 A 740 [1899]. 1971 until martial law was proclaimed on Sept.' as provided by Section 3249. it is effective for all purposes when accepted by the majority. 154 Fla. 462). et al. on the floor of the convention itself." The same principle was reiterated in 1961 by the Mississippi Supreme Court in Barnes. 21. The irregularities complained of. had been thoroughly discussed in the various committees of the Constitutional Convention.

rebels and subversives as the only possible exceptions. 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. et al. as well as officials of the Legislative and Executive branches of the government elected and/or appointed under the I935 Constitution have either recognized or are now functioning under the 1973 Constitution. 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. aside from the fact of its ratification by the sovereign people through the Citizens' Assemblies. orders and circulars issued by the incumbent President implementing the 1973 Constitution . On the contrary. Garcia. In brief. Only the five (5) petitioners in L36165 close their eyes to a fait accompli. 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. 1973 (Annex Rejoinder3 to Consolidated Rejoinder of petitioners in L-36165). 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. civil and administrative cases pursuant to such decrees. 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. 17. The foreign ambassadors who were accredited to the Republic of the Philippines before martial law continue to serve as such in our country. 1973. 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.. With the petitioners herein. secessionists. All the other functionaries recognize the new government and are performing their duties and exercising their powers under the 1973 Constitution. who are qualified electors under the 1973 Constitution (see pars. In both situations. 22.decrees promulgated by the Chief Executive from Sept. military tribunals and quasijudicial bodies created by presidential decrees have decided some criminal. 3(2) of Article XVII of the Constitution. according to the certification of the Commission on Elections dated February 19. including the lower courts. & (e) of Annex A to Notes of respondents Puyat and Roy in L 36165). 14. All the local governments. Ilarde and John Osmeña opted to serve in the Interim Assembly. while two new ambassadors have been accepted by the Philippines after the ratification of the 1973 Constitution on January 17. 42 SCRA 448). Free election is not inevitably incompatible with martial law. 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. No adverse reaction from the United Nation or from the foreign states has been manifested. dominated either by Nacionalistas or Liberals. Dec. 1973 implement some of the reforms and had been ratified in Sec. (d). 1-A(c). which suspension implies constraint on individual freedom as the proclamation of martial law. 1972 to Jan. 1971. The civil courts. there is no total blackout of human rights and civil liberties. the rest of the citizenry are complying with the decrees.

The Supreme Court of the United States. if the power of the judiciary permitted. who proceeded to organize a new government. to hold the former invalid. in times of great popular excitement. This would be revolution. this court must determine what amendments were material. and finally declared the state under martial law. it is a duty. had no power to make any material amendment. next. when it reassembled. yet it should at the same time be careful to overstep the proper bounds of its power. This is not. The convention framed one. while not expressly deciding the principle. in Luther v. 1. always the case. question. the political department having recognized the one. Whether the charter government. and also because. it would undoubtedly be the duty of the courts to declare its work a nullity. rather than a power. and no law existed providing for the making of a new one. in effect. as being perhaps equally dangerous. It may be said. the overthrow of the work of the convention. resulting in the election of a convention to form a new one. not selected by the people according to the forms of law. however. While the judiciary should protect the rights of the people with great care and jealousy. was uniformly held by the courts of the state not to be a judicial. submitted it to a vote. however. it is usually their last resort. This . because this is its duty. Elections were held for state officers. — to be submitted to a popular vote. It called another convention. when the question is properly presented. Johnson 18 SW 522): "If a set of men. But this is a very different case. and especially where such momentous results might follow as would be likely in this instance. was the offspring of law. and. It is a matter of current history that both the executive and legislative branches of the government have recognized its validity as a constitution. 7 How. it is the duty of the court to say whether it has conformed to the organic law. but merely to determine whether they have kept within constitutional limits. and a new government established. also. however. as it held the federal court. The charter government did not acquiesce in these proceedings. which in 1843 formed a new constitution. The convention. therefore. and this the courts of the existing government must resist until they are overturned by power. were to formulate an instrument and declare it the constitution. and we find the court. In 1841 public meetings were held. For instance. that. The judiciary cannot compel a co-equal department to perform a duty. and that such as were made are void by reason of the people having theretofore approved the instrument Then. the power of a court as to the acts of other departments of the government is not an absolute one.Of happy relevance on this point is the holding in Miller vs. if a statute be unconstitutional. then. It is responsible to the people. Borden. or the one established by the voluntary convention. making a constitution. for every violation of or non-compliance with the law. but if it does act. one of a judicial characters It is our undoubted duty. but a political. and its duty required. and declared it adopted. it was held to be the duty of the judiciary to follow its decision. "Let us illustrate the difficulty of a court deciding the question: Suppose this court were to hold that the convention. yet in the argument approves it. "After the American Revolution the state of Rhode Island retained its colonial character as its constitution. to so declare it. The instrument which we are asked to declare invalid as a constitution has been made and promulgated according to the forms of law. and in substance says that where the political department has decided such a matter the judiciary should abide by it. Is the question. and are now daily doing so. was the legitimate one. if a provision of the state constitution be in conflict with the federal constitution. there should be a remedy in the courts.

The sovereign people have spoken and we must abide by their decision. Tuffy." (italics supplied). 1973). .14 N. is by the people acting as a body politic. One judge might say that all the amendments. the judiciary. yet. according to its provisions. material and immaterial. Jan. of whom this Court is merely an agent. as passed upon by the people or as fixed by the court could be lacking a promulgation by the convention.W. — if it were to declare the instrument of a portion invalid. — who can and properly should remedy the matter. 738. and the people are dissatisfied. only last January 8. then the question would arise. Perhaps the members of the court might differ as to what amendments are material. then. 54.would be arrogating sovereignty to itself. it would be exercising a veto power on the act of the sovereign people. important rights exist by virtue of it. what constitution are we now living under. "We need not consider the validity of the amendments made after the convention reassembled. 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. were void. If. If this Court inquires into the validity of Proclamation No. who. it can. then the instrument. it is our duty to treat and regard it as a valid constitution. unless the manner be followed. and then the Court might differ as to what amendments are material. as the interpreter of that constitution. 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. they have ample remedy. 60 Iowa. Marcos (Pres. 609. which to say the least. The instrument provides for amendment and change. to execute the law and administer the affairs of government. and. Koehler v. made without calling a convention. Rep. 8. the sovereign people. under such circumstances. 835. If the making of them was in excess of its powers. without the judiciary being asked to overstep the proper limits of its power. was re-elected by the vote of over 5 million electors in 1969 for another term of four years until noon of December 30. 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. the convention exceeded its powers. This Court cannot dictate to our principal.391. unlike the members of this Court. will declare the amendment invalid. and 15 N. as the entire instrument has been recognized as valid in the manner suggested. 1973 under the 1935 Constitution. would be anomalous. another. 1973. Hill. State v. persons have been convicted of the highest crimes known to the law. 12 Pac. if not to their liking. Rep. It is not a question of whether merely an amendment to a constitution. it would be equally an abuse of power by the judiciary and violative of the rights of the people. as to how the approval of the new Constitution should be manifested or expressed. and the result would be confusion and anarchy. Rep. If a wrong has been done. Election Contest No. If it provides how it is to be done. and now the organic law of our commonwealth. and.3. as required by that constitution. through error of opinion. if this be essential. and the proper way in which it should be remedied. and bring confusion and anarchy upon state. 1102 and consequently of the adoption of the 1973 Constitution. regardless of our notion as to what is the proper method of giving assent to the new Charter. must restrain its . WE cannot presume to know better than the incumbent Chief Executive. We affirmed in Osmeña vs. In this respect. This Court. 19 Nev. 3. that the convention had then the implied power to correct palpable errors. not having a similar mandate by direct fiat from the sovereign people. the political power of the government has in many ways recognized it. has been adopted.W.

Such presumption is accorded under the law and jurisprudence to officials in the lower levels of the Executive branch.1973). 1102 is not just an ordinary act of the Chief Executive. he might have altered his views on the matter. And petitioners have failed to do so. aside from the fact that such reports are not contained in the record. in a milieu vastly different from 1868 to 1898. There is nothing in the record that contradicts. Then again. 1102 that the people through their Citizens' Assemblies had overwhelmingly approved the new Constitution. much less overthrow the results of the referendum as certified. Even if conclusiveness is to be denied to the truth of the declaration by the President in Proclamation No. 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. Judge Cooley advanced the aforesaid opinion in 1868 when he wrote his opus "Constitutional Limitations. there is no overriding reason to deny the same to the Chief of State as head of the Executive Branch. The Opinion of Judge Thomas McIntire Cooley that the sovereign people cannot violate the procedure for ratification which they themselves define in their Constitution. 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. 6. Under the rules on pleadings. in the face of the certifications by the Office of the Secretary of the Department of Local Government and Community Development. 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. That would be incompatible with their sovereign character of which We are reminded by Section 1. were he live today. to 1-E. 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. if not for generations. coordinate and co-equal branch of the government demands adherence to the presumption of correctness of the President's declaration. 1969 ed. cannot apply to a unitary state like the Republic of the Philippines. Much less are We justified in reversing the burden of proof — by shifting it from the petitioners to the respondents. pp. His opinion expressed in 1868 may apply to a Federal State like the United States. 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. of Article II of both the 1935 and the 1973 Constitutions. 445-446). ex-convicts and illiterates were allowed to vote in the Citizens' Assemblies. without being presumptuous.. 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 . 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. (Annexes 1. which states may be jealous of the powers of the Federal government presently granted by the American Constitution. Petitioners decry that even 15-year olds. due regard to a separate. Encyclopedia Brit. WE cannot reverse the rule on presumptions.enthusiasm to sally forth into the domain of political action expressly and exclusively reserved by the sovereign people themselves. Proclamation No. This dangerous possibility does not obtain in the case of our Republic. It is possible that."* (Vol.

This presumption is further strengthened by the fact that the Department of Local Governments. exconvicts and imbeciles constitute a very negligible number in any locality or barrio. is the prerogative to proclaim the results of the plebiscite or the voting the Citizens' Assemblies... including the localities of petitioners. about which no proof was even offered.S. ex-convicts granted absolute pardon are qualified to vote. Dir. Even in the absence of such a certification. whether peaceful citizens. the law abiding. 67 Phil. 251). et al: vs. The Power of Judicial Review. Code). Hartford. As a matter of fact. Under the rules of pleadings and evidence. But there was such certification as per Annexes 1 to 1-A to the Notes submitted by the Solicitor General as counsel for respondents public officers. it should likewise be presumed that the President was in possession of the facts upon which Proclamation No. as his alter ego. the petitioners have the burden of proof by preponderance of evidence in civil cases and by . In the ultimate analysis. are entitled as much as the educated. these sectors of our citizenry. Included likewise in the delegated authority of the President. Gil. Elec. the Department of National Defense and the Philippine Constabulary as well as the Bureau of Posts are all under the President. pp. whether literate or illiterate. Furthermore.and in Section 1(3) of Article III of the Bill of Rights includes all Filipino citizens of all ages. because their stake under the new Charter is not any less than the stake of the more fortunate among us. whose juridical personality or capacity to act is limited by age. 451). Petitioners deny the accuracy or correctness of Proclamation No. 1102 was based. 67 Phil. 62. 102. Without admitting that ex-convicts voted in the referendum. is to charge the President with falsification.. 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. 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. whom petitioners seem to regard with contempt or derision and whom petitioners would deny their sovereign right to pass upon the basic Charter that shall govern their lives and the lives of their progenies. are presumptively acting for and in behalf of the President and their acts are valid until disapproved or reprobated by the President (Planas vs. the inclusion of those from 15 years up to below 21 years old. in much the same way that in passing laws. Villena vs. Congress or the legislative body is presumed to be in possession of the facts upon which such laws are predicated (Justice Fernando. Not all ex-convicts are banned from voting.. convicts or ex-convicts. rebels. secessionists." Moreover. [1931] 282 U. This should suffice to dispose of this point. which offices. Secretary of Interior. of both sexes. citing Lorenzo vs. etc. these citizens. 595 and O'Gonmore. the ex-convicts and the ignorant. and those who are 21 years of age or above to express their conformity or non-conformity to the proposed Constitution. 1971 Rev. [1927] 50 Phil. which is a most grievous accusation. To deny the truth of the proclamation of the President as to the overwhelming majority vote in the Citizens' Assemblies in favor of the new Constitution. etc. 1102 that the 1973 Constitution was ratified by the overwhelming vote of close to 15 million citizens because there was no official certification as to the results of the same from the Department of Local Governments. 112-113. civil interdiction or ignorance deserve more solicitude from the State than the rest of the citizenry. 1967 Ed.

for the progress and happiness 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. 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. As stated in Wheeler vs. but the question may be asked as to what exactly they did to support such reforms. 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. because they happen to be former senators and delegates to the Constitutional Convention? More than any of the petitioners herein in all these cases. funded and seriously implemented. It would seem therefore to be the duty of everyone including herein petitioners to give the present leadership the opportunity to institute and carry out the needed reforms as provided for in the new or 1973 Constitution and thru the means prescribed in that same Constitution. 1946. "a court is never justified in placing by implication a limitation upon the sovereign. inevitable concomitants of martial law. 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." Now the hopes for the long-awaited reforms to be effected within a year or two are brighter.proof beyond reasonable doubt in criminal prosecutions. Board of Trustees. For the last seven (7) decades since the turn of the century. Until the contrary is established or demonstrated. the incumbent President realizes that he risks the wrath of his people being visited upon him and the adverse or hostile verdict of history. This . no tangible substantial reform had been effected. because of the restrictions on the civil liberties of his people. which necessarily entail some degree of sacrifice on the part of the citizenry. and the violent demonstrations of recent memory. herein petitioners should grant that the Chief Executive is motivated by what is good for the security and stability of the country. Must this constitutional right be reversed simply because the petitioners all assert the contrary? Is the rule of law they pretend to invoke only valid as long as it favors them? The presumption of regularity in the performance of 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. despite the violent uprisings in the thirties. 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. "burying their heads in timeless sand." 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. Congress and the oligarchs acted like ostriches. and from 1946 to 1952. They are witness to the frustrations of well-meaning Presidents who wanted to effect the reforms. where the accused is always presumed to be innocent. 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. 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. must the word of the petitioners prevail over that of the Chief Executive.

also a slave owner and landed aristocrat. who at any time may directly exercise their sovereign power of ratifying a new Constitution in the manner convenient to them It is pertinent to ask whether the present Supreme Court can function under the 1935 Constitution without being a part of the government established pursuant thereto. Maryland. let alone a rebel government engaged in international negotiations. Sandford (19 How. He also was a member of the Maryland state legislature for several terms. in which position he continued for 28 years until he died on October 21. 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. 654-657). (pp. The vice president elected under the 1935 Constitution does not asset any claim to the leadership of the Republic of the Philippines. 1973. His death "went largely unnoticed and unregretted. WE can only exercise the power delegated to Us by the sovereign people. 21 of the Encyclopedia Brit. 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 . then Secretary of the Treasury and in 1836 Chief Justice of the United States Supreme Court to succeed Chief Justice John Marshall. 9487 [1861])." 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. Taney became a lawyer in 1799. briefly recounts that he was born in 1777 in Calvert County. WE cannot perform an act inimical to the interest of Our principal. compelling him to join the Democratic Party of Andrew Jackson. Commonwealth. As heretofore stated. which disintegrated after the war of 1812. 1966 ed." Because he himself was a slave owner and a landed aristocrat.. not against them nor to prejudice them. There is not even a rebel government duly organized as such even only for domestic purposes. practiced law and was later appointed Attorney General of Maryland. That he had no sympathy for the Negroes was revealed by his decision in Dred Scott vs. even while Chief Justice.. But who exactly was Chief Justice Roger Brooke Taney? The Editorial Board of Vol. 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. 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. pp. who later appointed him first as Attorney General of the United States. of parents who were landed aristocrats as well as slave owners.Court did not pay heed to the principle that the courts are not the fountain spring of all remedies for all wrongs. 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. Chief Justice Taney sympathized with the Southern States and. 1969 ed. 1864. Inheriting the traditional conservatism of his parents who belonged to the landed aristocracy. 778-779. hoped that the Southern States would be allowed to secede peacefully from the Union. 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. supra. He was a leader of the Federalist Party. WE cannot determine what is good for the people or what ought to be their fundamental law. to apply or interpret the Constitution and the laws for the benefit of the people.

because he held Verdun against the 1916 offensive 0f the German army at the cost of 350. the surviving members of the family of Marshal Petain would not relish the error. . WE reserve the right to prepare an extensive discussion of the other points raised by petitioners. Once can therefore discern his hostility towards President Lincoln when he decided Ex parte Merryman. scholars and liberal thinkers that they are. 1966 & 1969 eds. Encyclopedia Brit. although Marshal Foch has a distinct place in history on his own merits. et al. Distinguished counsel in L-36165 appears to have committed another historical error. 9. 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. if they believe most vehemently in the justice and correctness of their position that the 1973 Constitution has not been validly ratified.. because it is not unreasonable to demand or to exact that he who exhorts others to be brave must first demonstrate his own courage. we can disagree without being disagreeable. et al. And neither would the members of the clan of Marshal Foch acknowledge the undeserved accolade. Encyclopedia Britannica (Vol. which animosity to say the least does not befit a judicial mind.. pp. vs. least of all of the American nation. and member of the newly integrated Philippine Bar. which We do not find now necessary to deal with in view of Our opinion on the main issue. do not recognize the sincerity of those who entertain opinions that clash with their own. 1969 ed. author of law books. who were then demoralized and plotting mutiny. IN VIEW OF THE FOREGOING. Surely. Such a man could hardly be spoken of as a hero of the American Bar. 732-733). Certainly. 1973 until the present." which distinguished counsel in L 36165 is wont to quote. Such an attitude does not sit well with the dictum that "We can differ without being difficult. ALL THE PETITIONS IN THESE FIVE CASES SHOULD BE DISMISSED. if they proceeded first to hold a rump session outside the legislative building. adopted or acquiesced in by the people since January 18. On the contrary.000 of his French soldiers. refers to Marshal Henri Philippe Petain as the genuine hero or "Saviour of Verdun"." 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. 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. political leader. The foregoing clarification is offered in the interest of true scholarship and historical accuracy. The proclaimed conviction of petitioners in L 36165 on this issue would have a ring of credibility. The Court need not be reminded of its solemn duty and how to perform it." The challenge likewise seems to insinuate that the members of this Court who disagree with petitioners' views are materialistic cowards or mercenary fence-sitters.determined by his returning to a slave state. which may be due to his rhetorical in the Encyclopedia Britannica (Vol. they will not affirm that the mere filing of their petition in L-36165 already made them "heroes and idealists. 508-509) to this effect. The choice of heroes should not be expressed indiscriminately just to embellish one's rhetoric. [1949] 83 Phil. WE refuse to believe that petitioners and their learned as well as illustrious counsels. Cuenco. 17. 17). so that the historians..

496. pronounced that the presumption of constitutionality must persist in the absence of factual foundation of record to overthrow such presumption (Ermita-Malate Hotel. Rep. 379. Const. 71 SE 479. 110 NW 1113. 1. Mr. 78 Neb. 1. 2d 506. J. I. EXECUTIVE AND JUDICIARY. to emphasize its independence. speaking for the Court. 1009). As intimated in the aforecited cases. 97 NW 347. 1952 ed. As late as 1971. Winneth. L24698. et al. People vs. 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. State. 31 Colo. (Collier vs. 10 L.A. Hammond vs. 91 Pac. the Convention cannot be dictated to by either of the other three departments as to the content as well as form of the Charter that it proposes. 81 Ga. 780.R. We now discuss the other issues raised by the petitioners. An unsympathetic Congress would not be disposed to submit the proposed Constitution drafted by the Constitutional Convention to the people for ratification. Cooney. 22. 30 SE 522. III CONSTITUTIONAL CONVENTION — CO-EQUAL WITH AND INDEPENDENT OF CONGRESS. the legislative. 355. the three grand departments of the Government. Thompson vs. Frantz vs. vs. accord all the 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. That could have been the fate of the 1973 Constitution. 935 [1934]. II EVEN IF ISSUE IS JUSTICIABLE. 102 Am. 486 Pac. Corre vs. Constitution of the Philippines. because . Laylin. namely. PEOPLE'S RATIFICATION. the courts stressed that the constitutional amendment or the new Constitution should not be condemned "unless in our judgment its nullity is manifest beyond reasonable doubt" (1971 case of Moore vs. State. 8 SE 318.. even the courts. the Convention has the power to fix the date for the plebiscite and to provide funds therefor. although there was an illegal or irregular or no submission at all to the people. 225 P 1007. much less appropriate the necessary funds therefor. 193). the executive and the judicial.S. Weston vs. Shanahan. is a justiciable question.. 4th Dec. Implicit in that independence. 34. 207 Karl. Gray.: Pursuant to Our reservation. It enjoys the same immunity from interference or supervision by any of the aforesaid branches of the Government in its proceedings. Autry. 69 Ohio St. The Constitutional Convention is co-ordinate and co-equal with. 74 Pac. 167. Ryan. as well as independent of. would leave it at the tender mercy of both legislative and executive branches of the Government. 68 NE 574. and the 1956 case of Tipton vs. Justice Enrique M. July 31. supra). 70 Neb. As a fourth separate and distinct branch. To deny the Convention such prerogative. St. 103 Ga. Rep. Fernando. State vs. including the printing of its own journals (Tañada and Fernando. Combs vs. Sours. Vol. Clark.MAKASIAR. Smith. ADOPTION OR ACQUIESCENCE CREATES STRONG PRESUMPTION OF VALIDITY OF 1973 CONSTITUTION. [N.] 149. 482-483. 8-9. Woodward vs. Malcolm and Laurel. Law. 645. etc. for the purpose of maintaining the same unimpaired and in order that its work will not be frustrated. 70 Mont. City Mayor. 369. Phil. 20 SCRA 849). Dig. 1967. pp. p. 211.

1972. Because the Constitutional Convention. affords them little comfort." after stating in its "whereas" clauses that the 1971 Constitutional Convention is expected to complete its work by the end of November. by necessary implication as it is indispensable to its independence and effectiveness. . . 5843 adopted on November 16. who were elected under the 1935 Constitution. Art. would not be disposed to call a plebiscite and appropriate funds therefor to enable the people to pass upon the 1973 Constitution. 16. their creation by the President thru Presidential Decree No. . Hence. the members of Congress. The new Constitution likewise shortened abruptly the terms of the members of the present Congress (whose terms end on December 31. in the estimation of the Convention can better determine the appropriate time for such a referendum as well as the amount necessary to effect the same. 1972. cannot be successfully challenged. 1972. Under the foregoing circumstances. . 86 of December 31. . 1973 Constitution). for which reason the Convention thru Resolution No. 29 approved on November 22. for the President contemplated in the new Constitution exercises primarily ceremonial prerogatives. ratification of which means their elimination from the political scene. this authority to delegate implementing rules should not be denied to the Constitutional Convention. it inescapably must have the power to delegate the same to the President." (Italics supplied). If Congress can legally delegate to the Chief Executive or his subaltern the power to promulgate subordinate rules and regulations to implement the law. 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. which superseded Resolution No. . They will not provide the means for their own liquidation.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.. 1973 Constitution). who. that the urgency of instituting reforms rendered imperative the early approval of the new Constitution. division or part of the Philippines "or disposing of issues of general concern . possesses the power to call a plebiscite and to appropriate funds for the purpose. 3[1]. proposed to the President "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. as consultative bodies representing the localities including the barrios. 1913. 29. 1975 and 1977) which provides that the new Constitution shall take effect immediately upon its ratification (Sec. a coequal body. Article XVII. 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. The fact that Section 2 of the same Article XVII secures to the members of Congress membership in the interim National Assembly as long as they opt to serve therein within thirty (30) days after the ratification of the proposed Constitution. 1972. XVII. is comprehended within the ordinance-making power of the President under Section 63 of the Revised Administrative Code. because the convening of the interim National Assembly depends upon the incumbent President (under Sec. the organization of the Citizens' Assemblies for consultation on national issues. and that the national and local leaders desire that there be continuity in the immediate transition from the old to the new Constitution.

The calling as well as conduct of the plebiscite was left to the discretion of the President. 29. the early approval of the New Constitution has become imperative. how it shall be conducted and who shall oversee it. Constitutional Convention). But even if adequate criteria should be required. who shall supervise the plebiscite. because he is in possession of all the facts funnelled to him by his intelligence services. Such delegation. 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).making power to the Chief Executive or to any of his subalterns." (Annex "1" of Answer. the issuance by the President of Presidential Decree No. "WHEREAS. Consequently. . 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. . Res. the same are contained in the "Whereas" clauses of the Constitutional Convention Resolution No. 73 on December 1. Marcos that a decree be issued calling a plebiscite ." did not in effect designate the Commission on Elections as supervisor of the plebiscite. or validated Presidential Proclamation No. but not to direct said body to supervise the plebiscite. in view of the urgency of instituting reforms. 29. 5843. 29. the Constitutional Convention itself recognized the validity of. 29. — 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. it could have easily included the necessary phrase for the purpose. and is beyond the competence of this Court to nullify. 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. "WHEREAS. is a valid exercise of such delegated authority. . and who can participate in the plebiscite. 29. 1972 setting the plebiscite on January 15. 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. unlike the delegation by Congress of the rule. which superseded Resolution No. who. can only mean that it left to the President the determination of the manner by which the plebiscite should be conducted. 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. If that were the intention of the Constitutional Convention in making the delegation. The fact that said Resolution No. was in the superior position to decide when the plebiscite shall be held. the 1971 Constitutional Convention is expected to complete its work of drafting a proposed new Constitution for the Republic by the end of November. It should be noted that in approving said Resolution No." That the Constitutional Convention omitted such phrase. 1081 placing the entire country under martial law by resolving to "propose to President Ferdinand E. 1973 and appropriating funds therefor pursuant to said Resolution No. 1972. thus: "WHEREAS.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. does not need sufficient standards to circumscribe the exercise of the power delegated. No." 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.

IV VAGUENESS OR AMBIGUITY DOES NOT INVALIDATE 1973 CONSTITUTION (1) Petitions challenge the 1973 draft as vague and incomplete. . a negative answer certainly could result in the work of the Convention being rendered nugatory. How can perfection spring from such materials?" (The Federalist. could conceivably make use of such authority to compel the Convention to submit to its wishes. xx-xxi). Fernando in L-35925. then such an argument loses force.. could be held as not devoid of such competence. The right of the people to be secure in their persons. Nor is the appropriation by him of the amount necessary to be considered as offensive to the Constitution. Antonio and the writer concurred in the Plebiscite Cases. 212-219. 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. pp. the appropriating arm of the government. Article IV — "Sec. 3. concurring opinion of J. Section 15 of Article XIV and Sections 3(2) and 12 of Article XVII in the 1973 Constitution. houses. 104 SO. 1956-1966). if performing his role as its agent. 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. and alluded to their arguments during the hearings on December 18 and 19. not to say insurmountable. such an objection would indeed have been formidable.. the task of submission becomes ministerial. 7th Dec. with whom Messrs. Alexander Hamilton. Once its work of drafting has been completed.As Mr. 1972 on the Plebiscite Cases. The result of the deliberations of all collective bodies must necessarily be a compound. and effects against unreasonable searches and seizures of whatever nature and for any . then a legislative body. 2d 841. If the appropriation were made in his capacity as agent of the Convention to assure that there be submission to the people. 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. Here it did not do so. Justice Fernando. Justices Barredo. as well of the errors and prejudices as of the good sense and wisdom." (pp. with the political branches devoid of any discretion as to the holding of an election for that purpose. With Congress not being in session. Modern Library Ed. pp. answering the critics of the Federal Constitution. If it were done by him in his capacity as President. (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. italics supplied). one of the leading founders and defenders of the American Constitution. It is understandable why it should be thus. The view has been repeatedly expressed in many American state court decisions that to avoid such undesirable consequence. Gray. . The Convention itself could have done so. stated: ". could the President. call for such a plebiscite? Under such circumstances. papers. stated that: "I never expect to see a perfect work from imperfect man. 2-3. must necessarily be a compromise of as many dissimilar interests and inclinations. The President then. by the decree under question. it could itself direct the submission to the people for ratification as contemplated in Article XV of the Constitution. If it were otherwise. etc. on pain of being rendered financially distraught.

Barredo. concessions. concurred in by Justices Fernando. and acts promulgated. are hereby recognized as legal. 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. overruled this objection. or any subdivision. issued." In the Plebiscite Cases (L-35925. L-35965. and particularly describing the place to be searched." . L-35940. or such other responsible officer as may be authorized by law." Article XIV — "Sec. or superseded by subsequent proclamations. . and shall remain valid. legal. L-35929. L-35948. 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 . This Court likewise enunciated in Del Rosario vs. development. thus: ". When the national interest so requires." (Pp. Chief Justice Roberto Concepcion. or utilization of natural resources entered into. L-35942. after examination under oath or affirmation of the complainant and the witnesses he may produce.32476. issued or acquired before the ratification of this Constitution. 12. 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. Section fourteen. decrees. or other forms of privileges for the exploration. 1970. xxx xxx xxx "Sec. the Prime Minister may enter into international treaties or agreements as the national welfare and interest may require. permits. Article Eight and of this Article notwithstanding. Any provision of paragraph one. particularly in international law. binding and effective even after lifting of martial law or the ratification of this Constitution. instructions. orders. unless modified. decrees. 11-18. . & L-35979). or other acts of the incumbent President. granted. .' as provided in Section 1 of Article XV of the 1935 Constitution. revoked. instructions. Regardless of the wisdom and moral aspects of the contested provisions of the proposed Constitution.purpose shall not be violated. there can be no debate about the validity of the new Constitution. executive agreements. Antonio and the writer." (Without the consent of the National Assembly. exploitation.. 20. or done by the incumbent President shall be part of the law of the land. L35961. agency. All treaties. L-35953. orders. . Oct. including government-owned or controlled corporations. 15. the incumbent President of the Philippines or the interim Prime Minister may review all -contracts. or instrumentality thereof. etc. Decision in L-35925. or unless expressly and explicitly modified or repealed by the regular National Assembly. and contracts entered into by the Government. valid and binding. Comelec (L. 3(2) All proclamations.). and no search warrant or warrant of arrest shall issue except upon probable case to be determined by the judge. and the persons or things to be seized. Once ratified by the sovereign people. it is my considered view that the Convention was legally deem fit to propose — save perhaps what is or may be insistent with what is now known. because the same will be submitted to the people for ratification.) Article XVII — "Sec.

It should be recalled that Constitutional Convention President Diosdado Macapagal was.. This claim is without merit because their very Annex "M" is the Filipino version of the 1973 Constitution. . 292 P 365. Petitioners next claim that the 1971 Constitutional Convention adjourned on November 30. 145 Okl. Vaughan. duly attested by its Secretary. 66 Cal. belong. Hatch vs. Koehler vs. such limitation of the scope of their function and objective was not in their minds" V 1973 CONSTITUTION DULY ADOPTED AND PROMULGATED. 67 Iowa 287 [1895]. Justice Fernando. 14 NW 738. that the proposed Constitution was approved on second reading on the 27th day of November. like the English version. 262 Mich. 202 [1930]. 31 [1920]. 570 [1922]. 6 P 734. . 138 NE 881. supra. in his concurring opinion in said Plebiscite Cases. 632 [1885]." 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. 212 Mich. 25 NW 245. . Blattner. Justice Barredo. and. then the titular head of the Liberal Party to which four (4) of the petitioners in L 36165 including their counsel. Mr. Looney vs. State v. State v. Leeper. 136 Ga. 179 NW 533. is practically limitless" (citing Cf. MacMillan v. Clark. concurring in the same Plebiscite Cases. Hill. (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. School District vs. 27 SO 297. 247 NW 474. 71 SE 479." . contains the certification by President Diosdado Macapagal of the Constitutional Convention.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. 1972 by the delegates whose signatures are thereunder affixed.1972 and accordingly signed on November 30. Hamilton v. 1972 and on third reading in the Convention's 291st plenary session on November 29. former Senator Jovito Salonga. Stoneman. as President of the Republic from 1962 to 1965. 313 [1911]. cited the foregoing pronouncement in the Del Rosario case. City of Pontiac. .Mr. 338 [1933]). 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. 77 Miss. it seems to me a sufficient answer that once convened. 543 [1900]. expressed the view "that when the people elected the delegates to the Convention and when the delegates themselves were campaigning. Hammond v. 105 Ohio St. and added: ". Smith. Powell. 60 Iowa 543 [1883]. the area open for deliberation to a constitutional convention .

and if upon the third reading three-fifths of all the members elected to that house shall vote in favor of the proposed amendments. Massachusetts [1790]. As typical examples: Constitution of Alabama (1901): "Article XVIII. Legislative Proposals. the officers of such general election shall open a poll for the vote of the qualified electors upon the . Georgia [1945]. petitioners and their counsels are amending by a strained and tortured construction Article XV of the 1935 Constitution. to canvass and to certify the results. who have the sole power of ratification. In effect. which shall be published in every county in such manner as the legislature shall direct. and Missouri [1945]). supra). 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. Arizona [1912]. See the State Constitutions of Alabama [1901]. 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. or of both state and local officials. If such election be held on the day of the general election. Arkansas [1874]. In all the cases where the court held that illegal or irregular submission. Kansas [1861]. not less than three months after the final adjournment of the session of the legislature at which the amendments were proposed. or at the election for members of the State legislature only or of all state officials only or of local officials only. Louisiana [1921]. Colorado [1976]. Mode of Amending the Constitution "Sec. Illinois [1970]. fixes the date of the election or plebiscite limits the submission to only electors or qualified electors. Indiana [1851]. Connecticut [1818]. shall be given by proclamation of the governor. Florida [1887]. This is a clear case of usurpation of sovereign power they do not possess — through some kind of escamotage. Amendments may be proposed to this Constitution by the legislature in the manner following: The proposed amendments shall he read in the house in which they originate on three several days. which Imposition by the Court is never justified (Wheeler vs. together with the proposed amendments. Mississippi [1890]. 284. Iowa [1857]. prescribes the publication of the proposed amendment or a new Constitution for specific period prior to the election or plebiscite. This Court should not commit such a grave error in the guise of judicial interpretation. and designates the officer to conduct the plebiscite. if upon the third reading threefifths of all the members elected to that house shall vote in favor thereof.This position certainly imposes limitation on the sovereign people. Minnesota [1857]. Michigan [1909]. in which they shall likewise be read on three several days. Kentucky [1891]. Notice of 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. 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. Maryland [1867]. Board of Trustees. or authorizes expressly the Constitutional Convention or the legislature to determine the procedure or certain details thereof. for at least eight successive weeks next preceding the day appointed for such election. the procedure prescribed by the state Constitution is so detailed that it specifies that the submission should be at a general or special election. the proposed amendments shall be sent to the other house. and.

opposite the word expressing his desire. at which time the same shall be submitted to the electors of the State for approval or rejection. Miscellaneous Provisions. "Sec. Either branch of the General Assembly at a regular session thereof may propose amendments to this Constitution. "Sec. and if a majority of the electors voting at such election adopt such amendments the same shall become a part of this Constitution.proposed amendments. for their approval or rejection. 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. and counted. The choice of the elector shall be indicated by a cross mark made by him or under his direction. shall adopt the amendments. shall be entered on the journal. When more than one amendment shall be submitted at the same time. and. the same shall become a part of the constitution. 285. officers for such election shall be appointed. in the same manner as in elections for representatives to the legislature. The result of such election shall be made known by proclamation of the governor. together with the yeas and nays. for six months immediately preceding the next general election for Senators and Representatives." . Following each proposed amendment on the ballot shall be printed the word "Yes" and immediately under that shall be printed the word "No". 1. and not more than three propositions to amend shall be submitted at the same election. the same shall be submitted to the electors. such proposed amendments shall be entered on the journal with the yeas and nays. publications. where a newspaper is published. If it be held on a day other than that of a general election. and such basis of representation shall not be changed by constitutional amendments. for three months preceding the next election for representatives. elections. but no more than three amendments shall be proposed or submitted at the same time. such proposed amendments. Representation in the legislature shall be based upon population. Form of ballot for amendment. In all elections upon such proposed amendments. 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. Constitutional amendments. and published in at least one newspaper in each county. Propositions for the amendment of this constitution may he made by either branch of the legislature. and returns thereof be made to the secretary of state. 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. the votes cast thereat shall be canvassed. at which time." Constitution of Kansas (1861): "Article XIV. if the same be agreed to by a majority of all the members elected to each house. they shall be so submitted as to enable the electors to vote on each amendments separately. They shall be so submitted as to enable the electors to vote on each amendment separately. at said election. such amendments shall be valid to all intents and purposes as parts of this Constitution. and the election shall be held in all things in accordance with the law governing general elections. 22. tabulated. and if two thirds of all the members elected to each house shall concur therein. Proposal of amendments." Constitution of Arkansas (1874): "Article XIX. "Sec. and if a majority of the electors voting on said amendments. Amendments. 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.

the last publication to be not more than thirty nor less than fifteen days next preceding the election. each proposed amendment shall be published once a week for two consecutive weeks in two newspapers of different political faith in each county. nor does it designate the Commission on Elections to supervise the plebiscite. provided that each Amendment shall he embraced in a separate bill. publication. The bill or bills proposing amendment or amendments shall be published by order of the Governor. and if it shall appear to the Governor that a majority of the votes cast at said election on said amendment or amendments." Constitution of Missouri (1945): "Article XII. If possible. shall be returned to the Governor. in a form to be prescribed by the General Assembly. or at a special election called by the governor prior thereto. and thenceforth said amendment or amendments shall be part of the said Constitution. in the manner prescribed in other cases. then in the newspaper. Amending the Constitution. If a majority of the votes cast thereon is in favor of any amendment. "Sec. . Neither does it limit the ratification to the qualified electors as defined in Article V of the 1935 Constitution. As heretofore stated. by yeas and nays.Constitution of Maryland (1867): "Article XIV. When two or more amendments shall be submitted in manner aforesaid. they shall be so submitted as that each amendment shall be voted on separately. where so many may be published. or one new article which shall not contain more than one subject and matters properly connected therewith. severally. More than one amendment at the same election shall be so submitted as to enable the electors to vote on each amendment separately. 1. much less a detailed procedure for submission or ratification." Article XV of the 1935 Constitution does not require a specific procedure. at the next general election. embodying the Article or Section. in at least two newspapers. were cast in favor thereof. Submission of amendments proposed by general assembly or by the initiative. to the qualified voters of the State for adoption or rejection. the same shall take effect at the end of thirty days after the election. by his proclamation. the Governor shall. and in three newspapers published in the City of Baltimore. 2(b). to be entered on the Journals with the proposed Amendment. submission to voters. governor's proclamation. severally. declare the said amendment or amendments having received said majority of votes. No such proposed amendment shall contain more than one amended and revised article of this constitution. as the same will stand when amended and passed by three fifths of all the members elected to each of the two Houses. to the voters of this State at the same election. The votes cast for and against said proposed amendment or amendments. Amendments to the Constitution. The General Assembly may propose Amendments to this Constitution. at which the proposed amendment or amendments shall be submitted. and where not more than one may be published. at which he may submit any of the amendments. to have been adopted by the people of Maryland as part of the Constitution thereof. publication of four consecutive weeks shall be made. "Sec. it does not specify what kind of election at which the new Constitution shall be submitted. in each County. 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. once a week for four weeks immediately preceding the next ensuing general election. If there be but one newspaper in any county. Proposal in general assembly.

because the said term "people" as used in several provisions of the 1935 Constitution. Then again. 13). So it cannot be said that the original framers of the 1935 Constitution as ratified on May 14. Political Law of the Philippines. (2) As aforequoted.. 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. 1935 intended that a body known as the Commission on Elections should be the one to supervise the plebiscite. I.. Vol. 11-19)." or some such similar phrases.. It does not make any reference to the Commission on Elections as the body that shall supervise the plebiscite. 715. p. 713. 49 and 517. 5. 607 approved on August 22. I. 170 Phil. Constitution of the Philippines. 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. 34. Article XV does not indicate the procedure for submission of the proposed Constitution to the people for ratification. and the creation of the Commission on Elections (ratified on June 18. 708-715. 73 Phil. In Section 1 of Article II on the Declaration of Principles. 1940 and amended by Commonwealth Act No. Gonzales. 1935 by the people did not contain Article X on the Commission on Elections. 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 term "Filipino people" refers to all Filipino citizens of all ages of both sexes. 1961 ed.S. Sumulong vs. 1940 the Commission on Elections was not yet in existence. 1940 (see Sumulong vs. Law. because the Commission on Elections was not in existence then as it was created only by Commonwealth Act No. the term "people" in whom sovereignty resides and from whom all government authority . Vol. 1966 ed. 703. pp.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. 703. 3) If the framers of the 1935 Constitution and the people in ratifying the same on May 14. 1941 (see Tañada & Carreon. Congress) and the three 1940 amendments on the establishment of a bicameral Congress. does not have a uniform meaning. 1940. Commission. 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. ratified by the people on June 18. p. the re-election of the President and the VicePresident. pp. 1940 and approved by the President of the United States on December 2. Thus in the preamble. 1953 ed. Const. If the National Assembly then intended that the Commission on Elections should also supervise the plebiscite for ratification of constitutional amendments or revision. the 1939 amendment to the Ordinance appended to the 1935 Constitution (TydingsKocialkowski Act of the U. 657 approved on June 21. the term "people" in Article XV cannot be understood to exclusively refer to the qualified electors under Article V of the 1935 Constitution. And Article XV could not make any reference to the Commission on Elections because the original 1935 Constitution as ratified on May 14. Vol. Phil. Commission. Because before August. but by virtue of an express authorization in Commonwealth Act Nos. 288. 475-476. 1940). 70 Phil. The supervision of said plebiscites by the then Department of Interior was not axiomatic. Tañada & Fernando. II. which article was included therein pursuant to an amendment by the National Assembly proposed only about five (5) years later — on April 11. 290-300.

most of the constitutions of the various states of the United States. Section 2. 34 on the woman's suffrage amendment enacted on September 30. should apply to the said plebiscite (Sec.emanates. Act No. 1937. 34). 3. 1936. insofar as said provisions are not in conflict with it. specifically delineate in detail the procedure of ratification of amendments to or revision of state Constitutions and expressly require ratification by qualified electors. the 193435 Constitutional Convention limits the use of the term "qualified electors" to elections of public officials. 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. Thus. 12. which specifically prescribes that the senators and congressmen shall be elected by the qualified electors. 10. As above demonstrated. Act No. . Com." 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. 34). 1937" (Sec. the term "people" comprehends not only Filipino citizens but also all aliens residing in the country of all ages and of both sexes. because of the explicit provisions of Sections 2 and 5 of Article VI. 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. VII of the 1935 Constitution). But in Section 5 of the same Article II on social justice. it does so expressly as in the case of the election of senators and congressmen. When the 1935 Constitution wants to limit action or the exercise of a right to the electorate. 34). can only refer also to Filipino citizens of ail ages and of both sexes. As aforesaid. It did not want to tie the hands of succeeding or future constitutional conventions as to who should ratify the proposed amendment or revision. . 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. and that the votes cast according to the returns of the board of inspectors shall be counted by the National Assembly (Sec. Com. . But this alone cannot be conclusive as to such construction. consists of 12 sections and. Com. Article VI expressly provides that the senators "shall be chosen at large by the qualified electors of the Philippines as may be provided by law. The proposal submitted to the Ozamis Committee on the Amending Process of the 193435 Constitutional Convention. indicating that the 1934-35 Constitutional Convention did not intend to limit the term "people" in Article XV of the 1935 Constitution to qualified electors only. on the question of woman's suffrage . Act No. aside from providing that "there shall be held a plebiscite on Friday. This proposal was not accepted. 2 of Art. Act No. (4) It is not exactly correct to opine that Article XV of the 1935 Constitution on constitutional amendment contemplates the automatic applicability of election laws to plebiscites on proposed constitutional amendments or revision. The very phraseology of the specific laws enacted by the National Assembly and later by Congress. April 30." Section 5 of the same Article VI specifically provides that congressmen shall "be elected by the qualified electors. not by the generic term "people". . specified that the amendment shall be submitted to qualified electors for ratification. . indicates that there is need of a statute expressly authorizing the application of the election laws to plebiscites of this nature." (Sec. . Likewise. Com. specifies that the provisions of the Election Law regarding the holding of a special election.

Act No. 2). Act Nos. 492. that copies thereof shall be posted not later than October 20. that within thirty (30) days after the election. shall be submitted at the following election of local officials.1940 and provided. Com. that the election shall be conducted according to the provisions of the Election Code insofar as the same may be applicable.election of the President and Vice-President. 8). 1939 "shall be submitted to the Filipino people for approval or disapproval at a general election to be held throughout the Philippines on Tuesday. and the creation of a Commission on Elections shall be held at a general election on June 18. consists of 8 sections and provides that the proposed amendments to the Constitution adopted in Resolution No. Act No. that the said amendments shall be published in English and Spanish in three consecutive issues of the Official Gazette at least ten (10) days prior to the election. Com. 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. that the provisions of Com. 1. 1947. that the election shall be conducted in conformity with the Election Code insofar as the same may be applicable (Sec. Sec. 38. 6. 3). 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. namely. Act No. Act No. 492 and 517 and Rep.A. that copies of the returns shall be forwarded to the Secretary of National Assembly and the Secretary of Interior (Sec. Com. 1947 (Section 2. among others: that the plebiscite on the constitutional amendments providing for a bicameral Congress. 73). the Speaker of the National Assembly shall request the President to call a special session of the Assembly for the purpose of canvassing the returns and certify the results thereof (Sec.A. 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. No. in accordance with the provisions of this Act" (Sec. 1939". makes it expressly applicable to plebiscites. 7). 73. Commonwealth Act No. 39 on September 15. 1946 calling for a plebiscite on the parity amendment consists of 8 sections and provides that the Amendment "shall be submitted to the people." (Sec. 492). 1). Republic Act No. 73 approved on October 21. 1940 (Sec. 357 (Election Code) and Com. that the amendments to said Constitution proposed in "Res. Com. 1 of Com. calling for a plebiscite on the proposed amendments to the Constitution adopted by the National Assembly on September 15. 2. re. R. Act No. and that the National Assembly shall canvass the returns and certify the results at a special session to be called by the President (Sec. 357. that copies of the same shall be posted in a conspicuous place and in every polling place not later than February 11. including the amendment creating the Commission on Elections. No. Act No. 492). the previous Election Code enacted on August 22. consisting of 11 sections. Yet the subsequent laws.The election laws then in force before 1938 were found in Sections 392-483 of the Revised Administrative Code. ?3 calling for the plebiscite on the constitutional amendments in 1939. 492 and 517. adopted on the same date. 1939 (Sec. as well as Rep. for approval or disapproval. 1940 and 1946. 657 creating the Commission on Elections. Thus — Commonwealth Act No. No. October 24. 1939. Act No. Act No. 1940 (Sec. 492). 1938. 1. 617. shall apply to the election . Act Nos. R. enacted on September 19. at a general election which shall be held on March 11. 1939. was approved on April 25. 73).

whether literate or not. eighteen years of age or over. Act No. R. and even at that. it should be noted that the period for the publication of the copies of the proposed amendments was about 10 days. "Sec. 180. it is patent that Article XV of the 1935 Constitution does not contemplate nor envision the automatic application of the election law.insofar as they are not inconsistent with this Act (Sec. The barrio secretary or in his absence. If the Election Code ipso facto applies to plebiscites under Article XV of the 1935 Constitution.A. which was approved on June 17. Unlike the various State Constitutions of the American Union (with few exceptions). "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. 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. Congress itself. From the foregoing provisions. 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. The barrio assembly. or in his absence. the councilman acting as barrio captain. The barrio captain. R. as amended. As above-intimated. "The barrio assembly shall meet at least once a year to hear the annual report of the barrio counsel concerning the activities and finances of the barrio. No. 4. (5) Article XV of the 1935 Constitution does not specify who can vote and how they shall vote. It is necessary that at least one-fifth of the members of the barrio assembly be . R. and for posting at least 4 days. Moreover. No. 73).A. 357). the Senate and House of Representatives shall hold a joint session to canvass the returns and certify the results thereof (Section 6. provided they are also residents of the barrio for at least 6 months (Sec.A. in enacting Republic Act No. and that within 30 days after the election. 180 and 6388 likewise expressly provide that the Election Code shall apply to plebiscites (Sec.A. 3590). or any assembly member selected during the meeting. Republic Acts Nos. otherwise known as the Barrio Charter. R. No. 4. 1967 and superseded Republic Act No. any member designated by the presiding officer to act as secretary shall discharge the duties of secretary of the barrio assembly. citizens of the Republic of the Philippines and who are duly registered in the list of barrio assembly members kept by the Barrio Secretary. 15 days or 20 days. 3. shall act as presiding officer at all meetings of the barrio assembly. 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. expanded the membership of the barrio assembly to include citizens who are at least 18 years of age. "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. & days or 30 days. "For the purpose of conducting business and taking any official action in the barrio assembly. and Section 2. No. 73). 6388). 3590. 2. 2370. Act No. Rep. — The barrio assembly shall consist of all persons who are residents of the barrio for at least six months. Article XV does not state that only qualified electors can vote in the plebiscite.

and "d. and/or declaration by the voters to the board of election tellers. supplemental appropriations or special tax ordinances. — A plebiscite may be held in the barrio when authorized by a majority vote of the members present in the barrio assembly.A. 5. Qualifications of voters and candidates. To decide on the holding of a plebiscite as provided for in Section 6 of this Act. majority vote of all the barrio assembly members registered in the list of barrio secretary is necessary. there being a quorum. "b. "All duly registered barrio assembly members qualified to vote may vote in the plebiscite. may vote or be a candidate in the barrio elections. or special tax ordinances." All these barrio assembly members. xxx xxx xxx "Sec. twenty-one years of age or over. who are at least 18 years of age. or when called by at least four members of the barrio council. Insane or feeble-minded persons. Voting procedures may be made either in writing as in regular election. and such other information relevant to the holding of the plebiscite. paragraph 2 of this Act. although illiterate. may vote at the plebiscite on the recall of any member of the barrio council or on any budgetary. and place thereof. the barrio council may fill the same. Sec. The board of election tellers shall be the same board envisioned by section 8. "A plebiscite may be called to decide on the recall of any member of the barrio council. 3590). — The powers of the barrio assembly shall be as follows: "a. 6. To recommend to the barrio council the adoption of measures for the welfare of the barrio. 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. duly registered in the list of voters kept by the barrio secretary. Plebiscite. able to read and write. however. within two years after service of his sentence. Any person who has been sentenced by final judgment to suffer one year or more of imprisonment. — Every citizen of the Philippines. "Sec. "c. stating the date. and such plebiscite has been given the widest publicity in the barrio. R. To act on budgetary and supplemental appropriations and special tax ordinances submitted for its approval by the barrio council. Such plebiscite may be authorized . "Sec. and "c. To bear the annual report council concerning the activities and finances of the assembly. All actions shall require a majority vote of these present at the meeting there being a quorum. who is not otherwise disqualified. 10. in case of vacancies in this body. 6. No. time. Powers of the barrio assembly. A plebiscite shall be called to approve any budgetary. "The following persons shall not be qualified to vote: "a. the questions or issues to be decided. Provided. Any person who has violated his allegiance to the Republic of the Philippines. "For taking action on any of the above enumerated measures. 5. action to be taken by the voters.present to constitute a quorum. who has been a resident of the barrio during the six months immediately preceding the election. That no plebiscite shall be held until after thirty days from its approval by either body. supplemental appropriation. "b.

However. Consequently. 1. If Congress in the exercise of its ordinary legislative power. 3590. The truth of the certification by the Department Secretary and the Chief Executive on the results of the referendum. No." That said paragraph 2 of Section 6 provides that "all duly registered barrio assembly members qualified to vote may vote in the plebiscite. because it was done in the regular performance of his official functions aside from the fact that the act of the Department Secretary. and whether literate or not. No. 2370. Otherwise there was no sense in extending membership in the barrio assembly to those who are at least 18 years of age. Counsels Salonga and Tañada as well as all the petitioners in L. on questions submitted for plebiscite." cannot sustain the position of petitioners in G. may vote (Sec. as an alter ego of the President. can vote in the elections of barrio officials. 451). there being a quorum (par. 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. As heretofore stated. the statement by the President in Presidential Proclamation No. R. 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. 3590). 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. No.R.A. should be accorded the presumption of correctness. 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. to constitute a quorum of the barrio assembly. 10. L.36165 and two of the petitioners in L-36164 participated in the enactment of Republic Act No. can include 18-years old as qualified electors for barrio plebiscites. only Filipino citizens. all the registered members of the barrio assembly can vote as long as they are 18 years of age or above. and/or declaration by the voters to the board of election tellers. 67 Phil. the old Barrio Charter. Paragraph 2 of Section 6 likewise authorizes open voting as it provides that "voting procedures may be made xxx either in writing as in regular elections. is . whether literate or not 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. in the case of election of barrio officials. 1973. which provided that only those who are 21 and above can be members of the barrio assembly. Sec.by a majority vote of the members present in the barrio assembly. is presumptively the act of the President himself unless the latter disapproves or reprobates the same (Villena vs. 6). 3590 could simply have restated Section 4 of Republic Act No. not otherwise disqualified.A. 1102 that the 1973 Constitution was overwhelmingly ratified by the people through the Citizens' Assemblies in a referendum conducted from January 10 to 15. Secretary of Interior. not as a constituent assembly. who are at least 21 years of age. able to read and write. and that only those who are 21 years of age or over and can read and write.36165 that only those who are 21 years of age or above and who possess all other qualifications of a voter under Section 10 of R. The accuracy of such tabulation and certification by the said Department Secretary should likewise be presumed. whether literate or not.

In Cavite province. If such a ratio is extended by way of extrapolation to the other provinces. cities and municipalities.126. cannot be invoked. there were still many Citizens' Assemblies holding referendum in Pasay City. 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. Mayor Norberto S.310 No votes. for which reason he did not send .530 No votes. which he did not sign but which he referred to Vice-Governor Camerino (Annex 1-Rejoinder of the Sol. dated March 20. 1973. and the 1947 parity amendment. Rizal. 1973.000 Yes votes and 100. that the acting chairman and coordinator of the Citizens' Assemblies at that time was ViceGovernor Dominador Camerino. 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. 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. 1973 stating that on January 15.163 Yes votes and 5. is not true. against the certification of the Department of Local Government and Community Development that in Rizal there were 1. because in his duly acknowledged certification dated March 16. which as heretofore discussed. he has been under house arrest in his residence in Urdaneta Village. Amoranto of Quezon City and Councilor Eduardo T. and that he was shown a letter for his signature during the conduct of the Citizens' Assemblies. he states that since the declaration of martial law and up to the present time.157 Yes votes as against 292. The procedure for the ratification of the 1937 amendment on woman suffrage.further strengthened by the affidavits and certifications of Governor Isidro Rodriguez of Rizal.882 Yes votes against 12. the 1973 Constitution was proposed by an independent Constitutional Convention. shows only 614. that he never participated in the conduct of the Citizens' Assemblies on January 10 to 15. 1973 in the province of Cavite. the result would still be an overwhelming vote in favor of the 1973 Constitution. Mayor Pablo Cuneta likewise executed an affidavit dated March 16. As claimed by petitioners in L-36165. there were 249. Makati. creating the Commission on Elections and providing for two consecutive terms for the President. In the cases at bar. 1973).269 No votes as disclosed in Annex 1-A of respondents' Compliance (the certification by the Department of Local Government and Community Development). cities and municipalities in all the other provinces. cities and towns of the country. 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. confess had also the authority to prescribe the procedure for the submission of the proposed amendments to the 1935 Constitution. 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. that on the same day. the certification of Governor Isidro Rodriguez of Rizal. the 1940 amendments establishing the bicameral confess. the 1939 amendment to the ordinance appended to the 1935 Constitution. The alleged certification by Governor Lino Bocalan of Cavite. while the alleged certification of Governor Lino Bocalan of Cavite shows only 126.577 No votes. Paredes of Quezon City. Gen.

The fact that a certain Mrs. that the figures 614. 1973 stating that a certain Atty. 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. 1973 informing him of the results of the referendum in Rizal. 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. 1973. for she may not have been notified thereof and as a result she was not able to attend said meeting. 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. Assistant City Treasurer and Officer in Charge of Pasay City also issued an affidavit dated March 15.010 Yes votes as against 5. certified on March 12. participation and control (Annex 4 Rejoinder of the Sol. of barrio South Triangle. 1973 that he prepared a letter to the President dated January 15. Delia Sutton of the Salonga Law Office asked him for the results of the referendum. Samonte. Quezon City.the aforesaid letter pending submittal of the other results from the said Citizens' Assemblies. There were 118. Encarnacion. she requested him if she could give her the unofficial copies thereof. Gen. and that after January 15. Gen.588 No votes in the Citizens' Assemblies of Quezon city (Annex V to Petitioners' Notes in L-36165). issued a certificate dated March 16. 1973). Department of Local Government and Community Development. 1973 that she was shown xerox copies of unsigned letters allegedly coming from Governor Lino Bocalan dated January 15. dated March 20.157 and 292. The barrio captain or the secretary of the barrio assembly could have been a credible witness. which results were made the basis of the computation of the percentage of voting trend in the province. for which reason the said letter merely stated that it was only a "summary result. 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. Pablo F. italics supplied). 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. Lydia M. which he gave in good faith (Annex C-Rejoinder to the Sol." does not necessarily mean that there was no such meeting in said barrio. chairman of the Secretariat of Quezon City Ratification and Coordinating Council. 1973 and marked "Rejoinder Annex Cavite" addressed to the President of the Philippines through the Secretary of the Department of Local . 1973. and that in the afternoon of January 15. acting chief of the Records Section. there has been no Citizens' Assembly meeting in our Area. 1973.). 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. states that "as far as we know. Gen. he indorsed the complete certificate of results on the referendum in Pasay City to the Office of the President (Annex 5-Rejoinder of Sol. Much less can it be a basis for the claim that there was no meeting at all in the other barrios of Quezon City..530 mentioned in said letter were based on the certificates of results in his possession as of January 14. Remedio Gutierrez. Paredes. wife of alleged barrio treasurer Faustino Gutierrez. Councilor Eduardo T. 1973. Governor Isidro Rodriguez of Rizal issued a certification dated March 16. Gen. particularly in January of this year.

it is enough that they are electors voting on the new Constitution (Bott vs. to the effect that even assuming the correctness of the figures insisted on by counsel for petitioners in L-36165. dated January 14. that both xerox copies of the unsigned letters contain figures showing the results of the referendum of the Citizens' Assemblies in those areas. 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).Government and Community Development and another unsigned letter reportedly from Mayor Pablo Cuneta dated January 15. The letter of Governor Felix O. 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. If there was no such freedom of choice. 1973 (Annex-6 Cam. showing "their preference and readiness to accept this new method of government to people consultation in shaping up government policies. 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. The . shows that there were more votes in favor of a plebiscite to be held later than those against. Provincial Governor Pascual stated that the "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. The fact that the referendum in the municipality of Pasacao. Wurts. if the same were extrapolated and applied to the other provinces and cities of the country. on the one hand. 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. 43 A 744. 881 [1899]. The report of Governor Efren B. As heretofore stated. only serves to emphasize that there was freedom of voting among the members of the Citizens' Assemblies all over the country during the referendum from January 10 to 15. 1973 and marked "Rejoinder Annex Pasay City" addressed to the Secretary of the Department of Local Government and Community Development. on the other. 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. Sr. 40 A 740 [1898]." (Annex-Bataan to Rejoinder of Petitioners in L-36165). 45 LRA 251). and the number of votes certified by the Department of Local Government and Community Development. Gen. Alfelor. it is not necessary that voters ratifying the new Constitution are registered in the book of voters. those who wanted a plebiscite later would not outnumber those against holding such plebiscite. 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. Camarines Sur.). Sur to Rejoinder of Petitioners in L-36165). the Yes votes would still be overwhelmingly greater than the No votes. Bataan and Negros Occidental.

refutes the said computation of Professor Benjamin R. to Consolidated Rejoinder of petitioners in L-36165 to the Notes of Arguments and Memorandum of respondents).6 million persons '21 years old and over' who were not registered voters (COMELEC). stated in his letter dated March 13. ostensibly a close relative of former Senator Jovito R. Why did not learned and eminent counsel heed such suggestion? Counsel for petitioners in L-36165. Although ex-convicts may have voted also in the referendum. "2) The official population projection of this office (medium assumption) for '15 year olds and over' as of January 1. 201. participation rate will therefore be the ratio of the latter figure to the former which gives 74. 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). in his letter dated March 16.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. 1973 was 16. Salonga. of the Mapua Institute of Technology. assuming that all the 11. which all the more impairs his credibility.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. to sustain their position.2%. eminent counsel for petitioners in L-36165 (Annex M-as amended. does not necessarily give rise to the inference that Mayor Samson of Caloocan City is being intimidated. Salonga.' The 'difference or implied number of 15-20 year olds' of 5. some of them might have been granted absolute pardon or were sentenced to less than one year imprisonment to qualify them to vote (Sec. the Yes votes and No votes in the referendum on the new Constitution among the members of the Citizens' Assemblies in Caloocan City. 1973 addressed to the Secretary of the Department of Local Government and Community Development. relies heavily on the computation of the estimated turnover in the Citizens' Assemblies referendum on January 10 to 15. because in the same letter of Mayor Samson. Samson of Caloocan City. Director Tito A. If total number of participants at the Citizens' Assembly Referendum held on January 10-15. thus: "1) I do not quite understand why (Problem I) all qualified registered voters and the 15-20-year-old youths (1972) will have to be estimated in order to give a 101.506 million.039. 1973 is 22. At any rate. Mijares of the Bureau of Census and Statistics. 1971 Rev. Election Code). the fact that Mayor Marcial F. 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. Similarly. having been recently released from detention. discounting which would not tilt the scale in favor of the negative votes. 1973 that he does not "feel authorized by the proper authorities to confirm or deny the data" concerning the number of participants.702 million. 1973 by a certain Professor Benjamin R. but who might be qualified to participate at the Citizen's Assembly. Professor Salonga is not a qualified statistician.909 registered voted at the Citizens' . This computation apparently fails to account for some 5.906 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. who belongs to the Liberal Party. Salonga. the ex-convicts constitute a negligible number. "3) I cannot also understand c-2 'Solution to Problem 11.661.

"To obtain the participation rate of '15-20 years old' one must divide the number in this age group.909. is necessarily inconsistent with freedom of choice.6% does not seem to provide any meaningful information. 1971 elections.909 for the November 8. the difference between 16. "In Problem III.661. Marcos. It is also claimed or urged that there can be no free choice during martial law which inevitably generates fear in the individual. which fact should necessarily augment the number of votes who voted for the 1973 Constitution. which was estimated to be 4. "I have reservations on whether an 'appropriate number of qualified voters that supposedly voted' could be meaningfully estimated.197 and hence the 'difference or implied number of registered voters that participated' will be less than 6.040.498 to 1. 8. 1969.8%. in the last Presidential election in November.153. the participation ratio would be 74.506 million.0%.661.000 votes as against about 3. 1973 by the population of '15 years old and over' for the same period which was estimated to be 22. accordingly. because the people fear to disagree with the President as Commander-in-Chief of the Armed Forces of the Philippines and therefore cannot voice views opposite to or critical of the position of the President on the 1973 Constitution and on the mode of its ratification. 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. the penal.000. Hence." (Annex F Rejoinder). 1973. Even without martial law. vs. If the registered electors as of the election of November 8. Moreover. We found that the incumbent President obtained over 5. 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. It cannot therefore be assumed that all of them participated at the Citizens' Assembly.000 votes for his rival LP Senator Sergio Osmeña. It should also be stressed that many of the partisans of the President in the 1969 Presidential elections. 1973.436.000. the 'estimate percentage participation of 15-20 years olds' of 105. It can therefore be inferred that 'a total number of persons 15 and over unqualified/disqualified to vote' will be more than 10. garnering a majority of from about 896.506. civil or administrative sanction provided for the violation of the law ordinarily engenders fear in the individual which fear persuades the individual to comply with or obey the law.000 voted in the referendum. 1973).000 who participated in the referendum and the registered electors of 11.506. (6) It is also urged that martial law being the rule of force. Jr.091. From the foregoing analysis of the Director of Census and Statistics as of January 21.. Jr. But . the official population projection for 15-year olds and over is 22. Presidential Election Contest No.71 and that for (b).548. 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. If 16.000. "5) The last remark will therefore make the ratio: (a) [Solution to Problem] more than 1. is 5. giving 21. it should be observed that registered voters also include names of voters who are already dead.618.702.2% of 22.118 (Osmeña.Assembly. Jan.000. will also be less than 36. 3.721 million as of January 1. 1971 elections as well as illiterates who are 15 years old and above but below 21.702. 1971 numbered 11.

many individuals did not fear such sanctions of the law because of lack of effective or equal enforcement or implementation thereof — in brief. who cannot say that voting among them by acclamation was characterized by fear among the members of the National Press Club. under its plenary law-making authority. fisherman. lowly employee. open voting was not a universal phenomenon in the Citizens' Assemblies. But the 1935 Constitution does not require secret voting. Not one of the petitioners can say that the common man — farmer. (8) Petitioners likewise claim that there was no sufficient publicity given to the new Constitution. the proposed reforms were already discussed in various forums and through the press as well as other media of information. March 3. provincial boards. Partisanship based on party or personal loyalties does not generally obtain in a plebiscite on proposed constitutional amendments or on a new Constitution. specific reforms . 1970 of delegates to the Constitutional Convention. orderly and honest election. embodied as Article X is merely mandated to insure "free. Surely. 1971. city councils. It might have been true in certain areas. petitioners do not come under such category. not on personalities. pedestrian. This is quite inaccurate. The Commission on Elections under the 1940 Amendment. 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 not the fear that affects the voters' freedom of choice or freedom to vote for or against the 1973 Constitution.before martial law was proclaimed. but that does not necessarily mean that it was done throughout the country. This is specially true in sessions of Congress. Then after the Constitutional Convention convened in June. Any objection to such a statute concerns its wisdom or propriety. not its legality or constitutionality. 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. without trenching upon the Constitution. We search in vain for such guarantee or prescription in said organic law. petitioner Eduardo Monteclaro in L-36236 (see Bulletin Today. 8. jeepney driver. even among the 400. bus driver. municipal boards and barrio councils when voting on national or local issues. p. Those who cringe in fear are the criminals or the law violators. or the reforms provided for therein. because even before the election in November. Then again." Congress. could have validly prescribed in the election law open voting in the election of public officers. There can be no more hardboiled group of persons than newspapermen. 1973 issue). Moreover. (7) Petitioners likewise claim that open voting by viva voce or raising of hands violates the secrecy of the ballot as secured by the election laws. taxi driver. or salesgirl — does not want the new Constitution. petitioners would not be willing to affirm that all the members of the citizenry of this country are against the new Constitution. salesman. Secret balloting was demanded by partisan strife in elections for elective officials.000 teachers among whom officers of the Department of Education campaigned for the ratification of the new Constitution. laborer. The recent example of an open voting is the last election on March 3. They will not deny that there are those who favor the same. 1973 of the National Press Club officers who were elected by acclamation presided over by its former president.

radio and television. he knows the targets. and Sunday Express." The report of Frank Valeo (Bulletin Today. March 4). Clearly.000 barrios of the country have radios. tax evasion and abuse of oligarchic economic power. as herein before stated. From June. as well as the decrees. . The 1973 Constitution . President Marcos has been prompt and sure-footed in using the power of presidential decree under martial law for this Purpose. 1972. Even the illiterates listened to the radio broadcasts on and discussed the provisions of the 1973 Constitution. 1971 to November 29. As reported by the eminent and widely read columnist Teodoro Valencia in his column in Bulletin Today. who conducted a personal survey of the country as delegate of Senator Mike Mansfield. "Otto Lang. found it expedient to accelerate their proceedings in November. second only to Japan in the Far East. Tora. It should be recalled. Secretary of the United States Senate. . the provisions of the new Constitution were debated and discussed in forums sponsored by private organizations and universities and debated over the radio and on television. there is marked public support for his leadership and tangible alternatives have not been forthcoming. What is not yet certain is how accurate have been his shots. March 3 and 4. Hollywood producer director (Tora.) Petitioners cannot safely assume that all the peaceful citizens of the country. Tora) went around the country doing a 30-minute documentary on the Philippines for American television and stated that what impressed him most in his travel throughout the country was the general acceptance of the New Society by the people which he saw in his 6-week travel from Aparri to Jolo. Committee on US-Philippine relations. Many residents in about 1. 1972 because all views that could possibly be said on the proposed provisions of the 1973 Constitution were already expressed and circulated. "The United States business community in Manila seems to have been reassured by recent developments . reforms were openly discussed and debated except for a few days after the proclamation of martial law on September 21. Chairman. 1973 issue. after spending close to P30 million during the period from June 1. That would suggest that he may not be striking too far from the mark. 1973 and Daily Express. 1972 until January 7. states: "Martial law has paved the way for a re-ordering of the basic social structure of the Philippines. do not like the reforms stipulated in the new Constitution. From the time the Constitutional Convention reconvened in October. 1972.500 towns and 33. 1971 to November 29. who constitute the majority of the population. 1972. The Philippines is a literate country. 1972. orders and circulars issued to implement the same. March 3. He has zeroed in on areas which have been widely recognized as prime sources of the nation's difficulties — land tenure. that all these reforms were the subject of discussion both in the committee hearings and on the floor of the Constitutional Convention. official corruption.advanced by the delegates were discussed both in committee hearings as well as in the tri-media — the press. This is the reason why the Constitutional Convention. 1973. 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. Nevertheless. and more literate perhaps than many of the mid-western and southern states of the American Union and Spain. (Italics supplied. March 4. Printed materials on the proposed reforms were circulated by their proponents.

Trial of War Criminals by Military Tribunals. 1. 68. And. 2. when. Styer (75 Phil. VI PRESIDENT AS COMMANDER IN CHIEF EXERCISES LEGISLATIVE POWERS DURING MARTIAL LAW.' (Ex parte Quirin. The trial of General Kuroda was after the surrender of Japan on October 2. 317 U. such operation of the courts may be affected by martial law should their "functioning . 'An important incident to a conduct of war is the adoption of measures by the military command not only to repel and defeat the enemies but to seize and subject to disciplinary measures those enemies who in their attempt to thwart or impede our military effort have violated the law of war. 1969 ed.' (Cowles. The position of the respondent public officers that under martial law. italics supplied).. as upheld by this Court in the case of Yamashita vs. 42 Off.may contain some unwise provisions. in the language of a writer." (Italics supplied). American Bar Association Journal. threaten the public safety." (83 Phil. in his concurring opinion in Duncan vs.' ''Consequently. (83 Phil. by treaty agreement. and may extend beyond. the power to create a military commission for the trial and punishment of war criminals is an aspect of waging war. et al." It is possible that the courts. up to the effective date of a treaty of peace. 177-178). Jalandoni. . Ct. 304 [1946]). "The promulgation of said executive order is an exercise by the President of his powers as Commander in Chief of all our armed forces. 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. in the promulgation and enforcement of Executive Order No. 68. which reiterates the 1945 case of Yamashita vs. ". in asserting their authority to pass upon questions which may adversely affect the conduct . . which issue is not for this Court to decide. 664) when we said — " 'War is not ended simply because hostilities have ceased. .) Indeed.S. 571-72).S. Chief Justice Stone of the United States Supreme Court likewise appears to subscribe to this view. 177-178. otherwise We will be substituting Our judgment for the judgment of the Constitutional Convention and in effect acting as a constituent assembly. 1945 (23 Encyc. the President as Commander in Chief is fully empowered to consummate this unfinished aspect of war. when other branches of the government are unable to function. p. refers to the wisdom of the aforesaid provisions. . But this objection to such unwise or vague provisions. 63 Sup. 171. is sustained by the ruling in the 1949 case of Kuroda vs. Styer (L-129. through the issuance and enforcement of Executive Order No. 799) and hence no more martial law in the Philippines. June. Gaz... 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. a military commission 'has jurisdiction so long as a technical state of war continues. There is an implied recognition in the aforesaid definition of martial law that even in places where the courts can function. Consequently. Kahanamoku (327 U. or military occupation. the trial and punishment of war criminals. the President as Commander-in-Chief is vested with legislative powers. Brit. incidents of war may remain pending which should be disposed of as in time of war. as heretofore stated. 1944). This includes the period of an armistice. 563.. After cessation of armed hostilities. namely. or their functioning would itself threaten the public safety.

and social rights which their leaders recognize as inherent and inalienable. social and economic structure of the nation which can not be eradicated with the restoration of normal times. customs. But this is true of all institutions of government. It is important to recognize the true and limited ends of any practical application of the principle of constitutional dictatorship. And the narrow duty to be pursued by this strong government. that there never has been a perfect constitutional dictatorship. and the people for whom this government was instituted are in possession of a lengthy catalogue of economic. the power to exercise those functions is circumscribed by well-established laws. The foregoing view appears to be shared by Rossiter when he stated: "Finally. it extends no further in time than the attainment of that end. and the defense of the political and social liberties of the people. The functions of government are parceled out among a number of mutually independent offices and institutions. 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. at least not without the positively registered approval of the legislature. is an assertion that can be made without fear of contradiction. This historical fact does not comport with philosophical theory. this strong government. Rossiter expressly recognizes that during martial law. thus: "The measures adopted in the prosecution of a constitutional dictatorship should never be permanent in character or effect. or a dissident segment of the citizenry revolts. and constitutional prescriptions. The government meets the crisis by assuming more powers and respecting fewer rights.of the punitive campaign against rebels.7. whether adopted in regular or irregular times. this constitutional dictatorship? Simply this and nothing more: to end the crisis and restore normal times. and the principle of constitutional dictatorship remains eternally valid no matter how often and seriously it may have been violated in practice. For example. A severe crisis arises — the Country is invaded by a hostile power. and it makes no alteration in the political. Emergency powers are strictly conditioned by their purpose and this purpose is the restoration of normal conditions. 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. which in some instances might become an outright dictatorship. The result is a regime which can act arbitrarily and even dictatorially in the swift adoption of measures designed to save the state and its people from the destructive effects of the particular crisis. p. the aim of constitutional dictatorship is the complete restoration of the status quo ante bellum. Permanent laws. secessionists. By this same . whether of temporary or permanent character. or the impact of a world-wide depression threathens to bring the nation's economy in ruins.) Finally. The actions directed to this end should therefore be provisional. the Chief Executive exercises legislative power. by Clinton L." (Constitutional Dictatorship. can have no other purposes than the preservation of the independence of the state. 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. 1948 ed. The government assumes no power and abridges no right unless plainly indispensable to that end. Rossiter. In short.. italics supplied. political. the maintenance of the existing constitutional order. are for parliaments to enact.

the decisions and sentences of extraordinary courts should be reviewed by the regular courts after the termination of the crisis. 1102 is indispensable to the effectuation of the reforms within the shortest possible time to hasten the restoration of normalcy. to save the state and to protect the citizenry against actual and threatened assaults from insurgents. who. or must it be too weak to maintain its existence?" That was the dilemma that vexed President Lincoln during the American Civil War. insurgent or subversive conspiracies and the consequent dismantling of the rebellious. he is in effect waging a peaceful. In the exercise of his constitutional and statutory powers. insurrection or subversion or even by just severe economic depression or dislocation. insurgent or subversive apparatus. the Federal Constitution of the United States and all the civil liberties of the American people. as he professes. one working lasting changes in the political and social fabric. the power expressly vested in him by the 1935 Constitution (Sec.token. is justified because. it is imperative that any action with such last effects should eventually receive the positive approval of the people or of their representatives in the legislature. as a constitutional dictator he had a moral right to take this radical action. secessionists and subversives. must. when without express authority in the Constitution and the laws of the United States. 10[2]. From the foregoing citations. doctrinaire concepts and principles. This is the same dilemma that presently confronts the Chief Executive of the Republic of the Philippines. Hence. Nevertheless. under martial law occasioned by severe crisis generated by revolution. by express constitutional mandate. 1935 Constitution) to insure our national and individual survival in peace and freedom. upon his proclamation of martial law. Exercise of legislative power by the President as Commander in Chief. the issuance of Presidential Decree Nos. eradication of the causes that incited rebellion and subversion as well as secession. no matter how revered they may be by jurisprudence and time. secure the safety of our Republic and the rights as well as lives of the against open rebellion." The government can assume additional powers indispensable to the attainment of that end — the complete restoration of peace. should not . VII. "Must the government be too strong for the liberties of the people." (P. it is directed towards the institution of radical reforms essential to the elimination of the causes of rebellious. is indispensable to the successful prosecution of the particular constitutional dictatorship? The only answer can be: it must be resolutely taken and openly acknowledged. is the sine qua non to the complete restoration of normalcy. and the communist rebels and Moist oriented secessionists of the extreme left who demand swift institution of reforms. he suspended one basic human freedom — the privilege of the writ of habeas corpus — in order to preserve with permanence the American Union. "But what if a radical act of permanent character. the government exercises more powers and respects fewer rights in order "to end the crisis and restore normal times. The Chief Executive announced repeatedly that in choosing to proclaim martial law. italics supplied). democratic revolution from the center against the violent revolution and subversion being mounted by the economic oligarchs of the extreme right. insidious subversion and succession. 86 and 86-A as well as Proclamation No. who resist reforms to maintain their economic hegemony. 303. In our particular case. President Lincoln found it necessary to proceed to the revolutionary step of emancipation in aid of his conservative purpose of preserving the Union. Art. more than the Courts and Congress.

" for "the logic of constitutional law is the common sense of the Supreme Court. political. command the waves of progress to halt. discarded. Canute-like. Paraphrasing Mr. peace. had been adopted. It is a living organism. Justice Holmes. political scientists and jurists no longer exalt with vehemence a "government that governs least. To achieve such end." (Powell. 3 & 6." (Frankfurter. Justice Brandeis gave utterance to the truth that "Our Constitution is not a straight jacket. the meaning of the words of the Constitution is not to be determined by merely opening a dictionary. states and governments have mutated in their search for the magic instrument for their well-being. they created an agency known as the government. italics supplied). In the vein of Mr. 1939 ed. A contrary view would be to deny the self-evident proposition that constitution and laws are mere instruments for the well-being. The law as a means of social control is not static." Thus. 631) for 'the life of the law is not logic. whatever is best administered is best. using the word in its noble sense. 2 Southern Law Quarterly. otherwise the dead hand of the past will regulate and control the security and happiness of the living present. but dynamic. law is "a vital agency for human betterment" and constitutional law "is applied politics. As such. italics supplied)." (Abrahms vs. This is true of constitutions and laws because they are not "the infallible instruments of a manifest destiny. Political philosophies and constitutional concepts. pp. the Middle Ages. the Supreme Court and the Idea of Progress. Harvard Law School. Justice Benjamin Nathan Cardozo. To Justice Frankfurter. it is capable of growth — or expansion and adaptation to new conditions. 1921). pp. but experience. 138-139. 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. 1970 ed. 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. Harvard Professor Thomas Reed Powell emphasizes "practical wisdom.. 250 US 616. Living organisms as well as man-made institutions are not immutable. forms and kinds of government. the Validity of State Legislation. Growth implies changes.." Adherents there are to the poetic dictum of Alexander Pope: "For forms of government let fools contest. supra. From the savage era thru ancient times. Civilized men organize themselves into a State only for the purpose of serving their supreme interest — their welfare. Justice Frankfurter. the Dark Ages and the Renaissance to this era of sophisticated electronics and nuclear weaponry." As Justice Jose P." (Brandeis Papers. "so long as society is inconstant. It was trial and error then as it is still now. . re-adopted or modified to built the needs of a given society at a particular given epoch. overturned. As Mr." In the pontifical tones of Mr." No matter how we want the law to be stable. U.be regarded as peremptory commands. italics supplied). The eternal paradox in this finite world of mortal and fallible men is that nothing is permanent except change. Laurel was wont to say.. under the Webb-Kenyon Law. cited in Bickel's Opus." and "there will be change whether we will it or not. the Constitution is neither a printed finality nor the imprisonment of the past. but the unfolding of the future. it cannot stand still. 112. Law and Politics. Bickel. Justice Holmes aptly observed. security and prosperity of the country and its citizenry. "We cannot. Its terms must be construed in the context of the realities in the life of a nation it is intended to serve." (Poems of Pope. every "constitution is an experiment as all life is an experiment. pp. economic and social. there can be no constancy in law.S.

. The analytical. if not partisan passion. Over a century and a half ago. must and has to innovate if he must govern effectively to serve the supreme interests of the people. must perforce submit to the inexorable law of change in his views. objective historians will write the final verdict in the same way that they pronounced judgment on President Abraham Lincoln who suspended the privilege of the writ of habeas corpus without any constitutional or statutory authority therefor and of President Franklin Delano Roosevelt who approved the proclamation of martial law in 1941 by the governor of Hawaii throughout the Hawaiian territory. which power the American Constitution and Congress did not then expressly vest in him. as new discoveries are made. but also saved the Federal Republic of the United States from disintegration by his suspension of the privilege of the writ of habeas corpus. President Lincoln not only emancipated the Negro slaves in America. welfare states. The national leader. And so it is that some learned jurists. more enlightened. Thomas Jefferson. . and suppose what they did to be beyond amendment . which legal thinkers prefer to identify as progressive legal realism. with the change of circumstances." (Vol. imagination. capacity for decision and courageous action is greater. Hence. government and public administration. 1969 ed. 12. to outright communism which degenerated in some countries into totalitarianism or authoritarianism. In between. and keep pace with the times. When the methods of rebellion and subversion have become covert. Encyclopedia Britannica. 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 . As that becomes more developed.1931 Cambridge ed. that laws and institutions must go hand in hand with the progress of the human mind. even the scholar. who wields the powers of government. 989). if not to a great extent. concepts. new truths disclosed and manners and opinions change. spoke the truth when he said that some men "ascribe to men of the preceding age a wisdom more than human. This is especially true in times of great crises where the need for a leader with vision. socialist democracy. But I know also. p. the shades vary from direct democracy. methods and techniques when brought into the actual arena of conflict as a public functionary — face to face with the practical problems of state. The wisdom of the decision of the Chief Executive can only be judged in the perspective of history. liberties and fortunes of the citizens and the nation. to preserve the unity of the people. representative democracy. to promote their well-being. p.. No one can deny that the successful defense and preservation of the territorial integrity of the United States was due in part. and to insure the safety and stability of the Republic. . It cannot be adequately and fairly appraised within the present ambiance. recommend the blending of idealism with practical wisdom. mitigated socialism. charged as it is with so much tension and emotion. 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. subtle and insidious. one of the founding fathers of the American Constitution and former President of the United States. who personifies the progressive liberal. in the resolution of constitutional issues that immediately affect the lives. 750). who advances academic opinions unrelated to factual situations in the seclusion of his ivory tower. institutions must also advance.

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, 1865 (Vol.
1, Encyclopedia Britannica, 1969 ed., pp. 730, 742) and on September 2, 1945 (Vol. 23,
Encyclopedia Britannica, 1969 ed., p. 799). Was the delay on the part of the American
Supreme Court in deciding these cases against the position of the United States President
— in suspending the privilege of the writ of habeas corpus in one case and approving the
proclamation of martial law in the other — deliberate as an act of judicial statesmanship
and recognition on their part that an adverse court ruling during the period of such a
grave crisis might jeopardize the survival of the Federal Republic of the United States in
its life-and-death struggle against an organized and well armed rebellion within its own
borders and against a formidable enemy from without its territorial confines during the
last global armageddon?
VIII
DOCTRINE OF SEPARATION OF POWERS PRECLUDES MANDAMUS AGAINST
SENATORS.
In G.R. No. L-36165, mandamus will not lie to compel respondents Gil Puyat and Jose
Roy to convene the Senate of the Philippines even on the assumption that the 1935
Constitution still subsists; because pursuant to the doctrine of separation of powers under
the 1935 Constitution, the processes of this Court cannot legally reach a coordinate
branch of the government or its head. This is a problem that is addressed to the Senate
itself for resolution; for it is purely an internal problem of the Senate. If a majority of the
senators can convene, they can elect a new Senate President and a new Senate President
Pro Tempore. But if they have no quorum, those present can order the arrest of the absent
members (Sec. 10[2], Art. VI, 1935 Constitution). If this falls, then there is no remedy
except an appeal to the people. The dictum ubi jus, ubi remedium, is not absolute and
certainly does not justify the invocation of the power of this Court to compel action on
the part of a co-equal body or its leadership. This was emphasized with 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
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 overt a terrifying blood bath and the breakdown of
the Republic, the incumbent President proclaimed martial law to save the Republic from
being overrun by communists, secessionists and rebels by effecting the desired reforms in
order to eradicate the evils that plague our society, which evils have been employed by
the communists, the rebels and secessionists to exhort the citizenry to rise against the
government. By eliminating the evils, the enemies of the Republic will be decimated.
How many of the petitioners and their counsels have been utilizing the rebels,
secessionists and communists for their own personal or political purposes and how many
of them are being used in turn by the aforesaid enemies of the State for their own
purposes?
If the petitioners are sincere in their expression of concern for the greater mass of the
populace, more than for their own selves, they should be willing to give the incumbent
Chief Executive a chance to implement the desired reforms. The incumbent President
assured the nation that he will govern within the framework of the Constitution and if at
any time, before normalcy is restored, the people thru their Citizens' Assemblies, cease to
believe in his leadership, he will step down voluntarily from the Presidency. But if, as

apprehended by the petitioners, he abuses and brutalizes the people, then to the
battlements we must go to man the ramparts against tyranny. This, it is believed, he
knows only too well; because he is aware that he who rides the tiger will eventually end
inside the 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.: For Dismissal of Petitions
These petitions seek to stop and prohibit the respondents Executive Officers from
implementing the Constitution signed on November 30, 1972; in L-36165, to compel
respondents Gil Puyat and Jose J. Roy, President and President Pro-Tempore,
respectively, of the Senate under the 1935 Constitution, to convene the Senate in regular
session which should have started on January 22, 1973; to nullify Proclamation No. 1102
of the President issued on January 17, 1973, which declared the ratification of the
Constitution on November 30, 1972, by the Filipino people, through the barangays or
Citizens Assemblies established under Presidential Decree No. 86 issued on December
31, 1972, which were empowered under Presidential Decree No. 86-A, issued on January
5, 1973, to act in connection with the ratification of said Constitution.
Grounds for the petitions are as follows:
1.
That the Constitutional Convention was not a free forum for the making of a
Constitution after the declaration of Martial Law on September 21, 1972.
2.
The Convention was not empowered to incorporate certain provisions in the 1972
Constitution because they are highly unwise and objectionable and the people were not
sufficiently informed about them.
3.
The President had no authority to create and empower the Citizens Assemblies to
ratify the new Constitution at the 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?

any question regarding its validity should he foreclosed and all debates on whether it was duly or lawfully ushered into existence as the organic law of the state become political and not judicial in character. The Presidential decrees set up the means for the ratification and acceptance of the new Constitution and Proclamation No. Proclamation No. 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. what is sought to be invalidated is the new Constitution itself — the very framework of the present Government since January 17. Presidential Decree No. are petitioners entitled to the reliefs prayed for? II. 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. In resolving whether or not the question presented is political. For after the acceptance of a new Constitution and acquiescence therein by the people by putting it into practical operation. 1973. 1102 simply announced the result of the referendum or plebiscite by the people through the Citizens Assemblies. 15 out of 24 Senators have done likewise. joint discussion of issues Nos. I maintain that this Court should abstain from assuming jurisdiction. therefore. and that 14. instead. as an act of judicial statesmanship. 86 and 86-A. 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.561 members thereof voted for the ratification of the new Constitution and 743. 86 organized the barangays or Citizens Assemblies composed of all citizens at least fifteen years of age. The members of the Congress did not meet anymore last January 22.4. claiming that the ratification of the new Constitution pursuant to the said decrees is invalid and of no effect. 1. 1102 of the President announced or declared the result of the referendum or plebiscite conducted through the Citizens Assemblies. 86 and 86-A are fully set forth in the majority and dissenting opinions in the Plebiscite cases decided on January 22. The pivotal question in these cases is whether the issue raised is highly political and.976. Ultimately the issue is whether the new Constitution may be set aside by this Court. but. Petitioners assail these two acts of the President as unauthorized and devoid of legal effect. and through these assemblies the proposed 1972 Constitution was submitted to the people for ratification. The undisputed facts that lead to the issuance of Proclamation No. 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. not justiciable.869 voted against it. and need not be repeated here. But looking through the veneer of judicial conformity with which the petitions have been adroitly contrived. 1973. Petitioners seeks to set at naught Proclamation No. 1102 and Presidential Decrees Nos. 3 and 4 be in the affirmative. 3 and 4 is necessary so as to arrive at a logical conclusion. Is the new Constitution actually in force and effect? 5. 1102 and Presidential Decrees Nos. If the answers to questions Nos. The reason is obvious. In . should dismiss the petitions.

submission of the people thereto by the organization of the government provided therein and observance of its prescriptions by public officers chosen thereunder. . 754. Taylor vs. and the legislative and executive branches by another or the 1972 Constitution. 522. new 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. 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. and . Great interests have already arisen under it. If it declares that the present Constitution has not been validly ratified. 589. how can this Court justify its assumption of jurisdiction when no power has . as the entire instrument has been recognized as valid in the manner suggested. 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. Johnson. 829. If the making of them was in excess of its power. yet. 101. . The result would be too anomalous to describe. 92 Ky. even without popular ratification at that. 70 Neb. 211. and now the organic law of our state. or simply "kicking the deadly pricks" with one's bare foot in an effort to eliminate the lethal points. the political power of the government has in many ways recognized it. . Commonwealth. and under such circumstances. Wiston vs. But it is a case where a new constitution has been formed and promulgated according to the forms of law. All government offices have dealt with the public and performed their functions according to the new Constitution and laws promulgated thereunder. the Court said: ". it has to uphold the 1935 Constitution as still the prevailing organic law. The Executive Department has been fully reorganized. is indicative of approval.brief the Legislative Department under the 1935 Constitution is a thing of the past. 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. If the real purpose of the petitions is to set aside the new Constitution. 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. according to its provisions. 207. . If it declares that the 1972 Constitution is now operative. for then this Court would have to declare that it is governed by one Constitution or the 1935 Constitution. Smith vs. Good.W.W. 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. have administered justice under the new Constitution. When a Constitution has been in operation for sometime. it is our duty to treat and regard it as a valid constitution. except the Supreme Court by reason of these cases. 97 N. We need not consider the validity of the amendments made after the convention reassembled.E. 44 S. 347]. Va. it would be equally an abuse of power by the judiciary. The courts. important rights exist by virtue of it. In Miller vs. persons have been convicted of the highest crimes known to the law. supra. Courts should be slow in nullifying a Constitution claimed to have been adopted not in accordance with constitutional or statutory directives [Miller vs. Ryan. 34 F 204. Johnson. 189 S.

No. 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. it necessarily affirms the existence and authority of the government under which it is exercising judicial power. because the judicial power presupposes an established government. 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. 78 Phil.R. 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. G. For a political question is one entrusted to the people for judgment in their sovereign capacity (Tañada vs. 4638. dated February 3. and not an amendment. 1101). if it decides at all. 328 U. 1931). And if the authority of that government is annulled and overthrown. Alejandrino vs.)." (Emphasis supplied) In Smith vs. the Court said: "It is said that a state court is forbidden from entering upon such an inquiry when applied to a new constitution. see pages 22-25 of the Comments of the Solicitor General. L10520." . Cabili vs. ot to a co-equal and coordinate branch of the Government (Vera vs." (Emphasis supplied) These rules are all traceable to Luther vs. If it decides at all as a court. 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". it would cease to be a court. 77 Phil. 598 (1849) where it was held: "Judicial power presupposes an established government capable of enacting laws and enforcing their execution. R. p. (For particulars about executive acts done under the new Constitution. Feb. Quezon. (7 How. if not to their liking. Ed. G. 12 L. And if a State court should enter upon the inquiry proposed in this case. and bring confusion and anarchy upon the state. 549. Good. No. Francisco. 1. and come to the conclusion that the government under which it acted had been displaced by an opposing government. 100 Phil. or when there is "the potentiality of embarassment from multifarious pronouncements by various departments on one question. 46 Phil. — if it were to declare the instrument or a portion invalid. 1967. but. it must necessarily affirm the existence of the government under which it exercises its judicial powers. if a state court should enter upon such an inquiry. May 8. the power of its courts is annulled with it.S. and be incapable of pronouncing a judicial decision upon the question it undertook to try. and it would be incapable of pronouncing a judicial decision upon the question before it. — who can and property should remedy the matter. 48 U. 1973." 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. Green.) Certainly the invalidation of Proclamation No. Arellano. the power of its courts and other officers is annulled with it. supra.violative of the rights of the people. 1102 and Presidential Decrees Nos. The acceptance of the judicial office is a recognition of the authority of the government from which it is derived. 35. and therefore. Lopez Vito.S. Mabanag vs. 28. 581. 192. Cuenco. and of appointing judges to expound and administer them. and if the authority of that government is annulled and overthrown. Borden.

I vote to dismiss all petitions. the main issue to be resolved by this Court is whether or not the Constitution proposed by the Constitutional Convention of 1971 had been ratified in accordance with the provisions of Article XV of the 1935 Constitution. 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 entoxicating applause of the multitude. We are now living under its aegis and protection and only the cynics will deny this." The Court is now called upon to declare. 369 U. especially in situations like this. and that it was in the public interest that this Court should declare then whether or not the proposed Constitution had been validly ratified. whether or not that proposed Constitution had been validly ratified and had come into effect.board of canvassers and sow confusion and discord among our people by pontificating that there was no valid ratification of the new Constitution. 1973 1 . 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. 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 . The new organic law is now in the plenitude of its efficacy and vigor. and to inform the people of this country. and so the Court. For all the foregoing. ZALDIVAR. J. concurring and dissenting: In these five cases. was of the view that the issue was not squarely raised in those cases.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". however. The majority of this Court. did make any categorical pronouncement on the question of whether or not the Constitution proposed by the 1971 Convention was validly ratified. as a body. This contention of the Solicitor General is untenable. The sober realization of its proper role and delicate function and its consciousness of the limitations on its competence. in fact and appearance. which were decided by this Court on January 22.. 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. however. branch of the government. 82 S. In the plebiscite cases. from political entanglements and abstention from injecting itself into the clash of political forces in political settlement . The Solicitor General. 7 L. 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." (Emphasis supplied) The people have accepted and submitted to a new Constitution to replace the 1935 Constitution. . . 2d. This Court should not in the least attempt to act as a super-legislature or a super. 186. I held the view that this issue could be properly resolved by this Court. Ed. or to the executive. let us harken to the following admonition of Justice Frankfurter in his dissent in Baker vs.S. Carr. Such feeling must be nourished by the Court's complete detachment. 663: "The Court's authority — possessed neither of the purse nor the sword — ultimately rests on sustained public confidence in its moral sanction. 691. Ct.

as the ultimate interpreter of the Constitution. I believe that the question of whether or not the Constitution proposed by the 1971 Constitutional Convention had been validly ratified or not is a justiciable question. And so. 3 It is a settled doctrine that every officer under a constitutional government must act according to law and subject to its restrictions. as in the present cases. or rather restraining. this Court held that the exception to the rule that courts will not interfere with a political question affecting another department is when such political question involves an issue as to the construction and interpretation of the provisions of the constitution. One department is just as representative as the other. I fully concur with his conclusion that the question involved in these cases is justiciable. must subject him to the restraining and controlling power of the people. in the cases now before Us. On the question now of whether or not the Constitution proposed by the 1971 Constitutional Convention has been validly ratified. Each of the three departments. acts independently of the other. acting through the agency of the judiciary. it has been held that the question of whether a constitution shall be amended or not is a political question which is not in the power of the court to decide. or disregard thereof. In the case of Avelino v. or a judicial. Ratification or non-ratification of a constitutional amendment is a vital element in the procedure to amend the constitution. before Us involve a political. but whether or not the constitution has been legally amended is a justiciable question. Cuenco 6 . in his opinion. I am reproducing herein pertinent portions of my dissenting opinion in the plebiscite cases: "The ratification of the Constitution proposed by the 1971 Constitutional Convention must be done in accordance with the provisions of Section 1. 7 My study on the subject of whether a question before the court is political or judicial. and the judiciary is the department which is charged with the special duty of determining the limitations which the law places upon all official actions 4 . has been ratified in accordance with the requirements prescribed in the Constitution that was amended. it may. and decide on. The Chief Justice. this Court ruled that the issue as to whether or not a resolution of Congress acting as a constituent assembly violates the Constitution is not a political question and is therefore subject to judicial review. based on decisions of the courts in the United States — where. declare it to be void. In the case of Gonzales v. And so. and restraint is only placed on one department when that sphere is actually transcended. as well as through the executive or the legislature.proceeding. power over the two other departments of the government. the question of whether or not an amendment to the constitution. the submission. It must be remembered that the people act through the courts. the cases. after all. and the ratification of any change in the Constitution. and I believe that the Court can inquire into. to determine the validity of the proposal. within its proper constitutional sphere. Commission on Elections 5 . Article XV of the 1935 Constitution of the Philippines. and every departure therefrom. question. has discussed lengthily the subject on whether or not. our constitutional system has been patterned to a large extent — made me arrive at the considered view that it is in the power of this Court. the same as it may declare a law enacted by the legislature to be unconstitutional. which reads: . when the legality of such an act is brought before it in a judicial proceeding. The judicial department of the government exercises a sort of controlling. While a court may not restrain the executive from committing an unlawful act.

Justice Barredo.561 members of the barangays voted for the adoption of the proposed Constitution. issued on January 17. "This Court. 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. and it is as to such conventions that the remarks of Delegate Manuel Roxas of the Constitutional Convention of 1934 quoted by Senator Pelaez refer. As to such kind of conventions. 1971 (41 SCRA 715). . 1973. 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 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. the Congress of the Philippines passed Resolution No.' "It follows that from the very resolution of the Congress of the Philippines which called for the 1971 Constitutional Convention there was a clear mandate that the amendments proposed by the 1971 Convention. The Congress in joint session assembled by a vote of three fourths of all the Members of the Senate and of the House of Representatives voting separately. 1102. must be approved by majority of the votes cast in an election at which they are submitted to the people for their ratification as provided in the Constitution. in order to be valid and considered part of the Constitution. 2 reads as follows: 'SECTION 7.' "It is in consonance with the abovequoted provision of the 1935 Constitution that on March 16. Commission on Elections. L-35140. owes its existence and derives all its authority and power from the existing Constitution of the Philippines. in the case of Tolentino vs.976. the President of the Philippines certified that as a result of the voting before the barangays (Citizens Assemblies) 14.' "In Proclamation No. the Convention and its officers and members are all subject to all the provisions of the existing Constitution. Such amendments shall be valid as part of this Constitution when approved by a majority of the votes cast at an election at which the amendments are submitted to the people for their ratification.869 who voted for its rejection. said: 'The Constitutional Convention of 1971. as any other convention of the same nature. may propose amendments to the Constitution or call a convention for that purpose. speaking through Mr. it is subject to the provisions of Section 1 of Article XV. Sec. October 16. 1967. 7 of said Resolution No. Now we hold that even as to its latter task of proposing amendments to the Constitution. it is absolutely true that the convention is completely without restraint and omnipotent all wise.'Section 1. 2 calling a convention to propose amendments to the Constitution of the Philippines. and on the basis of the overwhelming majority of the votes cast by the members of all the barangays throughout . as against 743. . This Convention has not been called by the people directly as in the case of a revolutionary convention which drafts the first Constitution of an entirely new government born of either a war of liberation from a mother country or of a revolution against an existing government or of a bloodless seizure of power a la coup d'etat. Article XV of the present Constitution .

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. on June 18. has not been followed in the case of the Constitution proposed by the 1971 Constitutional Convention. Article XV of the Constitution was completely disregarded. the provision of Section 1. where the votes are canvassed and reported in a manner provided for in the election law. furthermore. where the election is conducted by election inspectors duly appointed in accordance with the election law. on March 11. "The affirmative votes cast in the barangays are not the votes contemplated in Section 1 of Article XV of the 1935 Constitution. 1935. The election contemplated in said constitutional provision is an election held in accordance with the provisions of the election law.the Philippines the President proclaimed that the Constitution proposed by the 1971 Convention has been ratified and has thereby come into effect. "Proclamation No. Proclamation No. when the 1940 Amendments to the Constitution were ratified. 'An election is the embodiment of the popular will. 1937.298. of the provisions of 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. when the Constitution of 1935 was ratified. 1102 unequivocably states that the proposed Constitution of 1972 was voted upon by the barangays. that Proclamation No. It was this kind of election that was held on May 14. 1102 that the provisions of Section 1 of Article XV of the Constitution of 1935 were not complied with. 14. on April 30. of the 1935 Constitution. therefore. where only the qualified and registered voters of the country would cast their votes. 1947 when the Parity Amendment to the Constitution was ratified. 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. "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. to me. that the voting held in these barangays is not the election contemplated in the provisions of Section 1. "It is very plain from the very wordings of Proclamation No. 1102 was issued in complete disregard or in violation. It is very clear. when the amendment to the Constitution providing for Women's Suffrage was ratified. 1940. that on the question as to whether or not the people would still like a plebiscite to be called to ratify the new Constitution. the expression of the sovereign power of the people. Indeed. In common parlance an election is the act of casting and receiving the . It is very clear. 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.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. 1102 mentions. in implementing the constitutional provision requiring the holding of an election to ratify or reject an amendment to the Constitution. Article XV. It would thus appear that the barangays assumed the power to determine whether a plebiscite as ordained in the Constitution be held or not. "I cannot see any valid reason why the practice or procedure in the past. where official ballots prepared for the purpose are used. and on November 14.

(Italics supplied). the people are sovereign. 2d 612. "It is stated in Proclamation No.J. 808 cited in 29 C. township — the passing on various other questions submitted for their determination. 41 N.' (People ex rel. so important a question as to whether the Constitution. The rule of law must prevail even . in Words and Phrases. national. 241 Iowa 358). 637). Brown. (Leffel v. but the will of the people must be expressed in a manner as the law and the demands of a well-ordered society require. Election Code of 1971. or of common knowledge. 2d 438. must not be decided by simply gathering people and asking them to raise their hands in answer to the question of whether they vote for or against a proposed Constitution. Rago v. Applicability of this Act. 356 P. "In this connection I herein quote the pertinent provisions of the Election Code of 1971: 'Sec. was done by the raising of hands by the persons indiscriminately gathered to participate in the voting.S. P1. 38). '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. 254 Ky. municipality or municipal district in which he resides: Provided. 234). 99. citing Iowa-llinois Gas & Elec. Com. v. 2.' (Hontiveros vs. 159 N. which the Court may take judicial notice of. p. state. 'Election' is expression of choice by voters of body politic. . Necessity of registration to be entitled to vote. Permanent Edition. counting them. where even children below 15 years of age were included. That no person shall register more than once without first applying for cancellation of his previous registration. City of Bettendorf. which is only one degree higher than the rule by the mob.W. 63 N. 2d 642.. 2d 1. Indeed. which is the supreme law of the land. 24 Phil.E.' (Italics supplied). (Please see also Sections 100102. 13 at footnote 6. No. . 720. The election processes as provided by law should be strictly observed in determining the will of the sovereign people in a democracy.ballots. 63. which is would mean the rule of the crowd. RA. Lipsky. 72 S. the statutory method whereby qualified voters or electors pass on various public matters submitted to them — the election of officers. 5. '.E.W. county. except in very few instances. App. This is a matter of common observation. Co. — All elections of public officers except barrio officials and plebiscites shall be conducted in the manner provided by this Code. 327 Ill. 1102 that the voting was done by the members of citizens assemblies who are 15 years of age or over. 632. Certainly. 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. Giles.5). "The right to vote may be exercised only on compliance with such statutory requirements as have been set by the legislature. Southworth. 11 Utah 2d 169 in 29 C. (Ginsburg v.J. "It is said that in a democracy the will of the people is the supreme law.J. 6388). Altavas. — 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. "But what is more noteworthy is the fact that the voting in the barangays.S. 13. 2d 807. Rothfels v.' (29 C. In our Republic the will of the people must be expressed through the ballot in a manner that is provided by law.' 'Sec. and making the return. should be ratified or not.S. Under the provision of Section 1 of Article V of the 1935 Constitution the age requirement to he a qualified voter is 21 years or over.

By the constitution which they establish. but by the general body of the populace. may cure. but their own hands as well. 375. 8. Under the rule of law public questions must be decided in accordance with the Constitution and the law. (Johnson vs. does not prevail in Alabama. 'The fact that a majority voted for the amendment. on a proposal to amend a constitution. 103. If a constitution should be abrogated. 791. The people of the Union created a national constitution. . Jones. 'The theory that a favorable vote by the electorate.. 385. to exercise the remaining powers of sovereignty so far as they were disposed to allow them to be exercised at all. render innocuous.R. very relevant in the effort to determine whether the proposed Constitution of 1972 had been validly ratified. and conferred upon it powers of sovereignty over certain subjects. nor the whole people as an aggregate body. but it can only be amended in the way it provides. McConaughty v. by the pronouncement 60 years ago of broad. in McCreary v. to me. 783. from whom springs all legitimate authority. the determination of it rests with those who. in obvious effect. are at liberty to take action in opposition to this fundamental law. 99. 761. 560.over the apparent will of the majority of the people. et al. or of amendment according to the mode therein prescribed. it must not be understood that this term necessarily includes all the inhabitants of the state. This is specially true in the case of the adoption of a constitution or in the ratification of an amendment to the Constitution. except through the peaceful means of a constitutional convention. ante. Tooker. But the qualified electors must be understood in this. as representing those who have not the right to participate in the ballot. are powerless. by the existing constitution. supra. by the whole mass of people in a state. acting through representatives not chosen by the 'people' in the political sense of the term. 162 S. 'The theory of our political system is that the ultimate sovereignty is in the people. 840. Craft. or not: 'When it is said that 'the people' have the right to alter or amend the constitution.' Wood v. for the court must uphold and enforce the Constitution as written until it is amended in the way which it provides for. 782). 'The Constitution may be set aside by revolution. the movement would be extra-legal' (Black's Constitutional Law. unless the vote was taken as provided by the Constitution. The people themselves are bound by the Constitution. "The following citations are. they not only tie up the hands of their official agencies. and neither the officers of the State. 3 So. as in many other cases. 37 Pac. 8th Edition.J. Vol. are accorded the right of suffrage.A. as quoted in the original opinion.' said Hobson. p. wholesome constitutional principles in Collier v. where the doctrine of the stated theory was denied.. 81 cited in Graham v. if that will had not been expressed. pp. C. and. W. all or any antecedent failures to observe commands of that Constitution in respect of the formulation or submission of proposed amendments thereto. Frierson. however unanimous. or through the exertion of the original right of revolution. Whether a proposed amendment has been legally adopted is a judicial question. I. in accordance with the law.' (Cooley's Constitutional Limitations. and a new one adopted. 4748). 15 Mont. On Rehearing). 87 So. 2d. and the people of each State created a State government. whatever their numbers. is not sufficient to make a change in that instrument. or obtained. 25 L. Since the question of the adoption or rejection of a proposed new constitution or constitutional amendment must be answered by a vote. 387. being so bound. to change or thwart its mandates. Second Edition. Speer. 156 Ky.

409. But on November 7. because the requirements of the law were not complied with. Nico. 69 Cal. if the Court were to countenance the violations of the sacramental provisions of the Constitution. If confusion and chaos should ensue. . 18 Ann. 1947. 3 So. 1947 Monsale attempted to revive his certificate of candidacy by withdrawing the withdrawal of his certificate of candidacy. Monsale had duly filed his certificate of candidacy before the expiration of the period for the filing of the same. "In our jurisprudence I find an instance where this Court did not allow the will of the majority to prevail. after the period for the filing of certificate of candidacy. Rep. 1947. 2d 761. 100 Pac. 'Provisions of a constitution regulating its own amendment. to say that. . Upon appeal by Nico. on October 10. Speer. but are mandatory. Monsale withdrew his certificate of candidacy.276 votes. did not count the votes cast for Monsale upon the ground that the votes cast for him were stray votes.104). follow and obey the plain essential provisions of the Constitution. 83 Phil. 1947.J. (McCreary v. However. and a strict observance of every substantial requirement is essential to the validity of the proposed amendment. Jones. Jones. 162 S. Furthermore. 782). 408. These provisions are as binding on the people as on the legislature.S. 761. 793-794).' (Graham v. . e ( The Commission on Elections. in the elections of November 11. Monsale nevertheless proceeded with his candidacy. 1958. is an inherently weak argument in favor of the alleged constitutionality of the proposed amendment.State. This statement is grossly and manifestly inaccurate. ruled that Monsale could no longer be a candidate. Mosely.W. or a margin of 601 votes in favor of Monsale. unless the Court disregards its sworn duty to enforce the Constitution. because he was considered as having no certificate of candidacy. Monsale and Nico were both candidates for the office of Municipal Mayor of Miagao. 'It is said that chaos and confusion in the governmental affairs of the State will result from the Court's action in declaring the proposed constitutional amendment void. the boards of inspectors credited Nico with 2. chaos and confusion will result. and Nico was proclaimed elected. 106 Minn. 99. those who would thereafter desire to violate it and disregard its clear mandatory provisions would resort to the scheme of involving and confusing the affairs of the State and then simply tell the Court that it was powerless to exercise one of its primary functions by rendering the proper decree to make the Constitution effective.11 Pac.' (16 C. this Court reversed the decision of the lower court. On the other hand. Oakland Paving Company v. It is obvious that. Monsale filed a protest against the election of Nico in the Court of First Instance of Iloilo. 35-36 cited in Graham v.877 votes while Nico obtained 2. however. 133 Am. Utter v. 94. it will not be due to the action of the Court but will be the result of the failure of the drafters of the joint resolution to observe. Hilton. 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. In the count of the ballots during the proceedings in the trial court it appeared that Monsale had obtained 2. 3 So. 16 Idaho 274. 723. 2d. St. 758. Iloilo. on November 8. are not merely directory. 119 N. 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. . Cas.291 votes. The boards of inspectors in Miagao. The Court of First Instance of Iloilo decided the election protest in favor of Monsale. 499. 3.W. In the case of Monsale v.

and so this is one added reason why the results of the voting in the barangays should not be made the basis for the proclamation of the ratification of the proposed Constitution. "We have cited this Monsale case to show that the will of the majority of the voters would not be given effect. my view that voting in the barangays on January 10-15. 1102 is repugnant to the 1935 Constitution. is that there is no freedom on the part of the people to exercise their right of choice. 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. "It is my view. as well as any order of December 17.' It is. In like manner the provision in Section 1 of Article II of the 1935 Constitution which says "Sovereignty resides in the people and all . amendments must gain the approval of the majority in recognition of the democratic postulate that sovereignty resides in the people. in Section 2 of Article VII of the 1935 Constitution. and they are "those persons who are permitted by the Constitution to exercise the elective franchise. in spite of the fact that it was reported that 14. and so it is invalid. "My last observation: One of the valid grounds against the holding of the plebiscite on January 15. The rule of law must he upheld. issued on January 7. The same ground holds true as regards the voting of the barangays on January 10 to 15. 1972 temporarily suspending the effects of Proclamation No. as declared by this Court. 73 in so far as they allow free public discussion of the proposed constitution. 1081 for the purpose of free and open debate on the proposed constitution.and this Court declared Nico the winner in spite of the fact that Monsale had obtained more votes than he. More so. 1973. . however." It is urged by the Solicitor General. . 73. the President of the Philippines ordered 'that the provisions of Section 3 of Presidential Decree No. under the provisions of the same Constitution. in the cases now before this Court. therefore. that the voting in the citizens assemblies was a substantial compliance with the provisions of Article XV of the 1935 Constitution. "And so. that Proclamation No. the affirmative votes cast in those assemblies can not be made the basis for declaring the ratification of the proposed 1972 Constitution." It is not disputed that in a democracy sovereignty resides in the people. shall be elected by direct vote of the people . because of the existence of martial law in our country. because by General Order No. therefore. 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.561 members of the citizens assemblies voted for the adoption as against 743.976.President chosen for the same term. 1973. he suspended in the meantime.869 for the rejection. as provided in Presidential Decree No. 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. But the term "people" must be understood in its constitutional meaning." Certainly under that constitutional provision the "people" who elect directly the President and the Vice-President are no other than the persons who. together with the Vice. it is provided that "The President shall hold his office during a term of four years and. 1973 was not free. The Solicitor General-maintains that the primary thrust of the provision of Article XV of the 1935 Constitution is that "to be valid. 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. 20." 8 Thus. and so it should not be given force and effect. 1973. are granted the right to vote.

it shall he submitted to the people of the Philippine Islands for their ratification or rejection at an election to be held within four months after the date of such certification. for the time being. Justice Johnson. Republicanism. speaking through Mr." And in the case of Abanil v. 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. such vote shall be deemed an expression of the will of the . Justice of the Peace of Bacolod. suffrage. 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" who exercise the sovereign power are no other than the persons who have the right to vote under the Constitution. at which election the qualified voters of the Philippine Islands shall have an opportunity to vote directly for or against the proposed constitution and ordinances appended thereto. 92 U. said. Their sovereign authority is expressed through the ballot. of the qualified voters. as their representatives. . 127). This duty requires that the privilege thus bestowed should be exercised. necessarily points to the enfranchised citizen as a particle of popular sovereignty and as the ultimate source of the established authority. 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. Justice Laurel. After the President of the United States has certified that the constitution conforms with the provisions of this act. 588) . and to whom they entrust. in so far as it implies the adoption of a representative type of government. the people.government authority emanates from them". in duly appointed elections held from time to time. this Court. combined. together with a statement of the votes cast. 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. "In democracies. on a date to be fixed by the Philippine Legislature. (U. the exercise of the powers of government. therefore. that when we talk of sovereign people. said. v. Del Fierro. . popularly known as the Tydings-McDuffie Law (Public Act No.S. Said Section 4 of the TydingsMcDuffie Law provides as follows: "Section 4. not 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. by means of which they choose their officials for definite fixed periods. In the case of Garchitorena vs. whatever may be the modality and form devised. The people. speaking through Mr. represent the sovereign power of the State. and a copy of said constitution and ordinances. Cruikshauk. to which the return of the election shall be made." In the case of Moya v.S. 10 this Court. Such election shall be held in such manner as may be prescribed by the Philippine Legislature. Crescini 9 . "As long as popular government is an end to be achieved and safeguarded.General of the Philippine Islands. If a majority of the votes cast shall be for the constitution. The Philippine Legislature shall by law provide for the canvassing of the return and shall certify the result of the Governor." There is no question. in clothing a citizen with the elective franchise for the purpose of securing a consistent and perpetual administration of the government they ordain. 11 this Court said: "In the scheme of our present republican government. and in that respect constitute him a representative of the whole people. charge him with the performance of a duty in the nature of a public trust.

however. . It could not be otherwise. It is clear. and the Governor-General shall. It must be noted. 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 nonsubstantial compliance with the provisions of Section 1 of Article XV of the 1935 Constitution but a downright violation of said constitutional provision. and his office had taken the steps to implement the provisions of the new Constitution. It is further contended by the Solicitor General." It can safely be said. . True it is. 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. and of the 92 . What appears to me. therefore. . issue a proclamation for the election of officers of the government of the Commonwealth of the Philippine Islands provided for in the Constitution . 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 alleged referendum in the citizens assemblies — participated in by persons aged 15 years or more. that the ratification or any amendment to the 1935 Constitution could only he done by holding an election. 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. regardless of whether they were qualified voters or not. that some 92 members of the House of Representatives and 15 members of the Senate. . 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.people of the Philippine Independence. voting by raising their hands. therefore. as the term "election" was understood. 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 . within thirty days after receipt of the certification from the Philippine Legislature. that when the framers of the 1935 Constitution used the word "election" in Section 1 of Article XV of the 1935 Constitution they had no other idea in mind except the elections that were periodically held in the Philippines for the choice of public officials prior to the drafting of the 1935 Constitution." 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. who is the head of the executive department. when the 1935 Constitution was drafted. that of the 15 senators who expressed their option to serve in the interim National Assembly only one of them took his oath of office. 1935 Constitution. 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. 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. and the latter forwarding the reports to the Department of Local Governments. because the President of the Philippines. and practiced. had proclaimed that the new Constitution had come into effect. the fact is that after the President of the Philippines had issued Proclamation No. however.

and 18 members of the House of Representatives also did not opt to serve in the interim National Assembly. of the proposed Constitution. Neither can it be said that the people have accepted the new Constitution. and I have also my serious doubts regarding the truthfulness and accuracy of the reports of the voting in the citizens assemblies. I agree with counsel for petitioners in 1. The fact. 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. and that because the people have accepted it. they continue to be members of Congress under the 1935 Constitution. therefore. that in the event the new Constitution becomes definitely effective and the interim National Assembly is convened they can participate in legislative work in their capacity as duly elected representatives of the people. in the sense that they have continued to live peacefully and orderly under the government that has been existing since January 17. Of course. et al. with my worthy colleagues in the Court who hold the view that the people have accepted the new Constitution. 1973. 1973. or the inhabitants of this country.) when he said that the members of Congress who opted to serve in the interim National Assembly did so only ex abundante cautela. it may be said that the people. 1977. if the proposed Constitution does not become effective. and only 22 Representatives out of 110. they also have to live under the government as it now exists. Perhaps. 1975. the date when Proclamation No. in conscience. regardless of what Constitution is operative — whether it is the 1935 Constitution or the new Constitution. some on December 31.36165 (Gerardo Roxas. 1972. and that option had to be made within 30 days from January 17. the term of some of them will yet expire on December 31. et al. 1973 when it was proclaimed that the new Constitution came into effect. there is nothing that the people can do under the circumstances actually prevailing in our country today — circumstances. and the rest on December 31. or by way of a precaution. accept the reported affirmative votes in the citizens assemblies as a true and correct expression by the people of their approval. known to all. I cannot. or acceptance. Indeed. only 22 took their oath of office. took their oath of office. 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. which otherwise they could not do if they did not manifest their option to serve. have acquiesced to the new Constitution. Alejandro Melchor. 1972. Let if be noted that 9 Senators did not opt to serve in the interim National Assembly. that only one Senator out of 24. is an indication that only a small portion of the members of Congress had manifested their acceptance of the new Constitution. and which I do not consider necessary to state in this opinion I cannot agree. Whereas. v. 1102 was issued. regardless of the . and as it has existed since the declaration of martial law on September 21.members of the House of Representatives who opted to serve in the interim National Assembly. of the Senators who opted to serve in the interim National Assembly. 1973. 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. But what could the people do? In the same way that the people have lived under martial law since September 23. particularly with respect to the reports of the voting in the citizens assemblies. or making sure. the new Constitution should be considered as in force. This doubt has been engendered in my mind after a careful examination and study of the records of these cases.

fact that it was not ratified in accordance with the provisions of Section 1 of Article XV of 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. What I mean is that if this Court now declares that a new Constitution is now in force because the members of the citizens assemblies had approved said new Constitution. I hold that Proclamation No. and that he has been acting all the way in consonance with his powers under the Constitution. I must state that the 1935 Constitution is still in force. as announced in Proclamation No. I do not say. even in a manner contrary to the existing Constitution and the law. In fact. although that approval was not in accordance with the procedure and the requirements prescribed in the 1935 Constitution. It is my honest view that the Constitution proposed by the 1971 Constitutional Convention has not come into effect. 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. To me. should be considered as not yet validly ratified. and that the democratic system of government that has been implanted in our country by the Americans. The views that I have expressed in this opinion are inspired by a desire on my part to bring about stability in the democratic and constitutional system in our country. as proclaimed in Proclamation No. and this Court is still functioning under the 1935 Constitution. and which has become part of our social and political fabric. on March 16. It being my view that the 1935 Constitution is still in force. The proposed Constitution. What the petitioners assail is not the validity of the proposed Constitution but the validity of Presidential Proclamation No. We will be opening the gates for a similar disregard of the Constitution in the future. however. The proposed Constitution may still be submitted to a plebiscite in conformity with Section 1 of Article XV of the 1935 Constitution. it passed Resolution No. this was the mandate of Congress when. according to the President. I believe Congress may still convene and pass a law calling for an election at which the Constitution proposed by the 1971 Constitutional Convention will be submitted to the people for their ratification or rejection. Incidentally. it being very clear that the provisions of Section 1 of Article XV of the 1935 Constitution had not been complied with. therefore. 1102 is invalid and should not be given force and effect. and so it is not in force. I feel that if this Court would give its imprimatur to the ratification of the proposed Constitution. we still have a constitutional government. that the proposed Constitution is invalid. it can happen again in some future time that some amendments to the Constitution may be adopted. 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. 1967. The people of this Republic has reason to be happy because. as we have adverted to in this opinion. 2 calling a convention to propose amendments to the 1935 Constitution. 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. There . 1102. the validity of the proposed Constitution is not in issue in the cases before Us. is not in accordance with the provisions of Section 1 of Article XV of the 1935 Constitution. It being my considered view that the ratification of the proposed Constitution. is still a reality. 1102. 1102 which declares the proposed Constitution as having been ratified and has come into effect.

but certainly it is more than just a keen but passive observer of the contemporary scene. as noted in the opinion of the Chief Justice. In coping with its responsibility arising from the function of judicial review. Even then. For while the specific substantive issue is the validity of Presidential Proclamation No.will not be stability in our constitutional system. 2 it seems to me that the more appropriate course is for this Court to give heed to the plea of petitioners that the most serious attention be paid to their submission that the challenged executive act fails to meet the test of constitutionality. but given the premise of continuity in a regime under a fundamental law. as Justice George Sutherland of the U. by virtue of its role under the separation of powers concept. there is . goes only as far as the validity of its ratification. Laurel. It is. which itself explicitly recognizes the need for change and the process for bringing it about. to say the least. on the whole. It could very well be though that the ultimate outcome is not confined within such limit. of course. dissenting: No question more momentous. 1102. because. and necessarily no stability in our government. "what petitioners really seek to invalidate is the new Constitution. an adverse judgment may be fraught with consequences that. I vote to deny the motion to dismiss and to give due course to the petitions in these cases. S." I concur fully with the personal views expressed by the Chief Justice in the opinion that he has written in these cases. Nonetheless. democracy and the liberties of our people from vanishing in our land. and the protection and vindication of popular rights will be safe and secure in their reverential guardianship. FERNANDO. and this is not to deny that under its aegis. I am inspired by what the great jurist and statesman. J. with regret and with due respect for the opinion of my brethren." I only wish to help prevent. are far-reaching in its implications. my concurrence. to reservations insofar as it contains views and nuances to which I have in the past expressed doubts. but as an arbiter of its legality. 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. if I can. none impressed with such transcendental significance is likely to confront this Court in the near or distant future as that posed by these petitions. Jose P. I feel that a brief expression of the reasons for the stand I take would not be amiss. this Court is not expected to be an oracle given to utterances of eternal verities. subject. It would follow therefore that the legal position taken by the Chief Justice as set forth with his usual lucidity and thoroughness has. 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. Along with him. I must perforce dissent. involved not necessarily as a participant in the formation of government policy. said: "Let our judges be as it were the vestal keepers of the purity and sanctity of our Constitution. As stressed by respondents. 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. there have been marked gains in the social and economic sphere." 1 Strict accuracy would of course qualify such statement that what is in dispute. Under the circumstances..

It is their view. as Justice Frankfurter made clear. I cannot. Essentially then. 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. They can nullify the policy of others. 7 Since the Constitution pre-eminently occupies the highest rung in the hierarchy of legal norms. It is implicit in the concept of the rule of law that rights belong to the people and that government possesses powers only. it is my firm conviction that the institution of judicial review speaks too clearly for the point to be missed that official action. It would be tragic. it is in the judiciary. an explicit article on the subject of amendments. 1. that since what is involved is not merely the effectivity of an amendment but the actual coming into effect of a new constitution.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. 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. and a clear case of its being recreant to its trust. . 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. With the 1935 Constitution containing. Respondents are acting in the soundest constitutional tradition when. the Justices of the highest tribunal are not. has to face the gauntlet of a court suit whenever there is a proper case with the appropriate parties. In the United States as here. ultimately this Tribunal. unless such an authority may either be predicated on express or implied grant in the Constitution or the statutes. It must guard against the pitfall of lack of understanding of the dominant forces at work to seek a better life for all. the matter is not justiciable. vigorously pressed and plausibly asserted. as was stressed by Professors Black 5 and Murphy. at the outset. the question raised is political and thus beyond the jurisdiction of this Court. Such an approach cannot be indicted for unorthodoxy. For. Respondents through Solicitor-General Mendoza would deny our competence to proceed further. Even with due recognition of such factors. this Court must necessarily take into account not only what the exigent needs of the present demand but what may lie ahead in the unexplored and unknown vistas of the future. the political departments could seek the aid of the judiciary. especially those suffering from the pangs of poverty and disease. 6 a Supreme Court by the conclusion it reaches and the decision it renders does not merely check the coordinate branches. they would seek a dismissal of these petitions. that such a responsibility is vested. as above noted. For them. an exercise thereof cannot survive an inquiry as to its validity. reach the same result as the majority of my brethren. they are incapable of fashioning their own solutions for social problems." 3 That is why there is this caveat. Thus in affirming constitutional supremacy. in the last analysis. "architects of policy. for reasons to be set more at length and in the light of the opinion of the Chief Justice. To repeat. by a blind determination to adhere to the status quo. For the assent it gives to what has been done conduces to its better support in a regime where the rule of law holds sway." 4 Nonetheless. however. but also by its approval stamps with legitimacy the action taken. 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. even with due allowance made for the good faith that invariably inspires the step taken. In discharging such a rule.

The question thus posed is judicial rather than political. or either of them). Garcia. in what may be thought the more useful sense. The exceptions from judicial enforceability fall primarily within the field of public or governmental interests. 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." 12 Once an aspect thereof is viewed as judicial. for from the very language of the controlling article. but is not large when contrasted with the whole body of written constitutional texts. Even when the Presidency or Congress possesses plenary power. There are limits to what may be done and how it is to be accomplished. On this point. It is thus beyond the competence of the judiciary to pass upon. as to which there has been a prior legislative or executive determination to which deference must be paid. Unless clearly falling within the above formulation." 16 Nor was Professor Weston's formulation any different. the judiciary has no choice but to look into its validity. if this Court were to accede to what is sought by respondents and rule that the question before us is political. there would be no justification for considering the rest as devoid of that character. 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 either coordinate branch has acted. the Gonzales. Necessarily then. 'political questions' should refer to such as would under the Constitution be decided by the people in their sovereign capacity or in regard to which full discretionary authority is vested either in the Presidency or Congress. both federal and state. 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. 8 Tolentino 9 and Planas 10 cases speak unequivocally to that effect. It would be for me then an indefensible retreat. the decision reached by the political branches whether in the form of a congressional act or an executive order could be tested in court. If to be delimited with accuracy. which as pointed out in Dillon v." 15 After a thorough study of American judicial decisions." 17 What appears . it may not be inappropriate to refer to a separate opinion of mine in Lansang v. may give rise to a justiciable controversy. deriving no justification from circumstances of weight and gravity." 14 The view entertained by Professor Dodd is not too dissimilar. As was expressed by him: "Judicial questions. What is more. 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. the two vital steps are proposal and ratification. are those which the sovereign has set to be decided in the courts. Political questions. 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. and not subject to judicial investigation. 11 "cannot be treated as unrelated acts.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. if shown. 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. similarly. he could conclude: "The field of judicial nonenforceability is important. its improvident exercise or the abuse thereof. or any branch thereof. For the constitutional grant of authority is not usually unrestricted. but as succeeding steps in a single endeavor. It has likewise been employed loosely to characterize a suit where the party proceeded against is the President or Congress. Gloss. Where private rights are affected.

both of whom in turn are unabashed admirers of Justice Brandeis. This is not to say though that it is satisfied with an empiricism untroubled by the search for jural consistency and rational coherence. It has not in the past shirked its responsibility to ascertain whether there has been compliance with and fidelity to constitutional requirements. 21 decided in 1937: "If it is ever necessary for us to make any vehement affirmance during this formative period of our political history. 2. there has sprung a tradition of what has been aptly termed as judicial activism. There was the assumption of course that it would face up to such a task. it must be judged in the light of our own history.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. Then. without regard to political considerations and with no thought except that of discharging its trust. Vera. Such an approach could be traced to the valedictory address before the 1935 Constitutional Convention of Claro M. the public acceptance of its vigorous pursuit of the task of assuring that the Constitution be obeyed is easy to understand. too." 22 The hope of course was that such assertion of independence and impartiality was not mere rhetoric. Once allowance is made that for all its care and circumspection this Court is manned by human beings fettered by fallibility. 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. Electoral Commission 23 to Planas v. It suffices to state that what elicits approval on the part of our people of a judiciary ever alert to inquire into alleged breaches of the fundamental law is the realization that to do so is merely to do what is expected of it and that thereby there is no invasion of spheres appropriately belonging to the political branches. They would derive much aid and comfort from the writings of both Professor Bickel 18 of Yale and Professor Freund 19 of Harvard. Such is the teaching of a host of cases from Angara v. That is a matter more appropriately left to others to determine. indifferent to popularity. undeterred by any consideration. So juridical realism requires. free from politics. but nonetheless earnestly and sincerely striving to do right. and unafraid of criticism in the accomplishment of our sworn duty as we see it and as we understand it. 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. A balance has to be struck. 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. deserves to be pursued further." 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. Recto. a political question being raised. admittedly one of complexity and importance. wherein rights appropriate for judicial enforcement are sought to be vindicated. 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. . For it needs to be kept in kind always that it can act only when there is a suit with proper parties before it. Witness these words of Justice Laurel in an early landmark case. it does not approach constitutional questions with dogmatism or apodictic certainty nor view them from the shining cliffs of perfection. The submission of respondents on this subject of political question. People v.

like Dean Rostow.' Mr. if they are to survive. Thus: "The power of constitutional review. and written about the Constitution have been troubled by a sense that judicial review is undemocratic. It should be cut off. The limitation and separation of powers. They perceived no contradiction between effective government and constitutional cheeks. On the question of judicial review. if not its leading advocate during his long stay in the United States Supreme Court. New York Frankfurter remarked. the scheme of mutual . Out of their concern for political stability and security for private rights. who may legitimately be regarded as the philosopher of the Constitution. 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. it is not a case of black and white. . Justice Frankfurter recently remarked. if the perspective is one of dissatisfaction. and even of guilt. with its overtones of distrust. who began one of his most celebrated legal essays. at the least in cases of conflicting action by different branches of government or of constitutionally unauthorized governmental action against individuals. is an undemocratic shoot on an otherwise respectable tree. 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. colors the literature about judicial review. The Democratic Character of Judicial Review." 26 His view was precisely the opposite. 'The course of constitutional history. even in the face of a plausible but not sufficiently persuasive insistence that the matter before it is political. there are shaded areas.Commission on Elections. they designed a structure whose keystone was to consist of barriers to the untrammeled exercise of power by any group. ." 25 He went on to state: "Judicial review. that the 'duty of deference cannot be allowed imperceptibly to slide into abdication. could not accept the characterization of judicial review as undemocratic. 24 It should not start now. The power and duty of the Supreme Court to declare statutes or executive action unconstitutional in appropriate cases is part of the living Constitution. in my view. Thus in his study of Holmes and Brandeis. thus: "A theme of uneasiness. There is a statement of similar import from Professor Mason: "In Stein v." 27 More than that. the following appears: "When it is said that judicial review is an undemocratic feature of our political system. somewhat self-consciously perhaps.. reputed to belong to the same school of thought opposed to judicial activism. It should continue to exercise its jurisdiction. To James Madison. he took pains to emphasize: "Whether another method of enforcing the Constitution could have been devised. lectured. is implicit in the conception of a written constitution delegating limited powers. they have urged. to be exercised by some part of the government. A written constitution would promote discord rather than order in society if there were no accepted authority to construe it. It goes too far. the short answer is that no such method has developed. Many of those who have talked. as one fully cognizant of the stigma that attaches to a tribunal which neglects to meet the demands of judicial review. This expression of disapproval has not escaped Dean Rostow of Yale." 28 or is it only Dean Rostow who could point to Fraukfurter. 'has cast responsibilities upon the Supreme Court which it would be "stultification" for it to evade. or at least kept pruned and inconspicuous. The argument over the constitutionality of judicial review has long since been settled by history.'" 29 Professor Konefsky. . it ought also to be remembered that the architects of that system did not equate constitutional government with unbridled majority rule.

A hole was left where the Court might drive in the peg of judicial supremacy. Through it. did it come about that the statement not only could be made but could become current as the most understandable and comprehensive summary of American constitutional law?" 35 It is no wonder that Professor Haines could pithily and succinctly sum up the place of the highest American tribunal in the scheme of things in this wise: "The Supreme Court of the United States has come to be regarded as the unique feature of the American governmental system. . . the judiciary "ought not to enter this political thicket. before occupying that exalted position." Baker has since then been followed. an exponent of the judicial restraint school thought. on Marshall's epochal opinion in Marbury v. could state in a lecture: "We are under a Constitution. 38 in 1969. It could and did provoke from Justice Jackson." 34 The above statement is more than just an aphorism that lends itself to inclusion in judicial anthologies or bar association speeches. for many the very staple of what is essentially political. 37 decided in 1962 and Powell v. MacCormack. The former disregarded the warning of Justice Frankfurter in Colegrove v." 40 For him. this meaningful query: "The Constitution nowhere provides that it shall be what the judges say it is. depending upon one's predilection. It now dominates the American legal scene. For such indeed is the case as reflected in two leading cases of recent vintage. on the question of the power of a legislative body to exclude from its ranks a person whose qualifications are uncontested. 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. then. certainly goes even further than the authoritative Philippine decision of Vera v. it has spawned a host of cases. 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. 41 Powell.'" 30 There is thus an inevitability to the flowering of judicial review. Madison. And that is what John Marshall did. if it could." 31 This is not to deny that there are those who would place the blame or the credit. Avelino. that distinguished American constitutional historian. the great difficulty lies in this: you must first enable the government to control the governed. but the Constitution is what the judges say it is . both noted in the opinion of the Chief Justice. Professor Corwin. in connection with the decision of cases. Carr. 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. How. Baker v. As he put it: "The problem was given no answer by the Constitution.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. Chief Justice Hughes. of which the Constitution is part. 32 Curtis belonged to that persuasion. 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. 42 It does look then that even in . could rightfully state that judicial review "is simply incidental to the power of courts to interpret the law." 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. and in the next place oblige it to control itself." 36 Let me not be misunderstood.

the plea for judicial self-restraint. So much then for the invocation of the political question principle as a bar to the exercise of our jurisdiction. 45 It has brought forth a plethora of law review articles. Tañada and Jovito Salonga at the van. and the limitations on that power. rather than the advocacy of the Solicitor-General. Not that it is to be expected that it will entirely disappear. 3. 1102 manifests fidelity to the explicit terms of Article XV. There is. Of late. prejudices one might even say. In his celebrated Holmes lecture in 1959 at the Harvard Law School. also included therein. it nevertheless seems to me that the doctrine of political questions ought to be very sharply confined to cases where the functional reasons justify it and that in a given case involving its expansion there should be careful consideration also of the social considerations which may militate against it. the distribution of public power." 47 It is difficult. possess the greater weight and carry persuasion. The matter has been put in temperate terms by Professor Frank thus: "When allowance has been made for all these factors. The doctrine has a certain specious charm because of its nice intellectualism and because of the fine deference it permits to expertise. he was less than assertive about the necessity for self-restraint and apparently mindful of the claims of judicial activism. coming from both directions. for each group. It is not without interest to note that in another paper. of course. With due recognition of its force in constitutional litigation. then it cannot be confidently asserted that there was such compliance. have been muted. 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. with Senators Lorenzo M. The fervor that characterized the expression of their respective points of view appears to have been minimized. even if given voice by those competent in the field of constitutional law. coming from such impeccable sources of the worth and significance of judicial review in the United States. the reaction ranging from guarded conformity to caustic criticism. I cannot resist the conclusion then that the views advanced on this subject by distinguished counsel for petitioners. considering how dearly cherished are. 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. so clearly set forth in the opinion of the Chief Justice. to secret knowledge. 48 if my reading of the events and the process that led to such proclamation. the convictions. 46 There was. There are signs that the contending forces on such question. The crucial point that had to be met is whether Proclamation No. It should not be allowed to grow as a merely intellectual plant. no clear call to a court in effect abandoning the responsibility incumbent on it to keep governmental agencies within constitutional channels. to be sure. Thus: "First of all. is not inaccurate. entertained. has fallen on deaf ears. the Court has a responsibility to maintain the constitutional order. That brings me to the issue of the validity of the ratification. Professor Wechsler advocated as basis for decision what he termed neutral principles of constitutional law. for me at least. it has been said that as counsel for the New York Times in the famous Vietnam papers case. for some an unequal contest. and to the prerogatives of others. are now quiescent.the United States. At least what once was fitly characterized as the booming guns of rhetoric. 44 he was less than insistent on the American Supreme Court exercising judicial self restraint. scholarly disputations have been centered on the standards that should govern the exercise of the power of judicial review. It would be to rely on conjectural ." 43 As for Professor Bickel. not to be swayed by such appraisal.

so that this Court is called upon to give meaning and perspective to what could be considered words of vague generality. A great many American State decisions may be cited in support of such a doctrine. for me. So it has to be if one does not lose sight of how the article on amendments is phrased. Article XV had been given a definitive construction. he was not devoid of power to specify the mode of ratification." 57 The approval of the present parity amendment was by virtue of a Republic Act 58 which specifically made applicable the then Election Code. it was made clear that the election for such purpose was to "be conducted in conformity with the provisions of the Election Code insofar as the same may be applicable. a rubber band either. 60 which in cotemplation of the 1971 Constitutional Convention. There are American decisions. then its mandate must be fulfilled. who can vote and how they register their will. It is understandable why it should be thus. which require that there be obedience to the literal terms of the applicable provision. Any other conclusion would. as proposed amendments to be voted on in the 1967 elections. 50 Even if the assumption be indulged in that Article XV is not phrased in terms too clear to be misread. 55 and creating an independent Commission on Elections. The restraints thus imposed would set limits to the Presidential action taken. On two vital points. but it is not. 56 Again. even on the assumption that either as an agent of the Constitutional Convention or under his martial law prerogatives. 61 That is the consistent course of interpretation followed by the legislative branch. 51 submitting to the Filipino people for approval or disapproval certain amendments to the original ordinance appended to the 1935 Constitution. substantial compliance is enough. That is why I fail to see sufficient justification for this Court affixing the imprimatur of its approval on the . saw to it that there be an increase in the membership of the House of Representatives to a maximum of one hundred eighty and assured the eligibility of senators and representatives to become members of such constituent body without forfeiting their seats. to borrow from Learned Hand. 54 reducing the term of the President to four years but allowing his re-election with the limitation that he cannot serve for more than eight consecutive years. pregnant with uncertainty. No evasion is to be tolerated. This is not to deny that a recognition of the 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. Submission to its commands can be shown only if each and every word is given meaning rather than ignored or disregarded. 49 and they are not few in number. transparent and unchanged.assumptions that did founder on the rock of the undisputed facts. If the Constitution is the supreme law. 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. It is most persuasive. In the first Commonwealth Act. A word." 52 Then came the statute. to paraphrase Justice Holmes may not be a crystal. 59 There is a similar provision in the legislation. still whatever obscurity it possesses is illumined when the light of the previous legislation is thrown on it. if not controlling. 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. It would be unwarranted in my view then to assert that the requirements of the 1935 Constitution have been met. that eminent jurist. require an interpretation that borders on the strained. Briefly stated.

By April. and then adjourned until September following. that the nation as a whole constitutes the "single center of ultimate reference. not selected by the people according to the forms of law. or changing" it but contained no provision giving the legislature the power to require a submission of its work to a vote of the people." 65 which is supreme and must be obeyed. emanate "the highest possible embodiment of human will. Such a fundamental principle is meaningless if it does not imply. In Miller v. To avoid any confusion and in the interest of clarity. In affirming such judgment dismissing the action. as the new constitution. It failed in the lower court. an act was passed in Kentucky. Independently of the lack of validity of the ratification of the new Constitution. 1890. it was set forth in the opinion of Chief Justice Holt that on May 3. it should be expressed in the manner ordained by law. Chief Justice Holt stated: "If a set of men. the delegates made numerous changes in the instrument. 1102. amending. When the convention reassembled. Even if such were not the case. it is no doubt true. the judiciary is left with no choice but to accord it recognition. it completed a draft of a constitution. once it is manifested. 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. The constitution then in force authorized the legislature. 1891. Its work was approved by a majority. The ." 64 From them. and this the courts of the existing government must resist until they are overturned by power. providing for the calling of a convention for the purpose of framing a new constitution and the election of delegates. The obligation to render it obeisance falls on the courts as well. 62 then this Court cannot refuse to yield assent to such a political decision of the utmost gravity. An action was brought to challenge its validity. conclusive in its effect. submitted it to a popular vote. to call a convention "for the purpose of readopting. it would undoubtedly be the duty of the courts to declare its work a nullity. as McIver pointed out. it should be submitted to the voters of the state and ratified by a majority of those voting. 1891.mode employed for the ratification of the revised Constitution as reflected in Proclamation No. were to formulate an instrument and declare it the constitution. 4. to follow Laski. however. The government which is merely an agency to register its commands has no choice but to submit. It provided that before any form of constitution made by them should become operative. it was promulgated by the convention of September 28. While certainly not controlling. 66 decided in 1892. as Corwin did stress. This would be revolution." necessarily the possessor of that "power that is able to resolve disputes by saying the last word. and a new government established. the lack of regularity in the method employed to register its wishes is not fatal in its consequences. As thus amended. Nor is the matter before us solely to be determined by the failure to comply with the requirements of Article XV. Once the fact of acceptance by the people of a new fundamental law is made evident." 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. Its officials must act accordingly. There are American State decisions that enunciate such a doctrine. if it be accepted by the people. In that sense. The convention met in September. not even this Court. the preliminary steps having been taken. it is to be accepted as final and authoritative. they are not entirely bereft of persuasive significance. 1890. No agency is exempt from such a duty. in whom sovereignty resides according to the Constitution. Johnson.

was the offspring of law. and especially where such momentous results might follow as would be likely in this instance. Nor is the fact that Filipinos of both sexes above the age of fifteen were given the opportunity to vote to be deplored. we have no difficulty in holding that the Constitution in question. Through the Citizens Assemblies. This Court is to respect what had thus received the people's sanction. The result of the work of the convention has been recognized. and that to it all the citizens of Virginia owe their obedience and loyal allegiance. What is more. at a general election for their representatives in the Congress of the United States. The Constitution having been thus acknowledged and accepted by the officers administering the government and by the people of the state. an inquiry may be had as to ." 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. The instrument which we are asked to declare invalid as a constitution has been made and promulgated according to the forms of law. There is still an aspect that is judicial. so it has been argued. if the power of the judiciary permitted. then no justiciable question may be raised. 1102. July 15. From the standpoint of respondents then. 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. recognizing the Constitution ordained by the convention which assembled in the city of Richmond on the 12th day of June." 67 In Taylor v. . While the judiciary should protect the rights of the people with great care and jealousy. as the Constitution of Virginia. and by enforcing its provisions.convention. under its provisions. yet it should at the same time be careful not to overstep the proper bounds of its power. It does logically follow likewise that all such circumstances being conceded. That is not for me though the whole of it. by registering as voters under it to the extent of thousands throughout the state. The Court rejected such a view. Further scrutiny even then is not entirely foreclosed. . by the individual oaths of its members to support it. there was a plebiscite with the result as indicated in Proclamation No. Its will was thus expressed formally and unmistakably. and by voting. as being perhaps equally dangerous. they could allege that there was more than just mere acquiescence by the sovereign people. It is a matter of current history that both the executive and legislative branches of the government have recognized its validity as a constitution. because this is its duty. It may be added that there was nothing inherently objectionable in the informal method followed in ascertaining its preference. the more there is fealty to the democratic concept. valid. by the Legislature in its formal official act adopting a joint resolution. and there being no government in existence under the Constitution of 1869 opposing or denying its validity. it is not merely a case of its being implied. and are now daily doing so . which went into effect at noon on the 10th day of July. The greater the base of mass participation. 68 a 1903 decision. and acted upon as the only valid Constitution of the state by the Governor in swearing fidelity to it and proclaiming it. 1902. the overthrow of the work of the convention. Commonwealth. as directed thereby. and also because. it was contended that the Virginia Constitution proclaimed in 1902 is invalid as it was ordained and promulgated by the convention without being submitted for ratification or rejection by the people. however. in times of great popular excitement. is the only rightful. 1901. it is usually their last resort. accepted. 1902. and its duty requires. and by the people in their primary capacity by peacefully accepting it and quiescing in it. and existing Constitution of this state.

This is not to imply that such doubt could not be dispelled by evidence to the contrary. it could be truly said that there was no barrier to liberty of choice. the least interference with the executive department. 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. 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. It is difficult for me. They can pursue the even tenor of their ways.whether such indeed was the result. It can be asserted with truth. that as yet sufficient time has not elapsed to be really certain. There are other factors to bear in mind. thus allowing a free market of ideas. coupled with the hope that the solution arrived at is a harbinger of a bright and rosy future. It would be a clear-cut decision either way. He remains the commander-in-chief with all the constitutional power it implies. It represents an outlook cognizant of the tensions of a turbulent era that is the present. 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. If the petitions be dismissed however. however. What is more. The daily course of events yields such a conclusion. This is no more than what the courts do in election cases. that with the revised Constitution. worried about their immediate needs and captive to their existing moods. Whatever be their views. It is such a comfort then that even if my appraisal of the situation had commanded a majority. Nor is this all. It is not an easy decision to reach. including practically all Representatives and a majority of the Senators. while these lawsuits are being further considered. . there is an auspicious beginning for further progress. 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. The thought persists. the officials under the 1935 Constitution. the proceedings terminated once and for all. For there are countervailing considerations that exert a compulsion not easy to resist. have signified their assent to it. Then too it could resolve what appeared to be the deepening contradictions of political life. It has occasioned deep thought and considerable soul-searching. I cannot yield an affirmative response to the plea of respondents to consider the matter closed. This is not to deny that votes are cast by individuals with their personal concerns uppermost in mind. With the foregoing legal principles in mind. That is inherent in any human institution. There thus appears to be conformity to the existing order of things. then such opportunity is forever lost. there is not. 5. It is one which has all the earmarks of being responsive to the dominant needs of the times. The President in the discharge of all his functions is entitled to obedience. especially in the field of social and economic rights. That is why for some what was done represented an act of courage and faith. reducing at times governmental authority to near impotence and imparting a sense of disillusionment in democratic processes. If it were thus. Public officials can go about their accustomed tasks in accordance with the revised Constitution. It would have been different had there been that freedom of debate with the least interference. I find myself unable to join the ranks of my esteemed brethren who vote for the dismissal of these petitions. they are entitled to respect. One could be certain as to the fact of the acceptance of the new or of adherence to the old. There is in addition the evidence flowing from the conditions of peace and stability. much more so in a democratic polity. The fact that the President so certified is well-nigh conclusive. however.

. 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. 70 Once compliance is had with the requirements of Article XV of the 1935 Constitution. J. which for me have not lost their validity. I would herein make an exposition of the fundamental reasons and considerations for my stand. roaming at will in pursuit of his own ideal of beauty or of goodness. He is not to yield to spasmodic sentiment. methodized by analogy.' Wide enough in all conscience is the field of discretion that remains. suppose the petition should prevail? What then? Even so. had there been only one or two amendments. The introduction of novel concepts may be carried only so far though. What is more. to cherish illusions that cannot stand the test of actuality. He is not a knight-errant. certifying and proclaiming that the Constitution proposed by the 1971 Constitutional Convention "has been ratified by an overwhelming majority of . If a period of time were allowed to elapse precisely to enable the judicial power to be exercised. no such problem would be before us. 1973. For some. He is to exercise a discretion informed by tradition. be no more than gossamer distinctions and sterile refinements unrelated to events. It might be asked though. Likewise. The unprecedented and precedent-setting issue submitted by petitioners for the Court's resolution is the validity and constitutionality of Presidential Proclamation No. TEEHANKEE. 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. as I understand them and as set forth in the preceding pages. There was not at any time any thought of any restraining order. to so view the question before us is to be caught in a web of unreality. That is why I do not see sufficient justification for the orthodoxies of constitutional law not to operate. the decision of this Court need not be executory right away. As Cardozo put the matter: "The judge. 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. it may give the impression of reliance on what may. and subordinated to 'the primordial necessity of order in the social life. So it was before. even after that petitions were filed. He is not to innovate at pleasure. That may be so. compel me to vote the way I did. disciplined by system. That is how things are expected to remain even if the motions to dismiss were not granted. 1102 issued on January 17. to vague and unregulated benevolence. even when he is free. That was how it was done in the Emergency Powers Act controversy. Such a disposition of a cast before this Court is not novel. for the practical man of affairs. no complication would have arisen. is still not wholly free. then all doubts are set at rest. That was so these past few weeks. is traceable to the fact that the revised Constitution was made to take effect immediately upon ratification. 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. but I find it impossible to transcend what for me are the implications of traditional constitutionalism.They are free to act according to its tenets. the basic premises of a constitutional democracy. to assure that the coming force of the revised charter is free from any taint of infirmity. He is to draw his inspiration from consecrated principles." 71 Moreover what made it difficult for this Court to apply settled principles.

in annulling Proclamation No. ." 4 — The measure of the fact of ratification is Article XV of the 1935 Constitution. and their actions must be dismissed." — "alleged defects. in toto or parts thereof. ." More specifically. 1102 .all the votes cast by the members of all the Barangays (Citizens Assemblies) throughout the Philippines. shall supersede the Constitution of Nineteen hundred and thirty-five and all amendments thereto. 1102 is conclusive on the courts." 3 To test the validity of respondents' submittal that the Court. (sic) — "after ratification. — In the Tolentino case." 1 A necessary corollary issue is whether the purported ratification of the proposed Constitution as signed on November 30." 2 Respondents contend that "(A)lthough apparently what is sought to be annulled is Proclamation No. . 1102 was issued by the President in the exercise of legislative power under martial law . 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. — Respondents themselves assert that "Proclamation No. . enfranchisement of persons less than 21 Years. For the procedure outlined in Article XV was not intended to be exclusive of other procedures. . 1102 would really be "invalidating the new Constitution". such as absence of secret voting." 7 . . dealing with the procedure or manner of amending the fundamental law are binding upon the Convention and the other departments of the government. and — "(A)ssuming finally that Article XV of the 1935 Constitution was not strictly followed. non supervision (by) the Comelec are matters not required by Article XV of the 1935 Constitution". — "Proclamation No. "shall be valid as part of this Constitution when approved by a majority of the votes cast at an election at which the amendments are submitted to the people for their ratification. It must be added that . especially one which contemplates popular and direct participation of the citizenry . . 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. This has been consistently held by the Court in the Gonzales: 5 and Tolentino 6 cases. the terms and premises of the issues have to be defined. he did so as 'agent' of the Constitutional Convention. 1972 by the 1971 Constitutional Convention may be said also to have substantially complied with its own mandate that "(T)his 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. this Court emphasized "that the provisions of Section 1 of Article XV of the Constitution. and has thereby come into effect. is plainly merely declaratory of the fact that the 1973 Constitution has been ratified and has come into force. the ratification of the new Constitution must nonetheless be respected. Alternatively. they are no less binding upon the people. 1102. . whatever defects there might have been in the procedure are overcome and mooted (and muted) by the fact of ratification". or contemporaneously. what petitioners really seek to invalidate is the new Constitution".

We have. I am not prepared to hold that all executive orders issued thereafter under Commonwealth Act No. had ceased and became inoperative at the latest in May. under Commonwealth Act 671 in pursuance of Article VI. 1949 after judgment was initially not obtained on August 26. finally declared in effect that the pre-war emergency powers delegated by Congress to the President. 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. 10 — Hence. 1946. Then Chief Justice Manuel V. 73. any proposal for such amendment which is not in conformity with the letter. 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. are per se null and void. A comparable precedent of great crisis proportions is found in the Emergency Powers cases. 1949 for lack of the required six (6) votes. 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. 1946 when Congress met in its first regular session on May 25. it would not he "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. spirit and intent of the Charter for effecting amendments. 11 wherein the Court in its Resolution of September 16. if the Court declares Proclamation 1102 null and void because on its face. 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. 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. — Since Proclamation 1102 is acknowledged by respondent to be "plainly merely declaratory" of the disputed fact of ratification. cannot receive the sanction of this Court. proposed amendments to the Constitution "should be ratified in only one way. 671. issued on . that is. section 26 of the Constitution. and some of them may have already produced extensive effects in the life of the nation. Executive Order No. this Court further proclaimed that "as long as any amendment is formulated and submitted under the aegis of the present Charter. It must he borne in mind that these executive orders had been issued in good faith and with the best of intentions by three successive Presidents. for instance." 8 — As continues to be held by a majority of this Court. 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.— In the same Tolentino case. while I believe that the emergency powers had ceased in June 1945. 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. 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.

Executive Order No.750. and in the latter. would be effected. etc. 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. as I envisioned in my concurring opinion. After rehearing. and do hereby. de facto officers. Executive Order No. issued on November 19. other important circumstances should be inquired into. repugnant to the Constitution. They have not disappeared by reason of the fact that a special session of Congress is not now forthcoming. 86. Executive orders which are.000 for public works. amending a previous order regarding the organization of the Supreme Court. to what extent. if necessary and possible. The consequences of a blanket nullification of all these executive orders will be unquestionably serious and harmful." 13 Then Chief Justice Moran. 1946. 89. . would be given permanent life. completing the "sufficient majority" of six against four dissenting justices "to pronounce a valid judgment on that matter. and indefinite deferment will produce the opposite result because it would legitimize a prolonged or permanent evasion of our organic law. the remedy now lies in the hands of the Chief Executive and of Congress. And I hold that before nullifying them. give my unqualified concurrence in the decision penned by Mr. acquiescence of litigants. whether their purposes have already been accomplished entirely or partially. and in the last instance. Executive Order No. as for instance. 1945. acts and contracts of parties acting in good faith. precautionary measures should be taken to avoid harm to public interest and innocent parties. before nullifying it. the power to pass a valid appropriations act.November 12. explained his vote for annulment despite the great difficulties and possible "harmful consequences" in the following passage. 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. and . issued on January 7. 1948. which bears re-reading: "However. who penned the Court's majority resolution. Justice Tuason declaring that these two executive orders were issued without authority of law. whether or not they have been ratified by Congress expressly or impliedly. It is my opinion that each executive order must be viewed in the light of its peculiar circumstances. and other executive orders appropriating funds for other purposes. controlling rice and palay to combat hunger. However." 12 Initially. would come to pass should the said executive orders by immediately declared null and void are still real. issued on January 1. 1946. he further voted to also declare null and void the last two executive orders appropriating funds for the 1949 budget and elections. "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. "The harmful consequences which. 184. for the Constitution vests in the former the power to call a special session should the need for one arise. opening the way or practices which may undermine our constitutional structure. reorganizing the Courts of First Instance. in our opinion. appropriating the sum of P6. I am compelled to.

1973." 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.'" 17 In confronting the issues at bar. are called upon 'to perform the duties and discharge the responsibilities committed to them respectively. uncompromisingly and regardless of difficulties. Until the matter of the new Constitution is decided. even rigid — stand that the Constitution is a "superior paramount law. if he so desires. hard as the best of steel. were justiciable and not political questions. must be discharged. I have no intention of utilizing that power. and in accordance with our oaths to support and maintain it in its integrity. and surely it will emerge victorious as a permanent way of life in this country. In the particular instance in which we are now acting. in Cooley's words. who. instead of an appointive. so "tied up (not only) the hands of their official agencies. "Democracy is on trial in the Philippines. then. "Our Republic is still young. imposed on us a most difficult and embarrassing duty. unchangeable by ordinary means" save in the particular mode and manner prescribed therein by the people."That Congress may again fail to pass a valid appropriation act is a remote possibility. if we would. compel Congress to remain in special session till it approves the legislative measures most needed by the country. 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. so as to insure its growth and development along solid lines of a stable and vigorous democracy. if each of the great branches of the Government. 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. the President in the exercise of his constitutional powers may. I did not want to talk about this because actually there is a case pending before the Supreme Court. and furthermore. with due regard for my colleagues' contrary views. We could not. legislative. like all others." 16 Thus. With respect to appointments. judiciary and whether the proposition was in fact adopted. one which we have not sought. for under the circumstances is fully realizes its great responsibility of saving the nation from breaking down. escape the exercise of that jurisdiction which the Constitution has imposed upon us. But suffice it to say that I recognize the power of the Supreme Court. It can and will probably determine the validity of this Constitution. but one which. we are faced with the hard choice of maintaining a firm and strict — perhaps. in times of extreme perils more than in normal circumstances 'the various branches. our duty to know what the Constitution of the state is. but their own . wherein he stated that "(T)he Supreme Court is the final arbiter of the Constitution. and judicial. and the vital principles underlying its organic structure should be maintained firm and strong. the matter falls under a general provision which authorizes the Prime Minister to appoint additional members to the Supreme Court. executive. within its own allocated sphere.'" 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.' given the ability to act. complies with its own constitutional duty.

illimitable. Laurel a century and a third later in the 1936 landmark case of Angara vs. 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." II . 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". in its own nature.S. Certainly. then a legislative act. Madison 25 the U. 19 participated in only by qualified and duly registered voters twentyone years of age or over 20 and duly supervised by the Commission on Elections. then written constitutions are absurd attempts on the part of a people. and. 23 and that the Comelec is constitutionally "mandated to oversee . by the people (through the Citizens Assemblies) themselves". to limit a power." As was to be restated by Justice Jose P. the limitations of good government and restrictions embodied in our Constitution are real as they should be in any living Constitution." 24 To paraphrase U. scope and extent of such powers" and stressed that "when the judiciary mediates to allocate constitutional boundaries. . . contrary to the Constitution. unchangeable by ordinary means. 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. for then the distribution of powers would be mere verbiage. the Philippine Constitution as "a definition of the powers of government" placed upon the judiciary the great burden of "determining the nature. Chief Justice John Marshall who first declared in the historic 1803 case of Marbury vs. if not prescribed. is not law. 21 in accordance with the cited mandatory constitutional requirements. like other acts. 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". If the former part of the alternative be true. Supreme Court's power of judicial review and to declare void laws repugnant to the Constitution. and the principles of good government mere political apothegms.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. there is no middle ground between these two alternatives. as applied to the cases at bar. elections (of public officers) and not plebiscites. if the latter part be true. . is alterable when the legislature shall please to alter it." Justice Laurel pointed out that in contrast to the United States Constitution. the bill of rights mere expressions of sentiment. it does not assert any superiority over the other departments . . 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. As Marshall expounded it: "(T)he Constitution is either a superior paramount law. Electoral Commission. or it is on a level with ordinary legislative acts. 26 "(T)he Constitution sets forth in no uncertain language the restrictions and limitations upon governmental powers and agencies.S.

Marshall was to utter much later in the equally historic 1819 case of McCulloch vs.
Maryland 27 the "climactic phrase," 28 "we must never forget that it is a constitution we
are expounding," — termed by Justice Frankfurter as "the single most important
utterance in the literature of constitutional law — most important because most
comprehensive and comprehending." 29 This enduring concept to my mind permeated
this Court's exposition and rationale in the hallmark case of Tolentino, wherein we
rejected the contentions on the Convention's behalf "that the issue . . . is a political
question and that the Convention being a legislative body of the highest order is
sovereign, and as such, its acts impugned by petitioner are beyond the control of
Congress and the Courts." 30
This Court therein made its unequivocal choice of strictly requiring faithful (which really
includes substantial) compliance with the mandatory requirements of the amending
process.
1.
In denying reconsideration of our judgment of October 16, 1971 prohibiting the
submittal in an advance election of the 1971 Constitutional Convention's Organic
Resolution No. 1 proposing to amend Article V, section 1 of the Constitution by lowering
the voting age to 18 years (vice 21 years) 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 the 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 fully." 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 nature of
things, the drafters of an original constitution, as already observed earlier, operate

without any limitations, restraints or inhibitions save those that they may impose upon
themselves. This is not necessarily true of subsequent conventions called to amend the
original constitution. Generally, the framers of the latter see to it that their handwork is
not lightly treated and as easily mutilated or changed, not only for reasons purely
personal but more importantly, because written constitutions are supposed to be designed
so as to last for some time, if not for ages, or for, at least, as long as they can be adopted
to the needs and exigencies of the people, hence, they must be insulated against
precipitate and hasty actions motivated by more or less passing political moods or
fancies. Thus, as a rule, the original constitutions carry with them limitations and
conditions, more or less stringent, made so in the people themselves, in regard to the
process of 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 as powerful
and omnipotent as their original counterparts." 32
3.
This Court in Tolentino likewise formally adopted the doctrine of proper
submission first advanced in Gonzales vs. Comelec 33 , thus:
"We are certain no one can deny that in order that a plebiscite for the ratification of an
amendment to the Constitution may be validly held, it must provide the voter not only
sufficient time but ample basis for an intelligent appraisal of the nature of the amendment
per se as well as its relation to the other parts of the Constitution with which it has to
form a harmonious whole. In the context of the present state of things, where the
Convention has hardly started considering the merits of hundreds, if not thousands,
proposals to amend the existing Constitution, to present to the people any single proposal
or a few of them cannot comply with this requirement. We are of the opinion that the
present Constitution does not contemplate in Section 1 of Article XV a plebiscite or
election' wherein the people are in the dark as to frame of reference they can base their
judgment on. We reject the rationalization that the present Constitution is a possible
frame of reference, for the simple reason that intervenors themselves are stating the sole
purpose of the proposed amendment is to enable the eighteen year olds to take part in the
election for the 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 consent or rejection" as "minimum
requirement that must be met in order that there can be a proper submission to the people
of a proposed constitutional amendment" thus:
". . . amendments must be fairly laid before the people for their blessing or spurning. The
people are not to be mere rubber stamps. They are not to vote blindly. They must be
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 render compulsory military service under the
colors? Will the age of contractual consent be reduced to 18 years? If I vote against this
amendment, will I not be unfair to my own child who will be 18 years old, come 1973?
"The above are just samplings from here, there and everywhere — from a domain (of
searching questions) the bounds of which are not immediately ascertainable. Surely,
many more questions can be added to the already long litany. And the answers cannot be
had except as the questions are debated fully, pondered upon purposefully, and accorded
undivided attention.
"Scanning the contemporary scene, we say that the people are not, and by election time
will not be, 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 of the proposed amendment." 37
5.
This Court therein dismissed the plea of disregarding the mandatory requirements
of the amending process "in favor of allowing the sovereign people to express their
decision on the proposed amendments" as "anachronistic in the realm of constitutionalism
and repugnant to the essence of the rule of law," in the following terms:
". . . The preamble of the Constitution says that the Constitution has been ordained by the
'Filipino people, imploring the aid of Divine Providence.' Section 1 of Article XV is
nothing more than a part of the Constitution thus ordained by the people. Hence, in
construing said section, We must read it as if the people had said, 'This Constitution may

be amended, but it is our will that the amendment must be proposed and submitted to Us
for 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, been advanced that the foregoing considerations are not decisive on
the issue before Us, inasmuch as the people are sovereign, and the partial amendment
involved in this case is being submitted to them. The issue before Us is whether or not
said partial amendment may be validly submitted to the people for ratification 'in a
plebiscite to coincide with the local elections in November 1971,' and this particular issue
will not be submitted to the people. What is more, the Constitution does not permit its
submission to the people. The question sought to be settled in the scheduled plebiscite is
whether or not the people are in favor of the reduction of the voting age."
— On a "political" rather than "legalistic" approach: "Is this approach to the problem too
'legalistic? This term has several possible connotations. It may mean strict adherence to
the law, which in the case at bar is the Supreme Law of the land. On this point, suffice it

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

The people. qualified literate voters twenty one years of age or over with one year's residence in the municipality where they have registered. as ruled by this Court in Tolentino. which is to say. 42 2. . . but by way of complete and final amendments as an integrated whole (integrated either with the subsisting Constitution or with the new proposed Constitution) . . In some connections in ." It was pointed out therein that "(T)he word 'people' may have somewhat varying significations dependent upon the connection in which it is used. viz. section 1 that only those thereby enfranchised and granted the right of suffrage may speak the "will of the body politic". in the case of proposed constitutional amendments. 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." 9. . To restate the basic premises. orderly and honest elections" and ascertaining the true will of the electorate — and more. those urging the vitality and importance of the proposed constitutional amendment and its approval ahead of the complete and final draft of the new Constitution must seek a valid solution to achieve it in a manner sanctioned by the amendatory process ordained by our people in the present Constitution" 41 — so that there may be "submitted. 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. III 1. A Massachussets case 43 with a constitutional system and provisions analogous to ours. not piecemeal. . for the creation of an independent Commission on Elections with "exclusive charge" for the purpose of "insuring free. 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 1972' so as 'to allow young people who would be governed by the new Constitution to be given a say on what kind of Constitution they will have' is a laudable end. not as yet satisfied. and in the latter case would give rise to an entirely new Constitution. insuring proper submission to the electorate of such proposals. 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. The universal validity of the vital constitutional precepts and principles aboveenunciated can hardly be gainsaid. 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. further provided by amendment duly approved in 1940 in accordance with Article XV.on November 8. Amendments to an existing Constitution presumably may be only of certain parts or in toto. 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.

" In the sense of "body politic (as) formed by voluntary association of individuals" governed by a constitution and common laws in a "social compact .'" As was also ruled by the U. It comprehends not only the sane. by reason of want of years. it seems obvious as above-stated that " people" as therein used must be considered synonymous with "qualified voters" as enfranchised under Article V. women. 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. 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". law-abiding and educated. Plebiscite. liberty. 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. 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. That no plebiscite shall be held until after thirty days from its approval by either body. and such other information relevant to the holding of the plebiscite. however. 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. and property and the pursuit of happiness. 'People' in this aspect is coextensive with the body politic. the questions or issues to be decided. while that instrument remains in force unchanged. time and place thereof. 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 by the fundamental guarantees of the Constitution in life. It excludes aliens. . It includes men. action to be taken by the voters." 46 . But it is obvious that 'people' cannot be used with this broad meaning in a political signification. except as these may be limited for the protection of society. their governments.S. 3. there being a quorom. of capacity or of the educational requirements of Article 20 of the amendments of the Constitution. 6. national and state. and they have themselves thereby set bounds to their own power. section 1 of the Constitution — since only " people" who are qualified voters can exercise the right of suffrage and cast their votes. and such plebiscite has been given the widest publicity in the barrio. as against the sudden impulse of mere majorities. Supreme Court. competent. . ".the Constitution it is confined to citizens and means the same as citizens. 'people' comprises many who. While the people are thus the source of political power. stating the date. — A plebiscite may be held in the barrio when authorized by a majority vote of the members present in the barrio assembly. have been limited by written constitutions. Even at barrio level 45 the Revised Barrio Charter fixes certain safeguards for the holding of barrio plebiscites thus: "SEC. can have no voice in government and who yet are entitled to all the immunities and protection established by the Constitution. and children. . 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. or when called by at least four members of the barrio council: Provided. . for the common good" and in another sense of "people" in a "practical sense" for "political purposes" it was therein fittingly stated that "(I)n this sense." 44 From the text of Article XV of our Constitution.

the allegedly huge and uniform votes reported. i. which latter reports respondents disclaimed inter alia as not final and complete or as not signed. and many others." 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. In this manner. there cannot be said to have been a valid ratification. duly registered in the list of voters kept by the barrio secretary." 48 The qualifications for voters in such barrio plebiscites and elections of barrio officials 49 comply with the suffrage qualifications of Article V. who is not otherwise disqualified. At any rate. A plebiscite shall be called to approve any budgetary. 10. 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. Voting procedures may be made either in writing as in regular elections. may vote or be a candidate in the barrio elections. and which is participated in only by qualified and duly registered voters. 3." 50 IV 1. — Every citizen of the Philippines. 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. as already stated. who has been a resident of the barrio during the six months immediately preceding the election. Under Article XV. section 1 of the Constitution and provide that "(S)EC. 54 may be considered as valid. supplemental appropriations or special tax ordinances" and the required majority vote is also specified: "(F)or taking action on any of the above enumerated measures.As to voting at such barrio plebiscites. section 1 of our Constitution.e. amendments thereto may be ratified only in the one way therein provided. twenty one years of age or over. 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. 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. the Charter further requires that "(A)ll duly registered barrio assembly members qualified to vote may vote in the plebiscite. in an election or plebiscite held in accordance with law and duly supervised by the Commission on Elections. that the mandatory amending process required by the (1935) Constitution was not . 53 whether the reported votes of approval of the proposed Constitution conditioned upon the non-convening of the interim National Assembly provided in Article XVII. section 1 thereof. 2. 4. and/or declaration by the voters to the board of election tellers. Qualifications of Voters and Candidates. able to read and write. majority vote of all the barrio assembly members registered in the list of the barrio secretary is necessary. unless respondents seriously intend to question the very statements and pronouncements in Proclamation 1102 itself which shows on its face.

Delegate Duavit replied that the provision referred to did not include the appropriation of funds for the plebiscite and that moreover. Delegate Duavit replied in the negative.4 Interpellating. 5844 approved on November 22.observed.) contended that the resolution was unnecessary because section 15. "xxx xxx xxx "12. Finally. Delegate Duavit agreed. it would be necessary to lay the groundwork for the appropriate agencies of the government to undertake the necessary preparation for the plebiscite. 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. as to respondents' argument that the President issued Proclamation 1102 "as 'agent' of the Constitutional Convention" 55 under Resolution No. the resolution portion of which read as follows: 'RESOLVED. AS IT IS HEREBY RESOLVED. the cases at bar need not reach the stage of answering the host of questions.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. Article XVII on the Transitory Provision. Delegate Pimentel (V. however. "12. the President would be duty-bound to call a plebiscite forits ratification. 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.2 Interpellating. On the contrary. 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. Upon recognition by the Chair. 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. the resolution was intended to serve formal notice to the President and the Commission on Elections to initiate the necessary preparations. of the Convention. 1973." 56 The minutes of November 22. 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. 1972. do not at all support this contention. Delegate Duavit moved for the approval of the resolution. adding that the . under the charge of the Comelec. 5. that the 1971 Constitutional Convention propose to President Ferdinand E. "xxx xxx xxx "12. 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. 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. and with a reasonable period for an information campaign. as follows: "12.' "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. 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.

"12. the Chief Executive may promulgate measures legislative in character. for the successful prosecution of such objectives.1. I shall discuss the grounds for my concurrence.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. "12. therefore. pointing out that the said provision did not provide for the funds necessary for the purpose. .6 In reply to Delegate Britanico. "12. the principal canons of constitutional interpretation are . Delegate Ordoñez moved for nominal voting. Submitted to a vote.: In conformity with my reservation. Thereupon. "14.resolution was necessary to serve notice to the proper authorities to prepare everything necessary for the plebiscite.8a Delegate Guzman withdrew his motion.2. "Upon request of the Chair. J. . [1948]). 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 . "12. Delegate Ozamiz moved to close the debate and proceed to the period of amendment. "13. .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. when the legislative branch of the government is unable to function or its functioning would itself threaten the public safety. in times of a grave emergency. vote to deny respondents' motion to dismiss and to give due course to the petitions. in coordination with the President. the motion was lost. "13. 318. "13. Promulgated: June 4. The President: Office & Powers. ." 57 I." (Corwin.1 Floor Leader Montejo stated that there were no reservations to amend the resolution. The Chair declared that there was one more interpellant and that a prior reservation had been made for the presentation of such a motion. 1973* ANTONIO. 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. . Delegate Duavit stated that the mechanics for the holding of the plebiscite would he laid down by the Commission on Elections. I It is my view that to preserve the independence of the State. Delegate Duavit restated the resolution for voting. "14. pp. the motion was approved. In other words. It was approved by a show of hands. Delegate Duavit disagreed. Submitted to a vote. 1. the maintenance of the existing constitutional order and the defense of the political and social liberties of the people. the Chair submitted the resolution to a vote.8 Delegate Guzman moved for the previous question. Article XVII on the Transitory Provisions. Delegate Duavit suggested that the Committee on Plebiscite and Ratification could coordinate with the COMELEC on the matter. 317.2 Delegate Ozamiz then moved for the previous question.

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
Debts ease (158 U.S. 564; 39 L. ed. 1092), "may be used to enforce in any part of the
land the full and free exercise of all national powers and the security of all rights
entrusted by the Constitution to its care". The marshalling and employment of the
"strength of the nation" are matters for the discretion of the Chief Executive. The
President's powers in time of emergency defy precise 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 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 3. Ct. 863; 96 L. Ed. 1153,
[1952]), the Supreme Court of the United States did not sustain the claims that the
President could, as the Nation's Chief Executive and as Commander- in-Chief of the
armed forces, validly order the seizure of most of the country's steel mills. The Court
however did not face the naked question of the President's power to seize steel plants in
the absence of any congressional enactment or expressions of policy. The majority of the
Court found that this legislative occupation of the 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 Clerk in his concurrence to the main opinion of the Court,
explicitly asserted that the President does possess, in the absence of restrictive legislation,
a residual or resultant power above or in consequence of his granted powers, to deal with
emergencies that he regards as threatening the national security. The same view was
shared with vague qualifications 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 native and government, namely, that as much
as may be all the members of society are to be preserved." (Corwin and Koenig, The
Presidency Today).
In the light of the accumulated precedents, how could it be reasonably argued therefore,
that the President had no power to issue Presidential Decree Nos. 86 and 86-A as well as
Proclamation No. 1102, since these measures were considered indispensable to 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 the constitutional practices of wartime have moulded the Constitution to
greater or less extent for peacetime as well, and seem likely to do so still more
pronouncedly under fresh conditions of crisis." (Corwin, Ibid. p. 318.)
The same view was expressed by Rossiter thus:
"The second crisis is rebellion, when the authority of a constitutional government is
resisted openly by large numbers of its citizens who are engaged in violent insurrection
against the enforcement of its laws or are bent on capturing it illegally or even destroying
it altogether. The third crisis, one recognized particularly in modern times as sanctioning
emergency action by constitutional governments, is economic depression. The economic
troubles which plagued all the countries of the world in the early thirties invoked
governmental methods of an unquestionably dictatorial character in many democracies. It
was thereby acknowledged that an economic existence as a war or a rebellion. And these
are not the only crisis which have justified extraordinary governmental action in nations
like the United States. Fire, flood, drought, earthquake, riots, and great strikes have all
been dealt with by unusual and often dictatorial methods. Wars are not won by debating
societies, rebellions are not suppressed by judicial injunctions, the reemployment of
twelve million jobless citizens will not be effected through a scrupulous regard for the

tenets of free enterprise, and hardships caused by the eruptions of nature cannot be
mitigated by letting nature take its course. The Civil War, the depression of 1933, and the
recent global 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 in accordance with the provisions of existing election laws, where
only qualified voters are allowed to participate, under the supervision of the Commission
on Elections, the new Constitution, should therefore be declared a nullity. Such an
argument is predicated upon an assumption that Article XV of the 1935 Constitution
provides the method for the revision of the constitution, and automatically apply in the
approval of such proposed new Constitution the provisions of the election law and those
of Article V and X of the old Constitution. We search in vain for any provision in the old
charter 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 conditions or the elimination of
parts already considered obsolete or unresponsive to the needs of the times. 1 The 1973
Constitution is not a mere amendment to the 1935 Constitution. It is a completely new
fundamental charter embodying new political, social and economic concepts.
According to an eminent authority on Political Law, "The Constitution of the Philippines
and that of the United States expressly provide merely for methods of amendment. They
are silent on the subject of revision. But this is not a fatal omission. There is nothing that
can legally prevent a convention from actually revising the Constitution of the
Philippines or of the United States even were such conventions called merely for the
purpose of proposing and submitting amendments to the people. For in the 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 1936 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 now disabled from
exercising their right as the ultimate source of political power from changing the old
constitution which, in their view, was not responsive to their needs and in adopting a new
charter of government to enable them to rid themselves from the shackles of traditional
norms and to pursue with a new dynamism the realization of their true longings and
aspirations, except in the manner and form provided by Congress for previous
plebiscites? Was not the expansion of the base of political participation, by the inclusion
of the youth in the process of 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

To declare what the law is. The adoption of the new Charter was considered as a necessary basis for all the reforms set in motion under the new society. it is evident that the people have reserved such power in themselves. they could and should have so provided. and if such was their intention. and methods for their revision. or has been. all political power is inherent in the people and free governments are founded on their authority and instituted for their benefit. either as agent of the Constitutional Convention. to promulgate the necessary measures for the ratification of the proposed new Constitution. the procedure prescribed by the state Constitution. "the framing or submission of the instrument is not what gives it binding force and effect. for the latter is only a fraction of the people and is only an organ of government for the election of government officials. The Convention as an independent and sovereign body has drafted not an amendment but a completely new Constitution. or under his authority under martial law. 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.his opinion. in effect. to root out the causes of unrest. In view of the inability of Congress to act. Thus Section 1 of Article II of the 1935 Constitution declares that: "Sovereignty resides in the people and all government authority emanates from them. in our political system. The fiat of the people. 326-330). is so detailed. modify. in all the cases cited where the Court held that the submission of the proposed amendment was illegal due to the absence of substantial compliance with the procedure prescribed by the Constitution. not through an act of Congress. "When the people adopt a completely revised or new constitution. Thus the case of In re McConaughy (119 N. III . it was within the constitutional powers of the President. ratified the method and procedure taken. under the guise of interpretation. The imperatives of the emergency underscored the urgency of its adoption. Precedents were not wanting. can breathe life into a constitution. since our fundamental charter has not provided the method or procedure for the revision or complete change of the Constitution. 4 Certainly We cannot. 2 This is not true with our Constitution. but by means of decrees to be promulgated by the President. The people in accepting such procedure and in voting overwhelmingly for the approval of the new Constitution have. but through a Convention expressly chosen for that purpose. amend. They decided to exercise it not through their legislature. The constitutions of the various states of the American Union did provide for procedures for their amendment. 408) relied upon in one of the dissenting opinions involved the application of the provisions of the state Constitution of Minnesota which clearly prescribed in detail the procedure under which the Constitution may be amended or revised. which decided to submit to the people for approval. that it specified the manner in which such submission shall be made. revise. and only the fiat of the people." said the Court in Wheeler v." Evidently the term people refers to the entire citizenry and not merely to the electorate. is a judicial power. Upon the other hand. the date of election and other definite standards. remodel or rewrite the 1935 Charter. but to declare what the law shall be is not within Our judicial competence and authority. Board of Trustees (37 SE 2nd 322. from which the court could safely ascertain whether or not the submission was in accordance with the Constitution.E. In the case of revision there are no "standards meet for judicial judgment"." This has to be so because. the persons qualified to vote for the same.

Except for the imposition of curfew hours and other restrictions required for the security of the State. Responding to the challenges of the New Society. March 3 and 4. Clearly he knows his targets . The supremacy of the civil over the military authority is manifest. Such an assumption flounders on the rock of reality. 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. 1973). tax evasion and abuse of oligarchic economic power. been emancipated — a consummation devoutly wished by every Philippine President since the 1930's.The more compelling question. "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. in the repair of dikes. roads and bridges. The government functions thru its civilian officials. . In short. because under a regime of martial law the people are hound to obey and act in conformity with the orders of the President. in the April 11 issue of The New York Times: During his first Presidential term (1965-1969). the existing regime in this country. does not contain the oppressive features. Marcos was discouraged by the failure of legislators to approve urgently needed reforms. Such is not the case in this country. because of its manifold blessings. martial rule exists when the military rises superior to the civil power in the exercise of some or all the functions of government. the people are free to pursue their ordinary concerns. . in the physical transformation of the environment to make ours a cleaner and greener land. lent their labors in massive cooperation — in land reform. irrigation ditches. In other words. there is marked public support for his leadership . Some courts have viewed it as a military regime which can be imposed in emergency situations. He found his second term further frustrated by spreading riots. Mr. C." (Bulletin Today. "President Marcos has been prompt and sure. The laborer now holds his head high because his rights are amply protected and respected. their cooperation in its implementation. The once downtrodden rice tenant has at long last. "The entire country is turning into one vast garden growing food for the body. paid their taxes on undeclared goods and income in unprecedented numbers and amount. "Upon the other hand the masses of our people have accepted it.L. generally associated with a regime of martial law in other countries. He has zeroed in on areas which have been widely recognized as prime sources of the nation's difficulties — land tenancy.footed in using the power of presidential decree under martial law for this purpose."* A new sense of discipline has swiftly spread beyond the corridors of government into the social order. Sulzberger. . . In a similar vein. 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. the people have turned in half a million loose firearms. a Maoist uprising in Luzon and a much more serious . in reforestation. and have absolutely no other choice. a foreign affairs columnist wrote. official corruption. and is now maintained by the Government that is in undisputed authority and dominance? Of course it is argued that acquiescence by the people cannot be deduced from their acts of conformity. It is true that as a general rule martial law is the use of military forces to perform the functions of civil government."* More important the common man has at long last been freed from the incubus of fear. for thought and for the soul.

he has hauled the Philippines out of stagnation. In such a situation. He has started labor reforms and increased wages. In non-communist Asia it is virtually impossible to wholly end it and this disagreeable phenomenon still reaches very high. The statutes issued under the old Constitution and not taken over are no longer regarded as valid. the Court whose existence is affected by such change is. but by presupposing the new one. in the words of Mr. the acts that appear with the subjective meaning of creating or applying legal norms are no longer interpreted by presupposing the old basic norm. It is addressed more to the framework and political character of this Government which now functions under the new Charter. and of appointing judges to expound and administer them.) In other words. while fettering a free press. "Judicial power presupposes an established government capable of enacting laws and enforcing their execution. Mr. We do not see how the question posed by petitioners could be judicially decided.Moslem insurrection in the southern islands from Mindanao across the Sulu archipelago to the frontier regions of Malaysia and Indonesia. "precluded from passing upon the fact of change by a logical difficulty which is not to be surmounted." 7 . an imaginative." 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. 598. But. Marcos has now in effect taken all the reins of power and makes no promise as to when he will relinquish them. Pure Theory of Law. and corruption is diminished. Manila claims this war is Maoistcoordinated. hopes to reshape society by creating an agrarian middle-class to replace the archaic sharecropper-absentee landlord relationship. where a complete change in the fundamental law has been effected through political action. Sharecropping is being ended as more than three million acres of arable land are redistributed with state funds. 12 L. Borden. terminating Congress and locking up some opponents (many of whom were later amnestied). April 15. [7 How." (Daily Express. If it decides at all as a court. gifted man. 48 U. New roads have been started.] 1. It seeks to nullify a Constitution that is already effective." (Kelsen. The educational system is undergoing revision. 1973) As explained in this writer's opinion of April 24. He is even pushing a birth control program with the tacit acceptance of the Catholic Church. Ed. 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.S. which is merely declaratory of the fact of approval or ratification. As soon as the old Constitution loses its effectiveness and the new Constitution has become effective. Mr. it necessarily affirms the existence and authority of the government under which it is exercising judicial power. Melville Fuller Weston." (Luther v." 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. what is assailed is not merely the validity of Proclamation No. [1967]. Marcos. and the organs authorized by the old Constitution no longer competent. 1102 of the President.) The essentially political nature of the question is at once made manifest by understanding that in the final analysis. but the legitimacy of the government.

1. it becomes effective thirty days after the certification of the election returns by the secretary of state.R. 2d 633.The non-judicial character of such a question has been recognized in American law.S. 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. 36236 & 36283) PROVISIONS OF STATE CONSTITUTIONS SPECIFICALLY PROVIDING FOR AMENDMENT AND REVISION@ 1. 36164. election and certification of delegates. Ed. "From its earliest opinions this Court has consistently recognized. but not limited to. XIII. Unless otherwise provided in the amendment.. 727). by which governments and the actions of governments are made and unmade. APPENDIX TO OPINION (G. If during any ten-year period a constitutional convention has not been held. L-36142. . 726. districts. 2. Amendment and Revision. At bottom it is the degree of one's faith — in the nation's leadership and in the maturity of judgment of our people. and the conclusion of this Court in its judgment of March 31. concur. Carr. No call for a constitutional convention shall limit these powers of the convention. Amendments to this constitution may be proposed by a two-thirds vote of each house of the legislature. IN VIEW OF THE FOREGOING. . JJ. Convention. The secretary of state shall prepare a ballot title and proposition summarizing each proposed amendment. Call by referendum. cannot be a case of "right" or "wrong" views of the Constitution. . XVIII." The diversity of views contained in the opinions of the members of this Court. in his illuminating dissent in Baker v. authority or interpretation which has not been countered by the opposite. Amending and Revising the Constitution. delegates to the convention shall be chosen at the next regular statewide election. To classify the various instances as 'political questions' is rather a form of stating this conclusion than revealing of analysis . It is one of attitudes and values. Sec. If a majority of the votes cast on the proposition favor the amendment. 186. Sec. 2. 369 U." said Justice Frankfurter. 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. The secretary of state shall issue the call for the convention. including. 722. Barredo. and shall place them on the ballot for the next statewide election. Makasiar and Esguerra. Constitutional conventions shall have plenary power to amend or revise the constitution. 4. 36165. 7 L. Nos. Alaska (1959) — Art. and submission and ratification of revisions and ordinances . "a class of controversies which do not lend themselves to judicial standards and judicial remedies. number of members. the dismissal of these five cases. Unless other provisions have been made by law. unless the legislature provides for the election of the delegates at a special election. subject only to ratification by the people. For there is scarcely any principle. it shall be adopted. If a majority of the votes cast on the question are in the affirmative. Powers. 3. the call shall conform as nearly as possible to the act calling the Alaska Constitutional Convention of 1955. Amendments. Sec. the question need not be placed on the ballot until the end of the next ten-year period. . Sec. 1973 are fully justified. . The legislature may call constitutional conventions at any time. California (1879) — Art. in the cases at bar.

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

for four successive weeks previous to the next general election for members of the general assembly. the General Assembly at its next session shall provide for the election of delegates to such convention at the next general election. and at said election the said amendment or amendments shall be submitted to the qualified electors of the state for their approval or rejection. Amendments and Conventions. powers and duties. procedure. alteration or amendment shall take effect. XVI. the same shall thereupon become part of the Constitution. "Shall there be a Convention to revise the Constitution and amend the same?. Provided. The delegates so chosen shall convene at the . one of whom shall be chosen from each Representative District by the qualified electors thereof. shall be entered in full on their respective journals. procedure. Any amendment or amendments to this constitution may be proposed in either house of the general assembly. 1. 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. Constitutional conventions. with the yeas and nays taken thereon. Sec. Amendments to constitution. Delaware (1897) — Art. and upon such submission. 2. quorum.constitution as may be deemed necessary. 2. such proposed amendment or amendments. Sec. and two of whom shall be chosen from New Castle County. 4. two from Kent County and two from Sussex County by the qualified electors thereof respectively. such proposed amendment or amendments shall be entered on their journals. and unless so submitted and approved by a majority of the electors voting at the election. that if more than one amendment be submitted at any general election. Proposal of constitutional amendments in general assembly. compensation of delegates. together with the ayes and noes of each house hereon. and if the same shall be agreed to by two-thirds of all the members elected to each House. Sec. and if the same shall be voted for by two-thirds of all the members elected to each house. But the general assembly shall have no power to propose amendments to more than six articles of this constitution at the same session. how adopted. 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. Such Convention shall be composed of forty-one delegates. 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. the proposed amendment or amendments shall be published with the laws of that session of the general assembly. and such as are approved by a majority of those voting thereon shall become part of this constitution. if a majority of those voting on said question shall decide in favor of a Convention for such purpose. no such revision. 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 twothirds of all the members elected to each House. vacancies. 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. Any amendment or amendments to this Constitution may be proposed in the Senate or House of Representatives. and the Secretary of State shall cause such proposed amendment or amendments to be published three months before the next general election in at least three newspapers in each County in which such newspapers shall be published.

Amendments. immediately preceding the election at which the same is to be voted upon. debates and proceedings. at any regular session. 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. a writ of election to fill such vacancy shall he issued by the Governor. Sec. for three months preceding the next general election of Representatives. 6. If a majority of the electors so voting be in favor of revision. returns and qualifications of its members. with yea's and nay's thereon. XVII. Notice of said action shall be published weekly in one newspaper in every county in which a newspaper is published. The Convention shall have power to appoint such officers. said Convention to be held within six months after the passage of such law.fifths of the members elected to each house. Amendments. one publication to be made not earlier than ten weeks and the other not later than six weeks. but no amendment shall consist of more than one revised article of the Constitution. resignation or otherwise. and if the same shall be . The Convention shall determine the rules of its proceedings. the Legislature chosen at such election shall provide by law for a Convention to revise the Constitution. Whenever there shall be a vacancy in the office of delegate from any district or county by reason of failure to elect. and be the judge of the elections.ordinary session thereof called for such purpose either in the governor's original call or any amendment thereof. Method of revising constitution. by a vote of two-thirds of all the members of both Houses. ineligibility. A majority of the Convention shall constitute a quorum for the transaction of business. Any such revision or amendment may relate to one subject or any number of subjects. 1. shall determine that a revision of this Constitution is necessary. 1: How amendments may be proposed. however. provided. 2. or at any special or extra. employees and assistants 'as it may deem necessary. and provide for the printing of its documents. and thereupon submitted to the electors of the State for approval or rejection at the next general election. and such vacancy shall be filled by the qualified electors of such district or county. The electors at said election may vote for or against the revision in question. The Convention shall consist of a number equal to the membership of the House of Representatives. Idaho (1890) — Art. Method of amending constitution. Sec. Sec. Any amendment or amendments to this Constitution may be proposed in either branch of the legislature. and fix their compensation. If a majority of the electors voting upon the amendment adopt such amendment the same shall become a part of this Constitution. that such revision or amendment may be submitted for approval or rejection in a special election under the conditions described in and in the manner provided by Section 3 of Article XVII of this Constitution. notice shall be given by posting at the several polling precincts in such counties for six weeks next preceding said election. journals. death. and in those counties where no newspaper is published. XX. If at any time the Legislature. may propose the revision or amendment of any portion or portions of this Constitution. Every delegate shall receive for his services such compensation as shall be provided by law. 5. Florida (1887) — Art.Capital of the State on the first Tuesday in September next after their election. Either branch of the Legislature. and shall be apportioned among the several counties in the same manner as members of said House. such determination shall be entered upon their respective Journals. If the proposed revision or amendment is agreed to by three.

X. Convention. Revision or amendment by convention. in each sixteenth year thereafter and at such times as may be provided by laws. proposal by legislature. 8. such amendment or amendments shall become a part of this Constitution. "Shall there be a Convention to revise the Constitution. General revision: convention. 7. 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 question. in not less that one newspaper of general circulation published in each county. and in case a majority of the electors so qualified. Any amendment or amendments to this constitution may be proposed in the senate or house of representatives. the legislature shall at the next session provide by law for calling the same. Amendments to the Constitution. at its next session. and if a majority of the electors shall ratify the same. the question of a General Revision of the Constitution shall be submitted to the Electors qualified to vote for members of the Legislature. with the yeas and nays taken thereon. and cause the same to be published without delay for at least six consecutive weeks. at an Election to be held not later than four months after the Proposal shall have been certified as approved. Amendment and Revision. 1. procedure. be entered on their journals. shall decide in favor of a Convention for such purpose. In case a majority of the Electors voting on the question shall decide in favor of a Convention for such purpose. such proposed amendment or amendments shall. Sec. XVII. for or against a convention. Sec. Sec.agreed to by two-thirds of all the members of each of the two houses. and such convention shall consist of a number of members. prior to said election. provide. and also at such times as the General Assembly may. Michigan (1909) — Art. 4. At the Biennial Spring Election to be held in the year 1961. At the general election to be held in the year one thousand eight hundred and seventy. If the same shall be agreed to by 2/3 of the members elected to each house. the Electors of each House of Representatives District as then organized shall Elect One Delegate for each State Representative to which the District is entitled and the Electors of each Senatorial District as then organized shall Elect One Delegate for each State Senator to which the District is entitled. shall provide by law for the election of delegates to such Convention. and amend the same?" shall be decided by the electors qualified to vote for members of the General Assembly. 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. the same shall become part of the constitution. the General Assembly. and in each tenth year thereafter. submission to electors. voting at such election. respectively. 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. by law. The Delegates so elected shall convene at the Capital City on the First Tuesday in October next . with the yeas and nays thereon. such amendment or amendments. they shall recommend to the electors to vote at the next general election. Amendment to constitution. Sec 3. for and against such proposition. not less than double the number of the most numerous branch of the legislature. and if a majority of all the electors voting at said election shall have voted for a convention. voting separately. shall be entered on the journals. and the same shall be submitted to the electors at the next spring or autumn election thereafter. Iowa (1857) — Art. 3.

and said amendments shall be submitted to the people for their approval or rejection at any general election. Minnesota (1867) — Art. Amendments to constitution. 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. XIV. and shall continue their sessions until the business of the convention shall be completed. procedure. and shall meet within three months after their election for the purpose aforesaid. in a manner to be provided by law. they may propose such alterations or amendments. Any amendment or amendments to this Constitution may be proposed in the Senate or Assembly. for or against a convention. The convention shall consist of as many members as the House of Representatives. Sec. 1. such . who shall be chosen in the same manner. 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. Whenever a majority of both houses of the legislature shall deem it necessary to alter or amend this Constitution. . Without such submission and ratification. 10. and if it shall appear. 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.succeeding such election. that a majority of all the electors voting at said election shall have voted for and ratified such alterations or amendments. 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. 9. at their next session. they shall recommend to the electors to vote at the next general election for members of the legislature. Sec. in case an interval of at least 90 days shall not intervene between such final adjournment and the date of such election. and if the same shall be agreed to by a Majority of all the members elected to each of the two houses. the legislature shall. Amendments. 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. provide by law for calling the same. 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. If two or more alterations or amendments shall be submitted at the same time. the same shall constitute a new constitution of the State of Minnesota. and if a majority of all the electors voting at said election shall have voted for a convention. then it shall be submitted at the next general election. it shall be so regulated that the voters shall vote for or against each separately. majority vote of electors voting makes amendment valid. Submission to people of revised constitution drafted at convention. Nevada (1864) — Art. 16. 1. and. the same shall be valid to all intents and purposes as a part of this Constitution. which proposed amendments shall be published with the laws which have been passed at the same session. Sec. . but. 3. Amendments to the Constitution. 2. Revision of constitution. 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. the yeas and nays being entered on the journal. Sec. Constitutional amendments. A majority of the delegates elected shall constitute a quorum for the transaction of business .

Sec. Amendments proposed by legislature. 1. such proposed amendment or amendments shall be agreed to by a majority of all the members elected to each house. Revision of constitution provided for. after the expiration of seven years from the adoption of this constitution. it shall appear to the general court by such return. in such manner and at such time as the Legislature shall prescribe.proposed amendment or amendments shall be entered on their respective journals. that the sense of the people of the state has been taken. as the representatives to the general court. In determining what is a majority of the electors voting at such election. with the Yeas and Nays taken thereon. New Hampshire (1784) — Art. there is a necessity for a revision of the constitution. and referred to the Legislature then next to be chosen. to wit. to take the sense of the qualified voters on the subject of a revision of the constitution. and assessors. . 2. The delegates to be chosen in the same manner. Any amendment or amendments to this Constitution may he proposed in either branch of the Legislature. 11. among the others for the meeting. the moderator shall take the sense of the qualified voters present as to the necessity of a revision. at its next session provide by law for calling a Convention to be holden within six months after the passage of such law. shall have voted in favor of calling a Convention. as amended. 12. and shall be published for three months next preceding the time of making such choice. the Legislature shall. such proposed amendment or amendments shall. Constitutional Amendments. Oklahoma (1907) — Art. submission to vote. to insert expressly in the warrant this purpose. with the yeas and nays thereon. and then proceed in the manner before mentioned. Convention for revision of constitution. otherwise the general court shall direct the sense of the people to be taken. And if in the Legislature next chosen as aforesaid. and not otherwise. and approved by two thirds of the qualified voters present and voting on the subject. present and voting at said meetings. then it shall be the duty of the Legislature to submit such proposed amendment or amendments to the people. to vote for or against a convention. and if. and that. and if it shall appear that a majority of the electors voting at such election. XXIV. If at any time the Legislature by a vote of two-thirds of the Members elected to each house. before the same shall be laid before the towns and unincorporated places. 99. such amendment or amendments shall become a part of the Constitution. It shall be the duty of the selectmen. Sec. in warning the first annual meetings for the choice of senators. and proportioned. and if the same shall be agreed to by a majority of all the members elected to each of the two houses. procedure. the meeting being warned accordingly. and such Convention shall consist of a number of Members not less than that of both branches of the Legislature. and. reference shall be had to the highest number of votes cast at such election for the candidates for any office or on any question. in the opinion of the majority of the qualified voters in the state. and directed to the general court at their then next session. shall be made by the clerk sealed up. and a return of the number of votes for and against such necessity. 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. provided that no alterations shall be made in this constitution. of the several towns and places in this state. 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. it shall be the duty of the general court to call a convention for that purpose.

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

Revision of the constitution by convention. they shall be so submitted as to enable the electors to vote on each of them separately. by his proclamation. 1. where a newspaper is published. Sec. they shall recommend to the electors to vote at the next general election. the proposed revision shall. Amendments. The convention shall consist of not less than the number of members in both branches of the Legislature. Sec. 14. Article IV of this Constitution. 2.thirds of all the members of each house. that the proposed revision has received a majority of votes and has been adopted by the people as the Constitution of the State of Oregon or as a part of the Constitution of the State of Oregon. a revision of all or part of this Constitution may be proposed in either house of the Legislative Assembly and. method of proposal and approval. shall provide by law for calling the same. with the yeas and nays thereon. and it shall be the duty of the legislature to submit such amendment or . The votes for and against the proposed revision shall be canvassed by the Secretary of State in the presence of the Governor and. at its next session. declare. as the case may be. for their approval or rejection. Procedure for amendments. promptly following the canvass. such proposed amendment or amendments shall be entered on their respective journals with the yeas and nays taken thereon. with the yeas and nays thereon. If two or more amendments are proposed. XX. The Legislature. shall deem it necessary to call a convention to revise or amend this Constitution. be entered in their journals and referred by the Secretary of State to the people for their approval or rejection. at the next regular state-wide primary election. shall vote in favor thereof. such amendment or amendments shall become part of this Constitution. A proposed revision may deal with more than one subject and shall he voted upon as one question. be entered on their journals. Amendments. shall vote for a convention. Article IV. if the proposed revision is agreed to by at least two. except when the Legislative Assembly orders a special election for that purpose.Amendments. voting separately. notwithstanding section 1. he shall. and the Legislature shall cause the same to be published in at least one newspaper in every county of the State. Sec. and section 1 of this Article. for or against a convention. The revision shall be in effect as the Constitution or as a part of this Constitution from the date of such proclamation. 1. Method of revising constitution. (1) In addition to the power to amend this Constitution granted by section 1. such proposed amendment or amendments shall. voting at such election. Utah (1896) — Art. Any amendment or amendments to this constitution may be proposed in either branch of the legislature. for two months immediately preceding the next general election.thirds of the members. 15. elected to each branch of the Legislature. at which time the said amendment or amendments shall be submitted to the electors of the State. 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. Sec. and if a majority of the electors voting thereon shall approve the same.construed to impair the right of the people to amend this Constitution by vote upon an initiative petition therefor. and. if a majority of all the electors. 2. Whenever two. and. and if two-thirds of all the members elected to each of the two houses. Any amendment or amendments to this Constitution may be proposed in either house of the Legislature. Wyoming (1890) — Art. if the same shall be agreed to by two-thirds of all the members of each of the two houses. 23.

163 So. Dinglasan. L-28224. Case G. Cuerva & Co. 4. Sec. Crawford v.. 1968. and cause the same to be published without delay for at least twelve (12) consecutive weeks. and if a majority of the electors shall ratify the same. 11. et al. Antonio and Esguerra. L-28113. 5 A. Benito. 107 Atl. Mar. not less than double that of the most numerous branch of the legislature. 29. 375. published in each county. 11. See page 4. Gen. L-36236. 9. last paragraph. 14. Case G. Mun. Art. Originally. 13. Makasiar. Nov. No. 431. Art. How voted for. Araneta v. Nov.R. Commission on Elections. Mitra. Constitution. McAdams v. Any constitution adopted by such convention shall have no validity until it has been submitted to and adopted by the people. Executive Secretary. 10. 1412. Gonzales v. prior to said election. Louis Brewing Association v.L. 437-438. 947. 1. Gonzales v. 2. Bara Lidasa v. the first two (2) only. Thompson. Malabang v. Italics ours.W. 355. Moore. Barredo. 59 So. Justices Makalintal. Castro. Jr. Fernandez v. L-35573. 10(7). 7. 87 So. Egbert v. 15.R. 28. 6. Sec. Nov. Whenever two. L-28196 & L-28224. 621. Rep. Sec. 24 N. ed. Rep.R. they shall be submitted in such manner that the electors shall vote for or against each of them separately. 1969. 17. Salonga. Commission on Elections. L-36283. Rep. St. Gilchrist. 99 N. Dilag. provision for. 673. 907. et al. 74 N. 1967.R. 6. in at least one newspaper of general circulation. Henley. of his Comment dated Feb. they shall recommend to the electors to vote at the next general election for or against a convention. 5. v. See. 4. No. City of Dunseith. 8. and if a majority of all the electors voting at such election shall have voted for a convention. . and Eva Estrada-Kalaw. VII. Ellingham v. Oct. No. VI. 1967. Johnson v.W. v. sec. Craft. Piguing. 2. L-36164. Constitutional convention. 963.D. et al. Ambrosio Padilla and Salvador H. New constitution. 3.E. 1973. Constitution.. NAWASA v.R. Now. Namely. such amendment or amendments shall become a part of this constitution.amendments to the electors of the state at the next general election.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. 64 L. sec. 1. Case G. 16 In re Opinion of Justices. Who withdrew as petitioner on January 25. Laurel. Landis. Footnotes 1. Dye.L. 168 A. the legislature shall at the next session provide by law for calling the same. 20(1). P. Rep. Jovito R. 2d. 9. 1973. also. L-21114. 1967. 3. 18. and such convention shall consist of a number of members. Atty. Napoleon V. Ramon V. 270. 84 Phil. Chief Justice Concepcion and Justices Fernando and Teehankee. 25. after the withdrawal of the latter. 273 S. State ex rel. Gerardo Roxas. If two or more amendments are proposed. Justice Zaldivar. Italics ours. 12.

Italics ours. 16. 1963. Italics ours. L-35948. 7 L. L-34265. L15582. Mardo. 1960. 23. 18. Secretary of National Defense. L-35940. July 31. 1960. 835. 1962). 33. L-35942. 103 Phil. Aug. G. NAWASA. Antolin Oreta. Cu Bu Liong v. Brig. June 30. 1967. Corminas..S. 19 Nev. of La Carlota v. 19. Ramos. 1959. Pitogo v. 18 S. Sen Bee Trading Co. Sept.Ct. Domingo E. Miller v. l-15476. Sept. Labor Standards Commission. Liwag. Commission on Elections. v. Garcia. ed. Luther v. 23 L. L-23825. 60 Iowa 543. 1962. 12 Pac. L-28089. Rabago v. 408. et al. L-33962. 663. L-20741. Prudente v. Nov. 408. 3. Sept. 598.. 391. Teodosio Lansang.. 1966. supra. 417. Fuentes. 34. 20. 29. et al. Nos. 31. G.W. 63 Phil. 31. 19.. Italics ours. L-20370. July 31. NAWASA. L-15254. 1961. 369 U. 322. 368. 25. Garcia. Mar. July 31. 68. Reynaldo Rimando v. Ct. 31. 24. v. Jr. . Borden. L-35929. 30. 1. etc. supra p. 19. et al. v. Mun. Mun. Mardo. 31.. et al. L-19313. Eduardo Garcia.. et al. Oct. Brig.W. Rutter v. 589. and L-34339. Hill. Mar. 92 Ky. In re McConaughy. Inc. Brigadier-General Eduardo M. L-15372.W. Mun. 119 N. 1967. Earnshaw Docks & Honolulu Iron Works v. 82 S. L-35925. L-25577. L-12892. Dec. 84 Phil. L35961.. Castillo. 22. Tan v. July 31. Regional Office No. Dinglasan. 41 Phil.. City of Cebu v. L-10405. Eduardo M. July 31. 1961. 29. Nov. Siva. 24. Araneta v. Sabugo. L-33964.R. 1051. Felicidad G. 1964. 12 L. et al. L-22047. Jr. Eduardo Garcia. 882. 1965. July 31.. Mariano. Sept. De Leon. ed. 1965. L-14738. 691 (March 26. 1961. 78 Phil. 486. 157. Esteban. 1944 (1969). Philippine Constitution Association v. 2d. 26. 1961. 139. L-20232. Gillera v. 32. Aug. General Manuel Yan. L-16017. 416. Garcia. 1967. Auditor General. Rep.COMELEC.. et al. Fernandez. 31. of San Juan v. 29. p. Eduardo Garcia. Luzvimindo David v. etc. 35. 417. Secretary of Justice. et al. 1961. et al. L-34039. Rep. et al. Gimenez. Carlos C. of Public Works and Communications. 738. Herrera v. Gary B. Central Azucarera Don Pedro. 581 (1849). L-35941. 18. NAWASA. 87. de Lara v.. 101 Phil. 186. Gen.W. Aug. Montes v. Gen. 18. July 31. 1961. L34013. L-35953. Arienda v. 119 N. 5 Phil. Philippine Tobacco Flue-During & Redrying Corp. La Mallorca. 523. Inocentes.W. L-35965 and L-35979. 491. 1961. v. Siguiente v. Citing Koehler v. Tufly.R. Estrella. 411. L-19870. Jan. City of Bagiuo v. 30.. L-20079. 14 N. 522. Pascual v. L-28196 and L-28224. L33965. 609. v. L-14837. 1961. 21.S. 27. State v. Electoral Commission. Eduardo Garcia. Nos. Dec. 89 S. 30. L-34004. Dec. Sept. Gen. L-18684. 1963. Rep. L-12032. 1067.. ed. v.. 490. Olivar. Rogelio V. Gen. Pelayo v. L-14212. and 15 N. v. 14. 91 Phil. Sec. Lecura v. L-15138. L-33973. 2d. 93 Phil. Guevarra v. of San Joaquin v. Borromeo v. Gen. et al. L-15693. 1961. 1967. 28. Supra. 9. et al. L-14759. April 20. Civil Service Board of Appeals. et al. 1961. Macias v. 1961. 25. decided on January 22. Jan. Angara v. In re McConaughy. Pampanga Sugar Development Co. 1964. Liwanag v.. 1961. Brigadier-General Eduardo M. 895 U. 1973. et al. NAWASA. Aytona v. L-23326. et al. 15.

pp. Vol. In re McConaughy. The observation as to the uniformity of authorities on the matter has been reiterated in Winget v. 227228. by Aruego. 2d. 39. p. 42. 119 N.36. eighteen hundred and ninety-eight. English. — The following persons shall be disqualified "(a) Any person who. See p. 431. The Framing of the Philippine Constitution. United States. such disability not having been removed by plenary pardon. 40. "SEC. 369 U. 37. Those who are able to read and write either Spanish. Qualifications prescribed for voters. 82 S. 44. 224-227. "(c) native language. pp. or who annually pay thirty pesos or more of the established taxes. "(d) Deaf-mutes who cannot read and write. Italics ours. 329. "(e) Electors registered under subsection (c) of the next preceding section who. "(b) Any person who has violated an oath of allegiance him to the "(c) Insane or feeble-minded persons. Carr. 222-224. has been sentenced by final judgment to suffer not less than eighteen months of imprisonment. declared in their name for taxation purposes for a period of not less than one year prior to the date of the election. from voting: Disqualifications. I. 5 of the Petition. pp. 215. Ibid. 332. twenty-one years of age or over. 7 L. were legal voters and had exercised the right of suffrage. Italics ours. 691. Vol. The Framing of the Philippine Constitution. 38. 686. under the laws in force in the Philippine Islands upon the twenty-eighth day of August. I. 221. — Every male person who is not a citizen or subject of a foreign power. since the thirteenth day of August. 244 N. that they are . after failing to make a sworn statement to the satisfaction of the board of inspectors at any of its two meeting for registration and revision.W. 43. who shall have been a resident of the Philippines for one year and of the municipality in which he shall offer to vote for six months next preceding the day of voting is entitled to vote in all elections if comprised within either of the following three classes: "(a) Those who. 41. Holm. 408... nineteen hundred and sixteen. "(b) Those who own real property to the value of five hundred pesos. 186.S. 215. or a "SEC.W. 415. Baker v. Ct. 663. by Aruego. 432. ed. Id.

Grand Forks County. provides: "SEC." 48. to vote: xxx" Disqualifications. 61 Phil. Marcus. this Court held that when a state constitution enumerates and fixes the qualifications of those who may exercise the right of suffrage.W. Republic Act No. 160 Wis." Since suffrage. but. Dye (1912). October 16 and November 4. "All duly registered barrio assembly members qualified to vote may vote in the plebiscite. municipality or municipal district wherein he proposes to vote for at least six months immediately preceding the election. 1130. 102. 33 S. considering the said ruling in Alcantara. that the constitutional qualifications for voters apply equally to voters in elections to public office and to voters in a plebiscite. Secretary of the Interior. in part. "For taking action on any of the above enumerated measures. present themselves at the hour of voting as incapacitated. 178 Ind. majority vote of all the barrio assembly members registered in the list of the barrio secretary is necessary. 236.E. able to read and write. — Every citizen of the Philippines. The board of election tellers shall be the same board envisioned by section 8. 6388. Qualifications prescribed for a voter. not otherwise disqualified by law." 47. twenty-one years of age or over. 1. 50. Ellingham v. State v. is a voice given not only in the choice of a man for an office or trust. 101. paragraph 2 of this Act. In Alcantara v." 45. 419. and/or declaration by the voters to the board of election tellers. 49. L-34150. however. 354. according to Webster. in case of vacancies in this body. 1071. Johnson v. — The following persons shall not be qualified "(a) Any person who has been sentenced by final judgment to suffer an imprisonment of not less than one year. 152 N. the legislature cannot take from nor add to said qualifications unless the power to do so is conferred upon it by the constitution itself. Voting procedures may be made either in writing as in regular elections. 113 N. 99 N. irrespective of whether such incapacity be real or feigned. the Revised Election Code provides in its section 2 that all elections of public officers by the people and all votings in connection with plebiscites shall be conducted in conformity with the provisions of said Code. such disability not having been removed by plenary pardon: Provided. also. may vote at any election. That any person qualified to vote under this paragraph shall automatically reacquire the right to vote upon expiration of ten years after . section 101 of which. "SEC. 1971. 459.W. Lesueur.W. it follows. in deciding a controverted question. Similarly. who shall have resided in the Philippines for one year and in the city. 46. the barrio council may fill the same. "xxx xxx 51.incapacitated for preparing their ballots due to permanent physical disability. Edwards v.

115. The concurrence of two members shall be necessary for the pronouncement or issuance of a decision. Martin v. McGarr.. "(b) Any person who has been adjudged by final judgment by competent court of having violated his allegiance to the Republic of the Philippines. — The Commission shall adopt its own rules of procedure. 2d. Garchitorena v. 45. 59. Port of Palm Beach District v. and "c. section 1 of the 1935 Constitution. "(d) Persons who cannot prepare their ballots themselves. also. 265. . 39 Phil. 50 Phil. 64 S.. 2d. Italics ours.. Italics ours. L-33325 and L-34043. 2d. City of Duluth." 53. Two members of the Commission shall constitute a quorum. 22 So. Maddox v. Art. Lopez. 10.W. See. State. "SEC. 57. X. See. "The following persons shall not be qualified to vote: "a. Any person who has violated his allegiance to the Republic of the Insane or feeble-minded persons. quoted in Demetrio v. Glenn v. 56. 64. 60. 55. 117 P. X. 20 C. section 2 of the 1935 Constitution. 582-583. Philippines. Crescini. section 3 of the 1935 Constitution. 63. 1971. Gnau. Ibid. December 29.service of sentence unless during such period. 83 N. 54. order or ruling. "b. 52. within two years after service of his sentence. X. 58. 2d. 62. . Hopkins v. 5. Organization of the Commission on Elections.w. Ten (10) years. Italics ours. 581. Baldauf v. 8 P. he shall have been sentenced by final judgment to suffer an imprisonment of not less than one year. 149 P. 112. 536. 258. Art. Art. 538. Italics ours. 60. 168. 61. "(c) Insane or feeble-minded persons. all of whom shall be appointed by the Commission in accordance with the Civil Service Law and rules. also. "The Commission shall have an executive officer and such other subordinate officers and employees as may be necessary for the efficient performance of its functions and duties." "SEC. 179-181. 323.J. Gunson. Board of State Canvassers. Any person who has been sentenced by final judgment to suffer one year or more of imprisonment.

et al. 6. et al.2d. shall have the power to administer oaths in connection with all matters involving the business of the Commission. v. "Any decision. et al. et al. shall have charge of the administrative business of the Commission.. 66."The executive officer of the Commission. et al. Enrile.. "Any violation of any final executory decision. et al. v. L-35567. instructions or rulings. issue subpoenae and subpoenae duces tecum and otherwise take testimony in any investigation or hearing pending before it. v.W. et al. "PRESIDENTIAL DECREE NO. 67. "The Commission may. L-35573.. Enrile. Hon. 64 S. Diokno v. et al. Enrile. Hon. L-35547. under the direction of the Chairman. Secretary of National Defense. Aquino... the Commission.. 168. and delegate such power to any officer of the Commission who shall be a member of the Philippine Bar. L-35539. the . have the power to summon the parties to a controversy pending before it. orders. L35546.. et al. v. 86-A "STRENGTHENING AND DEFINING THE ROLE OF BARANGAYS (CITIZENS ASSEMBLIES) "WHEREAS. Power of the Commission to Investigate and to Hear Controversy and Issue Subpoena. and shall perform such other duties as may be required of him by the Commission. on the basis of preliminary and initial reports from the field as gathered from barangays (citizens assemblies) that have so far been established. Secretary of National Defense. Doronilla. et al. Jr. upon proof of service of the subpoenae to said witness." 65. Secretary of National Defense. In case of failure of a witness to attend. Roces. Soliven. in compliance with the requirement of due process. may issue a warrant to arrest the witness and bring him before the Commission or officer before whom his attendance is required. Hon. L-35538. order or ruling of the Commission on election controversies may be reviewed by the Supreme Court by writ of certiorari in accordance with the Rules of Court or such applicable laws as may be enacted. order or ruling of the Commission shall constitute contempt thereof. Rondon v. The Commission shall have the power to punish contempts provided for in the Rules of Court under the same controversy submitted to the Commission shall after compliance with the requirements of due process be heard and decided by it within thirty days after submission of the case. L-35540. Enrile. when it so requires. Hon. "SEC. deputize any member of any national or local law enforcement agency and/or instrumentality of the government to execute under its direct and immediate supervision any of its final decisions. et al. — The Commission or any of the members thereof shall. Garcia II v.

FERDINAND E. like the holding of the plebiscite on the new Constitution. Italics ours. MARCOS. 303. The present barangays (citizens assemblies) are created under Presidential Decree No. 526. McKinney v. nineteen hundred and seventy-three. and submit the results thereof to the Department of Local Governments and Community Development immediately thereafter. continuance of martial law. the convening of Congress on January 22. this 5th day of January. do hereby declare as part of the law of the land the following: "1. "Done in the City of Manila. wherever practicable. and others in the future. pursuant to the express will of the people as reflected in the reports gathered from the many thousands of barangays (citizens assemblies) throughout the country. 1973. President of the Philippines. and "WHEREAS.) 68. Barker. This Decree shall take effect immediately. THEREFORE. 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. "4. 1973. shall be translated into concrete and specific decision. . the convening of Congress on January 22. the people would like the citizens assemblies to conduct immediately a referendum on certain specified questions such as the ratification of the new Constitution. affecting their day to day lives and their future. 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." (Italics ours. "3. 1973.W. 304. The barangays (citizens assemblies) shall conduct between January 10 and 15. 203 S. legitimate and valid expression of the popular will.people would like to decide for themselves questions or issues. "WHEREAS. 86 dated December 31. which shall serve as guide or basis for action or decision by the national government. 180 Ky. Such barangays (citizens assemblies) shall consider vital national issues now confronting the country. "2. 1973. by virtue of the powers vested in me by the Constitution as Commander-inChief of all Armed Forces of the Philippines. a referendum on important national issues. I. and the holding of elections in November 1973. and the elections in November 1973 pursuant to the 1935 Constitution. "NOW. both local and national. in the year of Our Lord. including those specified in paragraph 2 hereof. the continuation of martial rule.

Marifosque.W. 4. Daily Express. became a reality of an even more far-reaching import — since fifteen-year olds were included in the Citizens Assemblies. Michael W. 83. State ex rel. Justice Barredo's opinion in the plebiscite cases. reducing the voting age from 21 to 18. 439. Luna. 1966. Harris v. et al. Which. 18. 71. 264 U. 91. See. 28. 82 S. 2d. 76. 90. 86 what the Constitutional Convention itself had proposed unsuccessfully as an amendment to the 9135 Constitution. 2d. State ex rel. 2d. Henry. is regarded as an organ of the Administration. 108 So. 771. 34 S.E. 114. 101 Va. 749-750. 869. 83 A. Joseph Circuit Court. 152 P. 101 Phil. 78 Ark. 46 N. and the news items published therein are indisputably censored by the Department of Public Information. 107. citing Chaselton Corp. p. St. Gower. 72. 73. but the submission of which to a plebiscite was declared invalid by this Court in Tolentino vs. 632. 2d. 74. 2d. * Thus by Presidential Decree No. 68 L. Joint Opinion of Justices Makalintal and Castro. 245. ed. 691.W. 1972. Bryne. State ex rel. 875. 106 Minn 392. 58 L. 44 S. 77. Ct. 547. Mr. . 88. 76 P 2d.W. 409. joint opinion of Justices Makalintal and Castro.W. 289. Williamson v. Shriver v. * The undersigned (Justice Querube C. 76 S. Galloway v. Lamb. 7 L. Ries. Italics ours. Head v. State ex rel. section 2. 408. 81.E. 70. Walcott. 85.S. 80. 153. Pigg. Makalintal) who had reserved his right to do so. COMELEC. 843. in some respects. 119 N.E. 841. Brown v. 37 Am. ed. p. 1. 2d. Patterson. 387 P. Grossglaus v. 285 N. 183 P. supra. Hagan v. 8. 2d. 1969).S. 431 P. 82. 1022. 228. March 15. 1972. Watson v. Sathre v. 1. 2d. Hayes. 1013. Art. Board of Elections of Stark County.ed. Inocentes. Fernando joined in the dissent. 121. Ct. 754. 153. Shanahan. and voted in favor of the validity of the questioned Resolution. 75.E. 186.Ct. cited in In re McConaughy. Bradburn. Justice Enrique M. 1935 Constitution.69. 369 U. 78. See cases cited in the preceding footnote. paragraph (1). Roche v. 96 S. 369 U. 480. 44 S. v. 548. Hughes. 87. Reese v. cited in In re McConaughy. v. section 10.Y. Robb. 86. 529. p. 396. 117 S. Baker v. November 29. 854. also. 2d. 157. L-25577. 89. Wood. Smith v.J. VII. 232. 24 Kansas 700. 352. Guevara v. Jur. 2d.S. 1223 (unreported). 36 A. 785. also. footnotes 56. State ex rel. 84. McKim v. 762. 223. 2d. Cohoon v. 7 L. At p.S. Doyle v. 5 S. 17.E.S. 2d. Dempsey.E. supra. See. 2d. Brast. 1.J.W. 107 So. VII. 57 and 58. Sinclair. 153. 2d. Dodd v. 62 C. 994. 2d. 79. 186.S. 63 N. Tiegs v. filed a separate dissenting opinion when the Court denied a motion for reconsideration. 62 S. 669. 76 N. On December 19. See cases listed on pages 105-106. 515 (Dec.W. Art. Bangham. 543. At p. 306 N. 47. 318 P. ed.W. 258 N. 231 U. State ex rel. Idem. 663. Mitchell v. Law. Williams v. 784. 95 N. Walker v. Conway. 88 N. Swain. State Election Board. 82 S. Carr. 663. 2d. Joint Opinion of Justices Makalintal and Castro. 588. 714. 2d. Baker v.E. 684. Justice Barredo's language. 405.

Comelec. L-35929. v. 1967. 186 (1962). vs. et al. 1973. Sedfrey A.. Jose W. 31. 11. 9. 122 NW 251. v. 1973.. 8. Sanidad v. 28. Cooley. et al. 5. Jur. mentioned in footnote 1. It must be recalled that in the Tolentino case. See also the plebiscite cases. Charito Planas v. The Commission on Elections. Diokno.. v. Charito Planas vs. 369 U. Gonzales vs. January 22. et al. Jose W. L-10520... January 22.. 3. died in 1898. et al. 468. L-35965. 1957. et al.* According to the Solicitor General 92 Congressmen and 15 Senators (both numbers constituting majorities) have expressed their option. L-38196. 581 (1849).. Sanidad vs. (7 Haw. L-35941.. L-35942. 3. et al. 1973. I. Iverson. etc. Commission on Elections. Jacinto Jimenez v. 12 L. 70 Phil. etc. L-35940. L-35961. 8th Ed. Comelec. Comelec. Carr. 21 SCRA 774. 268. when he failed to win re-election to the court. et al..) 1. 82. Note 14. et al. Comelec. 7. 2. Borden. et al. The National Treasurer of the Philippines. and We held that a piece-meal submission was improper. et al. 204. Baker v. et al. Constitutional Limitation. 119 N.. Ed. L-35941. L-35948. January 22.W.. January 22. We had no occasion to express any view as to how a whole new Constitution may be ratified. Commission on Elections. Vol. et al." Judge Cooley.S. According to the 1935 Constitution: "The Congress in joint session assembled. Raul M. and cases cited therein. Eddie B. 2.. Pablo C. Gonzales v. 388.S. L-35940.. Ordoñez. v. vs. et al. 1973.. Monteclaro vs. 1. Feb. 28. the Constitutional Convention intended to submit one amendment which was to form part of the Constitution still being prepared by it separately from the rest of the other parts of such constitution still unfinished. L-35925. Eddie B. L35965. L-35979.. v. New York in 1824. et al. See 16 Am. L-35929. 1973. et al. 1973 and Ernesto Hidalgo vs. 6. * Luther v. et al. vs. 1951. 1973. et al. vs. et al. November 9. et al. 199. 10. L-35942. 69 Phil. 39 Phil. Commission on Elections.. 4. Cuenco. January 22. L-35961. p. The Commission on Elections. et al. The Honorable Commission on Elections. * In 1880. 516. 1. by a vote of three-fourths of all the members of the Senate and of the House of . 2d. et al. L-35953. L-35925. 48 U. 1973. January 22. See Tañada. 2. et al.. Comelec. 1973. Sedfrey A. Jacinto Jimenez vs. Raul M. Vidal Tan. Ordoñez. 1973. Gerardo Roxas. January 22. Monteclaro v. 83 Phil.. Vidal Tan. Comelec. Commission on Elections. 2. January 22. ante. p. Comelec. January 22. Memorandum for Respondents. 413. Secretary of State. 408. 32A Words and Phrases p. et al. Comelec. et al. who was born in Attica. L-35953. McConaughy v. L-35979. 1. Commission on Elections. Diokno. 108 Minn. et al. Judge Cooley was also professor and later dean of the Law Department of the University of Michigan and Justice of the State Supreme Court of Michigan from 1864 to 1885.. Commission on Elections. 258. Executive Agreements are not included in the corresponding provision of the 1935 Constitution. Comelec. Gerardo Roxas.. The National Treasurer of the Philippines. Cooke v. January 22. he also wrote his "Constitutional Law. Ernesto Hidalgo v. L-35948. Pablo C.

12. The Least Dangerous Branch (1962). 96. 1. Weston. 24. in I Selected Essays on Constitutional Law 355. 231. Dec. The Democratic Character of Judicial Review in Selected Essays on Constitutional Law 1938 1962. Corwin. Lerner. 1051 (1957): Vera v. the exigent problems of our polity. . 1971. Dodd. Black. Ibid. The decision of Justice Frankfurter referred to is that of Rochin v. Ibid. Such amendments shall be valid as part of this Constitution when approved by a majority of the votes cast at an election at which the amendments are submitted to the people for their ratification. Murphy. Judicial Review in I Selected Essays on Constitutional Law. Judicially Nonenforceable Provisions of Constitutions. 2 (1963). Ibid. 21 SCRA 774. Appendix L. 9. Cuenco. Electoral Commission. May 26. 342 US 165 (1952). 800. much less solve. 27. Freund. Ibid. 9. 256 US 368 (1921). Commission on Elections. 293 (1956). Arca." Art. He was referring of course to the Supreme Court of the United States. 63 Phil. Ibid. Commission on Elections. 346 US 156 (1953). 504-505.. L-24150. L-25721. XV. 21.Representatives voting separately may propose amendments to this Constitution or call a convention for that purpose. 3. 154 (1967). 449. 23. 1971. January 22. 103 Phil. The Legacy of Holmes and Brandeis. 1967. The words of Justice Frankfurter found in his opinion in Stein v. 42 SCRA 448. Cf. Also his The Supreme Court of the United States (1962). 5. L-33964. 22. 8. Political Questions. VII Proceedings of the Philippine Constitutional Convention (19341935). 17. Nov. 41 SCRA 702. Planas v. Angara v. Mason. 374-375. 18. 6. 139 (1936). Cf. 56 (1937). 16. 28. 63 Phil. 13. Rostow. 1973. Commission on Elections. 19. 395. Elements of Judicial Strategy (1964). 3. 31. Frankfurter. 450 (1938). L-28196. On Understanding the Supreme Court (1950). in this collection of essays. 1969. Jan. People of California. Ideas are Weapons. New York. L-35925. Bickel. Mr. S. 11. Earlier. 29. 20. Laurel. The People and the Court (1960). 139 (1936). 4. Ibid. Lerner made this not-entirely-inaccurate observation: "No governmental institution that consists of a group of legal technicians appointed for life can ever hope to cope with. 25. 7. The Supreme Court from Taft to Warren. 426 (1939). 30. Oct. L-35925. Tañada v. Gonzales v." Ibid. 28 SCRA 351. 26. Tolentino v. 25-26 (1938). I Selected Essays on Constitutional Law 418. 10. 11. Section 1. Cf. 16. Konefsky. 15. 422 (1938). Ibid. 1973. 387 (1938). 14. 65 Phil. 25. 3-4. Justice Holmes and the Supreme Court.

26 Ark. Rev.L. Hart. 109 U Pa L. The Principle of Neutral Principles. Green v. 192 (1946). 85 S Ct. Politics and Fundamental Law. 12 (1947). 11 L ed 2d 512. 87 S Ct. The Time Chart of the Justices. 84 S Ct.32. Lomenzo 377 US 633. Collier v. 84 S Ct. 1298 (1960). Rev. Rev. Black. A Criticism of Criticism: In re Meaning. 40 (1954). L. . 29 Fordham L. L. Richardson. 377 US 678. Dorsey. 377 US 713. 84 S Ct. 12 L ed 2d 609. It is the first essay in his Principles. Miller and Howell. 661 (1960). 77 Phil. 72 Harv. 1286 (1966). The principal articles are: Pollak. 11 J.C. L. Mann. 84 (1959). 48 (1962). Racial Discrimination and Judicial Integrity: A Reply to Professor Wechsler. 42. Constitutional Adjudication: Relative or Absolute Neutrality. Cuenco. 49. The Myth of Neutrality in Constitutional Adjudication. 1554 ( 1967). Law Review 77 (1959). 637 (1961). 73 Harv. 377 US 695. Burns v. 376 US 52. Tollison. 1 Cranch 137 (1803). Pub. Kent Board of Education. 395 US 486. Rockefeller. 45. Rev. Henkin. Charles Grove. Pub. Jackson. 498 ( 1965). 12 L ed 2d 595. 38. 69 Yale L. A Note on the Criticism of Supreme Court Decisions. 1462 (1964). Tañada v. 12 L ed 2d 568. 84 S Ct 1362 (1964). 84 S Ct. Weller. Legislative Facts in Constitutional Litigation. L. Dusch v. 1453 (1964). Penn v. Reynolds v. Rev. L. 34 Rocky Mt. 1418 (1964). Wright v. 7 U. Tauses. Haines. 74 Harv. American Legal Realism and the Sense of Profession. The Role of the Supreme Court in American Government and Politics. 822 (1971). 1442 (1964). 18 L ed 2d 656. 1 (1959). 1051. 123. 328 US 549 (1946). 553 (1961). 81 (1960). 11 L ed 2d 481. Supreme Court and Supreme Law. Curtis. Lucas v. Hill. 139 (1961). The Struggle for Judicial Supremacy. 377 US 533. Rostow. Mueller & Schwartz. 84 S Ct 603 (1964). 73 Harv. Rev. Henson. 27 U. The Lawfulness of the Segration Decisions. L. 44. 84 S Ct. Koehler v. Ibid. United States. 369 US 186. 1960 Supreme Court Rev. Chi. Davis. Frierson. 18 L ed 2d 650. 526 (1964). Cf. 75. 139-140 (1908). 100 (1854). Davis v. 1089 (1957). 46. Cahn. 12 L ed 2d 506.A. 650 (1856). 10 J. 1472 (1964). WMCA v. Rev. 29 L ed. Cf. New York Times Company v. 376 US 1. 56. 108 U. 379 US 433. 39. Fortson v. 34. 35. Rev.16 L ed 2d 376. Wechsler. 599 (1961). 12 L ed 2d 632. 545 (1871). Sims. 40. 103 Phil. Griswold. Karst. Wright. 124 Ala. 3 (1960). Maryland Committee v. Pa L. The Supreme Court Cannot be Neutral 40 Texas L. Rev. L. 47. Pollak. 43. 41. 421 (1960). 556. 12 L ed 2d 620. 84 S Ct. Professor Hart's Theology. Toward Neutral Principles of Constitutional Law. Addresses and Papers of Charles Evans Hughes. 33. Sincock. 32 Miss. 136-46 (1962). 377 US 656. 87 S Ct. Roman v. 37. Of Time and Attitudes: Professor Hart and Judge Arnold. 86 S Ct. 384 US 73. 36. 1549 (1967). Lions Under the Throne. 60 Iowa 543. 571 (1960). Arnold. 13 L ed 2d 401. Rev. 387 US 112. Robert H. Colorado General Assembly. Sailors v. Ibid.L. 387 US 105. 1789-1835. Wesberry v. Sanders. Some Reflections on Current Constitutional Controversy. 14 NW 738 (1883). J. Miller. 3 (1949). 48. Forward.

Nolan. Hays. 141 P. Blattner. Tooker. of City of Pontiac v. Erwin v. 41. 117 Ark. 332. 205 Ala. 556. 167 (1903). 15 Am. State v. 894 (1888). 19 Colo. 864. 106 Ohio St. 692. 732 (1897). 200 Ala. Graham v. 84. Jones v. 367 (1913). 328 Pa. 20 Idaho 18. 40 N. 579. 94 Ohio St. Craft. 119 NW 408 (1909). Switzer v. 112 So. Cress v. 93 So. 83 SE 537 (1914). 36 Pac. 775. 551. Kalbach. Speer. 21 Nev. McCreary v. 43 Okl. 31. Grey. Marcus. 20 Neb. 769 (1922). 283 P. Robertson. Cooney v. State v. Farrell v. 137 P. 202 P. 204 NW 803 (1925). Donald. Fairley. 74 Misc. 133 NE 552 (1921). 216 SC 558. Wells v. Armstrong v. Wilmett. 403. 163 So. City of Pontiac. 231 (1940). 125 Misc. McAdams v. 40 (1934). 202 Mich. 75 So. 230. 1058 (1909). 103 Ohio St. 87 So. Hamilton v. Lee v. 408. Russell v. 507. 157 So. Hays v. Utter v. 207. People v. 1040 (1914). 59 NE 359 (1901). 143 SE 31 (1928). 237 Mars. 963 (1912). Deland. State. 106 Minn. 327. Price. State v. 93 P. 369. Smith. 115 NE 29 (1916). Sours. City of New Orleans. 441. Livingston. State v. 840 (1894). 116 Fla. 431 (1921). Bain. Chicago. 2d 761 (1941). State v. 948 (1919). 77 Wash. In re McConaughy. Russie v. Luce. 188. 138 NE 532 . 104. 187 Wis. Scott v. 299. Gifford. 433 (1935). 198 So. 100 P. 50 Fla. 54 Utah. 130 Miss. 10 SD 44. State v. 263 (1924). 13 (1914). 175 SW 40 (1915). 210 NYS 786 (1926). 41. 593. 314. In re Opinion to Governor. 59 So. 25 Neb. 151 NW 331 (1915). 541 (1928). Wetz. 43 Okl.. Foote. 845. 76 Wash. Persinger. 142 Ga. 162 SW 99 (1914). 63 SW 849 (1901). 472. 84 NW 1064 (1901). State v.I. 128 Mo. Campbell. 281 Pa. Lovett v. Record Pub. 69. 25 NW 245 (1885). 98 NW 262 (1904). 191 NW 829. Ferguson. 465. 21. Jones. 607. 927 (1900). 107 SE 581 (1921). Hildreth v. 777. Estes. 47 P.Ry. 133 US 9 (1912). State v. Vouchan. 110 NW 113 (1907). Downs v.McMillan v. 39. City of Walla Walla. Ramsey v. 168 NW 709 (1918). 156 Ind. Thompson. Tausig v. 214 P. 136 P. 159 Fla. 102 74 P. 49 Mont. Hooper v. Floyd. 109 Va. Ex Parte Ming. 136 Ga. 64 SE 342 (1909). Bahns v. 93. R. 563 (1874). 27 So. 135 Mich. 113 Iowa 250. 210 (1914). 41 NW 981 (1889). 474. 130 NE 202 (1921). Heinitsh v. 319 (1919). State v. 412. 171 Mo. 116 S. 354. 412 (1905). 589. 386 (1921). 647. 19 Pac. 392. Powell. Henley. Lukens. People v. Pearson v. 1. 89 Okl. Zimmerman. Brown v. People. Taylor. Hammond v. Rep. State. Collier v. 70 SW (1902). In re Senate File No. 718 (1927). 273 SW 355 (1925). 136 P. 180. 76 Wash. 50 Or. 379. 31 Colo. Thrailkill v. 235 (1938). 824 (1911). State ex rel. 5 (1929). In re Initiative Petition. State v.D. 55 R. 71 SE 479 (1911). 374 (1913). 169 Ark. Johnson v. State v. 543. 2d 826 (1947). 401. 48 Idaho 517. 306. McDade. 186 (1923). 177. In re Opinion of the Justices. 371 (1921). 15 Mont. West v. 280 Mo. 378. Grey. 67 Iowa 287. 240 Ala. Duncan v. 3 So. In re Denny. 115 P. St. 226 Mars. 254 (1908). 169. 152 NW 419 (1915). Cf. 64 Fla. 50. 160 Wis. 39 So. 59 SE 158 (1950). 270 (1935). State v. 102 Or. 988 (1917). 1. 164 Mo. Port of Columbia. Moseley. Power v. Cudihee v. 181 P. 5 Idaho 154. 338. Lane v. City of New York. In re Opinion of Justices. 78 Neb. Alderson. Davis. Boyd v. 16 Idaho 274. Tabor v. 411 (1914). Brookhart. Thompson v. Swift v. 220. State v. 124. 115 NE 921 (1917). 313. Co. Dunn. Loomis. 156 Ky. 154.I. Willis v. 262 Mich. 77 Miss. 163 La. 89 So. 37 Pac. Co. 120 Fla. Gabbert v. 160 Wis. 126 A. 75 Pa. Taylor. Rep. 198 La. 8. 142 P. 130 SC 434. 32 So. City of Bromingham. 206 Ala. Phelps. Gilchrist. 221 (1894). Brazzell. 860. People ex rel.C. Nesbit v. Crawford v. 32 Pac. 42 Nev. King. School Dist. 168 NW 835 (1918). Fletcher v. Gray. Olcott. 197 A. 217 SW 752 (1922). Lawrence. Clark. 181 P. Palmerv. State. 247 NW 474 (1933). Rep. 178 A. 71 NW 756 (1897). 56. State ex rel Landis v. 126 SE 336 (1925). 97. 145 SC 196. 387. 375. 783. 475. 190 (1893). 221 Mich. 213 P. 30 SW 526 (1895).

44 SE 754. 351 SW 752 (1922). 284 Pa. Manos v. 560. 182 Ga. Commonwealth Act No. 61. Goolsby v. 40 (1934). The Higher Law Background of American Constitutional Law. Collins. on this point. 4th ed.' is so far as they are not inconsistent herewith. 18 SW 522. 517 (1940). 197 Okl. otherwise known as the Election Code. 65. 829. 51. 2d 761 (1941). State ex rel. 589. It is to be noted that under Commonwealth Act No. Whitney-Central Trust and Savings Bank. Commission v. are made applicable to the election provided for in this Act. 172 P. 73 (1946). 208 NW 803 (1925). King. 132 Neb. Article VII of the 1935 Constitution. 657 (1940). 58. California Teacher's Ass'n. State ex rel. entitled 'An Act to Reorganize the Commission on Elections. Article VI of the 1935 Constitution. 224." It is to be remembered that in the plebiscite held. 34 P. 180. 157 So. and Commonwealth Act Numbered Six Hundred and fifty-seven. 523. Brawner v. Smith. 250 (1922). subsequently amended by Commonwealth Act No. 150. 2d 202. Collier v. Ibid. Nov. 517. 607 (1940). Heck. 238 Ala. State Bldg. 507. 168 La. Price. 122 So. 3 So.(1922). 285. Sovereignity resides in the people and all government authority emanates from them. McIver. 26 NW 2d 569 (1947). 116 Fla. City of Jackson v. 119 A. are hereby made applicable to the election provided for in this Act. 224 NW 6 (1929). 98 Tax. Graham v. 9. 233 Ala. 53. 291 Mo. v. 84 (1947). 55. State. 56. 59. 74 SW 2d 27 (1934). 432. 64. 63. 586. Section 3 of Republic Act 4913 reads thus: "The provisions of Republic Act Numbered One hundred eighty. 78 (1939). 68 Idaho 423. Zimmermann. Fahey v. Ibid. Laski. 198 La. Republic Act 4913 (1967)." Article II. 316 Mich. 101 Va. Corwin. 57. In re Initiative Petition No. 263 SW 310 (1924). 155 Ga. v. 186 SE 420 (1936). The Web of Government. 130 A. 68. Doody v. 1967. Section 3. 287. 92 Ky. Section 3. 62. 52. 271 NW 264 (1937). 171 So. Nims. 492 (1939). in 1 Selected Essays on Constitutional Law 3 (1938). insofar as they are not inconsistent herewith. 54. Commonwealth Act No. Stephens. there was a statutory creation of an independent Commission on Elections. 66." 60. 34 (1937). 118 Neb. 21 SCRA 774. Commission on Elections. Republic Act No. 87. Swanson v. Stonns v. 335 Mo. 694. 117 SE 439 (1923). 141 Ind. L-28196. 845. Grammar of Politics. 190 So. as amended. State v. 2d 134 (1934). 82. Board of Liquidation of State Debt of Louisiana v. "The Philippines is a republican state.. 195 P. Cf. 196. 524. Commonwealth Act No. Section 1. The 1935 Constitution provides. 840. 2d 324 (1946). Cr. 407 (1925). 67. Gray. Cline. Hackmann. State. Section 3 of Republic Act 73 reads as follows: "The provisions of Commonwealth Act Numbered Three Hundred and fifty-seven. Keenan v. Gonzales v. State v. 187 Wis. Taylor v. . 2d 662 (1948). the two proposals last. Adams. 1 Cal. Mayer v. 850 (1929). Jones. Curran. 504 (1937). Mobile County. 529.

Idem. 8. 1973. 16. 153. italics supplied. 1. 21 SCRA 774 (No. at p. 81. Of Law and Men (1956). Araneta v. 12. 77 Miss. 1972. sec. Article X. italics supplied. 5. Ibid. See also the Election Code of 1971. 1 of the Constitution entrusts "exclusive charge" of the conduct of elections to the Comelec. italics supplied. 24. 18. sec. 9. 21. 1973. Section 1. 63 Phil. Treasurer (L-3054). 3. 71. note in parentheses supplied. at p. Dinglasan (L-2044). Tolentino vs. p. italics supplied. Constitution. 14. italics supplied. p. which is the lone section of Art. sec. Justice Felix Frankfurter. Araneta vs. 313. 15. Idem. 2. 437. Petitioner Monteclaro's notes of oral argument dated February 23. 71 SE 479 (1911). 23 (1909) and Hammond v. at page 3. 5. 28. Rodriguez vs. Respondents' memo dated March 2. Comelec. 2. Clark. 1. jointly decided and reported in 84 Phil. 67. Justice Tuason further duly noted that "These observations. though beyond the issue as formulated in this decision. State vs. J. 4 Wheaton 316 (1819). and Barredo vs. italics supplied. 384-385. 9. p. 2. 27 South 927. 221. Idem. we trust. Idem. Dinglasan. 100 P. 1967). Powell. with seven Justices concurring. 1 Cranch 137 (1803). The Nature of the Judicial Process. Vol. Angeles (L-2756). Commissioner of Customs. 26. I. section 16. 25. dated Nov. 22. 755. 543. Article X. 1973. p. L-34150. 5. Comelec. 11. Comelec (L-3056). 383. 6. 13. State. Gonzales vs. Makalintal and Castro. and Annex A thereof. 435-437. 20. 23 Okl. Cardozo. pp. 41 SCRA 702 (Oct. Respondents' Comment dated Feb. Comelec. p. 1971. XV. . Constitution. A similar approach may be noted in Arie v. Vol. Araneta vs. 4. 1971. at pp. proposed Constitution of Nov. 136 Ga. decision of October 16.. Constitution. 1. 368 (1949). Resolution on motion for reconsideration in Tolentino vs. 1973. L-34150. per Barredo. 4. p. 23. per Barredo. 368. 17. 141 (1921). All quotations from respondents' memo of arguments dated March 2. sec. 1973. may. Dean Pollak's "The Constitution and the Supreme Court". 3. Idem. 27. 7. Tolentino vs. Idem. 30. at p. Article XV. 166. 10. 8th Ed. 1971). 30. J. Respondents' memo dated March 2. italics supplied. I. p. Comelec." 16. 46. at page 4. Article XVII. Cooley's Constitutional Limitations. 25. 8. 8. at p. 84 Phil. 134 (1936). Joint opinion of JJ. 29. p. also serve to answer the vehement plea that for the good of the Nation. Guerrero vs.69. at pp. 19. Article V. the President should retain his extraordinary powers as long as turmoil and other ills directly or indirectly traceable to the late war harass the Philippines. 70.

41. petitioners' manifestation and supplemental rejoinder dated March 21. 15. 219. (now retired). JJ. par. ." Idem. par. 3. Thus. 1973. 449. 1971 in Tolentino. per Barredo. The same section further disqualifies persons convicted by final judgment to suffer one year or more of imprisonment "within two years after service" or who have violated their allegiance to the Republic and insane or feeble-minded persons. 1971. but a majority of those who approved the new Constitution conditioned their . Castro and Makasiar. 34. ." Dec. 1. No. par. Resolution of Nov." 31. 2. 44. 39. 48. . 1973 in L-36165. Art. 4.31. 9. 35 L. J. the proposed amendment read: "Section 1. 8. 24. per Barredo. Decision of Oct. 3-4. Act 3590.E. 51. at p. 53. 10. J. Under Proclamation No. . 35. 42. 1971. One barrio lieutenant and six barrio councilmen. italics supplied.L. 1973. Rizal. 43. 52. per Barredo. 1971. Idem at pp. 1971. pp. "Barrios are units of municipalities or municipal districts in which they are situated . 1971 in Tolentino. Duncan vs.869) who voted for its rejection. Suffrage may be exercised by (male) citizens of the Philippines not otherwise disqualified by law. at p. at p. Idem. 46. per Barredo. 47. who are (twenty one) EIGHTEEN years of age or over and are able to read and write . 115 N. McCall. of October 16. Bataan. 2. pp. 40. In re Opinion of Justices. J. Camarines Sur and Negros Occidental. 36. . Supra p. 38. sec. Cavite. 19. 21. 139 U. . 1 proposing the urgent lowering of the voting age to enfranchise the 18-year olds retained the "permissive" language of section 1. 4. 2. . . sec. 16. Respondents' rejoinder dated March 20. 54. Separate op. 1971 in Tolentino. 8. Act 3590. 16. Zaldivar. All quotations are from the Chief Justice's concurring opinion in Tolentino. "Voting shall be by secret ballot . 10. 16. of J. J. 33. Decision of Oct.S. it is recited that "fourteen million nine hundred seventy six thousand five hundred sixty one (14. a Con-Con Res. Reyes. pp. 47. 37. of No. Decision of Oct. ample basis for an intelligent appraisal of the amendment. at p. 1973 and sur-rejoinder dated March 29. 49. 17. 3 and 4. 32. 1-2. 6. italics supplied. Rep. This Court thus declared in Tolentino the Con-Con voting age reduction resolution as null and void and prohibited its submittal at the 1971 elections for lack of proper submission since it did not "provide the voter .976. 9. 922-923.561) members of all the Barangays voted for the adoption of the proposed Constitution.B.. 1967). 21 SCRA 774 (Nov." Rep. Teehankee concurring in Res. as against seven hundred forty. Ed. Idem. 45. Rep. 1103 dated Jan. sec. V. Idem. J. Idem at p. 4. Resolution of Nov. 50.three thousand eight hundred sixty nine (743. sec.

Convention Minutes of Nov. * Panorama. ed. inclusive. J. repaired and altered house. "Amendment" and "revision" of constitution are separate procedures each having a substantial field of application. however. Jordan.S. 4 of answer of therein respondents dated Dec. Oregon. 1. 327). We conclude that the instrument as contained in Ga. Delaware. 797 32 Cal. 197. 3. Daily Express. however. 2d 787. or some part of it. 1972 submitted as Annex A of petitionerdelegate Sedfrey A. May 6. 22. in a corrected or improved form:" (Const. 2d 49. 2d 322." 55. L. is not an amendment to the constitution of 1877. 7 L. which implies action pursuant to some procedural provision in the constitution. Utah and Wyoming in Appendix to this opinion. 1973. Minnesota. * Leon O. Cf. Secs. who. Michigan. 2. Seven Months of Martial Law. p. Ordoñez et al. pp.votes on the demand that the interim National Assembly provided in its Transitory Provisions should not be convened. If the revolutionary constitution sets up a court differently constituted from the pre-revolutionary court. did not look on the same with favor. some of the rooms may be constructed the same. New Hampshire. Gilmer. 1945. and by revision. Board of Trustees. 196 P. but on the contrary it is a completely revised or new constitution. 663." 57. Nevada. in his separate op. that the alleged alteration does or does not purport to affect the existence of the court itself. 53 183 Va. in the plebiscite cases. 186. This distinction is concerned with the quare and not with the quantum of change. Staples v. Thus the Supreme Court in . California. Constitution of Minnesota in Appendix. Cf. "A written constitution is susceptible of change in two ways: by revolution. 196. 37 S. 1972. in the plebiscite case L-35942. supra. "When a house is completely demolished and another is erected on the same location. Carr. 15. 1973. Respondents' memo dated March 2. par. Ty. for neither can deny the act by which it was created without denying the fact of its creation. not mere alternative procedures in the same field. do you have a changed. As restated by Barredo. 56. It may be significant. but this does not alter the fact that you have altogether another or a new house. 613). 369 U. 4. Florida. a revolutionary charge does not admit of judicial power as such to determine the fact of its occurrence. which implies action not pursuant to any provision of the constitution itself." (McFadden v. or do you have a new house? Some of the material contained in the old house may be used again. neither tribunal is confronted with a substantial problem. 12 of petition and admitted in par.E." (Wheeler v. while a "revision" implies a re-examination and statement of the Constitution. Sections 1 and 2 of Article XIV. 5. 33 S. "Every proposal which affects a change in a Constitution or adds or takes away from it is an "amendment". 8 to 89. 2. Oklahoma.E. * First decision promulgated by First Division of the Supreme Court. State Constitutions of Alaska. since the "constitutional point (that the Comelec has exclusive charge of the conduct of elections and plebiscites) seems to have been overlooked in the Assemblies. In the nature of things. 2d 330). Baker v.

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

that. which will they assert to be law. and that the conclusions offered in the discussion of revolutionary change are true. No question of law is involved. 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. whether the quantum of change involved be vast or almost negligible. pp. C o p y r i g h t 1996 CD Technologies Asia Inc . In such a context. @ The inclusion in the Appendix of provisions for Amendment and Revision in State Constitutions. 38 Harvard Law Review [1924-25]." "The net result of the preceding discussion is this: that in almost the whole field of problems which the Duke of York's case and the American constitutional amendment cases present. adopted after 1935. is only to stress the fact that the distinction between Amendment and Revision of Constitution. pp.they declare the change in force. 305-309. the judges hold too strong views of their own to he able to take this course. 301. they may follow their own leads at their own hazards. If. It is submitted that this is true. the court as a court is precluded from passing upon the fact of change by a logical difficulty which is not to be surmounted. which existed at the time of the adoption of the 1935 Constitution. such a question becomes wholly moot except for this consideration." (Political Questions. It follows that there is no room for considering whether the court ought graciously and deferentially to look to the executive or legislative for a decision that a change has or has not taken place. however. 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. has continued up to the present. also. but the fact of existence of which will — and this is the real decision — is not ascertainable in the given case by any legal means.) 6 & 7 Ibid. 305. they are truly making a personal declaration that they believe the change to be the directly expressed will of the sovereign.