Javellana v. Executive Secretary Full Text

Constitutional Law I L-36142
Republic of the Philippines

SUPREME COURT
Manila
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
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ROMEO ESPINO, in his capacity as Chief of Staff of the Armed Forces of

the Philippines; TANCIO E. CASTAÑEDA, in his capacity as Secretary
General Services; Senator GIL J. PUYAT, in his capacity as President of the
Senate; and Senator JOSE ROY, his capacity, as President Pro Tempore of
the of the Senate, respondents.
G.R. No. L-36236 March 31, 1973
EDDIE B. MONTECLARO, [personally and in his capacity as President of the

National Press Club of the Philippines], petitioner,
vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF PUBLIC INFORMATION,
THE AUDITOR GENERAL, THE BUDGET COMMISSIONER & THE NATIONAL
TREASURER, respondents.
G.R. No. L-36283 March 31, 1973
NAPOLEON V. DILAG, ALFREDO SALAPANTAN, JR., LEONARDO ASODISEN,

JR., and RAUL M. GONZALEZ,petitioners,
vs.
THE HONORABLE EXECUTIVE SECRETARY, THE HONORABLE SECRETARY OF
NATIONAL DEFENSE, THE HONORABLE BUDGET COMMISSIONER, THE
HONORABLE AUDITOR GENERAL, respondents.
Ramon A. Gonzales for petitioner Josue Javellana.
Lorenzo M. Tañada and Associates for petitioners Vidal Tan, et al.
Tañada, Salonga, Ordoñez, Rodrigo, Sanidad, Roxas. Gonzales and Arroyo

for petitioners Gerardo Roxas, et al.
Joker P. Arroyo and Rogelio B. Padilla for petitioner Eddie Monteclaro.
Raul M. Gonzales and Associates for petitioners Napoleon V. Dilag, et al.
Arturo M. Tolentino for respondents Gil J. Puyat and Jose Roy.

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Office of the Solicitor General Estelito P. Mendoza, Solicitor Vicente V.

Mendoza and Solicitor Reynato S. Puno for other respondents.
RESOLUTION
CONCEPCION, C.J.:
The above-entitled five (5) cases are a sequel of cases G.R. Nos. L-35925,
L-35929, L-35940, L-35941, L-35942, L-35948, L-35953, L-35961, L-35965
and
L-35979, decided on January 22, 1973, to which We will hereafter refer
collectively as the plebiscite cases.
Background of the Plebiscite Cases.
The factual setting thereof is set forth in the decision therein rendered,
from which We quote:
On March 16, 1967, Congress of the Philippines

passed Resolution No. 2, which was amended by
Resolution No. 4 of said body, adopted on June
17, 1969, calling a Convention to propose
amendments to the Constitution of the
Philippines. Said Resolution No. 2, as amended,
was implemented by Republic Act No. 6132,
approved on August 24, 1970, pursuant to the
provisions of which the election of delegates to
said Convention was held on November 10, 1970,
and the 1971 Constitutional Convention began to
perform its functions on June 1, 1971. While the
Convention was in session on September 21,
1972, the President issued Proclamation No. 1081
placing the entire Philippines under Martial Law.
On November 29, 1972, the Convention approved
3
its Proposed Constitution of the Republic of the

Philippines. The next day, November 30, 1972, the
President of the Philippines issued Presidential
Decree No. 73, "submitting to the Filipino people
for ratification or rejection the Constitution of the
Republic of the Philippines proposed by the 1971
Constitutional Convention, and appropriating
funds therefor," as well as setting the plebiscite
for said ratification or rejection of the Proposed
Constitution on January 15, 1973.
Soon after, or on December 7, 1972, Charito

Planas filed, with this Court, Case G.R. No. L-
35925, against the Commission on Elections, the
Treasurer of the Philippines and the Auditor
General, to enjoin said "respondents or their
agents from implementing Presidential Decree No.
73, in any manner, until further orders of the
Court," upon the grounds, inter alia, that said
Presidential Decree "has no force and effect as
law because the calling ... of such plebiscite, the
setting of guidelines for the conduct of the same,
the prescription of the ballots to be used and the
question to be answered by the voters, and the
appropriation of public funds for the purpose, are,
by the Constitution, lodged exclusively in Congress
...," and "there is no proper submission to the
people of said Proposed Constitution set for
January 15, 1973, there being no freedom of
speech, press and assembly, and there being no
sufficient time to inform the people of the
contents thereof."
Substantially identical actions were filed, on

December 8, 1972, by Pablo C. Sanidad against
the Commission on Elections (Case G.R. No. L-
4
35929) on December 11, 1972, by Gerardo Roxas,

et al., against the Commission on Elections, the
Director of Printing, the National Treasurer and
the Auditor General (Case G.R. L-35940), by Eddie
B. Monteclaro against the Commission on
Elections and the Treasurer of the Philippines
(Case G.R. No. L-35941), and by Sedfrey Ordoñez,
et al. against the National Treasurer and the
Commission on Elections (Case G.R. No. L-35942);
on December 12, 1972, by Vidal Tan, et al., against
the Commission on Elections, the Treasurer of the
Philippines, the Auditor General and the Director
of Printing (Case G.R. No. L-35948) and by Jose W.
Diokno and Benigno S. Aquino against the
Commission on Elections (Case G.R. No. L-35953);
on December 14, 1972, by Jacinto Jimenez against
the Commission on Elections, the Auditor General,
the Treasurer of the Philippines and the Director
of the Bureau of Printing (Case G.R. No. L-35961),
and by Raul M. Gonzales against the Commission
on Elections, the Budget Commissioner, the
National Treasurer and the Auditor General (Case
G.R. No. L-35965); and on December 16, 1972, by
Ernesto C. Hidalgo against the Commission on
Elections, the Secretary of Education, the National
Treasurer and the Auditor General (Case G.R. No.
L-35979).
In all these cases, except the last (G.R. No. L-

35979), the respondents were required to file
their answers "not later than 12:00 (o'clock) noon
of Saturday, December 16, 1972." Said cases
were, also, set for hearing and partly heard on
Monday, December 18, 1972, at 9:30 a.m. The
hearing was continued on December 19, 1972. By
agreement of the parties, the aforementioned last
case — G.R. No. L-35979 — was, also, heard,
5
jointly with the others, on December 19, 1972. At

the conclusion of the hearing, on that date, the
parties in all of the aforementioned cases were
given a short period of time within which "to
submit their notes on the points they desire to
stress." Said notes were filed on different dates,
between December 21, 1972, and January 4,
1973.
Meanwhile, or on December 17, 1972, the

President had issued an order temporarily
suspending the effects of Proclamation No. 1081,
for the purpose of free and open debate on the
Proposed Constitution. On December 23, the
President announced the postponement of the
plebiscite for the ratification or rejection of the
Proposed Constitution. No formal action to this
effect was taken until January 7, 1973, when
General Order No. 20 was issued, directing "that
the plebiscite scheduled to be held on January 15,
1978, be postponed until further notice." Said
General Order No. 20, moreover, "suspended in
the meantime" the "order of December 17, 1972,
temporarily suspending the effects of
Proclamation No. 1081 for purposes of free and
open debate on the proposed Constitution."
In view of these events relative to the

postponement of the aforementioned plebiscite,
the Court deemed it fit to refrain, for the time
being, from deciding the aforementioned cases,
for neither the date nor the conditions under
which said plebiscite would be held were known
or announced officially. Then, again, Congress
was, pursuant to the 1935 Constitution, scheduled
to meet in regular session on January 22, 1973,
6
and since the main objection to Presidential

Decree No. 73 was that the President does not
have the legislative authority to call a plebiscite
and appropriate funds therefor, which Congress
unquestionably could do, particularly in view of
the formal postponement of the plebiscite by the
President — reportedly after consultation with,
among others, the leaders of Congress and the
Commission on Elections — the Court deemed it
more imperative to defer its final action on these
cases.
"In the afternoon of January 12, 1973, the

petitioners in Case G.R. No.
L-35948 filed an "urgent motion," praying that
said case be decided "as soon as possible,
preferably not later than January 15, 1973." It was
alleged in said motion, inter alia:
"6. That the President subsequently announced

the issuance of Presidential Decree No. 86
organizing the so-called Citizens Assemblies, to be
consulted on certain public questions [Bulletin
Today, January 1, 1973];
"7. That thereafter it was later announced that

"the Assemblies will be asked if they favor or
oppose —
[1] The New Society;
[2] Reforms instituted under

Martial Law;
[3] The holding of a plebiscite on

the proposed new Constitution
7
and when (the tentative new

dates given following the
postponement of the plebiscite
from the original date of January
15 are February 19 and March 5);
[4] The opening of the regular

session slated on January 22 in
accordance with the existing
Constitution despite Martial
Law." [Bulletin Today, January 3,
1973.]
"8. That it was later reported that the following

are to be the forms of the questions to be asked
to the Citizens Assemblies: —
[1] Do you approve of the New

Society?
[2] Do you approve of the reform

measures under martial law?
[3] Do you think that Congress

should meet again in regular
session?
[4] How soon would you like the

plebiscite on the new
Constitution to be held? [Bulletin
Today, January 5, 1973].
"9. That the voting by the so-called Citizens

Assemblies was announced to take place during
the period from January 10 to January 15, 1973;
8
"10. That on January 10, 1973, it was reported

that on more question would be added to the four
(4) question previously announced, and that the
forms of the question would be as follows: —
[1] Do you like the New Society?
[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 running the affairs of the
government? [Bulletin Today,
January 10, 1973; emphasis an
additional question.]
"11. That on January 11, 1973, it was reported

that six (6) more questions would be submitted to
the so-called Citizens 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?
9
[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; emphasis
supplied]
"12. That according to reports, the returns with

respect to the six (6) additional questions quoted
above will be on a form similar or identical to
Annex "A" hereof;
"13. That attached to page 1 of Annex "A" is

another page, which we marked as Annex "A-1",
and which reads: —
COMMENTS ON
QUESTION No. 1
In order to
broaden the
base of citizens'
participation in
government.
10
QUESTION No. 2
But we do not want the Ad

Interim Assembly to be
convoked. Or if it is to be
convened at all, it should not be
done so until after at least seven
(7) years from the approval of
the New Constitution by the
Citizens Assemblies.
QUESTION No. 3
The vote of the Citizens

Assemblies should already be
considered the plebiscite on the
New Constitution.
If the Citizens Assemblies

approve of the New Constitution,
then the new Constitution should
be deemed ratified.
QUESTION No. 4
We are sick and tired of too

frequent elections. We are fed up
with politics, of so many debates
and so much expenses.
QUESTION No. 5
Probably a period of at least

seven (7) years moratorium on
elections will be enough for
stability to be established in the
11
country, for reforms to take root

and normalcy to return.
QUESTION No. 6
We want President Marcos to

continue with Martial Law. We
want him to exercise his powers
with more authority. We want
him to be strong and firm so that
he can accomplish all his reform
programs and establish normalcy
in the country. If all other
measures fail, we want President
Marcos to declare a
revolutionary government along
the lines of the new Constitution
without the ad interim
Assembly."
"Attention is respectfully invited to the comments

on "Question No. 3," which reads: —
QUESTION No. 3

Assemblies should be considered
the plebiscite on the New
Constitution.

be deemed ratified.
12
This, we are afraid, and therefore allege, is

pregnant with ominous possibilities.
14. That, in the meantime, speaking on television

and over the radio, on January 7, 1973, the
President announced that the limited freedom of
debate on the proposed Constitution was being
withdrawn and that the proclamation of martial
law and the orders and decrees issued thereunder
would thenceforth strictly be enforced [Daily
Express, January 8, 1973];
15. That petitioners have reason to fear, and

therefore state, that the question added in the
last list of questions to be asked to the Citizens
Assemblies, namely: —
Do you a
of the Ne
Constituti
in relation to the question following it: —
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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;
15
"16. That petitioners have reason to fear, and

therefore allege, that if an affirmative answer to
the two questions just referred to will be reported
then this Honorable Court and the entire nation
will be confronted with a fait accompli which has
been attained in a highly unconstitutional and
undemocratic manner;
"17. That the fait accompli would consist in the

supposed expression of the people approving the
proposed Constitution;
"18. That, if such event would happen, then the

case before this Honorable Court could, to all
intents and purposes, become moot because,
petitioners fear, and they therefore allege, that on
the basis of such supposed expression of the will
of the people through the Citizens Assemblies, it
would be announced that the proposed
Constitution, with all its defects, both congenital
and otherwise, has been ratified;
"19. That, in such a situation the Philippines will

be facing a real crisis and there is likelihood of
confusion if not chaos, because then, the people
and their officials will not know which Constitution
is in force.
"20. That the crisis mentioned above can only be

avoided if this Honorable Court will immediately
decide and announce its decision on the present
petition;
"21. That with the withdrawal by the President of

the limited freedom of discussion on the proposed
Constitution which was given to the people
16
pursuant to Sec. 3 of Presidential Decree No. 73,

the opposition of respondents to petitioners'
prayer at the plebiscite be prohibited has now
collapsed and that a free plebiscite can no longer
be held."
At about the same time, a similar prayer was

made in a "manifestation" filed by the petitioners
in L-35949, "Gerardo Roxas, et al. v. Commission
on Elections, et al.," and L-35942, "Sedfrey A.
Ordoñez, et al. v. The National Treasurer, et al."
The next day, January 13, 1973, which was a

Saturday, the Court issued a resolution requiring
the respondents in said three (3) cases to
comment on said "urgent motion" and
"manifestation," "not later than Tuesday noon,
January 16, 1973." Prior thereto, or on January 15,
1973, shortly before noon, the petitioners in said
Case G.R. No. L-35948 riled a "supplemental
motion for issuance of restraining order and
inclusion of additional respondents," praying —
"... that a restraining order be

issued enjoining and restraining
respondent Commission on
Elections, as well as the
Department of Local
Governments and its head,
Secretary Jose Roño; the
Department of Agrarian Reforms
and its head, Secretary Conrado
Estrella; the National Ratification
Coordinating Committee and its
Chairman, Guillermo de Vega;
their deputies, subordinates and
17
substitutes, and all other officials

and persons who may be
assigned such task, from
collecting, certifying, and
announcing and reporting to the
President or other officials
concerned, the so-called Citizens'
Assemblies referendum results
allegedly obtained when they
were supposed to have met
during the period comprised
between January 10 and January
15, 1973, on the two questions
quoted in paragraph 1 of this
Supplemental Urgent Motion."
In support of this prayer, it was alleged —
"3. That petitioners are now before this Honorable

Court in order to ask further that this Honorable
Court issue a restraining order enjoining herein
respondents, particularly respondent Commission
on Elections as well as the Department of Local
Governments and its head, Secretary Jose Roño;
the Department of Agrarian Reforms and its head,
Secretary Conrado Estrella; the National
Ratification Coordinating Committee and its
Chairman, Guillermo de Vega; and their deputies,
subordinates and/or substitutes, from collecting,
certifying, announcing and reporting to the
President the supposed Citizens' Assemblies
referendum results allegedly obtained when they
were supposed to have met during the period
between January 10 and January 15, 1973,
particularly on the two questions quoted in
paragraph 1 of this Supplemental Urgent Motion;
18
"4. That the proceedings of the so-called Citizens'

Assemblies are illegal, null and void particularly
insofar as such proceedings are being made the
basis of a supposed consensus for the ratification
of the proposed Constitution because: —
[a] The elections contemplated in

the Constitution, Article XV, at
which the proposed
constitutional amendments are
to be submitted for ratification,
are elections at which only
qualified and duly registered
voters are permitted to vote,
whereas, the so called Citizens'
Assemblies were participated in
by persons 15 years of age and
older, regardless of qualifications
or lack thereof, as prescribed in
the Election Code;
[b] Elections or plebiscites for the

ratification of constitutional
amendments contemplated in
Article XV of the Constitution
have provisions for the secrecy of
choice and of vote, which is one
of the safeguards of freedom of
action, but votes in the Citizens'
Assemblies were open and were
cast by raising hands;
[c] The Election Code makes

ample provisions for free, orderly
and honest elections, and such
provisions are a minimum
19
requirement for elections or

plebiscites for the ratification of
constitutional amendments, but
there were no similar provisions
to guide and regulate
proceedings of the so called
Citizens' Assemblies;
[d] It is seriously to be doubted

that, for lack of material time,
more than a handful of the so
called Citizens' Assemblies have
been actually formed, because
the mechanics of their
organization were still being
discussed a day or so before the
day they were supposed to begin
functioning: —
"Provincial
governors and
city and
municipal
mayors had
been meeting
with barrio
captains and
community
leaders since
last Monday
[January 8,
1973) to thresh
out the
mechanics in
the formation of
the Citizens
20
Assemblies and
the topics for
discussion."
[Bulletin Today,
January 10,
1973]
"It should be recalled that the Citizens' Assemblies

were ordered formed only at the beginning of the
year [Daily Express, January 1, 1973], and
considering the lack of experience of the local
organizers of said assemblies, as well as the
absence of sufficient guidelines for organization, it
is too much to believe that such assemblies could
be organized at such a short notice.
"5. That for lack of material time, the appropriate

amended petition to include the additional
officials and government agencies mentioned in
paragraph 3 of this Supplemental Urgent Motion
could not be completed because, as noted in the
Urgent Motion of January 12, 1973, the
submission of the proposed Constitution to the
Citizens' Assemblies was not made known to the
public until January 11, 1973. But be that as it
may, the said additional officials and agencies may
be properly included in the petition at bar
because: —
[a] The herein petitioners have

prayed in their petition for the
annulment not only of
Presidential Decree No. 73, but
also of "any similar decree,
proclamation, order or
instruction.
21
so that Presidential Decree No. 86, insofar at least

as it attempts to submit the proposed
Constitution to a plebiscite by the so-called
Citizens' Assemblies, is properly in issue in this
case, and those who enforce, implement, or carry
out the said Presidential Decree No. 86. and the
instructions incidental thereto clearly fall within
the scope of this petition;
[b] In their petition, petitioners

sought the issuance of a writ of
preliminary injunction restraining
not only the respondents named
in the petition but also their
"agents" from implementing not
only Presidential Decree No. 73,
but also "any other similar
decree, order, instruction, or
proclamation in relation to the
holding of a plebiscite on January
15, 1973 for the purpose of
submitting to the Filipino people
for their ratification or rejection
the 1972 Draft or proposed
Constitution approved by the
Constitutional Convention on
November 30, 1972"; and finally,
[c] Petitioners prayed for such

other relief which may be just
and equitable. [p. 39, Petition].
"Therefore, viewing the case from all angles, the

officials and government agencies mentioned in
paragraph 3 of this Supplemental Urgent Motion,
can lawfully be reached by the processes of this
22
Honorable Court by reason of this petition,

considering, furthermore, that the Commission on
Elections has under our laws the power, among
others, of: —
(a) Direct and immediate

supervision and control over
national, provincial, city,
municipal and municipal district
officials required by law to
perform duties relative to the
conduct of elections on matters
pertaining to the enforcement of
the provisions of this Code ..."
[Election Code of 1971, Sec. 3].
"6. That unless the petition at bar is decided

immediately and the Commission on Elections,
together with the officials and government
agencies mentioned in paragraph 3 of this
Supplemental Urgent Motion are restrained or
enjoined from collecting, certifying, reporting or
announcing to the President the results of the
alleged voting of the so-called Citizens'
Assemblies, irreparable damage will be caused to
the Republic of the Philippines, the Filipino
people, the cause of freedom an democracy, and
the petitioners herein because:
[a] After the result of the

supposed voting on the questions
mentioned in paragraph 1 hereof
shall have been announced, a
conflict will arise between those
who maintain that the 1935
Constitution is still in force, on
23
the one hand, and those who will

maintain that it has been
superseded by the proposed
Constitution, on the other,
thereby creating confusion, if not
chaos;
[b] Even the jurisdiction of this

Court will be subject to serious
attack because the advocates of
the theory that the proposed
Constitution has been ratified by
reason of the announcement of
the results of the proceedings of
the so-called Citizens' Assemblies
will argue that, General Order
No. 3, which shall also be
deemed ratified pursuant to the
Transitory Provisions of the
proposed Constitution, has
placed Presidential Decree Nos.
73 and 86 beyond the reach and
jurisdiction of this Honorable
Court."
On the same date — January 15, 1973 — the

Court passed a resolution requiring the
respondents in said case G.R. No. L-35948 to file
"file an answer to the said motion not later than 4
P.M., Tuesday, January 16, 1973," and setting the
motion for hearing "on January 17, 1973, at 9:30
a.m." While the case was being heard, on the date
last mentioned, at noontime, the Secretary of
Justice called on the writer of this opinion and
said that, upon instructions of the President, he
(the Secretary of Justice) was delivering to him
24
(the writer) a copy of Proclamation No. 1102,

which had just been signed by the President.
Thereupon, the writer returned to the Session Hall
and announced to the Court, the parties in G.R.
No. L-35948 — inasmuch as the hearing in
connection therewith was still going on — and the
public there present that the President had,
according to information conveyed by the
Secretary of Justice, signed said Proclamation No.
1102, earlier that morning. Thereupon, the writer
read Proclamation No. 1102 which is of the
following tenor:
"BY THE PRESIDENT OF THE PHILIPPINES
"PROCLAMATION NO. 1102
"ANNOUNCING THE RATIFICATION BY THE

FILIPINO PEOPLE OF THE CONSTITUTION
PROPOSED BY THE 1971 CONSTITUTIONAL
CONVENTION.
"WHEREAS, the Constitution proposed by the

nineteen hundred seventy-one Constitutional
Convention is subject to ratification by the Filipino
people;
"WHEREAS, Citizens Assemblies were created in

barrios, in municipalities and in districts/wards in
chartered cities pursuant to Presidential Decree
No. 86, dated December 31, 1972, composed of
all persons who are residents of the barrio, district
or ward for at least six months, fifteen years of
age or over, citizens of the Philippines and who
are registered in the list of Citizen Assembly
25
members kept by the barrio, district or ward

secretary;
"WHEREAS, the said Citizens Assemblies were

established precisely to broaden the base of
citizen participation in the democratic process and
to afford ample opportunity for the citizenry to
express their views on important national issues;
"WHEREAS, responding to the clamor of the

people and pursuant to Presidential Decree No.
86-A, dated January 5, 1973, the following
questions were posed before the Citizens
Assemblies or Barangays: Do you approve of the
New Constitution? Do you still want a plebiscite to
be called to ratify the new Constitution?
"WHEREAS, fourteen million nine hundred

seventy-six thousand five hundred sixty-one
(14,976,561) members of all the Barangays
(Citizens Assemblies) voted for the adoption of
the proposed Constitution, as against seven
hundred forty-three thousand eight hundred
sixty-nine (743,869) who voted for its rejection;
while on the question as to whether or not the
people would still like a plebiscite to be called to
ratify the new Constitution, fourteen million two
hundred ninety-eight thousand eight hundred
fourteen (14,298,814) answered that there was
no need for a plebiscite and that the vote of the
Barangays (Citizens Assemblies) should be
considered as a vote in a plebiscite;
"WHEREAS, since the referendum results show

that more than ninety-five (95) per cent of the
members of the Barangays (Citizens Assemblies)
26
are in favor of the new Constitution,

the Katipunan ng Mga Barangay has strongly
recommended that the new Constitution should
already be deemed ratified by the Filipino people;
"NOW, THEREFORE, I, FERDINAND E. MARCOS,

President of the Philippines, by virtue of the
powers in me vested by the Constitution, do
hereby certify and proclaim that the Constitution
proposed by the nineteen hundred and seventy-
one (1971) Constitutional Convention has been
ratified by an overwhelming majority of all of the
votes cast by the members of all the Barangays
(Citizens Assemblies) throughout the Philippines,
and has thereby come into effect.
"IN WITNESS WHEREOF, I have hereunto set my

hand and caused the seal of the Republic of the
Philippines to be affixed.
"Done in the City of Manila, this 17th day of

January, in the year of Our Lord, nineteen
hundred and seventy-three.
(Sgd.) FER
"Presiden
"By the President:
"ALEJANDRO MELCHOR
"Executive Secretary"
Such is the background of the cases submitted

determination. After admitting some of the
allegations made in the petition in L-35948 and
denying the other allegations thereof,
27
respondents therein alleged in their answer

thereto, by way affirmative defenses: 1) that the
"questions raised" in said petition "are political in
character"; 2) that "the Constitutional Convention
acted freely and had plenary authority to propose
not only amendments but a Constitution which
would supersede the present Constitution"; 3)
that "the President's call for a plebiscite and the
appropriation of funds for this purpose are valid";
4) that "there is not an improper submission" and
"there can be a plebiscite under Martial Law"; and
5) that the "argument that the Proposed
Constitution is vague and incomplete, makes an
unconstitutional delegation of power, includes a
referendum on the proclamation of Martial Law
and purports to exercise judicial power" is "not
relevant and ... without merit." Identical defenses
were set up in the other cases under
consideration.
Immediately after the hearing held on January 17,

1973, or since the afternoon of that date, the
Members of the Court have been deliberating on
the aforementioned cases and, after extensive
discussions on the merits thereof, have deemed it
best that each Member write his own views
thereon and that thereafter the Chief Justice
should state the result or the votes thus cast on
the points in issue. Hence, the individual views of
my brethren in the Court are set forth in the
opinions attached hereto, except that, instead of
writing their separate opinions, some Members
have preferred to merely concur in the opinion of
one of our colleagues.
28
Then the writer of said decision expressed his own opinion on the issues
involved therein, after which he recapitulated the views of the Members of
the Court, as follows:
1. There is unanimity on the justiciable nature of

the issue on the legality of Presidential Decree No.
73.
2. On the validity of the decree itself, Justices

Makalintal, Castro, Fernando, Teehankee,
Esguerra and myself, or six (6) Members of the
Court, are of the opinion that the issue has
become moot and academic, whereas Justices
Barredo, Makasiar and Antonio voted to uphold
the validity of said Decree.
3. On the authority of the 1971 Constitutional

Convention to pass the proposed Constitution or
to incorporate therein the provisions contested by
the petitioners in L-35948, Justices Makalintal,
Castro, Teehankee and Esguerra opine that the
issue has become moot and academic. Justices
Fernando, Barredo, Makasiar, Antonio and myself
have voted to uphold the authority of the
Convention.
4. Justice Fernando, likewise, expressed the view

that the 1971 Constitutional Convention had
authority to continue in the performance of its
functions despite the proclamation of Martial Law.
In effect, Justices Barredo, Makasiar and Antonio
hold the same view.
5. On the question whether the proclamation of

Martial Law affected the proper submission of the
proposed Constitution to a plebiscite, insofar as
29
the freedom essential therefor is concerned,

Justice Fernando is of the opinion that there is a
repugnancy between the election contemplated
under Art. XV of the 1935 Constitution and the
existence of Martial Law, and would, therefore,
grant the petitions were they not moot and
academic. Justices Barredo, Antonio and Esguerra
are of the opinion that issue involves questions of
fact which cannot be predetermined, and that
Martial Law per se does not necessarily preclude
the factual possibility of adequate freedom, for
the purposes contemplated.
6. On Presidential Proclamation No. 1102, the

following views were expressed:
a. Justices Makalintal, Castro,

Fernando, Teehankee, Makasiar,
Esguerra and myself are of the
opinion that the question of
validity of said Proclamation has
not been properly raised before
the Court, which, accordingly,
should not pass upon such
question.
b. Justice Barredo holds that the

issue on the constitutionality of
Proclamation No. 1102 has been
submitted to and should be
determined by the Court, and
that the "purported ratification
of the Proposed Constitution ...
based on the referendum among
Citizens' Assemblies falls short of
being in strict conformity with
30
the requirements of Article XV of

the 1935 Constitution," but that
such unfortunate drawback
notwithstanding, "considering all
other related relevant
circumstances, ... the new
Constitution is legally
recognizable and should be
recognized as legitimately in
force."
c. Justice Zaldivar maintains

unqualifiedly that the Proposed
Constitution has not been ratified
in accordance with Article XV of
the 1935 Constitution, and that,
accordingly, it has no force and
effect whatsoever.
d. Justice Antonio feels "that the

Court is not competent to act" on
the issue whether the Proposed
Constitution has been ratified by
the people or not, "in the
absence of any judicially
discoverable and manageable
standards," since the issue
"poses a question of fact.
7. On the question whether or not these cases

should be dismissed, Justices Makalintal, Castro,
Barredo, Makasiar, Antonio and Esguerra voted in
the affirmative, for the reasons set forth in their
respective opinions. Justices Fernando,
Teehankee, and the writer similarly voted, except
as regards Case No. L-35948 as to which they
31
voted to grant to the petitioners therein a

reasonable period of time within which to file
appropriate pleadings should they wish to contest
the legality of Presidential Proclamation No. 1102.
Justice Zaldivar favors the granting of said period
to the petitioners in said Case No. L-35948 for the
aforementioned purpose, but he believes, in
effect, that the Court should go farther and decide
on the merits everyone of the cases under
consideration.
Accordingly, the Court — acting in conformity with the position taken by six
(6) of its members, 1 with three (3) members dissenting, 2 with respect to
G.R. No. L-35948, only and another member 3 dissenting, as regards all of
the cases dismissed the same, without special pronouncement as to costs.
The Present Cases
Prior thereto, or on January 20, 1973, Josue Javellana filed Case G.R. No. L-
36142 against the Executive Secretary and the Secretaries of National
Defense, Justice and Finance, to restrain said respondents "and their
subordinates or agents from implementing any of the provisions of the
propose Constitution not found in the present Constitution" — referring to
that of 1935. The petition therein, filed by Josue Javellana, as a "Filipino
citizen, and a qualified and registered voter" and as "a class suit, for
himself, and in behalf of all citizens and voters similarly situated," was
amended on or about January 24, 1973. After reciting in substance the facts
set forth in the decision in the plebiscite cases, Javellana alleged that the
President had announced "the immediate implementation of the New
Constitution, thru his Cabinet, respondents including," and that the latter
"are acting without, or in excess of jurisdiction in implementing the said
proposed Constitution" upon the ground: "that the President, as
Commander-in-Chief of the Armed Forces of the Philippines, is without
authority to create the Citizens Assemblies"; that the same "are without
power to approve the proposed Constitution ..."; "that the President is
without power to proclaim the ratification by the Filipino people of the
32
proposed Constitution"; and "that the election held to ratify the proposed
Constitution was not a free election, hence null and void."
Similar actions were filed, on January 23, 1973, by Vidal Tan, J. Antonio
Araneta, Alejandro Roces, Manuel Crudo, Antonio U. Miranda, Emilio de
Peralta and Lorenzo M. Tañada, against the Executive Secretary, the
Secretaries of Finance, Justice, Land Reform, and National Defense, the
Auditor General, the Budget Commissioner, the Chairman of the
Presidential Commission on Reorganization, the Treasurer of the
Philippines, the Commission on Elections and the Commissioner of Civil
Service 4 on February 3, 1973, by Eddie Monteclaro, personally and as
President of the National Press Club of the Philippines, against the
Executive Secretary, the Secretary of Public Information, the Auditor
General, the Budget Commissioner and the National Treasurer 5 and on
February 12, 1973, by Napoleon V. Dilag, Alfredo Salapantan, Jr., Leonardo
Asodisen, Jr. and Raul M. Gonzales, 6 against the Executive Secretary, the
Secretary of National Defense, the Budget Commissioner and the Auditor
General.
Likewise, on January 23, 1973, Gerardo Roxas, Ambrosio Padilla, Jovito R.

Salonga, Salvador H. Laurel, 7 Ramon V. Mitra, Jr. and Eva Estrada-Kalaw, the
first as "duly elected Senator and Minority Floor Leader of the Senate," and
others as "duly elected members" thereof, filed Case G.R. No. L-36165,
against the Executive Secretary, the Secretary National Defense, the Chief
of Staff of the Armed Forces of the Philippines, the Secretary of General
Services, the President and the President Pro Tempore of the Senate. In
their petition — as amended on January 26, 1973 — petitioners Gerardo
Roxas, et al. allege, inter alia, that the term of office of three of the
aforementioned petitioners 8would expire on December 31, 1975, and that
of the others 9 on December 31, 1977; that pursuant to our 1935
Constitution, "which is still in force Congress of the Philippines "must
convene for its 8th Session on Monday, January 22, 1973, at 10:00 A.M.,
which is regular customary hour of its opening session"; that "on said day,
from 10:00 A.M. up to the afternoon," said petitioner "along with their
other colleagues, were unlawfully prevented from using the Senate Session
Hall, the same having been closed by the authorities in physical possession
33
and control the Legislative Building"; that "(a)t about 5:00 to 6:00 P.M. the
said day, the premises of the entire Legislative Building were ordered
cleared by the same authorities, and no one was allowed to enter and have
access to said premises"; that "(r)espondent Senate President Gil J. Puyat
and, in his absence, respondent President Pro Tempore Jose Roy we asked
by petitioning Senators to perform their duties under the law and the Rules
of the Senate, but unlawfully refrained and continue to refrain from doing
so"; that the petitioners ready and willing to perform their duties as duly
elected members of the Senate of the Philippines," but respondent
Secretary of National Defense, Executive Secretary and Chief of Staff,
"through their agents and representatives, are preventing petitioners from
performing their duties as duly elected Senators of the Philippines"; that
"the Senate premise in the Congress of the Philippines Building ... are
occupied by and are under the physical control of the elements military
organizations under the direction of said respondents"; that, as per "official
reports, the Department of General Services ... is now the civilian agency in
custody of the premises of the Legislative Building"; that respondents "have
unlawfully excluded and prevented, and continue to so exclude and
prevent" the petitioners "from the performance of their sworn duties,
invoking the alleged approval of the 1972 (1973) Constitution of the
Philippines by action of the so-called Citizens' Assemblies on January 10,
1973 to January 15, 1973, as stated in and by virtue of Proclamation No.
1102 signed and issued by the President of the Philippines"; that "the
alleged creation of the Citizens' Assemblies as instrumentalities for the
ratification of the Constitution of the Republic of the Philippines" is
inherently illegal and palpably unconstitutional; that respondents Senate
President and Senate President Pro Tempore "have unlawfully refrained
and continue to refrain from and/or unlawfully neglected and continue to
neglect the performance of their duties and functions as such officers under
the law and the Rules of the Senate" quoted in the petition; that because of
events supervening the institution of the plebiscite cases, to which
reference has been made in the preceding pages, the Supreme Court
dismissed said cases on January 22, 1973, by a majority vote, upon the
ground that the petitions therein had become moot and academic; that the
alleged ratification of the 1972 (1973) Constitution "is illegal,
unconstitutional and void and ... can not have superseded and revoked the
1935 Constitution," for the reasons specified in the petition as amended;
34
that, by acting as they did, the respondents and their "agents,

representatives and subordinates ...have excluded the petitioners from an
office to which" they "are lawfully entitled"; that "respondents Gil J. Puyat
and Jose Roy have unlawfully refrained from convening the Senate for its
8th session, assuming general jurisdiction over the Session Hall and the
premises of the Senate and ... continue such inaction up to this time and ...
a writ of mandamus is warranted in order to compel them to comply with
the duties and functions specifically enjoined by law"; and that "against the
above mentioned unlawful acts of the respondents, the petitioners have no
appeal nor other speedy and adequate remedy in the ordinary course of
law except by invoking the equitable remedies of mandamus and
prohibition with the provisional remedy of preliminary mandatory
injunction."
Premised upon the foregoing allegations, said petitioners prayed that,

"pending hearing on the merits, a writ of preliminary mandatory injunction
be issued ordering respondents Executive Secretary, the Secretary of
National Defense, the Chief of Staff of the Armed Forces of the Philippines,
and the ... Secretary of General Service, as well as all their agents,
representatives and subordinates to vacate the premises of the Senate of
the Philippines and to deliver physical possession of the same to the
President of the Senate or his authorized representative"; and that hearing,
judgment be rendered declaring null and Proclamation No. 1102 ... and any
order, decree, proclamation having the same import and objective, issuing
writs of prohibition and mandamus, as prayed for against above-mentioned
respondents, and making the writ injunction permanent; and that a writ
of mandamus be issued against the respondents Gil J. Puyat and Jose Roy
directing them to comply with their duties and functions as President and
President Pro Tempore, respectively, of the Senate of Philippines, as
provided by law and the Rules of the Senate."
Required to comment on the above-mentioned petitions and/or amended

petitions, respondents filed, with the leave Court first had and obtained, a
consolidated comment on said petitions and/or amended petitions, alleging
that the same ought to have been dismissed outright; controverting
petitioners' allegations concerning the alleged lack impairment of the
35
freedom of the 1971 Constitution Convention to approve the proposed

Constitution, its alleged lack of authority to incorporate certain contested
provisions thereof, the alleged lack of authority of the President to create
and establish Citizens' Assemblies "for the purpose submitting to them the
matter of ratification of the new Constitution," the alleged "improper or
inadequate submiss of the proposed constitution," the "procedure for
ratification adopted ... through the Citizens Assemblies"; a maintaining that:
1) "(t)he Court is without jurisdiction to act on these petitions"; 2) the
questions raised therein are "political in character and therefore
nonjusticiable"; 3) "there substantial compliance with Article XV of the 1
Constitution"; 4) "(t)he Constitution was properly submitted the people in a
free, orderly and honest election; 5) "Proclamation No. 1102, certifying the
results of the election, is conclusive upon the courts"; and 6) "(t)he
amending process outlined in Article XV of the 1935 Constitution is not
exclusive of other modes of amendment."
Respondents Puyat and Roy, in said Case G.R. No. L-36165, filed their
separate comment therein, alleging that "(t)he subject matter" of said case
"is a highly political question which, under the circumstances, this ...Court
would not be in a position to act upon judicially," and that, in view of the
opinions expressed by three members of this Court in its decision in the
plebiscite cases, in effect upholding the validity of Proclamation No. 1102,
"further proceedings in this case may only be an academic exercise in
futility."
On February 5, 1973, the Court issued a resolution requiring respondents in

L-36236 to comment on the petition therein not later than Saturday,
February 10, 1973, and setting the case for hearing on February 12, 1973, at
9:30 a.m. By resolution dated February 7, 1973, this Court resolved to
consider the comments of the respondents in cases G.R. Nos. L-36142, L-
36164, and L-36165, as motions to dismiss the petitions therein, and to set
said cases for hearing on the same date and time as L-36236. On that date,
the parties in G.R. No. L-36283 10 agreed that the same be, likewise, heard,
as it was, in fact, heard jointly with the aforementioned cases G.R. Nos. L-
36142, L-36164, L-36165 and L-36236. The hearing, which began on
February 12, 1973, shortly after 9:30 a.m., was continued not only that
36
afternoon, but, also, on February 13, 14, 15 and 16, morning and afternoon,
after which the parties were granted up to February 24, 1973, noon, within
which to submit their notes of oral arguments and additional arguments, as
well as the documents required of them or whose presentation was
reserved by them. The same resolution granted the parties until March 1,
1973, to reply to the notes filed by their respective opponents. Counsel for
the petitioners in G.R. Nos. L-36164 and L-36165 filed their aforementioned
notes on February 24, 1973, on which date the Solicitor General sought an
extension of time up to March 3, 1973, within which to file his notes, which
was granted, with the understanding that said notes shall include his reply
to the notes already filed by the petitioners in G.R. Nos. L-36164 a L-36165.
Counsel for the petitioners, likewise, moved and were granted an extension
of time, to expire on March 10, 1973, within which to file, as they did, their
notes in reply to those submitted by the Solicitor General on March 3,
1973. On March 21, 1973, petitioners in L-36165 filed a "Manifestation a
Supplemental Rejoinder," whereas the Office of the Solicitor General
submitted in all these cases a "Rejoinder Petitioners' Replies."
After deliberating on these cases, the members of the Court agreed that
each would write his own opinion and serve a copy thereof on his
colleagues, and this they did. Subsequently, the Court discussed said
opinions and votes were cast thereon. Such individual opinions are
appended hereto.
Accordingly, the writer will first express his person opinion on the issues
before the Court. After the exposition his aforesaid opinion, the writer will
make, concurrently with his colleagues in the Court, a resume of summary
of the votes cast by them in these cases.
Writer's Personal Opinion
I.
Alleged academic futility of further proceedings in G.R. L-36165.
37
This defense or theory, set up by counsel for respondents Gil J. Puyat and
Jose Roy in G.R. No. L-36165, and, also, by the Solicitor General, is
predicated upon the fact that, in Our decision in the plebiscite cases, Mr.
Justice Barredo had expressed the view that the 1935 Constitution had "pro
tanto passed into history" and "been legitimately supplanted by the
Constitution now in force by virtue of Proclamation No. 1102 ..."; that Mr.
Justice Antonio did not feel "that this Court competent to act" in said cases
"in the absence of any judicially discoverable and manageable standards"
and because "the access to relevant information is insufficient to assure the
correct determination of the issue," apart from the circumstance that "the
new constitution has been promulgated and great interests have already
arisen under it" and that the political organ of the Government has
recognized its provisions; whereas, Mr. Justice Esguerra had postulated that
"(w)ithout any competent evidence ... about the circumstances attending
the holding" of the "referendum or plebiscite" thru the Citizens'
Assemblies, he "cannot say that it was not lawfully held" and that,
accordingly, heassumed "that what the proclamation (No. 1102) says on its
face is true and until overcome by satisfactory evidence" he could not
"subscribe to the claim that such plebiscite was not held accordingly"; and
that he accepted "as a fait accompli that the Constitution adopted (by the
1971 Constitutional Convention) on November 30, 1972, has been duly
ratified.
Counsel for respondents Gil J. Puyat and Jose Roy goes on to say that,
under these circumstances, "it seems remote or improbable that the
necessary eight (8) votes under the 1935 Constitution, and much less the
ten (10) votes required by the 1972 (1973) Constitution, can be obtained
for the relief sought in the Amended Petition" in G.R. No.
L-36165.
I am unable to share this view. To begin with, Mr. Justice Barredo

announced publicly, in open court, during the hearing of these cases, that
he was and is willing to be convinced that his aforementioned opinion in
the plebiscite cases should be reconsidered and changed. In effect, he thus
declared that he had an open mind in connection with the cases at bar, and
that in deciding the same he would not necessarily adhere to said opinion if
38
the petitioners herein succeeded in convincing him that their view should
be sustained.
Secondly, counsel for the aforesaid respondents had apparently assumed

that, under the 1935 Constitution, eight (8) votes are necessary to declare
invalid the contested Proclamation No. 1102. I do not believe that this
assumption is borne out by any provision of said Constitution. Section 10 of
Article VIII thereof reads:
All cases involving the constitutionality of a treaty

or law shall be heard and decided by the Supreme
Court in banc, and no treaty or law may be
declared unconstitutional without the
concurrence of two thirds of all the members of
the Court.
Pursuant to this section, the concurrence of two-thirds of all the Members

of the Supreme Court is required only to declare "treaty or law"
unconstitutional. Construing said provision, in a resolution dated
September 16, 1949, then Chief Justice Moran, voicing the unanimous view
of the Members of this Court, postulated:
... There is nothing either in the Constitution or in

the Judiciary Act requiring the vote of eight Justices
to nullify a rule or regulation or an executive order
issued by the President. It is very significant that in
the previous drafts of section 10, Article VIII of the
Constitution, "executive order" and
"regulation" were included among those that
required for their nullification the vote of two-thirds
of all the members of the Court. But "executive
order" and "regulation" were later deleted from the
final draft (Aruego, The Framing of the Philippine
Constitution, Vol. I, pp. 495, 496), and thus a mere
majority of six members of this Court is enough to
nullify them. 11
39
The distinction is not without reasonable foundation. The two thirds vote
(eight [8] votes) requirement, indeed, was made to apply only to treaty and
law, because, in these cases, the participation of the two other
departments of the government — the Executive and the Legislative — is
present, which circumstance is absent in the case of rules, regulations and
executive orders. Indeed, a law (statute) passed by Congress is subject to
the approval or veto of the President, whose disapproval cannot be
overridden except by the vote of two-thirds (2/3) of all members of each
House of Congress. 12 A treaty is entered into by the President with the
concurrence of the Senate, 13 which is not required in the case of rules,
regulations or executive orders which are exclusive acts of the President.
Hence, to nullify the same, a lesser number of votes is necessary in the
Supreme Court than that required to invalidate a law or treaty.
Although the foregoing refers to rules, regulations and executive orders

issued by the President, the dictum applies with equal force to executive
proclamation, like said Proclamation No. 1102, inasmuch as the authority to
issue the same is governed by section 63 of the Revised Administrative
Code, which provides:
Administrative acts and commands of the

(Governor-General) President of the Philippines
touching the organization or mode of operation of
the Government or rearranging or readjusting any
of the districts, divisions, parts or ports of the
(Philippine Islands) Philippines and all acts and
commands governing the general performance of
duties by public employees or disposing of issues
of general concern shall be made effective in
executive orders.
Executive orders fixing the dates when specific laws,

resolutions, or orders are to have or cease to (have)
effect and any information concerning matters of
public moment determined by law, resolution, or
executive orders, may be promulgated in an
40
executive proclamation, with all the force of an

executive order. 14
In fact, while executive order embody administrative acts or commands of

the President, executive proclamations are mainly informative and
declaratory in character, and so does counsel for respondents Gil J. Puyat
and Jose Roy maintain in G.R. No.
L-36165. 15 As consequence, an executive proclamation has no more than
"the force of an executive order," so that, for the Supreme Court to declare
such proclamation unconstitutional, under the 1935 Constitution, the same
number of votes needed to invalidate an executive order, rule or regulation
— namely, six (6) votes — would suffice.
As regards the applicability of the provisions of the proposed new

Constitution, approved by the 1971 Constitutional Convention, in the
determination of the question whether or not it is now in force, it is
obvious that such question depends upon whether or not the said new
Constitution has been ratified in accordance with the requirements of the
1935 Constitution, upon the authority of which said Constitutional
Convention was called and approved the proposed Constitution. It is well
settled that the matter of ratification of an amendment to the Constitution
should be settled byapplying the provisions of the Constitution in force at
the time of the alleged ratification, or the old Constitution. 16
II
Does the issue on the validity of Proclamation No. 1102 partake of the
nature of a political, and, hence, non-justiciable question?
The Solicitor General maintains in his comment the affirmative view and
this is his main defense. In support thereof, he alleges that "petitioners
would have this Court declare as invalid the New Constitution of the
Republic" from which — he claims — "this Court now derives its authority";
that "nearly 15 million of our body politic from the age of 15 years have
mandated this Constitution to be the New Constitution and the prospect of
unsettling acts done in reliance on it caution against interposition of the
41
power of judicial review"; that "in the case of the New Constitution, the
government has been recognized in accordance with the New
Constitution"; that "the country's foreign relations are now being
conducted in accordance with the new charter"; that "foreign governments
have taken note of it"; that the "plebiscite cases" are "not precedents for
holding questions regarding proposal and ratification justiciable"; and that
"to abstain from judgment on the ultimate issue of constitutionality is not
to abdicate duty."
At the outset, it is obvious to me that We are not being asked to "declare"

the new Constitution invalid. What petitioners dispute is the theory that it
has been validly ratified by the people, especially that they have done so in
accordance with Article XV of the 1935 Constitution. The petitioners
maintain that the conclusion reached by the Chief Executive in the
dispositive portion of Proclamation No. 1102 is not borne out by the
whereases preceding the same, as the predicates from which said
conclusion was drawn; that the plebiscite or "election" required in said
Article XV has not been held; that the Chief Executive has no authority,
under the 1935 Constitution, to dispense with said election or plebiscite;
that the proceedings before the Citizens' Assemblies did not constitute and
may not be considered as such plebiscite; that the facts of record
abundantly show that the aforementioned Assemblies could not have been
held throughout the Philippines from January 10 to January 15, 1973; and
that, in any event, the proceedings in said Assemblies are null and void as
an alleged ratification of the new Constitution proposed by the 1971
Constitutional Convention, not only because of the circumstances under
which said Assemblies had been created and held, but, also, because
persons disqualified to vote under Article V of the Constitution were
allowed to participate therein, because the provisions of our Election Code
were not observed in said Assemblies, because the same were not held
under the supervision of the Commission on Elections, in violation of
section 2 of Article X of the 1935 Constitution, and because the existence of
Martial Law and General Order No. 20, withdrawing or suspending the
limited freedom to discuss the merits and demerits of said proposed
Constitution, impaired the people's freedom in voting thereon,
particularly a viva voce, as it was done in many instances, as well as their
42
ability to have a reasonable knowledge of the contents of the document on

which they were allegedly called upon to express their views.
Referring now more specifically to the issue on whether the new

Constitution proposed by the 1971 Constitutional Convention has been
ratified in accordance with the provisions of Article XV of the 1935
Constitution is a political question or not, I do not hesitate to state that the
answer must be in the negative. Indeed, such is the position taken by this
Court, 17 in an endless line of decisions, too long to leave any room for
possible doubt that said issue is inherently and essentially justiciable. Such,
also, has been the consistent position of the courts of the United States of
America, whose decisions have a persuasive effect in this jurisdiction, our
constitutional system in the 1935 Constitution being patterned after that of
the United States. Besides, no plausible reason has, to my mind, been
advanced to warrant a departure from said position, consistently with the
form of government established under said Constitution..
Thus, in the aforementioned plebiscite cases, 18 We rejected the theory of

the respondents therein that the question whether Presidential Decree No.
73 calling a plebiscite to be held on January 15, 1973, for the ratification or
rejection of the proposed new Constitution, was valid or not, was not a
proper subject of judicial inquiry because, they claimed, it partook of a
political nature, and We unanimously declared that the issue was
a justiciable one. With identical unanimity, We overruled the respondents'
contention in the 1971 habeas corpus cases, 19 questioning Our authority to
determine the constitutional sufficiency of the factual bases of the
Presidential proclamation suspending the privilege of the writ of habeas
corpus on August 21, 1971, despite the opposite view taken by this Court
in Barcelona v. Baker 20and Montenegro v. Castañeda, 21 insofar as it
adhered to the former case, which view We, accordingly, abandoned and
refused to apply. For the same reason, We did not apply and expressly
modified, in Gonzales v. Commission on Elections, 22 the political-question
theory adopted in Mabanag v. Lopez Vito. 23 Hence, respondents herein
urge Us to reconsider the action thus taken by the Court and to revert to
and follow the views expressed in Barcelon v. Baker and Mabanag v. Lopez
Vito. 24
43
The reasons adduced in support thereof are, however, substantially the

same as those given in support of the political-question theory advanced in
said habeas corpus and plebiscite cases, which were carefully considered by
this Court and found by it to be legally unsound and constitutionally
untenable. As a consequence, Our decision in the aforementioned habeas
corpus cases partakes of the nature and effect of a stare decisis, which
gained added weight by its virtual reiteration in the plebiscite cases.
The reason why the issue under consideration and other issues of similar
character are justiciable, not political, is plain and simple. One of the
principal bases of the non-justiciability of so-called political questions is the
principle of separation of powers — characteristic of the Presidential
system of government — the functions of which are classified or divided, by
reason of their nature, into three (3) categories, namely: 1) those involving
the making of laws, which are allocated to the legislative department; 2)
those concerned mainly with the enforcement of such laws and of judicial
decisions applying and/or interpreting the same, which belong to the
executive department; and 3) those dealing with the settlement of
disputes, controversies or conflicts involving rights, duties or prerogatives
that are legally demandable and enforceable, which are apportioned to
courts of justice. Within its own sphere — but only within such sphere —
each department is supreme and independent of the others, and each is
devoid of authority, not only to encroach upon the powers or field of action
assigned to any of the other departments, but, also, to inquire into or pass
upon the advisability or wisdom of the acts performed, measures taken or
decisions made by the other departments — provided that such acts,
measures or decisions are within the area allocated thereto by the
Constitution. 25
This principle of separation of powers under the presidential system goes

hand in hand with the system of checks and balances, under which each
department is vested by the Fundamental Law with some powers to
forestall, restrain or arrest a possible or actual misuse or abuse of powers
by the other departments. Hence, the appointing power of the Executive,
his pardoning power, his veto power, his authority to call the Legislature or
Congress to special sessions and even to prescribe or limit the object or
44
objects of legislation that may be taken up in such sessions, etc. Conversely,

Congress or an agency or arm thereof — such as the commission on
Appointments — may approve or disapprove some appointments made by
the President. It, also, has the power of appropriation, to "define, prescribe,
and apportion the jurisdiction of the various courts," as well as that of
impeachment. Upon the other hand, under the judicial power vested by the
Constitution, the "Supreme Court and ... such inferior courts as may be
established by law," may settle or decide with finality, not only justiciable
controversies between private individuals or entities, but, also, disputes or
conflicts between a private individual or entity, on the one hand, and an
officer or branch of the government, on the other, or between two (2)
officers or branches of service, when the latter officer or branch is charged
with acting without jurisdiction or in excess thereof or in violation of law.
And so, when a power vested in said officer or branch of the government
is absolute or unqualified, the acts in the exercise of such power are said to
bepolitical in nature, and, consequently, non-justiciable or beyond judicial
review. Otherwise, courts of justice would be arrogating upon themselves a
power conferred by the Constitution upon another branch of the service to
the exclusion of the others. Hence, in Tañada v. Cuenco, 26 this Court quoted
with approval from In re McConaughy, 27 the following:
"At the threshold of the case we are met with the

assertion that the questions involved are political,
and not judicial. If this is correct, the court has no
jurisdiction as the certificate of the state
canvassing board would then be final, regardless
of the actual vote upon the amendment. The
question thus raised is a fundamental one; but it
has been so often decided contrary to the view
contended for by the Attorney General that it
would seem to be finally settled.
xxx xxx xxx
"... What is generally meant, when it is said that a

question is political, and not judicial, is that it is a
45
matter which is to be exercised by the people in

their primary political capacity, or that it has been
specifically delegated to some other department
or particular officer of the government, with
discretionary power to act. See State vs.
Cunningham, 81 Wis. 497, N.W. 724, 15 L.R.A.
561; In re Gunn, 50 Kan. 155; 32 Pac. 470, 948, 19
L.R.A. 519; Green vs. Mills, 69 Fed. 852, 16 C.C.A.
516, 30 L.R.A. 90;Fletcher vs. Tuttle 151 Ill. 41, 37
N.E. 683, 25 L.R.A. 143, 42 Am. St. Rep. 220. Thus
the Legislature may in its discretion determine
whether it will pass law or submit a proposed
constitutional amendment to the people. The
courts have no judicial control over such matters,
not merely because they involve political
questions, but because they are matters which the
people have by the Constitution delegated to the
Legislature. The Governor may exercise the
powers delegated him, free from judicial
control, so long as he observes the laws act within
the limits of the power conferred.
His discretionary acts cannot be controllable, not
primarily because they are of a politics nature, but
because the Constitution and laws have placed
the particular matter under his control. But every
officer under constitutional government must act
accordingly to law and subject its restrictions, and
every departure therefrom or disregard thereof
must subject him to that restraining and
controlling power of the people, acting through
the agency of the judiciary; for it must be
remembered that the people act through courts,
as well as through the executive or the Legislature.
One department is just as representative as the
other, and the judiciary is the department which is
charged with the special duty of determining the
limitations which the law places upon all official
46
action. The recognition of this principle, unknown

except in Great Britain and America, is necessary,
to "the end that the government may be one of
laws and not of men" — words which Webster
said were the greatest contained in any written
constitutional document." (Emphasis supplied.)
and, in an attempt to describe the nature of a political question in terms, it

was hoped, understandable to the laymen, We added that "... the term
"political question" connotes, in legal parlance, what it means in ordinary
parlance, namely, a question of policy" in matters concerning the
government of a State, as a body politic. "In other words, in the language of
Corpus Juris Secundum (supra), it refers to "those questions which, under
the Constitution, are to bedecided by the people in their sovereign capacity,
or in regard to which full discretionary authority has been delegated to the
Legislature or executive branch of the government." It is concerned with
issues dependent upon thewisdom, not legality, of a particular measure."
Accordingly, when the grant of power is qualified, conditional or subject to

limitations, the issue on whether or not the prescribed qualifications or
conditions have been met, or the limitations respected, is justiciable or
non-political, the crux of the problem being one of legality or validity of the
contested act, not its wisdom. Otherwise, said qualifications, conditions or
limitations — particularly those prescribed or imposed by the Constitution
— would be set at naught. What is more, the judicial inquiry into such issue
and the settlement thereof are the main functions of courts of justice under
the Presidential form of government adopted in our 1935 Constitution, and
the system of checks and balances, one of its basic predicates. As a
consequence, We have neither the authority nor the discretion to decline
passing upon said issue, but are under the ineluctable obligation — made
particularly more exacting and peremptory by our oath, as members of the
highest Court of the land, to support and defend the Constitution — to
settle it. This explains why, in Miller v. Johnson, 28 it was held that courts
have a "duty, rather than a power", to determine whether another branch
of the government has "kept within constitutional limits." Not satisfied with
this postulate, the court went farther and stressed that, if the Constitution
47
provides how it may be amended — as it is in our 1935 Constitution —

"then,unless the manner is followed, the judiciary as the interpreter of that
constitution, will declare the amendment invalid." 29 In fact, this very Court
— speaking through Justice Laurel, an outstanding authority on Philippine
Constitutional Law, as well as one of the highly respected and foremost
leaders of the Convention that drafted the 1935 Constitution — declared,
as early as July 15, 1936, that "(i)n times of social disquietude or political
excitement, the great landmarks of the Constitution are apt to be forgotten
or marred, if not entirely obliterated. In cases of conflict,
thejudicial department is the only constitutional organ which can be called
upon to determine the proper allocation of powers between the several
departments" of the government. 30
The Solicitor General has invoked Luther v. Borden 31 in support of his stand

that the issue under consideration is non-justiciable in nature. Neither the
factual background of that case nor the action taken therein by the Federal
Supreme Court has any similarity with or bearing on the cases under
consideration.
Luther v. Borden was an action for trespass filed by Luther with the Circuit
Court of the United States against Borden and others for having forcibly
entered into Luther's house, in Rhode Island, sometime in 1842. The
defendants who were in the military service of said former colony of
England, alleged in their defense that they had acted in obedience to the
commands of a superior officer, because Luther and others were engaged
in a conspiracy to overthrow the government by force and the state had
been placed by competent authority under Martial Law. Such authority was
the charter government of Rhode Island at the time of the Declaration of
Independence, for — unlike other states which adopted a new Constitution
upon secession from England — Rhode Island retained its form of
government under a British Charter, making only such alterations, by acts
of the Legislature, as were necessary to adapt it to its subsequent condition
as an independent state. It was under this form of government when Rhode
Island joined other American states in the Declaration of Independence
and, by subsequently ratifying the Constitution of the United States,
became a member of the Union. In 1843, it adopted a new Constitution.
48
Prior thereto, however, many citizens had become dissatisfied with the
charter government. Memorials addressed by them to the Legislature
having failed to bring about the desired effect, meetings were held and
associations formed — by those who belonged to this segment of the
population — which eventually resulted in a convention called for the
drafting of a new Constitution to be submitted to the people for their
adoption or rejection. The convention was notauthorized by any law of the
existing government. The delegates to such convention framed a new
Constitution which was submitted to the people. Upon the return of the
votes cast by them, the convention declared that said Constitution had
been adopted and ratified by a majority of the people and became the
paramount law and Constitution of Rhode Island.
The charter government, which was supported by a large number of

citizens of the state, contested, however, the validity of said proceedings.
This notwithstanding, one Thomas W. Dorr, who had been elected governor
under the new Constitution of the rebels, prepared to assert authority by
force of arms, and many citizens assembled to support him. Thereupon, the
charter government passed an Act declaring the state under Martial Law
and adopted measures to repel the threatened attack and subdue the
rebels. This was the state of affairs when the defendants, who were in the
military service of the charter government and were to arrest Luther, for
engaging in the support of the rebel government — which was never able
to exercise any authority in the state — broke into his house.
Meanwhile, the charter government had taken measures to call its own
convention to revise the existing form of government. Eventually, a new
constitution was drafted by a convention held under the authority of the
charter government, and thereafter was adopted and ratified by the
people. "(T)he times and places at which the votes were to be given, the
persons who were to receive and return them, and the qualifications of the
voters having all been previously authorized and provided for by law passed
by the charter government," the latter formally surrendered all of its
powers to the new government, established under its authority, in May
1843, which had been in operationuninterruptedly since then.
49
About a year before, or in May 1842, Dorr, at the head of a military force,
had made an unsuccessful attempt to take possession of the state arsenal
in Providence, but he was repulsed, and, after an "assemblage of some
hundreds of armed men under his command at Chepatchet in the June
following, which dispersed upon approach of the troops of the old
government, no further effort was made to establish" his government. "...
until the Constitution of 1843" — adopted under the auspices of the
charter government — "went into operation, the charter
government continued to assert its authority and exercise its powers and
to enforce obedience throughout the state ... ."
Having offered to introduce evidence to prove that the constitution of the

rebels had been ratified by the majority of the people, which the Circuit
Court rejected, apart from rendering judgment for the defendants, the
plaintiff took the case for review to the Federal Supreme Court which
affirmed the action of the Circuit Court, stating:
It is worthy of remark, however, when we are

referring to the authority of State decisions, that
the trial of Thomas W. Dorr took place after the
constitution of 1843 went into operation. The
judges who decided that case held their authority
under that constitution and it is admitted on all
hands that it was adopted by the people of the
State, and is the lawful and established
government. It is the decision, therefore, of a
State court, whose judicial authority to decide
upon the constitution and laws of Rhode Island is
not questioned by either party to this controversy,
although the government under which it acted
was framed and adopted under the sanction and
laws of the charter government.
The point, then, raised here has been already

decided by the courts of Rhode Island. The
question relates, altogether, to the constitution
50
and laws of that State, and the well settled rule in

this court is, that the courts of the United States
adopt and follow the decisions of the State courts
in questions which concern merely the constitution
and laws of the State.
Upon what ground could the Circuit Court of the

United States which tried this case have departed
from this rule, and disregarded and overruled the
decisions of the courts of Rhode Island? Undoubtedly
the courts of the United States have certain powers
under the Constitution and laws of the United States
which do not belong to the State courts. But the
power of determining that a State government has
been lawfully established, which the courts of the
State disown and repudiate, is not one of them.
Upon such a question the courts of the United States
are bound to follow the decisions of the State
tribunals, and must therefore regard the charter
government as the lawful and established
government during the time of this contest. 32
It is thus apparent that the context within which the case of Luther v.
Borden was decided is basically and fundamentally different from that of
the cases at bar. To begin with, the case did not involve a federal question,
but one purely municipal in nature. Hence, the Federal Supreme Court was
"bound to follow the decisions of the State tribunals" of Rhode Island
upholding the constitution adopted under the authority of the charter
government. Whatever else was said in that case constitutes, therefore,
an obiter dictum. Besides, no decision analogous to that rendered by the
State Court of Rhode Island exists in the cases at bar. Secondly, the states
of the Union have a measure of internal sovereignty upon which the
Federal Government may not encroach, whereas ours is a unitary form of
government, under which our local governments derive their authority
from the national government. Again, unlike our 1935 Constitution, the
charter or organic law of Rhode Island contained no provision on the
manner, procedure or conditions for its amendment.
51
Then, too, the case of Luther v. Borden hinged more on the question of

recognition of government, than on recognition of constitution, and there is
a fundamental difference between these two (2) types of recognition, the
first being generally conceded to be a political question, whereas the
nature of the latter depends upon a number of factors, one of them being
whether the new Constitution has been adopted in the manner prescribed
in the Constitution in force at the time of the purported ratification of the
former, which is essentially a justiciable question. There was, in Luther v.
Borden, a conflict between two (2) rival governments, antagonistic to each
other, which is absent in the present cases. Here, the Government
established under the 1935 Constitution is the very same government
whose Executive Department has urged the adoption of the new or revised
Constitution proposed by the 1971 Constitutional Convention and now
alleges that it has been ratified by the people.
In short, the views expressed by the Federal Supreme Court in Luther v.

Borden, decided in 1849, on matters otherthan those referring to its power
to review decisions of a state court concerning the constitution and
government of thatstate, not the Federal Constitution or Government, are
manifestly neither, controlling, nor even persuasive in the present cases,
having as the Federal Supreme Court admitted — no authority whatsoever
to pass upon such matters or to review decisions of said state court
thereon. In fact, referring to that case, the Supreme Court of Minnessota
had the following to say:
Luther v. Borden, 7 How. 1, 12 L. Ed. 581, is always

cited by those who assert that the courts have no
power to determine questions of a political
character. It is interesting historically, but it has not
the slightest application to the case at bar. When
carefully analyzed, it appears that it merely
determines that the federal courts will accept as
final and controlling a decision of the highest court
of a state upon a question of the construction of the
Constitution of the state. ... . 33
52
Baker v. Carr, 34 cited by respondents, involved an action to annul a

Tennessee statute apportioning the seats in the General Assembly among
the counties of the State, upon the theory that the legislation violated the
equal protection clause. A district court dismissed the case upon the
ground, among others, that the issue was a political one, but, after a
painstaking review of the jurisprudence on the matter, the Federal
Supreme Court reversed the appealed decision and held that said issue was
justiciable and non-political, inasmuch as:"... (d)eciding whether a matter
has in any measure been committed by the Constitution to another branch
of government, or whether the action of that branchexceeds whatever
authority has been committed, is itself a delicate exercise in constitutional
interpretation, and is a responsibility of this Court as ultimate interpreter of
the Constitution ... ."
Similarly, in Powell v. McCormack, 35 the same Court, speaking through then

Chief Justice Warren, reversed a decision of the Court of Appeals of New
York affirming that of a Federal District Court, dismissing Powell's action for
a declaratory judgment declaring thereunder that he — whose
qualifications were uncontested — had been unlawfully excluded from the
90th Congress of the U.S. Said dismissal was predicated upon the
ground, inter alia, that the issue was political, but the Federal Supreme
Court held that it was clearly a justiciable one.
The Supreme Court of Minnessota undertook a careful review of American

jurisprudence on the matter. Owing to the lucidity of its appraisal thereof,
We append the same to this opinion as Annex A thereof.
After an, exhaustive analysis of the cases on this subject, the Court
concluded:
The authorities are thus practically uniform in

holding that whether a constitutional amendment
has been properly adopted according to the
requirements of an existing Constitution is a judicial
question. There can be little doubt that the
consensus of judicial opinion is to the effect that it is
the absolute duty of the judiciary to determine
53
whether the Constitution has been amended in the

manner required by the Constitution, unless a
special tribunal has been created to determine the
question; and even then many of the courts hold
that the tribunal cannot be permitted to illegally
amend the organic law. ... . 36
In the light of the foregoing, and considering that Art. XV of our 1935
Constitution prescribes the method or procedure for its amendment, it is
clear to my mind that the question whether or not the revised Constitution
drafted by the 1971 Constitutional Convention has been ratified in
accordance with said Art. XV is a justiciable one and non-political in nature,
and that it is not only subject to judicial inquiry, but, also, that it is the
Court's bounden duty to decide such question.
The Supreme Court of the United States has meaningfully postulated that
"the courts cannot reject as 'no law suit' " — because it allegedly involves a
political question — "a bona fide controversy as to whether some action
denominated "political" exceeds constitutional authority." 37
III
Has the proposed new or revised Constitution been ratified conformably to

said Art. XV of the 1935 Constitution?
Petitioners in L-36142 maintain the negative view, upon ground: 1) that the
President "is without authority to create the Citizens' Assemblies" through
which, respondents maintain, the proposed new Constitution has been
ratified; that said Assemblies "are without power to approve the proposed
Constitution"; 3) that the President "is without power to proclaim the
ratification by the Filipino people of the proposed Constitution"; and 4) that
"the election held (in the Citizens' Assemblies) to ratify the proposed
Constitution was not a free election, hence null and void."
Apart from substantially reiterating these grounds support of said negative

view, the petitioners in L-36164 contend: 1) that the President "has no
54
power to call a plebiscite for the ratification or rejection" of the proposed

new Constitution or "to appropriate funds for the holding of the said
plebiscite"; 2) that the proposed new or revised Constitution "is vague and
incomplete," as well as "contains provisions which are beyond the powers
of the 1971 Convention to enact," thereby rendering it "unfit for ...
submission the people;" 3) that "(t)he period of time between November
1972 when the 1972 draft was approved and January 11-15, 1973," when
the Citizens' Assemblies supposedly ratified said draft, "was too short,
worse still, there was practically no time for the Citizens' Assemblies to
discuss the merits of the Constitution which the majority of them have not
read a which they never knew would be submitted to them ratification until
they were asked the question — "do you approve of the New
Constitution?" during the said days of the voting"; and that "(t)here was
altogether no freedom discussion and no opportunity to concentrate on the
matter submitted to them when the 1972 draft was supposedly submitted
to the Citizens' Assemblies for ratification."
Petitioner in L-36236 added, as arguments in support of the negative view,

that : 1) "(w)ith a government-controlled press, there can never be a fair
and proper submission of the proposed Constitution to the people"; and 2)
Proclamation No. 1102 is null and void "(i)nasmuch as the ratification
process" prescribed "in the 1935 Constitution was not followed."
Besides adopting substantially some of the grounds relied upon by the

petitioners in the above-mentioned cases, the petitioners in L-36283 argue
that "(t)he creation of the Citizens' Assemblies as the vehicle for the
ratification of the Constitution was a deception upon the people since the
President announced the postponement of the January 15, 1973 plebiscite
to either February 19 or March 5, 1973." 38
The reasons adduced by the petitioners in L-36165 in favor of the negative

view have already been set forth earlier in this opinion. Hence, it is
unnecessary to reproduce them here. So it is, with respect to the positions
taken in L-36165 by counsel for therein respondents Gil J. Puyat and Jose
Roy — although more will be said later about them — and by the Solicitor
55
General, on behalf of the other respondents in that case and the

respondents in the other cases.
1. What is the procedure prescribed by the 1935 Constitution for its

amendment?
Under section 1 of Art. XV of said Constitution, three (3) steps are essential,
namely:
1. That the amendments to the Constitution be proposed either by

Congress or by a convention called for that purpose, "by a vote of three-
fourths of all the Members of the Senate and the House of Representatives
voting separately," but "in joint session assembled";
2. That such amendments be "submitted to the people for their ratification"

at an "election"; and
3. That such amendments be "approved by a majority of the votes cast" in

said election.
Compliance with the first requirement is virtually conceded, although the

petitioners in L-36164 question the authority of the 1971 Constitutional
Convention to incorporate certain provisions into the draft of the new or
revised Constitution. The main issue in these five (5) cases hinges,
therefore, on whether or not the last two (2) requirements have been
complied with.
2. Has the contested draft of the new or revised Constitution been

submitted to the people for their ratification conformably to Art. XV of the
Constitution?
In this connection, other provisions of the 1935 Constitution concerning

"elections" must, also, be taken into account, namely, section I of Art. V and
Art. X of said Constitution. The former reads:
56
Section 1. Suffrage may be exercised by male

citizens of the Philippines not otherwise
disqualified by law, who are twenty-one years of
age or over and are able to read and write, and
who shall have resided in the Philippines for one
year and in the municipality wherein they propose
to vote for at least six months preceding the
election. The National Assembly shall extend the
right of suffrage to women, if in a plebiscite which
shall be held for that purpose within two years
after the adoption of this Constitution, not less
than three hundred thousand women possessing
the necessary qualifications shall vote
affirmatively on the question.
Sections 1 and 2 of Art. X of the Constitution ordain in part:
Section 1. There shall be

an independent Commission on Elections
composed of a Chairman and two other Members
to be appointed by the President with the consent
of the Commission on Appointments, who shall
hold office for a term of nine years and may not
be reappointed. ...
xxx xxx xxx
Sec. 2. The Commission on Elections shall

have exclusive charge of the enforcement and
administration of all laws relative to the conduct
of elections and shall exercise all other functions
which may be conferred upon it by law. It shall
decide, save those involving the right to
vote, all administrative questions, affecting
elections, including the determination of the
number and location of polling places, and the
57
appointment of election inspectors and of other

election officials. All law enforcement agencies
and instrumentalities of the Government, when so
required by the Commission, shall act as its
deputies for the purpose of insuring fee, orderly,
and honest elections. The decisions, orders, and
rulings of the Commission shall be subject to
review by the Supreme Court.
xxx xxx xxx 39
a. Who may vote in a plebiscite under Art. V of the

Constitution?
Petitioners maintain that section 1 of Art. V of the Constitution is a

limitation upon the exercise of the right of suffrage. They claim that no
other persons than "citizens of the Philippines not otherwise disqualified by
law, who are twenty-one years of age or over and are able to read and
write, and who shall have resided in the Philippines for one year and in the
municipality wherein they propose to vote for at least six months preceding
the election," may exercise the right of suffrage in the Philippines. Upon the
other hand, the Solicitor General contends that said provision
merely guaranteesthe right of suffrage to persons possessing the
aforementioned qualifications and none of the disqualifications, prescribed
by law, and that said right may be vested by competent authorities in
persons lacking some or all of the aforementioned qualifications,
and possessing some of the aforesaid disqualifications. In support of this
view, he invokes the permissive nature of the language — "(s)uffrage may
be exercised" — used in section 1 of Art. V of the Constitution, and the
provisions of the Revised Barrio Charter, Republic Act No. 3590, particularly
sections 4 and 6 thereof, providing that citizens of the Philippines "eighteen
years of age or over," who are registered in the list of barrio assembly
members, shall be members thereof and may participate as such in the
plebiscites prescribed in said Act.
58
I cannot accept the Solicitor General's theory. Art. V of the Constitution

declares who may exercise the right of suffrage, so that those lacking the
qualifications therein prescribed may not exercise such right. This view is
borne out by the records of the Constitutional Convention that drafted the
1935 Constitution. Indeed, section 1 of Art. V of the 1935 Constitution was
largely based on the report of the committee on suffrage of the Convention
that drafted said Constitution which report was, in turn, "strongly
influenced by the election laws then in force in the Philippines ... ." 40 " Said
committee had recommended: 1) "That the right of suffrage should
exercised only by male citizens of the Philippines." 2) "That should
be limited to those who could read and write." 3) "That the duty to vote
should be madeobligatory." It appears that the first recommendation was
discussed extensively in the Convention, and that, by way of compromise, it
was eventually agreed to include, in section 1 of Art. V of the Constitution,
the second sentence thereof imposing upon the National Assembly
established by the original Constitution — instead of the bicameral
Congress subsequently created by amendment said Constitution — the
duty to "extend the right of suffrage women, if in a plebiscite to, be held for
that purpose within two years after the adoption of this Constitution, not
less than three hundred thousand women possessing the necessary
qualifications shall vote affirmatively on the question." 41
The third recommendation on "compulsory" voting was, also debated upon

rather extensively, after which it was rejected by the Convention. 42 This
accounts, in my opinion, for the permissive language used in the first
sentence of said Art. V. Despite some debates on the age qualification —
amendment having been proposed to reduce the same to 18 or 20, which
were rejected, and the residence qualification, as well as the
disqualifications to the exercise of the right of suffrage — the second
recommendation limiting the right of suffrage to those who could "read
and write" was — in the language of Dr. Jose M. Aruego, one of the
Delegates to said Convention — "readily approved in the Convention
without any dissenting vote," although there was some debate on whether
the Fundamental Law should specify the language or dialect that the voter
could read and write, which was decided in the negative. 43
59
What is relevant to the issue before Us is the fact that the constitutional
provision under consideration was meant to be and is
a grant or conferment of a right to persons possessing the qualifications
and none of the disqualifications therein mentioned, which in turn,
constitute a limitation of or restriction to said right, and cannot,
accordingly, be dispensed with, except by constitutional amendment.
Obviously, every such constitutional grant or conferment of a right is
necessarily a negation of the authority of Congress or of any other branch
of the Government to deny said right to the subject of the grant — and, in
this sense only, may the same partake of the nature of a guarantee. But,
this does not imply not even remotely, that the Fundamental Law allows
Congress or anybody else to vest in those lacking the qualifications and
having the disqualifications mentioned in the Constitution the right of
suffrage.
At this juncture, it is noteworthy that the committee on suffrage

responsible for the adoption of section 1 of Art. V of the Constitution was
"strongly influenced by the election laws then in force in the Philippines."
Our first Election Law was Act 1582, passed on January 9, 1907, which was
partly amended by Acts 1669, 1709, 1726 and 1768, and incorporated into
the Administrative Code of 1916 — Act 2657 — as chapter 20 thereof, and
then in the Administrative Code of 1917 — Act 2711 — as chapter 18
thereof, which, in turn, was amended by Act 3387, approved on December
3, 1927. Sections 431 and 432 of said Code of 1917, prescribing,
respectively, the qualifications for and disqualifications from voting, are
quoted below. 44 In all of these legislative acts, the provisions concerning
the qualifications of voters partook of the nature of a grant or recognition
of the right of suffrage, and, hence, of a denialthereof to those who lacked
the requisite qualification and possessed any of the statutory
disqualifications. In short, the history of section 1, Art. V of the
Constitution, shows beyond doubt than the same conferred — not
guaranteed — the authority to persons having the qualifications prescribed
therein and none of disqualifications to be specified in ordinary laws and,
necessary implication, denied such right to those lacking any said
qualifications, or having any of the aforementioned disqualifications.
60
This view is further bolstered by the fact that the 1971 Constitutional
Convention sought the submission to a plebiscite of a "partial amendment"
to said section 1 of Art. V of the 1935 Constitution, by reducing the voting
age from twenty-one (21) years to eighteen (18) years, which, however, did
not materialize on account of the decision of this Court inTolentino v.
Commission on Elections, 45 granting the writs, of prohibition and injunction
therein applied for, upon the ground that, under the Constitution, all of the
amendments adopted by the Convention should be submitted in "an
election" or a single election, not separately or in several or distinct
elections, and that the proposed amendment sought to be submitted to a
plebiscite was not even a complete amendment, but a "partial amendment"
of said section 1, which could be amended further, after its ratification, had
the same taken place, so that the aforementioned partial amendment was,
for legal purposes, no more than a provisional or temporary amendment.
Said partial amendment was predicated upon the generally accepted
contemporary construction that, under the 1935 Constitution, persons
below twenty-one (21) years of age could not exercise the right of suffrage,
without a previous amendment of the Constitution.
Upon the other hand, the question, whether 18-year-old members of barrio
assemblies may vote in barrio assembly plebiscites is, to say the least, a
debatable one. Indeed, there seems to be a conflict between the last
paragraph of said section 6 of Rep. Act No. 3590, 46 pursuant to which the
"majority vote of all the barrio assembly members" (which include all barrio
residents 18 years of age or over, duly registered in the list of barrio
assembly members) is necessary for the approval, in an assembly plebiscite,
of "any budgetary, supplemental appropriations or special tax ordinances,"
whereas, according to the paragraph preceding the penultimate one of said
section, 47 "(a)ll duly registered barrio assembly members qualified to vote"
— who, pursuant to section 10 of the same Act, must be citizens "of the
Philippines, twenty-one years of age or over, able to read and write," and
residents the barrio "during the six months immediately preceding election,
duly registered in the list of voters" and " otherwise disqualified ..." — just
like the provisions of present and past election codes of the Philippines and
Art. V of the 1935 Constitution — "may vote in the plebiscite."
61
I believe, however, that the apparent conflict should resolved in favor of

the 21-year-old members of the assembly, not only because this
interpretation is in accord with Art. V the Constitution, but, also, because
provisions of a Constitution — particularly of a written and rigid one, like
ours generally accorded a mandatory status — unless the intention to the
contrary is manifest, which is not so as regards said Art. V — for otherwise
they would not have been considered sufficiently important to be included
in the Fundamental Law of the land. 48 Besides, it would be illogical, if not
absurd, believe that Republic Act No. 3590 requires, for the most
important measures for which it demands — in addition to favorable action
of the barrio council — the approval of barrio assembly through
a plebiscite, lesser qualifications than those prescribed in dealing with
ordinary measures for which such plebiscite need not be held.
It is similarly inconceivable that those who drafted the 1935 Constitution

intended section 1 of Art. V thereof to applyonly to elections of public
officers, not to plebiscites for the ratification of amendments to the
Fundamental Law or revision thereof, or of an entirely new Constitution,
and permit the legislature to require lesser qualifications for such
ratification, notwithstanding the fact that the object thereof much more
important — if not fundamental, such as the basic changes introduced in
the draft of the revised Constitution adopted by the 1971 Constitutional
Convention, which a intended to be in force permanently, or, at least, for
many decades, and to affect the way of life of the nation — and,
accordingly, demands greater experience and maturity on the part of the
electorate than that required for the election of public officers, 49 whose
average term ranges from 2 to 6 years.
It is admitted that persons 15 years of age or over, but below 21 years,

regardless of whether or not they possessed the other qualifications laid
down in both the Constitution and the present Election Code, 50 and of
whether or not they are disqualified under the provisions of said
Constitution and Code, 51 or those of Republic Act No. 3590, 52 have
participated and voted in the Citizens' Assemblies that have allegedly
ratified the new or revised Constitution drafted by the 1971 Constitutional
Convention.
62
In fact, according to the latest official data, the total number of registered
voters 21 years of age or over in the entire Philippines, available in January
1973, was less than 12 million. Yet, Proclamation No. 1102 states that
14,976,56 "members of all the Barangays (Citizens Assemblies) voted for
the adoption of the proposed Constitution, as against ... 743,869 who voted
for its rejection," whereas, on the question whether or not the people still
wanted a plebiscite to be called to ratify the new Constitution, "...
14,298,814 answered that there was no need for a plebiscite and that the
vote of the Barangays (Citizens Assemblies) should be considered as a vote
in a plebiscite." In other words, it is conceded that the number of people
who allegedly voted at the Citizens' Assemblies for exceeded the number of
registered voters under the Election Code in force in January 1973.
It is thus clear that the proceedings held in such Citizens' Assemblies — and
We have more to say on this point in subsequent pages — were
fundamentally irregular, in that persons lacking the qualifications
prescribed in section 1 of Art. V of the Constitution were allowed to vote in
said Assemblies. And, since there is no means by which the invalid votes of
those less than 21 years of age can be separated or segregated from those
of the qualified voters, the proceedings in the Citizens' Assemblies must be
considered null and void. 53
It has been held that "(t)he power to reject an entire poll ... should be

exercised ... in a case where it is impossible to ascertain with reasonable
certainty the true vote," as where "it is impossible to separate the legal
votes from the illegal or spurious ... ." 54
In Usman v. Commission on Elections, et al., 55 We held:
Several circumstances, defying exact description

and dependent mainly on the factual milieu of the
particular controversy, have the effect of
destroying the integrity and authenticity of
disputed election returns and of avoiding
their prima facie value and character. If
satisfactorily proven, although in a summary
63
proceeding, such circumstances as alleged by the

affected or interested parties, stamp the election
returns with the indelible mark of falsity and
irregularity, and, consequently, of unreliability,
and justify their exclusion from the canvass.
Then, too, the 1935 Constitution requires "a majority of the votes cast" for
a proposed amendment to the Fundamental Law to be "valid" as part
thereof, and the term "votes cast" has a well-settled meaning.
The term "votes cast" ... was held in Smith v. Renville

County Commissioners, 65 N.W. 956, 64 Minn. 16, to
have been used as an equivalent of "ballots cast." 56
The word "cast" is defined as "to deposit formally or

officially." 57
It seems to us that a vote is cast when

a ballot is deposited indicating a "choice." ... The
word "cast" means "deposit (a ballot) formally or
officially ... .
... In simple words, we would define a "vote cast" as

the exercise on a ballot of the choice of the voter on
the measure proposed. 58
In short, said Art. XV envisages — with the term "votes cast" — choices
made on ballots — not orally or by raising — by the persons taking part in
plebiscites. This is but natural and logical, for, since the early years of the
American regime, we had adopted the Australian Ballot System, with its
major characteristics, namely, uniform official ballotsprepared and
furnished by the Government and secrecy in the voting, with the advantage
of keeping records that permit judicial inquiry, when necessary, into the
accuracy of the election returns. And the 1935 Constitution has been
consistently interpreted in all plebiscites for the ratification rejection of
64
proposed amendments thereto, from 1935 to 1967. Hence, the viva

voce voting in the Citizens' Assemblies was and is null and void ab initio.
b. How should the plebiscite be held? (COMELEC supervision indispensable;

essential requisites)
Just as essential as compliance with said Art. V of the 19 Constitution is that

of Art. X thereof, particularly its sections 1 and 2. Indeed, section 1 provides
that "(t)here shall be an independent Commission on Elections ... ." The
point to be stressed here is the term "independent." Indeed, why was the
term used?
In the absence of said constitutional provision as to the independence of

the Commission, would it have been depends upon either Congress or the
Judiciary? The answer must be the negative, because the functions of the
Commission — "enforcement and administration" of election laws — are
neither legislative nor judicial in nature, and, hence, beyond the field
allocated to either Congress or courts of justice. Said functions are by their
nature essentially executive, for which reason, the Commission would be
under the "control" of the President, pursuant to section 10, paragraph (1)
of Art. VII of the Constitution, if Art. X thereof did not explicitly declare that
it (the Commission) is an "independent" body. In other words, in amending
the original 1935 Constitution, by inserting therein said Art. X, on the
Commission on Elections, the purpose was to make said
Commission independent principally of the Chief Executive.
And the reason therefor is, also, obvious. Prior to the creation of the
Commission on Elections as a constitutional organ, election laws in the
Philippines were enforced by the then Department of the Interior, through
its Executive Bureau, one of the offices under the supervision and control of
said Department. The same — like other departments of the Executive
Branch of the Government — was, in turn, under the control of the Chief
Executive, before the adoption of the 1935 Constitution, and had been —
until the abolition of said Department, sometime ago — under the control
of the President of the Philippines, since the effectivity of said Fundamental
Law. Under the provisions thereof, the Executive could so use his power of
65
control over the Department of the Interior and its Executive Bureau as to
place the minority party at such a great, if not decisive, disadvantage, as to
deprive it, in effect, of the opportunity to defeat the political party in
power, and, hence, to enable the same to perpetuate itself therein. To
forestall this possibility, the original 1935 Constitution was amended by the
establishment of the Commission on Elections as a constitutional
body independent primarily of the President of the Philippines.
The independence of the Commission was sought to be strengthened by

the long term of office of its members — nine (9) years, except those first
appointed 59 — the longest under the Constitution, second only to that of
the Auditor General 60; by providing that they may not be removed from
office except by impeachment, placing them, in this respect, on the same
plane as the President, the Vice-President, the Justices of the Supreme
Court and the Auditor General; that they may not be reappointed; that
their salaries, "shall be neither increased nor diminished during their term
of office"; that the decisions the Commission "shall be subject to review by
the Supreme Court" only 61; that "(n)o pardon, parole, or suspension
sentence for the violation of any election law may be granted without the
favorable recommendation of the Commission" 62; and, that its chairman
and members "shall not, during the continuance in office, engage in the
practice of any profession or intervene, directly or indirectly, in the
management or control of any private enterprise which in anyway may
affected by the functions of their office; nor shall they, directly or indirectly,
be financially interested in any contract with the Government or any
subdivision or instrumentality thereof." 63 Thus, the framers of the
amendment to the original Constitution of 1935 endeavored to do
everything possible protect and insure the independence of each member
of the Commission.
With respect to the functions thereof as a body, section 2 of said Art. X

ordains that "(t)he Commission on Elections shall have exclusive charge of
the enforcement and administration all laws relative to the conduct of
elections," apart from such other "functions which may be conferred upon
it by law." It further provides that the Commission "shall decide, save those
involving the right to vote, all administrative question affecting elections,
66
including the determination of the number and location of polling places,

and the appointment of election inspectors and of other election officials."
And, to forests possible conflicts or frictions between the Commission, on
one hand, and the other offices or agencies of the executive department,
on the other, said section 2 postulates that "(a)ll law enforcement agencies
and instrumentalities of the Government, when so required by the
Commission, shall act as its deputies for the purpose of insuring free,
orderly, and honest elections." Not satisfied with this, it declares, in effect,
that "(t)he decisions, orders, and ruling of the Commission" shall not be
subject to review, except by the Supreme Court.
In accordance with the letter and spirit of said Art. X of the Constitution,
Rep. Act No. 6388, otherwise known as the Election Code of 1971,
implements the constitutional powers of the Commission on Elections and
grants additional powers thereto, some of which are enumerated in
sections 5 and 6 of said Act, quoted below. 64 Moreover, said Act
contains, inter alia, detailed provisions regulating contributions and other
(corrupt) practices; the establishment of election precincts; the designation
and arrangement of polling places, including voting booths, to protect the
secrecy of the ballot; formation of lists of voters, the identification and
registration of voters, the proceedings therefor, as well as for the inclusion
in, or exclusion or cancellation from said list and the publication thereof;
the establishment of municipal, provincial and files of registered voters; the
composition and appointment of board of election inspectors; the
particulars of the official ballots to be used and the precautions to be taken
to insure authenticity thereof; the procedure for the casting of votes; the
counting of votes by boards of inspectors; the rules for the appreciation of
ballots and the preparation and disposition of election returns; the
constitution and operation of municipal, provincials and national boards of
canvassers; the presentation of the political parties and/or their candidates
in each election precinct; the proclamation of the results, including, in the
case of election of public officers, election contests; and the jurisdiction of
courts of justice in cases of violation of the provisions of said Election Code
and the penalties for such violations.
67
Few laws may be found with such meticulous and elaborate set of
provisions aimed at "insuring free, orderly, and honest election," as
envisaged in section 2 of Art. X of the Constitution. Yet, none of the
foregoing constitutional and statutory provisions was followed by the so-
called Barangays or Citizens' Assemblies. And no reasons have been given,
or even sought to be given therefor. In many, if not most, instances, the
election were held a viva voce, thus depriving the electorate of the right to
vote secretly — one of the most, fundamental and critical features of our
election laws from time immemorial — particularly at a time when the
same was of utmost importance, owing to the existence of Martial Law.
In Glen v. Gnau, 65 involving the casting of many votes, openly, without

complying with the requirements of the law pertinent thereto, it was held
that the "election officers" involved "cannot be too strongly condemned"
therefor and that if they "could legally dispense with such requirement ...
they could with equal propriety dispense with all of them,including the one
that the vote shall be by secret ballot, or even by ballot
at all ... ."
Moreover, upon the formal presentation to the Executive of the proposed

Constitution drafted by the 1971 Constitutional Convention, or on
December 1, 1972, Presidential Decree No. 73 (on the validity of which —
which was contested in the plebiscite cases, as well as in the 1972 habeas
corpus cases 66 — We need not, in the case of bar, express any opinion) was
issued, calling a plebiscite, to be held on January 15, 1973, at which the
proposed Constitution would be submitted to the people for ratification or
rejection; directing the publication of said proposed Constitution; and
declaring, inter alia, that "(t)he provision of the Election Code of 1971,
insofar as they are not inconsistent" with said decree — excepting those
"regarding right and obligations of political parties and candidates" —
"shall apply to the conduct of the plebiscite." Indeed, section 2 of said
Election Code of 1971 provides that "(a)ll elections of public officers except
barrio officials and plebiscites shall be conducted in the manner provided
by this Code." General Order No. 20, dated January 7, 1973, postponing
until further notice, "the plebiscite scheduled to be held on January 15,
1973," said nothing about the procedure to be followed in plebiscite to take
68
place at such notice, and no other order or decree has been brought to Our
attention, expressly or impliedly repealing the provisions of Presidential
Decree 73, insofar as said procedure is concerned.
Upon the other hand, said General Order No. 20 expressly suspended "the
provisions of Section 3 of Presidential Decree No. 73 insofar as they allow
free public discussion of proposed Constitution ... temporarily suspending
effects of Proclamation No. 1081 for the purposes of free open dabate on
the proposed Constitution ... ." This specific mention of the portions of the
decrees or orders or instructions suspended by General Order No. 20
necessarily implies that all other portions of said decrees, orders or
instructions — and, hence, the provisions of Presidential Decree No. 73
outlining the procedure to be followed in the plebiscite for ratification or
rejection of the proposed Constitution — remained in force, assuming that
said Decree is valid.
It is claimed that by virtue of Presidential Decree No. 86-A — the text of

which is quoted below 67 — the Executive declared, inter alia, that the
collective views expressed in the Citizens' Assemblies "shall
be considered in the formulation of national policies or programs and,
wherever practicable, shall be translated into concrete and specific
decision"; that such Citizens' Assemblies "shall consider vital national issues
... like the holding of the plebiscite on the new Constitution ... and others in
the future, which shall serve as guide or basis for action or decision by the
national government"; and that the Citizens' Assemblies "shall conduct
between January 10 and 15, 1973, a referendum on important national
issues, including those specified in paragraph 2 hereof, and submit the
results thereof to the Department of Local Governments and Community
Development immediately thereafter, ... ." As in Presidential Decree No. 86,
this Decree No. 86-A does not and cannot exclude the exercise of the
constitutional supervisory power of the Commission on Elections or its
participation in the proceedings in said Assemblies, if the same had been
intended to constitute the "election" or Plebiscite required Art. V of the
1935 Constitution. The provision of Decree No. 86-A directing the
immediate submission of the result thereof to the Department of Local
Governments Community Development is not necessarily inconsistent with,
69
and must be subordinate to the constitutional power of the Commission on

Elections to exercise its "exclusive authority over the enforcement and
administration of all laws to the conduct of elections," if the proceedings in
the Assemblies would partake of the nature of an "election" or plebiscite
for the ratification or rejection of the proposed Constitution.
We are told that Presidential Decree No. 86 was further amended by

Presidential Decree No. 86-B, dated 1973, ordering "that important
national issues shall from time to time; be referred to the Barangays
(Citizens Assemblies) for resolution in accordance with Presidential Decree
No. 86-A dated January 5, 1973 and that the initial referendum include the
matter of ratification of the Constitution by the 1971 Constitutional
Convention" and that "(t)he Secretary of the Department of Local
Governments and Community Development shall insure the
implementation of this order." As in the case of Presidential Decrees Nos.
86 and 86-A, the foregoing directives do not necessarily exclude exercise of
the powers vested by the 1935 Constitution in the Commission on
Elections, even if the Executive had the authority to repeal Art. X of our
Fundamental Law — which he does not possess. Copy of Presidential
Decree No. 86-B is appended hereto as Annex B hereof.
The point is that, such of the Barrio Assemblies as were held took place
without the intervention of the Commission on Elections, and without
complying with the provisions of the Election Code of 1971 or even of those
of Presidential Decree No. 73. What is more, they were held under the
supervision of the very officers and agencies of the Executive Department
sought to be excluded therefrom by Art. X of the 1935 Constitution. Worse
still, said officers and agencies of the 1935 Constitution would be favored
thereby, owing to the practical indefinite extension of their respective
terms of office in consequence of section 9 of the Transitory Provisions,
found in Art. XVII of the proposed Constitution, without any elections
therefor. And the procedure therein mostly followed is such that there
is no reasonable means of checking the accuracy of the returns files by the
officers who conducted said plebiscites. This is another patent violation of
Art. of the Constitution which can hardly be sanctioned. And, since the
provisions of this article form part of the fundamental scheme set forth in
70
the 1935 Constitution, as amended, to insure the "free, orderly, and

honest" expression of the people's will, the aforementioned violation
thereof renders null and void the contested proceedings or alleged
plebiscite in the Citizens' Assemblies, insofar as the same are claimed to
have ratified the revised Constitution proposed by the 1971 Constitutional
Convention. "... (a)ll the authorities agree that the legal definition of an
election, as well as that which is usually and ordinarily understood by the
term, is a choosing or as election by those having a right to participate (in
the selection) of those who shall fill the offices, or of the adoption or
rejection of any public measure affecting the territory involved. 15 Cyc.
279; Lewis v. Boynton, 25 Colo. 486, 55 Pac. 732; Saunders v. Haynes, 13
Cal. 145; Seaman v. Baughman, 82 Iowa 216, 47 N.W. 1091, 11 L.R.A.
354; State v. Hirsh, 125 Ind. 207, 24 N.E. 1062, 9 L.R.A. 170; Bouvier's Law
Dictionary. 68
IV
Has the proposed Constitution aforementioned

been approved by a majority of the people in
Citizens' Assemblies allegedly held
throughout the Philippines?
Respondents maintain the affirmative, relying upon Proclamation No. 1102,

the validity of which is precisely being contested by petitioners herein.
Respondents claim that said proclamation is "conclusive" upon this Court,
or is, at least, entitled to full faith and credence, as an enrolled bill; that the
proposed Constitution has been, in fact, ratified, approved or adopted by
the "overwhelming" majority of the people; that Art. XV of the 1935
Constitution has thus been "substancially" complied with; and that the
Court refrain from passing upon the validity of Proclamation No. 1102, not
only because such question is political in nature, but, also, because should
the Court invalidate the proclamation, the former would, in effect, veto the
action of the people in whom sovereignty resides and from its power are
derived.
71
The major flaw in this process of rationalization is that it assumes, as a fact,

the very premise on which it is predicated, and which, moreover, is
contested by the petitioners. As the Supreme Court of Minnessota has aptly
put it —
... every officer under a constitutional government

must act according to law and subject to its
restrictions, and every departure therefrom or
disregard thereof must subject him to the
restraining and controlling of the people, acting
through the agency of the judiciary; for it must be
remembered that the people act through courts,
as well as through the executive or the
Legislature. One department is just as
representative as the other, and the judiciary is
the department which is charged with the special
duty of determining the limitations which the law
places upon all official action. ... .
Accordingly, the issue boils downs to whether or not the Executive acted
within the limits of his authority when he certified in Proclamation No.
1102 "that the Constitution proposed by the nineteen hundred and
seventy-one (1971) Constitutional Convention has been ratified by an
overwhelming majority of all of the votes cast by the members of all the
Barangays (Citizens Assemblies) throughout the Philippines and has thereby
come into effect."
In this connection, it is not claimed that the Chief Executive had personal
knowledge of the data he certified in said proclamation. Moreover, Art. X of
the 1935 Constitution was precisely inserted to place beyond the Executive
the power to supervise or even exercise any authority whatsoever over
"all laws relative to the conduct of elections," and, hence, whether the
elections are for the choice or selection of public officers or for the
ratification or rejection of any proposed amendment, or revision of the
Fundamental Law, since the proceedings for the latter are, also, referred to
in said Art. XV as "elections".
72
The Solicitor General stated, in his argument before this Court, that he had
been informed that there was in each municipality a municipal association
of presidents of the citizens' assemblies for each barrio of the municipality;
that the president of each such municipal association formed part of a
provincial or city association of presidents of such municipal associations;
that the president of each one of these provincial or city associations in
turn formed part of a National Association or Federation of Presidents of
such Provincial or City Associations; and that one Francisco Cruz from Pasig,
Rizal, as President of said National Association or Federation, reported to
the President of the Philippines, in the morning of January 17, 1973, the
total result of the voting in the citizens' assemblies all over the country
from January 10 to January 15, 1973. The Solicitor General further
intimated that the said municipal associations had reported the results of
the citizens' assemblies in their respective municipalities to the
corresponding Provincial Association, which, in turn, transmitted the results
of the voting in the to the Department of Local Governments and
Community Development, which tabulated the results of the voting in the
citizens' assemblies throughout the Philippines and then turned them over
to Mr. Franciso Cruz, as President or acting President of the National
Association or Federation, whereupon Mr. Cruz, acting in a ceremonial
capacity, reported said results (tabulated by the Department of
Governments and Community Development) to the Chief Executive, who,
accordingly, issued Proclamation No. 1102.
The record shows, however, that Mr. Cruz was not even a member of any
barrio council since 1972, so that he could possibly have been a member on
January 17, 1973, of a municipal association of presidents of barrio or ward
citizens' assemblies, much less of a Provincial, City or National Association
or Federation of Presidents of any such provincial or city associations.
Secondly, at the conclusion of the hearing of these cases February 16, 1973,
and in the resolution of this Court of same date, the Solicitor General was
asked to submit, together with his notes on his oral argument, a true copy
of aforementioned report of Mr. Cruz to the President and of
"(p)roclamation, decree, instruction, order, regulation or circular, if any,
creating or directing or authorizing creation, establishment or organization"
73
of said municipal, provincial and national associations, but neither a copy of

alleged report to the President, nor a copy of any "(p)roclamation, decree,
instruction, order, regulation or circular," has been submitted to this Court.
In the absence of said report, "(p)roclamation, decree, instruction," etc.,
Proclamation No. 1102 is devoid of any factual and legalfoundation.
Hence, the conclusion set forth in the dispositive portion of said
Proclamation No. 1102, to the effect that the proposed new or revised
Constitution had been ratified by majority of the votes cast by the people,
can not possibly have any legal effect or value.
The theory that said proclamation is "conclusive upon Court is clearly

untenable. If it were, acts of the Executive and those of Congress could not
possibly be annulled or invalidated by courts of justice. Yet, such is not the
case. In fact, even a resolution of Congress declaring that a given person
has been elected President or Vice-President of the Philippines as provided
in the Constitution, 69 is not conclusive upon the courts. It is no
more than prima facieevidence of what is attested to by said
resolution. 70 If assailed directly in appropriate proceedings, such as an
election protest, if and when authorized by law, as it is in the Philippines,
the Court may receive evidence and declare, in accordance therewith, who
was duly elected to the office involved. 71 If prior to the creation of the
Presidential Electoral Tribunal, no such protest could be filed, it
was not because the resolution of Congress declaring who had been
elected President or Vice-President was conclusive upon courts of justice,
but because there was no lawpermitting the filing of such protest and
declaring what court or body would hear and decide the same. So, too, a
declaration to the effect that a given amendment to the Constitution or
revised or new Constitution has been ratified by a majority of the votes cast
therefor, may be duly assailed in court and be the object of judicial inquiry,
in directproceedings therefor — such as the cases at bar — and the issue
raised therein may and should be decided in accordance with the evidence
presented.
The case of In re McConaughy 72 is squarely in point. "As the Constitution

stood from the organization of the state" — of Minnessota — "all taxes
were required to be raised under the system known as the 'general
74
property tax.' Dissatisfaction with the results of this method and the
development of more scientific and satisfactory methods of raising revenue
induced the Legislature to submit to the people an amendment to the
Constitution which provided merely that taxes shall be uniform upon the
same class of subjects. This proposed amendment was submitted at the
general election held in November, 1906, and in due time it was certified by
the state canvassing board and proclaimed by the Governor as having been
legally adopted. Acting upon the assumption that the amendment had
become a part of the Constitution, the Legislature enacted statutes
providing for a State Tax Commission and a mortgage registry tax, and the
latter statute, upon the same theory, was held constitutional" by said
Court. "The district court found that the amendment had no in fact been
adopted, and on this appeal" the Supreme Court was "required to
determine the correctness of that conclusion."
Referring to the effect of the certification of the State Board of Canvassers

created by the Legislature and of theproclamation made by the Governor
based thereon, the Court held: "It will be noted that this board does no
more than tabulate the reports received from the various county board and
add up and certify the results. State v. Mason, 45 Wash. 234, 88 Pac. 126, 9
L.R.A. (U.S.) 1221. It is settled law that the decisions of election officers, and
canvassing boards are not conclusive and that the final decision must rest
with the courts, unless the law declares that the decisions of the board shall
be final" — and there is no such law in the cases at bar. "... The correctness
of the conclusion of the state board rests upon the correctness of the
returns made by the county boards and it isinconceivable that it was
intended that this statement of result should be final and conclusive
regardless of the actual facts. The proclamation of the Governor
adds nothing in the way of conclusiveness to the legal effect of the action
of the canvassing board. Its purpose is to formally notify the people of the
state of the result of the voting as found by the canvassing board. James on
Const. Conv. (4th Ed.) sec. 523."
In Bott v. Wartz, 73 the Court reviewed the statement of results of the

election made by the canvassing board, in order that the true results could
be judicially determined. And so did the court in Rice v. Palmer. 74
75
Inasmuch as Art. X of the 1935 Constitution places under the "exclusive"

charge of the Commission on Elections, "the enforcement and
administration of all laws relative to the conduct of
elections," independently of the Executive, andthere is not even a
certification by the Commission in support of the alleged results of the
citizens' assemblies relied upon in Proclamation No. 1102 — apart from the
fact that on January 17, 1973 neither the alleged president of the
Federation of Provincial or City Barangays nor the Department of Local
Governments had certified to the President the alleged result of the
citizens' assemblies all over the Philippines — it follows necessarily that,
from a constitutional and legal viewpoint, Proclamation No. 1102
is not even prima facie evidence of the alleged ratification of the proposed
Constitution.
Referring particularly to the cases before Us, it will be noted that, as

pointed out in the discussion of the preceding topic, the new or revised
Constitution proposed by the 1971 Constitutional Convention
was not ratified in accordance with the provisions of the 1935 Constitution.
In fact, it has not even been, ratified in accordance with said proposed
Constitution, the minimum age requirement therein for the exercise of the
right of suffrage being eighteen (18) years, apart from the fact that Art. VI
of the proposed Constitution requires "secret" voting, which was not
observed in many, if not most, Citizens' Assemblies. Besides, both the 1935
Constitution and the proposed Constitution require a "majority of the
votes cast" in an election or plebiscite called for the ratification of an
amendment or revision of the first Constitution or the effectivity of the
proposed Constitution, and the phrase "votes cast" has been construed to
mean "votes made in writing not orally, as it was in many Citizens'
Assemblies. 75
Even counsel for Gil J. Puyat and Jose Roy, as respondents in L-36165,
asserts openly that Art. XV of the Constitution has not been complied with,
and since the alleged substantial compliance with the requirements thereof
partakes of the nature of a defense set up by the other respondents in
these cases, the burden of proving such defense — which, if true, should be
within their peculiar knowledge — is clearly on such respondents.
76
Accordingly, if despite the extensive notes and documents submitted by the

parties herein, the members of the Court do not know or are not prepared
to say whether or not the majority of the people or of those who took part
in the Citizens' Assemblies have assented to the proposed Constitution, the
logical step would be to give due course to these cases, require the
respondents to file their answers, and the plaintiffs their reply, and,
thereafter, to receive the pertinent evidence and then proceed to the
determination of the issues raised thereby. Otherwise, we would be placing
upon the petitioners the burden of disproving a defense set up by the
respondents, who have not so far established the truth of such defense.
Even more important, and decisive, than the foregoing is the circumstance
that there is ample reason to believe that many, if not most, of the people
did not know that the Citizens' Assemblies were, at the time they were
held, plebiscites for the ratification or rejection of the proposed
Constitution. Hence, in Our decision in the plebiscite cases, We said,inter
alia:
Meanwhile, or on December 17, 1972, the

President had issued an order temporarily
suspending the effects of Proclamation No. 1081,
for the purpose of free and open debate on the
Proposed Constitution. On December 23, the
President announced the postponement of the
plebiscite for the ratification or rejection of the
Proposed Constitution. No formal action to this
effect was taken until January 7, 1973, when
General Order No. 20 was issued, directing "that
the plebiscite scheduled to be held on January 15,
1973, be postponed until further notice." Said
General Order No. 20, moreover, "suspended in
the meantime" the "order of December 17, 1972,
temporarily suspending the effects of
Proclamation No. 1081 for purposes of free and
open debate on the proposed Constitution.
77
In view of these events relative to the

postponement of the aforementioned plebiscite,
the Court deemed it fit to refrain, for the time
being, from deciding the aforementioned cases,
for neither the date nor the conditions under
which said plebiscite would be held were known or
announced officially. Then again, Congress was,
pursuant to the 1935 Constitution, scheduled to
meet in regular session on January 22, 1973, and
since the main objection to Presidential Decree
No. 73 was that the President does not have the
legislative authority to call a plebiscite and
appropriate funds therefor, which Congress
unquestionably could do, particularly in view of
the formal postponement of the plebiscite by the
President — reportedly after consultation with,
among others, the leaders of Congress and the
Commission on Elections — the Court deemed it
more imperative to defer its final action on these
cases.
And, apparently, the parties in said cases entertained the same belief, for,
on December 23, 1972 — four (4) days after the last hearing of said
cases 76 — the President announced the postponement of the plebiscite
scheduled by Presidential Decree No. 73 to be held on January 15, 1973,
after consultation with the Commission on Elections and the leaders of
Congress, owing to doubts on the sufficiency of the time available to
translate the proposed Constitution into some local dialects and to comply
with some pre-electoral requirements, as well as to afford the people a
reasonable opportunity to be posted on the contents and implications of
said transcendental document. On January 7, 1973, General Order No. 20
was issued formally, postponing said plebiscite "until further notice." How
can saidpostponement be reconciled with the theory that the proceedings
in the Citizens' Assemblies scheduled to be held from January 10 to January
15, 1973, were "plebiscites," in effect, accelerated, according to the theory
of the Solicitor General, for the ratification of the proposed Constitution? If
said Assemblies were meant to be the plebiscites or elections envisaged in
78
Art. XV of the Constitution, what, then, was the "plebiscite" postponed by

General Order No. 20? Under these circumstances, it was only reasonable
for the people who attended such assemblies to believe that the same were
not an "election" or plebiscite for the ratification or adoption of said
proposed Constitution.
And, this belief is further bolstered up by the questions propounded in the

Citizens' Assemblies, namely:
[1] Do you like the New Society?
[2] Do you like the reforms under martial law?
[3] Do you like Congress again to hold sessions?
[4] Do you like the plebiscite to be held later?
[5] Do you like the way President Marcos is

running the affairs of the government? [Bulletin
Today, January 10, 1973; emphasis an additional
question.]
[6] Do you approve of the citizens assemblies as

the base of popular government to decide issues
of national interests?
[7] Do you approve of the new Constitution?
[8] Do you want a plebiscite to be called to ratify

the new Constitution?
[9] Do you want the elections to be held in

November, 1973 in accordance with the
provisions of the 1935 Constitution?
79
[10] If the elections would not be held, when do

you want the next elections to be called?
[11] Do you want martial law to continue?

[Bulletin Today, January 11, 1973]
To begin with, questions nos. 1, 2, 3, 4, 5, 6, 9, 10 and 11 are not proper in a

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

Constitution has been approved or adopted by the people in the citizens'
assemblies all over the Philippines, when it is, to my mind, a matter of
judicial knowledge that there have been no such citizens' assemblies
in many parts of Manila and suburbs, not to say, also, in other parts of the
80
Philippines. In a letter of Governor Efren B. Pascual of Bataan, dated

January 15, 1973, to the Chief Executive, the former reported:
... This report includes a resumee (sic) of the

activities we undertook in effecting
the referendum on the eleven questions you
wanted our people consulted on and the
Summary of Results thereof for each municipality
and for the whole province.
xxx xxx xxx
... Our initial plans and preparations, however,

dealt only on the original five questions.
Consequently, when we received an instruction on
January 10 to change the questions, we urgently
suspended all scheduled Citizens Assembly
meetings on that day and called all Mayors, Chiefs
of Offices and other government officials to
another conference to discuss with them the new
set of guidelines and materials to be used.
On January 11, ... another instruction from the top

was received to include the original five questions
among those to be discussed and asked in the
Citizens' Assembly meetings. With this latest
order, we again had to make modifications in our
instructions to all those managing and supervising
the holding of the Citizens' Assembly meetings
throughout the province. ... Aside from the
coordinators we had from the Office of the
Governor, the splendid cooperation and support
extended by almost all government officials and
employees in the province, particularly of the
Department of Education, PC and PACD
personnel, provided us with enough hands to
81
trouble shoot and implement sudden changes in

the instructions anytime and anywhere needed. ...
... As to our people, in general, their enthusiastic

participation showed their preference and
readiness to accept this new method of
government to people consultation in shaping up
government policies.
Thus, as late as January 10, 1973, the Bataan officials had

to suspend "all scheduled Citizens' Assembly meetings ..." and call all
available officials "... to discuss with them the new set of guidelines and
materials to be used ... ." Then, "on January 11 ... another instruction from
the top was received to include the original five questions among those
bediscussed and asked in the Citizens' Assembly meetings. With this latest
order, we again had to make modifications in our instructions to all those
managing and supervising holding of the Citizens' Assembly meetings
throughout province. ... As to our people, in general, their enthusiastic
participation showed their preference and readiness to accept the new
method of government to people consultation in shaping up government
policies."
This communication manifestly shows: 1) that, as late a January 11, 1973,

the Bataan officials had still to discuss — not put into operation — means
and ways to carry out the changing instructions from the top on how to
organize the citizens' assemblies, what to do therein and even what
questions or topics to propound or touch in said assemblies; 2) that the
assemblies would involve no more than consultations or dialogues between
people and government — notdecisions be made by the people; and 3) that
said consultations were aimed only at "shaping up government policies"
and, hence could not, and did not, partake of the nature of a plebiscite for
the ratification or rejection of a proposed amendment of a new or revised
Constitution for the latter does not entail the formulation of a policy of the
Government, but the making of decision by the people on the new way of
life, as a nation, they wish to have, once the proposed Constitution shall
have been ratified.
82
If this was the situation in Bataan — one of the provinces nearest to Manila
— as late as January 11, 1973, one can easily imagine the predicament of
the local officials and people in the remote barrios in northern and
southern Luzon, in the Bicol region, in the Visayan Islands and Mindanao. In
fact, several members of the Court, including those of their immediate
families and their household, although duly registered voters in the area of
Greater Manila, were not even notified that citizens' assemblies would be
held in the places where their respective residences were located. In the
Prohibition and Amendment case, 77 attention was called to the "duty cast
upon the court of taking judicial cognizance of anything affecting the
existence and validity of any law or portion of the
Constitution ... ." In line with its own pronouncement in another case, the
Federal Supreme Court of the United States stressed, in Baker v.
Carr, 78 that "a court is not at liberty to shut its eyes to an obvious mistake,
when the validity of the law depends upon the truth of what is declared."
In the light of the foregoing, I cannot see how the question under
consideration can be answered or resolved otherwise than in the negative.
Have the people acquiesced in the proposed Constitution?
It is urged that the present Government of the Philippines is now and has
been run, since January 17, 1971, under the Constitution drafted by the
1971 Constitutional Convention; that the political department of the
Government has recognized said revised Constitution; that our foreign
relations are being conducted under such new or revised Constitution; that
the Legislative Department has recognized the same; and that the people,
in general, have, by their acts or omissions, indicated their conformity
thereto.
As regards the so-called political organs of the Government, gather that

respondents refer mainly to the offices under the Executive Department. In
a sense, the latter performs some functions which, from a constitutional
viewpoint, are politics in nature, such as in recognizing a new state or
83
government, in accepting diplomatic representatives accredited to our

Government, and even in devising administrative means and ways to better
carry into effect. Acts of Congress which define the goals or objectives
thereof, but are either imprecise or silent on the particular measures to be
resorted to in order to achieve the said goals or delegate the power to do
so, expressly or impliedly, to the Executive. This, notwithstanding, the
political organ of a government that purports to be republican is essentially
the Congress or Legislative Department. Whatever may be the functions
allocated to the Executive Department — specially under a written, rigid
Constitution with a republican system of Government like ours — the role
of that Department is inherently, basically and fundamentally executive in
nature — to "take care that the laws be faithfully executed," in the
language of our 1935 Constitution. 79
Consequently, I am not prepared to concede that the acts the officers and
offices of the Executive Department, in line with Proclamation No. 1102,
connote a recognition thereof o an acquiescence thereto. Whether they
recognized the proposed Constitution or acquiesce thereto or not is
something that cannot legally, much less necessarily or even normally, be
deduced from their acts in accordance therewith, because the are bound to
obey and act in conformity with the orders of the President, under whose
"control" they are, pursuant to the 1935 Constitution. They have
absolutely no other choice, specially in view of Proclamation No. 1081
placing the Philippines under Martial Law. Besides, by virtue of the very
decrees, orders and instructions issued by the President thereafter, he had
assumed all powers of Government — although some question his
authority to do so — and, consequently, there is hardly anything he has
done since the issuance of Proclamation No. 1102, on January 17, 1973 —
declaring that the Constitution proposed by the 1971 Constitutional
Convention has been ratified by the overwhelming majority of the people
— that he could not do under the authority he claimed to have under
Martial Law, since September 21, 1972, except the power of supervision
over inferior courts and its personnel, which said proposed Constitution
would place under the Supreme Court, and which the President has not
ostensibly exercised, except as to some minor routine matters, which the
Department of Justice has continued to handle, this Court having preferred
to maintain the status quo in connection therewith pending final
84
determination of these cases, in which the effectivity of the

aforementioned Constitution is disputed.
Then, again, a given department of the Government cannot generally be

said to have "recognized" its own acts. Recognition normally connotes the
acknowledgment by a party of the acts of another. Accordingly, when a
subordinate officer or office of the Government complies with the
commands of a superior officer or office, under whose supervision and
control he or it is, the former merely obeys the latter. Strictly speaking, and
from a legal and constitutional viewpoint, there is no act of recognition
involved therein. Indeed, the lower officer or office, if he or it acted
otherwise, would just be guilty of insubordination.
Thus, for instance, the case of Taylor v. Commonwealth 80 — cited by

respondents herein in support of the theory of the people's acquiescence
— involved a constitution ordained in 1902 and "proclaimed by a
convention duly called by a direct vote of the people of the state to revise
and amend the Constitution of 1869. The result of the work of that
Convention has been recognized, accepted and acted upon as the only valid
Constitution of the State" by —
1. The "Governor of the State in swearing fidelity to it and proclaiming it, as

directed thereby";
2. The "Legislature in its formal official act adopting a joint resolution, July

15, 1902, recognizing the Constitution ordained by the Convention ...";
3. The "individual oaths of its members to support it, and by its having been
engaged for nearly a year, in legislating under it and putting its provisions
into
operation ...";
4. The "judiciary in taking the oath prescribed thereby to support it and by

enforcing its provisions ..."; and
85
5. The "people in their primary capacity by peacefully accepting it and

acquiescing in it, by registering as voters under it to the extent of
thousands throughout the State, and by voting, under its provisions, at a
general election for their representatives in the Congress of the United
States."
Note that the New Constitution of Virginia, drafted by a convention whose

members were elected directly by the people, was not submitted to the
people for ratification or rejection thereof. But, it was recognized, not by
the convention itself, but by other sectors of the Government, namely, the
Governor; the Legislature — not merely by individual acts of its members,
but by formal joint resolution of its two (2) chambers; by the judiciary; and
by the people, in the various ways specified above. What is more, there
was no martial law. In the present cases, none of the foregoing acts of
acquiescence was present. Worse still, there is martial law, the strict
enforcement of which was announced shortly before the alleged citizens'
assemblies. To top it all, in the Taylor case, the effectivity of the contested
amendment was not contested judicially until about one (1) year after the
amendment had been put into operation in all branches of the
Government, and complied with by the people who participated in the
elections held pursuant to the provisions of the new Constitution. In the
cases under consideration, the legality of Presidential Decree No. 73 calling
a plebiscite to be held on January 15, 1973, was impugned as early as
December 7, 1972, or five (5) weeks before the scheduled plebiscite,
whereas the validity of Proclamation No. 1102 declaring on January 17,
1973, that the proposed Constitution had been ratified — despite General
Order No. 20, issued on January 7, 1972, formally and officially suspending
the plebiscite until further notice — was impugned as early as January 20,
1973, when L-36142 was filed, or three (3) days after the issuance of
Proclamation No. 1102.
It is further alleged that a majority of the members of our House of

Representatives and Senate have acquiesced in the new or revised
Constitution, by filing written statements opting to serve in the Ad Interim
Assembly established in the Transitory Provisions of said Constitution.
Individual acts of recognition by members of our legislature, as well as of
86
other collegiate bodies under the government, are invalid as acts of said
legislature or bodies, unless its members have performed said acts
in session duly assembled, or unless the law provides otherwise, and there
is no such law in the Philippines. This is a well-established principle of
Administrative Law and of the Law of Public Officers, and no plausible
reason has been adduced to warrant departure therefrom. 81
Indeed, if the members of Congress were generally agreeable to the

proposed Constitution, why did it become necessary to padlock its
premises to prevent its meeting in session on January 22, 1973, and
thereafter as provided in the 1935 Constitution? It is true that,
theoretically, the members of Congress, if bent on discharging their
functions under said Constitution, could have met in any other place, the
building in which they perform their duties being immaterial to the legality
of their official acts. The force of this argument is, however, offset or
dissipated by the fact that, on or about December 27, 1972, immediately
after a conference between the Executive, on the one hand, and members
of Congress, on the other, some of whom expressed the wish to meet in
session on January 22, 1973, as provided in the 1935 Constitution, a Daily
Express columnist (Primitivo Mijares) attributed to Presidential Assistant
Guillermo de Vega a statement to the effect that "'certain members of the
Senate appear to be missing the point in issue' when they
reportedly insisted on taking up first the question of convening Congress."
The Daily Express of that date, 82 likewise, headlined, on its front page, a
"Senatorial Plot Against 'Martial Law Government' Disclosed". Then, in its
issue of December 29, 1972, the same paper imputed to the Executive an
appeal "to diverse groups involved in aconspiracy to undermine" his
powers" under martial law to desist from provoking a constitutional
crisis ... which may result in the exercise by me of authority I have not
exercised."
No matter how good the intention behind these statement may have been,
the idea implied therein was too clear anominous for any member of
Congress who thought of organizing, holding or taking part in a session of
Congress, not to get the impression that he could hardly do so without
inviting or risking the application of Martial Law to him. Under these
87
conditions, I do not feel justified in holding that the failure of the members
of Congress to meet since January 22, 1973, was due to their recognition,
acquiescence in or conformity with the provisions of the aforementioned
Constitution, or its alleged ratification.
For the same reasons, especially because of Proclamation No. 1081, placing
the entire Philippines under Martial Law, neither am I prepared to declare
that the people's inaction as regards Proclamation No. 1102, and their
compliance with a number of Presidential orders, decrees and/or
instructions — some or many of which have admittedly had salutary effects
— issued subsequently thereto amounts, constitutes or attests to a
ratification, adoption or approval of said Proclamation No. 1102. In the
words of the Chief Executive, "martial law connotes power of the gun,
meantcoercion by the military, and compulsion and intimidation." 83 The
failure to use the gun against those who complywith the orders of the party
wielding the weapon does not detract from the intimidation that Martial
Law necessarily connotes. It may reflect the good, reasonable and
wholesome attitude of the person who has the gun, either pointed at
others, without pulling the trigger, or merely kept in its holster, but not
without warning that he may or would use it if he deemed it necessary.
Still, the intimidation is there, and inaction or obedience of the people,
under these conditions, is not necessarily an act of conformity or
acquiescence. This is specially so when we consider that the masses are, by
and large, unfamiliar with the parliamentary system, the new form of
government introduced in the proposed Constitution, with the particularity
that it is not even identical to that existing in England and other parts of the
world, and that even experienced lawyers and social scientists find it
difficult to grasp the full implications of some provisions incorporated
therein.
As regards the applicability to these cases of the "enrolled bill" rule, it is

well to remember that the same refers to a document certified to the
President — for his action under the Constitution — by the Senate
President and the Speaker of the House of Representatives, and attested to
by the Secretary of the Senate and the Secretary of the House of
Representatives, concerning legislative measures approved by the two
88
Houses of Congress. The argument of the Solicitor General is, roughly, this:
If the enrolled bill is entitled to full faith and credence and, to this extent, it
is conclusive upon the President and the judicial branch of the Government,
why should Proclamation No. 1102 merit less consideration than in enrolled
bill?
Before answering this question, I would like to ask the following: If, instead
of being certified by the aforementioned officers of Congress, the so-called
enrolled bill were certified by, say, the President of the Association of Sugar
Planters and/or Millers of the Philippines, and the measure in question
were a proposed legislation concerning Sugar Plantations and Mills
sponsored by said Association, which even prepared the draft of said
legislation, as well as lobbied actually for its approval, for which reason the
officers of the Association, particularly, its aforementioned president —
whose honesty and integrity are unquestionable — were present at the
deliberations in Congress when the same approved the proposed
legislation, would the enrolled bill rule apply thereto? Surely, the answer
would have to be in the negative. Why? Simply, because said Association
President has absolutely no official authority to perform in connection
therewith, and, hence, his certification is legally, as good as non-existent.
Similarly, a certification, if any, of the Secretary of the Department of Local

Governments and Community Development about the tabulated results of
the voting in the Citizens Assemblies allegedly held all over the Philippines
— and the records do not show that any such certification, to the President
of the Philippines or to the President Federation or National Association of
presidents of Provincial Associations of presidents of municipal association
presidents of barrio or ward assemblies of citizens — would not, legally and
constitutionally, be worth the paper on which it is written. Why? Because
said Department Secretary is not the officer designated by law to
superintend plebiscites or elections held for the ratification or rejection of a
proposed amendment or revision of the Constitution and, hence, to
tabulate the results thereof. Worse still, it is the department which,
according to Article X of the Constitution, should not and must not be all
participate in said plebiscite — if plebiscite there was.
89
After citing approvingly its ruling in United States v. Sandoval, 84 the Highest

Court of the United States that courts "willnot stand impotent before an
obvious instance of a manifestly unauthorized exercise of power." 85
I cannot honestly say, therefore, that the people impliedly or expressly

indicated their conformity to the proposed Constitution.
VI
Are the Parties entitled to any relief?
Before attempting to answer this question, a few words be said about the
procedure followed in these five (5) cases. In this connection, it should be
noted that the Court has not decided whether or not to give due course to
the petitions herein or to require the respondents to answer thereto.
Instead, it has required the respondents to comment on the respective
petitions — with three (3) members of the voting to dismiss them outright
— and then considers comments thus submitted by the respondents as
motions to dismiss, as well as set the same for hearing. This was due to the
transcendental nature of the main issue raised, the necessity of deciding
the same with utmost dispatch, and the main defense set up by
respondents herein, namely, the alleged political nature of said issue,
placing the same, according to respondents, beyond the ambit of judicial
inquiry and determination. If this defense was sustained, the cases could
readily be dismissed; but, owing to the importance of the questions
involved, a reasoned resolution was demanded by public interest. At the
same time, respondents had cautioned against a judicial inquiry into the
merits of the issues posed on account of the magnitude of the evil
consequences, it was claimed, which would result from a decision thereon,
if adverse to the Government.
As a matter of fact, some of those issues had been raised in the plebiscite
cases, which were dismissed as moot and academic, owing to the issuance
of Proclamation No. 1102 subsequently to the filing of said cases, although
before the rendition of judgment therein. Still one of the members of the
Court (Justice Zaldivar) was of the opinion that the aforementioned issues
90
should be settled in said cases, and he, accordingly, filed an opinion passing
upon the merits thereof. On the other hand, three (3) members of the
Court — Justices Barredo, Antonio and Esguerra — filed separate opinions
favorable to the respondents in the plebiscite cases, Justice Barredo
holding "that the 1935 Constitution has pro tanto passed into history and
has been legitimately supplanted by the Constitution in force by virtue of
Proclamation 1102." 86 When the petitions at bar were filed, the same three
(3) members of the Court, consequently, voted for the dismissal of said
petitions. The majority of the members of the Court did not share,
however, either view, believing that the main question that arose before
the rendition of said judgment had not been sufficiently discussed and
argued as the nature and importance thereof demanded.
The parties in the cases at bar were accordingly given every possible
opportunity to do so and to elucidate on and discuss said question. Thus,
apart from hearing the parties in oral argument for five (5) consecutive days
— morning and afternoon, or a total of exactly 26 hours and 31 minutes —
the respective counsel filed extensive notes on their or arguments, as well
as on such additional arguments as they wished to submit, and reply notes
or memoranda, in addition to rejoinders thereto, aside from a sizeable
number of document in support of their respective contentions, or as
required by the Court. The arguments, oral and written, submitted have
been so extensive and exhaustive, and the documents filed in support
thereof so numerous and bulky, that, for all intents and purposes, the
situation is as if — disregarding forms — the petitions had been given due
course and the cases had been submitted for decision.
Accordingly, the majority of the members of the Court believe that they
should express their views on the aforementioned issues as if the same
were being decided on the merits, and they have done so in their individual
opinion attached hereto. Hence, the resume of the votes cast and the tenor
of the resolution, in the last pages hereof, despite the fact that technically
the Court has not, as yet, formally given due course to the petitions herein.
And, now, here are my views on the reliefs sought by the parties.
91
In L-36165, it is clear that we should not issue the writ of mandamus prayed

for against Gil J. Puyat and Jose Roy, President and President Pro Tempore
respectively of the Senate, it being settled in our jurisdiction, based upon
the theory of separation of powers, that the judiciary will not issue such
writ to the head of a co-equal department, like the aforementioned officers
of the Senate.
In all other respects and with regard to the other respondent in said case,
as well as in cases L-36142, L-36164, L-36236 and L-36283, my vote is that
the petitions therein should be given due course, there being more
than prima facie showing that the proposed Constitution has not been
ratified in accordance with Article XV of the 1935 Constitution, either
strictly, substantially, or has been acquiesced in by the people or majority
thereof; that said proposed Constitution is not in force and effect; and that
the 1935 Constitution is still the Fundamental Law of the Land, without
prejudice to the submission of said proposed Constitution to the people at
a plebiscite for its ratification or rejection in accordance with Articles V, X
and XV of the 1935 Constitution and the provisions of the Revised Election
Code in force at the time of such plebiscite.
Perhaps others would feel that my position in these cases overlooks what
they might consider to be the demands of "judicial statesmanship,"
whatever may be the meaning of such phrase. I am aware of this possibility,
if not probability; but "judicial statesmanship," though consistent with Rule
of Law, cannot prevail over the latter. Among consistent ends or consistent
values, there always is a hierarchy, a rule of priority.
We must realize that the New Society has many achievements which would
have been very difficult, if not impossible, to accomplish under the old
dispensation. But, in and for the judiciary, statesmanship should not prevail
over the Rule of Law. Indeed, the primacy of the law or of the Rule of Law
and faithful adherence thereto are basic, fundamental and essential parts
of statesmanship itself.
Resume of the Votes Cast and the Court's Resolution
92
As earlier stated, after the submittal by the members of the Court of their
individual opinions and/or concurrences as appended hereto, the writer
will now make, with the concurrence of his colleagues, a resume or
summary of the votes cast by each of them.
It should be stated that by virtue of the various approaches and views

expressed during the deliberations, it was agreed to synthesize the basic
issues at bar in broad general terms in five questions for purposes of taking
the votes. It was further agreed of course that each member of the Court
would expound in his individual opinion and/or concurrence his own
approach to the stated issues and deal with them and state (or not) his
opinion thereon singly or jointly and with such priority, qualifications and
modifications as he may deem proper, as well as discuss thereon other
related issues which he may consider vital and relevant to the cases at bar.
The five questions thus agreed upon as reflecting the basic issues herein
involved are the following:
1. Is the issue of the validity of Proclamation No. 1102 a justiciable, or

political and therefore non-justiciable, question?
2. Has the Constitution proposed by the 1971 Constitutional Convention

been ratified validly (with substantial, if not strict, compliance) conformably
to the applicable constitutional and statutory provisions?
3. Has the aforementioned proposed Constitution acquiesced in (with or

without valid ratification) by the people?
4. Are petitioners entitled to relief? and
5. Is the aforementioned proposed Constitution in force?
The results of the voting, premised on the individual views expressed by the
members of the Court in their respect opinions and/or concurrences, are as
follows:
93
1. On the first issue involving the political-question doctrine Justices

Makalintal, Zaldivar, Castro, Fernando, Teehankee and myself, or six (6)
members of the Court, hold that the issue of the validity of Proclamation
No. 1102 presents a justiciable and non-political question. Justices
Makalintal and Castro did not vote squarely on this question, but, only
inferentially, in their discussion of the second question. Justice Barredo
qualified his vote, stating that "inasmuch as it is claimed there has been
approval by the people, the Court may inquire into the question of whether
or not there has actually been such an approval, and, in the affirmative, the
Court should keep hands-off out of respect to the people's will, but, in
negative, the Court may determine from both factual and legal angles
whether or not Article XV of the 1935 Constitution been complied with."
Justices Makasiar, Antonio, Esguerra, or three (3) members of the Court
hold that the issue is political and "beyond the ambit of judicial inquiry."
2. On the second question of validity of the ratification, Justices Makalintal,

Zaldivar, Castro, Fernando, Teehankee and myself, or six (6) members of
the Court also hold that the Constitution proposed by the 1971
Constitutional Convention was not validly ratified in accordance with Article
XV, section 1 of the 1935 Constitution, which provides only one way for
ratification, i.e., "in an election or plebiscite held in accordance with law
and participated in only by qualified and duly registered voters. 87
Justice Barredo qualified his vote, stating that "(A)s to whether or not the
1973 Constitution has been validly ratified pursuant to Article XV, I still
maintain that in the light of traditional concepts regarding the meaning and
intent of said Article, the referendum in the Citizens' Assemblies, specially
in the manner the votes therein were cast, reported and canvassed, falls
short of the requirements thereof. In view, however, of the fact that I have
no means of refusing to recognize as a judge that factually there was voting
and that the majority of the votes were for considering as approved the
1973 Constitution without the necessity of the usual form of plebiscite
followed in past ratifications, I am constrained to hold that, in the political
sense, if not in the orthodox legal sense, the people may be deemed to
have cast their favorable votes in the belief that in doing so they did the
part required of them by Article XV, hence, it may be said that in its political
94
aspect, which is what counts most, after all, said Article has been
substantially complied with, and, in effect, the 1973 Constitution has been
constitutionally ratified."
Justices Makasiar, Antonio and Esguerra, or three (3) members of the Court
hold that under their view there has been in effect substantial compliance
with the constitutional requirements for valid ratification.
3. On the third question of acquiescence by the Filipino people in the

aforementioned proposed Constitution, no majority vote has been reached
by the Court.
Four (4) of its members, namely, Justices Barredo, Makasiar, Antonio and
Esguerra hold that "the people have already accepted the 1973
Constitution."
Two (2) members of the Court, namely, Justice Zaldivar and myself hold
that there can be no free expression, and there has even been no
expression, by the people qualified to vote all over the Philippines, of their
acceptance or repudiation of the proposed Constitution under Martial Law.
Justice Fernando states that "(I)f it is conceded that the doctrine stated in
some American decisions to the effect that independently of the validity of
the ratification, a new Constitution once accepted acquiesced in by the
people must be accorded recognition by the Court, I am not at this stage
prepared to state that such doctrine calls for application in view of the
shortness of time that has elapsed and the difficulty of ascertaining what is
the mind of the people in the absence of the freedom of debate that is a
concomitant feature of martial law." 88
Three (3) members of the Court express their lack of knowledge and/or
competence to rule on the question. Justices Makalintal and Castro are
joined by Justice Teehankee in their statement that "Under a regime of
martial law, with the free expression of opinions through the usual media
vehicle restricted, (they) have no means of knowing, to the point of judicial
certainty, whether the people have accepted the Constitution." 89
95
4. On the fourth question of relief, six (6) members of the Court, namely,
Justices Makalintal, Castro, Barredo, Makasiar, Antonio and Esguerra voted
to DISMISS the petition. Justice Makalintal and Castro so voted on the
strength of their view that "(T)he effectivity of the said Constitution, in the
final analysis, is the basic and ultimate question posed by these cases to
resolve which considerations other than judicial, an therefore beyond the
competence of this Court,90 are relevant and unavoidable." 91
Four (4) members of the Court, namely, Justices Zaldivar, Fernando,

Teehankee and myself voted to deny respondents' motion to dismiss and to
give due course to the petitions.
5. On the fifth question of whether the new Constitution of 1973 is in force:
Four (4) members of the Court, namely, Justices

Barredo, Makasiar, Antonio and Esguerra hold
that it is in force by virtue of the people's
acceptance thereof;
Four (4) members of the Court, namely, Justices

Makalintal, Castro, Fernando and Teehankee cast
no vote thereon on the premise stated in their
votes on the third question that they could not
state with judicial certainty whether the people
have accepted or not accepted the Constitution;
and
Two (2) members of the Court, namely, Justice

Zaldivar and myself voted that the Constitution
proposed by the 1971 Constitutional Convention
is not in force;
with the result that there are not enough votes to declare that the new
Constitution is not in force.
96
ACCORDINGLY, by virtue of the majority of six (6) votes of Justices

Makalintal, Castro, Barredo, Makasiar, Antonio and Esguerra with the four
(4) dissenting votes of the Chief Justice and Justices Zaldivar, Fernando and
Teehankee, all the aforementioned cases are hereby dismissed. This being
the vote of the majority, there is no further judicial obstacle to the new
Constitution being considered in force and effect.
It is so ordered.
Makalintal, Castro, Barredo, Makasiar, Antonio and Esguerra, JJ., concur.
ANNEX A
PERTINENT PORTIONS
OF THE
MINNESSOTA SUPREME COURT
DECISION
ON THE CASE
IN RE McCONAUGHY
"(a) An examination of the decisions shows that the courts have almost

uniformly exercised the authority to determine the validity of the proposal,
submission, or ratification of constitutional amendments. It has
been judicially determined whether a proposed amendment received the
constitutional majority of votes (Dayton v. St. Paul, 22 Minn. 400; Rice v.
Palmer, 78 Ark. 432, 96 S.W. 396; Bott v. Wurtz, 63 N.J. Law, 289, 43 Atl.
744, 881, 45 L.R.A. 251; State v. Foraker, 46 Ohio St. 677, 23 N.E. 49l; 6
L.R.A. 422; Tecumseh National Bank V. Saunders, 51 Neb. 801, 71 N.W. 779;
Green v. State Board, 5 Idaho, 130, 47 Pac. 259, 95 Am. St. Rep. 169; In re
Denny, 156 Ind. 104, 59 N.E. 359, 51 L.R.A. 722; Knight v. Shelton [C.C.] 134
Fed. 423); whether a proposed amendment is a single amendment, within
97
the constitutional requirement that every amendment must be separately

submitted (State v. Powell, 77 Miss. 543, 27 South. 927; Gabbert v. Chicago,
etc., R. Co., 171 Mo. 84, 70 S.W. 891; State v. Timme, 54 Wis. 318, 11 N.W.
785; In re Denny, 156 Ind. 104, 59 N.E. 359, 51 L.R.A. 722; Lobaugh v. Cook,
127 Iowa, 181, 102 N.W. 1121; People v. Sours, 31 Colo. 369, 74 Pac. 167,
102 Am. St. Rep. 34; State v. Board, 34 Mont. 426, 87 Pac. 450; State v.
Winnett [Neb.] 110 N.W. 1113, 10 L.R.A. [N.S.] 149); whether the failure to
enter the resolution of submission upon the legislative journals invalidates
the amendment (Koehler v. Hill, 60 Iowa, 543,14 N.W. 738,15 N.W. 609;
Oakland Paving Co. v. Hilton, 69 Cal. 479, 11 Pac. 3; West v. State, 50 Fla.
154, 39 South. 412; Durfee v. Harper, 22 Mont. 354, 56 Pac. 56; State v.
Tufly, 19 Nev. 391, 12 Pac. 835, 3 Am. St. Rep. 895); whether the
description of the amendment and the form of the ballot are
sufficient (Russell v. Croy, 164 M 69, 63 S.W. 849; State v. Winnett [ Neb.]
110 N.W. 1113, L.R.A. [N.S.] 149; Murphy Chair Co. v. Attorney General
[Mich.] 112 N.W. 127); whether the method of submission sufficient (Lovett
v. Ferguson,, 10 S.D. 44, 71 N.W. 765; Russell v. Croy, 164 Mo. 69, 63 S.W.
849); whether the publication of the amendment or of a notice relative to it
is sufficient (Com. v. Griest, 196 Pa. 396, 46 Atl. 505, 50 L.R.A. 568; Russell
v. Croy, 164 Mo. 69, 63 S.W. 849); whether the submission may be well by
resolution as by a legislative act approved by the executive (Com. v. Griest,
196 Pa. 396, 46 Atl. 505, 50 L.R. 568; Warfield vi Vandiver, 101 Md. 78, 60
Atl. 538; Edward Lesueur, 132 Mo. 410, 33 S.W. 1130, 31 L.R.A. 815; Hays v.
Hays, 5 Idaho, 154, 47 Pac. 732; State v. Dahl, 6 N.D. 81, 6 N.W. 418, 34
L.R.A. 97); at what election the amendment be submitted (People v. Curry,
130 Cal. 82, 62 Pac. 516).
In Rich v. Board of Canvassers, 100 Mich. 458, 59 N.W. 183, the court said:
"It is contended that the determination of the question whether an
amendment to the Constitution has been carried involves the exercise of
political, and not judicial, power. If this be so, it follows that the
promulgation of any purported amendment by the executive or any
executive department is final, and that the action cannot be questioned by
the judiciary; but, with reference to the conditions precedent to submitting
a proposed amendment to a vote of the people, it has been repeatedly held,
by courts of the highest respectability, that it is within the power of the
judiciary to inquire into the question, even in a collateral proceeding. ... It is
98
to be noted that under section 1 of article 20 of the Constitution of the

state no amendment can become a part of the Constitution until ratified by
a vote of the people. One prerequisite is equally as essential as the other.
The amendment must first receive the requisite majority in the Legislature,
and afterwards be adopted by the requisite vote. ... It is the fact of a
majority vote which makes the amendment a part of the Constitution."
"In considering the cases it is necessary to note whether in the particular

case the court was called upon to determine between rival governments, or
whether the Legislature, or some board or official, had legally performed
the duty imposed by the Constitution or statutes. In re State v. McBride, 4
Mo. 303, 29 Am. Dec. 636, it was held that the General Assembly, under the
power granted by the Constitution, could change the Constitution only in
the manner prescribed by it, and that it was the duty of the court to
determine whether all prerequisites had been complied with. InCollier v.
Frierson, 24 Ala. 100, it was held that a Constitution can be changes only by
the people in convention or in a mode described by the Constitution itself,
and that if the latter mode is adopted every requisite of the Constitution
must be observed. 'It has been said," says the court, "that certain acts are to
be done, certain requisitions are to be observed, before a change can be
effected; but to what purpose are these acts required, or these requisitions
enjoined, if the Legislature or any other department of the government
can dispense with them. To do so would be to violate the instrument which
they are sworn to support; and every principle of public law and sound
constitutional policy requires the court to pronounce against every
amendment which is shown not to have been made in accordance with the
rules prescribed by the fundamental law.'
"In State v. Swift, 69 Ind. 505, it was said that: 'The people of a state may
form an original Constitution, or abrogate an old one and form a new one,
at any time, without any political restriction, except the Constitution of the
United States, but if they undertake to add an amendment, by the authority
of legislation to a Constitution already in existence, they can do it only by
the method pointed out by the Constitution to which the amendment is
added. The power to amend a Constitution by legislative action
does not confer the power to break it, any more than it confers the power
99
to legislate on any other subject contrary to its prohibitions.' So, in State v.

Timme, 54 Wis. 318, 11 N.W. 785, it was held that noamendments can be
made to the Constitution of the state without a compliance with the
provisions thereof, both in the passage of such amendment by the
Legislature and the manner of submitting it to the people. The courts have
not all agreed as to the strictness of compliance which should be required.
"In the Prohibition and Amendment Case, 24 Kan. 700, the

court determined judicially whether an amendment to the Constitution had
been legally adopted. After approving the statement quoted from Collier v.
Frierson, supra, that 'we entertain no doubt that, to change the
Constitution in an other mode than by a convention, every requisite which
is demanded by the instrument itself must be observed, and the omission of
any one is fatal to the amendment,' the court held that, 'as substance of
right is grander and more potent than methods of form,' there had been
substantial compliance with the constitutional requirement that a proposed
amendment to the Constitution must be entered at length on the legislative
journal. It appears that the joint resolution making submission simply
provided that a proposition should be submitted to the electors at the
general election of 1880. It did not declare that the machinery of the
general election law should control, or that any particular officers or board
would receive, count, or canvass the votes cast. But the existing election
machinery was adequate, and the votes were received, counted, and
canvassed, and the result declared as fully as though it had been in terms
so ordered. These methods had been followed in the adoption of previous
amendments, and was held that, conceding the irregularity of the
proceedings the Legislature and the doubtful scope of the provisions for the
election, yet in view of the very uncertainty of such provision the past
legislative history of similar propositions, the universal prior acquiescence in
the same forms of procedure and the popular and unchallenged acceptance
of the legal pendency before the people of the question of the amendment
for decision, and in view of the duty cast upon the court taking judicial
knowledge of anything affecting the existence and validity of any law or
portion of the Constitution, it must be adjudged that the proposed
amendment became part of the Constitution. The effect was to hold that a
provision of the Constitution requiring the proposed amendment to be
entered in full on the journals was directory, and not mandatory.
100
This liberal view was approved in State v. Winnett (Neb.) 110 N. 1113, 10

L.R.A. (N.S.) 149, and People v. Sours, 31 Colo. 369, Pac. 167, 102 Am. St.
Rep. 34. But it has not been universally accepted.
"In Oakland Paving Co. v. Hilton, 69 Cal. 479, 11 Pac. 3, the court, in

commenting upon the Kansas case said: 'The reasoning by which the
learned court reached the conclusion it did is not based on any sound legal
principles, butcontrary to them. Neither the argument nor the conclusion
can command our assent or approval. The argument isillogical, and based
on premises which are without any sound foundation, and rests merely on
assumption.' See, also, the well-considered case of Kadderly v. Portland, 44
Or. 118, 74 Pac. 710, 75 Pac. 222. All these casesconcede the jurisdiction of
the court to determine whether, in submitting a proposed amendment to
the people, the Legislature legally observed the constitutional provisions as
to the manner of procedure. In Livermore v. Waite, 102 Cal. 113, 36 Pac.
424, 25 L.R.A. 312, the court, at the instance of a citizen and a taxpayer,
restrained the Secretary of State from taking steps to submit to the people
a proposed amendment to the Constitution agreed to by the Legislature on
the ground that the Legislature had not acted in conformity with the
Constitution and that the proposed amendment was of such a character
that it could not properly become a part of the Constitution. The Supreme
Court of Colorado, in People v. Sours, supra, refused to exercise this
authority.
"The entire question received elaborate consideration in Koehler v. Hill, 60

Iowa, 543, 14 N.W. 738, 15 N.W. 609. The amendment, which concededly
had been adopted by the people, had not, before its submission, been
entered in full upon the legislative journals, as required by the Constitution,
and it was held that this was a material variance in both form and
substance from the constitutional requirements, and that the amendment
did not, therefore, become a part of the Constitution. As to the claim that
the question was political, and not judicial, it was said that, while it is not
competent for courts to inquire into the validity of the Constitution and the
form of government under which they themselves exist, and from which
they derive their powers, yet, where the existing Constitution prescribes a
method for its own amendment, an amendment thereto, to be valid, must
101
be adopted in strict conformity to that method; and it is theduty of the

courts in a proper case, when an amendment does not relate to their own
power or functions, to inquirewhether, in the adoption of the
amendment, the provisions of the existing Constitution have been observed,
and, if not, to declare the amendment invalid and of no force. This case was
followed in State v. Brookhart, 113 Iowa, 250, 84 N.W. 1064.
"In University v. McIver, 72 N.C. 76, the question whether a proposed

amendment to the Constitution had been legally adopted was treated as
a judicial question. By the Constitution a proposed amendment was
required to be approved by Legislatures before its submission to the
people. In this instance a bill was passed which contained 17 amendments.
The next Legislature rejected 9 and adopted 8 of the amendments, and
submitted them to the people. The majority of the people voted for their
adoption; but it was contended that the Constitution contemplated and
required that the same bill and the same amendments, without change,
should approved by both Legislatures, and that it did not follow because
the second Legislature adopted separately 8 out of 17 amendments
adopted by the first Legislature, it would have adopted the 17, or any of
them, if they had been voted upon the second in the form adopted by the
first body. The substance of the contention was that there had not been a
concurrence of the two Legislatures on the same amendments, according
to the letter and spirit of the Constitution. The court held that the power of
the Legislature in submitting amendments could not be distinguished from
the powers of convention, and that, as the people had spoken and ratified
the amendments, they became a part of the Constitution.
"In Westinghausen v. People, 44 Mich. 265, 6 N.W. 641, it was held that

prior to 1876 a proposed amendment to Constitution could not be
submitted to the people at any other than a general election; but, as the
amendment under consideration had been submitted after the Constitution
been changed, it had been legally submitted and adopted.
"In State v. Powell, 77 Miss. 543, 27 South. 927, the question whether an

amendment to the Constitution had been legally submitted and adopted by
the people was held to be judicial, and not political, in its nature. The
102
amendment under consideration changed the Constitution by providing for

an elective, instead of an appointive, judiciary. It was contented that the
amendments had been improperly submitted and adopted by a majority of
the qualified voters voting at election, as required by the Constitution. The
law did direct how the result of the election should be determined. The
Legislature by joint resolution recited that the election had been duly held
throughout the state, and, as it appeared from the returns made to the
Secretary of State, that 21,169 votes were cast in favor of, and 8,643 votes
against, the amendment, it resolved 'that said amendment be, and hereby
is, inserted into the Constitution of the state of Mississippi as a part of the
Constitution.' In fact, the amendment was not submitted in the
manner prescribed by the Constitution, and it did not receive a majority of
all the qualified voters voting at the election. It was argued that the rules
prescribed by the Constitution "are all for the guidance of the Legislature,
and from the very nature of the thing the Legislature must be
the exclusive judge of all questions to be measured or determined by these
rules. Whether the question be political, and certainly a legislative one, or
judicial, to be determined by the courts, this section of rules, not only of
procedure, but of final judgment as well, confides to the separate
magistracy of the legislative department fullpower to hear, consider, and
adjudge that question. The Legislature puts the question to
the qualified electors. Thequalified electors answer back to the Legislature.
"If it shall appear" to the Legislature that its question has been answered in
the affirmative, the amendment is inserted and made a part of the
Constitution. The Governor and the courts have no authority to speak at
any stage of the proceedings between the sovereign and the Legislature,
and when the matter is thus concluded it is closed, and the judiciary is as
powerless to interfere as the executive.' But it was held that the question
whether the proposition submitted to the voters constituted one, or more
than one, amendment,whether the submission was according to the
requirements of the Constitution, and whether the proposition was in fact
adopted, were all judicial, and not political, questions. 'We do not,' said
Chief Justice Whitfield, 'seek a jurisdiction not imposed upon us by the
Constitution. We could not, if we would, escape the exercise of that
jurisdiction which the Constitution has imposed upon us. In the particular
instance in which we are now acting, our duty to know what the
Constitution of the state is, and in accordance with our oaths to support
103
and maintain it in its integrity, imposed on us a most difficult and

embarrassing duty, one which we have not sought, but one which, like all
others, must be discharged."
"In Bott v. Wurtz, 63 N.J. Law, 289, 43 Atl. 744, 881, 45 L.R.A. 251, it was
held that it was the duty of the judicial department of the government to
determine whether the legislative department or its officers had observed
the constitutional injunctions in attempting to amend the Constitution, and
to annul their acts if they had not done so. The case is an interesting and
well-considered one. The Constitution provided the manner in which
proposed amendments should be submitted to the people, but did not
provide a method for canvassing the votes. The Legislature having agreed
to certain proposed amendments, passed an act for submitting the same to
the people. This statute provided for the transmission to the Secretary of
State of certificate showing the result of the voting throughout the state,
and made it the duty of the Governor at the designated time summon four
or more Senators, who, with the Governor, should constitute a board of
state canvassers to canvass and estimate the votes for and against each
amendment. This board was to determine and declare which of the
proposed amendments had been adopted and to deliver a statement of the
results to the Secretary of State, and "any proposed amendment, which by
said certificate and determination of the board of canvassers shall appear
to have received in its favor the majority of all the votes cast in the state for
and against said proposed amendment, shall from the time of filing such
certificate be and become an amendment to and a part of the Constitution
of the state; and it shall be the duty of the Governor of the state forthwith,
after such a determination, to issue a proclamation declaring which of the
said proposed amendments have been adopted by the people." This board
was required to file a statement of the result of the election, and the
Governor to issue his proclamation declaring that the amendment had
been adopted and become a part of the Constitution. At the instance of a
taxpayer the Supreme Court allowed a writ of certiorari to remove into the
court for review the statement of the results of the election made by the
canvassing board, in order that it might be judicially determined whether
on the facts shown in that statement the board had legally determined that
the proposed amendment had been adopted. The Supreme Court decided
that the concurrence of the board of state canvassers and the executive
104
department of the government in their respective official functions placed

the subject-matter beyond the cognizance of the judicial department of the
state. The Court of Appeals, after a full review of the
authorities, reversed this decision, and held that the questions were of a
judicial nature, and properly determinable by the court on their merits. Mr.
Justice Dixon, after stating the facts, said: 'It thus becomes manifest that
there was present in the Supreme Court, and is now pending in this court,
every element tending to maintain jurisdiction over the subject-matter,
unless it be true, as insisted, that the judicial department of the
government has not the right to consider whether the legislative
department and its agencies have observed constitutional injunctions in
attempting to amend the Constitution, and to annul their acts in case that
they have not done so. That such a proposition is not true seems to be
indicated by the whole history of jurisprudence in this country.' The court,
after considering the case on the merits, held that the proper conclusion
had been drawn therefrom, and that the amendment in question was
legally submitted and adopted.
"The recent case of Rice v. Palmer, 78 Ark. 432, 96 S.W. 396, presented the
identical question which we have under consideration. In reference to the
contention that the Constitution intended to delegate to the Speaker of the
House of Representatives the power to determine whether an amendment
had been adopted, and that the question was political, and not judicial, the
court observed: "The argument has often been made in similar cases to the
courts, and it is found in many dissenting opinions; but, with probably
a few exceptions, it is not found in any prevailing opinion."
"In State v. Tooker, 15 Mont. 8, 37 Pac. 840, 25 L.R.A. 560, it was held that
the constitutional requirement of publication of a proposed constitutional
provision for three months prior to the election at which it is to be
submitted to the people is mandatory and that noncompliance therewith
renders the adoption of an amendment of no effect."
ANNEX B
MALACAÑANG
105
MANILA
BY THE PRESIDENT OF THE PHILIPPINES
PRESIDENTIAL DECREE NO. 86-B
Defining Further the Role of Barangays (Citizens Assemblies)
WHEREAS, since their creation pursuant to Presidential Decree No. 86

dated December 31, 1972, the Barangays (Citizens Assemblies) have
petitioned the Office of the President to submit to them for resolution
important national issues;
WHEREAS, one of the questions persistently mention refers to the

ratification of the Constitution proposed by the 1971 Constitutional
Convention;
WHEREAS, on the basis of the said petitions, it is evident that the people
believe that the submission of the proposed Constitution to the Citizens
Assemblies or Barangays should taken as a plebiscite in itself in view of the
fact that freedom of debate has always been limited to the leadership in
political, economic and social fields, and that it is now necessary to bring
this down to the level of the people themselves through the Barangays or
Citizens Assemblies;
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines,

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

Development shall insure the implementation of this Order.
106
Done in the City of Manila, this 7th day of January in the year of Our Lord,
nineteen hundred and seventy-three.
(SD.) FER
E. MARCB
Presit:
(SGD.) ALEJANDRO MELCHOR

Executive Secretary
Separate Opinions
MAKALINTAL, J., concurring:
CASTRO, J., concurring:
The preliminary question before this Court was whether or not the
petitioners had made out a sufficient prima faciecase in their petitions to
justify their being given due course. Considering on the one hand the
urgency of the matter and on the other hand its transcendental
importance, which suggested the need for hearing the side of the
respondents before that preliminary question was resolved, We required
them to submit their comments on the petitions. After the comments were
filed We considered them as motions to dismiss so that they could be orally
argued. As it turned out, the hearing lasted five days, morning and
afternoon, and could not have been more exhaustive if the petitions had
been given due course from the beginning.
The major thrust of the petitions is that the act of the Citizens Assemblies
as certified and proclaimed by the President on January 17, 1973
(Proclamation No. 1102) was not an act of ratification, let alone a valid one,
of the proposed Constitution, because it was not in accordance with the
existing Constitution (of 1935) and the Election Code of 1971. Other
107
grounds are relied upon by the petitioners in support of their basic

proposition, but to our mind they are merely subordinate and peripheral.
Article XV, Section 1, of the 1935 Constitution provides that amendments

(proposed either by Congress in joint session or by a Convention called by it
for the purpose) "shall be valid part of this Constitution when approved by
a majority of votes cast at an election at which the amendments submitted
to the people for their ratification." At the time Constitution was approved
by the Constitutional Convention on February 8, 1935, and ratified in a
plebiscite held on following May 14, the word "election" had already a
definite meaning in our law and jurisprudence. It was not a vague and
amorphous concept, but a procedure prescribed by statute ascertaining the
people's choices among candidates for public offices, or their will on
important matters submitted to the pursuant to law, for approval. It was in
this sense that word was used by the framers in Article XV (also in Articles
VI and VII), and in accordance with such procedure that plebiscites were
held to ratify the very same Constitution in 1935 as well as the subsequent
amendments thereto, thus: in 1939 (Ordinance appended to the
Constitution); 1940 (establishment of a bicameral legislature; eligibility of
the President and the Vice President for re election; creation of the
Commission of Elections); 1947 (Parity Amendment); and 1967 (increase in
membership of the House of Representatives and eligibility of members of
Congress to run for the Constitutional Convention without forfeiture of
their offices).
The Election Code of 1971, in its Section 2, states that "all elections of
public officers except barrio officials andplebiscites shall be conducted in
the manner provided by this Code." This is a statutory requirement
designed, as were the other election laws previously in force, to carry out
the constitutional mandate relative to the exercise of the right suffrage,
and with specific reference to the term "plebiscites," the provision of
Article XV regarding ratification of constitutional amendments.
The manner of conducting elections and plebiscites provided by the Code is

spelled out in other sections thereof. Section 99 requires that qualified
voters be registered in a permanent list, the qualifications being those set
108
forth in Article V, Section 1, of the 1935 Constitution on the basis of age

(21), literacy and residence. These qualifications are reiterated in Section
101 of the Election Code. Section 102 enumerates the classes of persons
disqualified to vote. Succeeding sections prescribe the election
paraphernalia to be used, the procedure for registering voters, the records,
of registration and the custody thereof, the description and printing of
official ballots, the actual casting of votes and their subsequent counting by
the boards of inspectors, the rules for appreciation of ballots, and then the
canvass and proclamation of the results.
With specific reference to the ratification of the 1972 draft Constitution,

several additional circumstances should be considered:
(1) This draft was prepared and approved by a Convention which had been
convened pursuant to Resolution No. 2 passed by Congress on March 16,
1967, which provides:
Sec. 7. The amendments proposed by the

Convention shall be valid and considered part of
the Constitution when approved by a majority of
the votes cast in an election at which they are
submitted to the people for their ratification
pursuant to Article XV of the Constitution.
(2) Article XVII, Section 16, of the draft itself states:
Sec. 16. This Constitution shall take effect

immediately upon its ratification by a majority of
the votes cast in a plebiscite called for the
purpose and, except as herein provided, shall
supersede the Constitution of nineteen hundred
and thirty-five and all amendments thereto.
The same procedure is prescribed in Article XVI, Section 2, for the

ratification of any future amendment to or revision of the said Constitution.
109
(3) After the draft Constitution was approved by the Constitutional

Convention on November 30, 1972 the said body adopted Resolution No.
5843, proposing "to President Ferdinand E. Marcos that a decree be issued
calling aplebiscite for the ratification of the proposed New Constitution on
such appropriate date as he shall determine and providing for the
necessary funds therefor." Pursuant to said Resolution the President issued
Decree No. 73 on the same day, calling a plebiscite to be held on January
15, 1973, at which the proposed Constitution "shall be submitted to the
people for ratification or rejection." The Decree had eighteen (18) sections
in all, prescribing in detail the different steps to be taken to carry out the
process of ratification, such as: (a) publication of the proposed Constitution
in English and Pilipino; (b) freedom of information and discussion; (c)
registration of voters: (d) appointment of boards of election inspectors and
designation of watchers in each precinct; (e) printing of official ballots; (f)
manner of voting to insure freedom and secrecy thereof; (g) canvass of
plebiscite returns; and (h) in general, compliance with the provisions of the
Election Code of 1971, with the Commission on Elections exercising its
constitutional and statutory powers of supervision of the entire process.
There can hardly be any doubt that in everybody's view — from the framers
of the 1935 Constitution through all the Congresses since then to the 1971
Constitutional Convention — amendments to the Constitution should be
ratified in only one way, that is, in an election or plebiscite held in
accordance with law and participated in only by qualified and duly
registered voters. Indeed, so concerned was this Court with the importance
and indispensability of complying with the mandate of the (1935)
Constitution in this respect that in the recent case of Tolentino vs.
Commission on Elections, No. L-34150, October 16, 1971 (41 SCRA 702), a
resolution of the (1971) Constitutional Convention submitting a proposed
amendment for ratification to a plebiscite to be held in November 1971 was
declared null and void. The amendment sought to reduce the voting age
from twenty-one to eighteen years and was approved by the Convention
for submission to a plebiscite ahead of and separately from other
amendments still being or to be considered by it, so as to enable the youth
to be thus enfranchised to participate in the plebiscite for the ratification of
such other amendments later. This Court held that such separate
submission was violative of Article XV, Section 1, of the Constitution, which
110
contemplated that "all the amendments to be proposed by the same

Convention must be submitted to the people in a single "election" or
plebiscite." * Thus a grammatical construction based on a singular, instead
of plural, rendition of the word "election" was considered a sufficient
ground to rule out the plebiscite which had been called to ratify a proposed
amendment in accordance with the procedure and under all the safeguards
provided in the Election Law.
In the cases now before Us what is at issue is not merely the ratification of
just one amendment, as in Tolentino vs. COMELEC, but the ratification of an
entire charter setting up a new form of government; and the issue has
arisen not because of a disputed construction of one word or one provision
in the 1935 Constitution but because no election or plebiscite in accordance
with that Constitution and with the Election Code of 1971 was held for the
purpose of such ratification.
The Citizens Assemblies which purportedly ratified the draft Constitution

were created by Presidential Decree No. 86 dated December 31, 1972, "to
broaden the base of citizen participation in the democratic process and to
afford ample opportunities for the citizenry to express their views on
important national issues." The Assemblies "shall consist of all persons who
are residents of the barrio, district or ward for at least six
months, fifteen years of age or over, citizens of the Philippines and who are
registered in the lists of Citizen Assembly members kept by the barrio,
district or ward secretary." By Presidential Decree No. 86-A, dated January
5, 1973, the Assemblies were convened for a referendum between January
10 and 15, to "consider vital national issues now confronting the country,
like the holding of the plebiscite on the new Constitution, the continuation
of martial rule, the convening of Congress on January 22, 1973, and the
holding of elections in November 1973."
On January 5, 1973 the newspapers came out with a list of four questions
to be submitted to the Citizens Assemblies, the fourth one being as follows:
"How soon would you like plebiscite on the new Constitution to be held?" It
should be noted in this connection that the President had previously
announced that he had ordered the postponement of plebiscite which he
111
had called for January 15, 1973 (Presidential Decree No. 73) for the
ratification of the Constitution, and that he was considering two new dates
for the purpose — February 19 or March 5; that he had ordered that the
registration of voters (pursuant to Decree No. 73) be extended to
accommodate new voters; and that copies of the new Constitution would
be distributed in eight dialects the people. (Bulletin Today, December 24,
1972.)
On January 10, 1973 it was reported that one more question would be
added to the original four which were to be submitted to the Citizens
Assemblies. The question concerning plebiscite was reworded as follows:
"Do you like the plebiscite to be held later?" The implication, it may
likewise be noted, was that the Assemblies should express their views as to
the plebiscite should be held, not as to whether or not it should be held at
all.
The next day, January 11, it was reported that six additional questions
would be submitted, namely:
(1) Do you approve of the citizens assemblies as

of national interest?
(2) Do you approve of the new Constitution?
(3) Do you want a plebiscite to be called to ratify

(4) Do you want the elections to be held in

November, 1973 accordance with the provisions
of the 1935 Constitution?
(5) If the elections would not be held, when do

112
(6) Do you want martial law to continue? [Bulletin

Today, January 11, 1973; emphasis supplied].
Appended to the six additional questions above quoted were the suggested
answers, thus:
COMMENTS ON
QUESTION No. 1
In order to broaden the base of

citizens' participation in
government.
QUESTION No. 2

QUESTION No. 3

be deemed ratified.

New Constitution.
113
QUESTION No. 4

QUESTION No. 5

QUESTION No. 6

program and establish normalcy
Marcos to declare a
without the ad interim Assembly.
So it was that on January 11, 1973, the second day of the purported
referendum, the suggestion was broached, for the first time, that the
plebiscite should be done away with and a favorable vote by the
Assemblies deemed equivalent ratification. This was done, not in the
114
questionnaire itself, but in the suggested answer to question No. 3.

Strangely, however, it was not similarly suggested that an unfavorable vote
be considered as rejection.
There should be no serious dispute as to the fact that the manner in which
the voting was conducted in the Citizen Assemblies, assuming that such
voting was held, was not within the intendment of Article XV, Section 1, of
the 1935 Constitution nor in accordance with the Election Code of 1971.
The referendum can by no means be considered as the plebiscite
contemplated in Section 2 of said Code and in Article XVII, Section 16, of
the draft Constitution itself, or as the election intended by Congress when it
passed Resolution No. 2 on March 16, 1967 calling a Convention for the
revision of the 1935 Constitution. The Citizens Assemblies were not limited
to qualified, let alone registered voters, but included all citizens from the
age of fifteen, and regardless of whether or not they were illiterates,
feeble-minded, or ex convicts * — these being the classes of persons
expressly disqualified from voting by Section 102 of the Election Code. In
short, the constitutional and statutory qualifications were not considered in
the determination of who should participate. No official ballots were used
in the voting; it was done mostly by acclamation or open show of hands.
Secrecy, which is one of the essential features of the election process, was
not therefore observed. No set of rules for counting the votes or of
tabulating them and reporting the figures was prescribed or followed. The
Commission on Elections, which is the constitutional body charged with the
enforcement and administration of all laws relative to the conduct of
elections, took no part at all, either by way of supervision or in the
assessment of the results.
It has been suggested that since according to Proclamation No. 1102 the
overwhelming majority of all the members of the Citizens Assemblies had
voted for the adoption of the proposed Constitution there was a substantial
compliance with Article XV, Section 1, of the 1935 Constitution and with the
Election Code of 1971. The suggestion misses the point entirely. It is of the
essence of a valid exercise of the right of suffrage that not only must a
majority or plurality of the voters carry the day but that the same must be
duly ascertained in accordance with the procedure prescribed by law. In
115
other words the very existence of such majority or plurality depends upon
the manner of its ascertainment, and to conclude that it exists even if it has
not been ascertained according to law is simply to beg the issue, or to
assume the very fact to be established. Otherwise no election or plebiscite
could be questioned for non-compliance with the provisions of the Election
Law as long as it is certified that a majority of the citizens had voted
favorably or adversely on whatever it was that was submitted to them to
vote upon.
However, a finding that the ratification of the draft Constitution by the

Citizens Assemblies, as certified by the President in Proclamation No. 1102,
was not in accordance with the constitutional and statutory procedure laid
down for the purpose does not quite resolve the questions raised in these
cases. Such a finding, in our opinion, is on a matter which is essentially
justiciable, that is, within the power of this Court to inquire into. It imports
nothing more than a simple reading and application of the pertinent
provisions of the 1935 Constitution, of the Election Code and of other
related laws and official acts. No question of wisdom or of policy is
involved. But from this finding it does not necessarily follow that this Court
may justifiably declare that the Constitution has not become effective, and
for that reason give due course to these petitions or grant the writs herein
prayed for. The effectivity of the said Constitution, in the final analysis, is
the basic and ultimate question posed by these cases, to resolve which
considerations other than judicial, and therefore beyond the competence
of this Court, are relevant and unavoidable.
Several theories have been advanced respectively by the parties. The

petitioners lay stress on the invalidity of the ratification process adopted by
the Citizens Assemblies and on that premise would have this Court grant
the reliefs they seek. The respondents represented by the Solicitor General,
whose theory may be taken as the official position of the Government,
challenge the jurisdiction of this Court on the ground that the questions
raised in the petitions are political and therefore non-justiciable, and that in
any case popular acquiescence in the new Constitution and the prospect of
unsettling acts done in reliance thereon should caution against
interposition of the power of judicial review. Respondents Gil J. Puyat and
116
Jose Roy (in L-36165), in their respective capacities as President and

President Pro Tempore of the Senate of the Philippines, and through their
counsel, Senator Arturo Tolentino, likewise invoke the political question
doctrine, but on a ground not concurred in by the Solicitor General, namely,
that approval of the 1973 Constitution by the people was made under a
revolutionary government, in the course of a successful political revolution,
which was converted by act of the people to the present de
jure government under the 1973 Constitution."
Heretofore, constitutional disputes which have come before this Court for
adjudication proceeded on the assumption, conceded by all, that the
Constitution was in full force and effect, with the power and authority of
the entire Government behind it; and the task of this Court was simply to
determine whether or not the particular act or statute that was being
challenged contravened some rule or mandate of that Constitution. The
process employed was one of interpretation and synthesis. In the cases at
bar there is no such assumption: the Constitution (1935) has been
derogated and its continued existence as well as the validity of the act of
derogation is issue. The legal problem posed by the situation is aggravated
by the fact that the political arms of the Government — the Executive
Departments and the two Houses of Congress — have accepted the new
Constitution as effective: the former by organizing themselves and
discharging their functions under it, and the latter by not convening on
January 22, 1973 or at any time thereafter, as ordained by the 1935
Constitution, and in the case of a majority of the members by expressing
their option to serve in the Interim National Assembly in accordance with
Article XVIII, Section 2, of the 1973 Constitution. *
The theory advanced by Senator Tolentino, as counsel for respondents

Puyat and Roy, may be taken up and restated at same length if only
because it would constitute, if sustained, the most convenient ground for
the invocation of the political-question doctrine. In support of his theory,
Senator Tolentino contends that after President Marcos declared martial
law on September 21, 1972 (Proclamation No. 1081) he established a
revolutionary government when he issued General Order No. 1 the next
day, wherein he proclaimed "that I shall govern the nation and direct the
117
operation of the entire government, including all its agencies and

instrumentalities, in my capacity, and shall exercise all the powers and
prerogatives appurtenant and incident to my position as such Commander-
in-Chief of all the Armed Forces of the Philippines." By this order, it is
pointed out, the Commander-in-Chief of the Armed Forces assumed all the
powers of government — executive, legislative, and judicial; and thereafter
proceeded to exercise such powers by a series of Orders and Decrees which
amounted to legislative enactments not justified under martial law and, in
some instances, trenched upon the domain of the judiciary, by removing
from its jurisdiction certain classes of cases, such as "those involving the
validity, legality, or constitutionality of Proclamation No. 1081, or of any
decree, order or act issued, promulgated or performed by me or by my duly
designated representative pursuant thereto." (General Order No. 3 as
amended by General Order No. 3-A, dated September 24, 1972.) The
ratification by the Citizens Assemblies, it is averred, was the culminating act
of the revolution, which thereupon converted the government into a de
jure one under the 1973 Constitution.
If indeed it be accepted that the Citizens Assemblies had ratified the 1973
Constitution and that such ratification as well as the establishment of the
government thereunder formed part of a revolution, albeit peaceful, then
the issue of whether or not that Constitution has become effective and, as
necessary corollary, whether or not the government legitimately functions
under it instead of under the 1935 Constitution, is political and therefore
non-judicial in nature. Under such a postulate what the people did in the
Citizen Assemblies should be taken as an exercise of the ultimate sovereign
power. If they had risen up in arms and by force deposed the then existing
government and set up a new government in its place, there could not be
the least doubt that their act would be political and not subject to judicial
review but only to the judgment of the same body politic act, in the context
just set forth, is based on realities. If a new government gains authority and
dominance through force, it can be effectively challenged only by a
stronger force; judicial dictum can prevail against it. We do not see that
situation would be any different, as far as the doctrine of judicial review is
concerned, if no force had been resorted to and the people, in defiance of
the existing Constitution but peacefully because of the absence of any
appreciable opposition, ordained a new Constitution and succeeded in
118
having the government operate under it. Against such a reality there can be
no adequate judicial relief; and so courts forbear to take cognizance of the
question but leave it to be decided through political means.
The logic of the political-question doctrine is illustrated in statement of the

U.S. Supreme Court in a case * relied upon, curiously enough, by the
Solicitor General, who disagrees with the revolutionary government theory
of Senator Tolentino. The case involved the issue of which of two opposing
governments struggling for supremacy in the State of Rhode Island was the
lawful one. The issue had previously come up in several other cases before
the courts of the State, which uniformly held that the inquiry belonged to
the political power and not to the judicial. Commenting on the ruling thus
arrived at, the U.S. Supreme Court said: "And if a State court should enter
upon the inquiry proposed in this case, and should come to the conclusion
that the government under which it acted had been put aside and displaced
by an opposing government, it would cease to be a court, and incapable of
pronouncing a judicial decision upon the question it undertook to try. If it
decides at all as a court, it necessarily affirms the existence and authority of
the government under which it is exercising judicial power." In other words,
since the court would have no choice but to decide in one way alone in
order to be able to decide at all, the question could not be considered
proper for judicial determination.
It should be noted that the above statement from Luther vs. Borden would
be applicable in the cases at bar only on the premise that the ratification of
the Constitution was a revolutionary act and that the government now
functioning it is the product of such revolution. However, we are not
prepared to agree that the premise is justified.
In the first, place, with specific reference to the questioned ratification,

several significant circumstances may be noted. (1) The Citizens Assemblies
were created, according to Presidential Decree No. 86, "to broaden the
base of citizen participation in the democratic process and to afford ample
opportunities for the citizenry to express their views on important national
issues." (2) The President announced, according to the Daily Express of
January 2, 1973, that "the referendum will be in the nature of a loose
119
consultation with the people." (3) The question, as submitted to them on

the particular point at issue here, was "Do you a approve of the
Constitution?" (4) President Marcos, in proclaiming that the Constitution
had been ratified, stated as follows: "(S)ince the referendum results show
that more than ninety-five (95) per cent of the members of the Barangays
(Citizens Assemblies) are in favor of the new Constitution, the Katipunan ng
mga Barangay has strongly recommended that the new Constitution should
already be deemed ratified by the Filipino people." (5) There was not
enough time for the Citizens Assemblies to really familiarize themselves
with the Constitution, much less with the many other subjects that were
submitted to them. In fact the plebiscite planned for January 15, 1973
under Presidential Decree No. 73 had been postponed to an indefinite date,
the reasons for the postponement being, as attributed to the President in
the newspapers, that "there was little time to campaign for or against
ratification" (Daily Express, Dec. 22, 1972); that he would base his decision
(as to the date, of the plebiscite) on the compliance by the Commission (on
Elections) on the publication requirement of the new Charter and on the
position taken by national leaders" (Daily Express, Dec. 23, 1972); and that
"the postponement would give us more time to debate on the merits of the
Charter." (Bulletin Today, Dec. 24, 1972.)
The circumstances above enumerated lead us to the conclusion that the

Citizens Assemblies could not have understood the referendum to be for
the ratification of the Constitution, but only for the expression of their
views on a consultative basis. Indeed, if the expression of those views had
been intended as an act of ratification (or of rejection as a logical corollary)
— there would have been no need for the Katipunan ng mga Barangay to
recommend that the Constitution should already be deemed ratified, for
recommendation imports recognition of some higher authority in whom
the final decision rests.
But then the President, pursuant to such recommendation, did proclaim

that the Constitution had been ratified and had come into effect. The more
relevant consideration, therefore, as far as we can see, should be as to
what the President had in mind in convening the Citizens Assemblies,
submitting the Constitution to them and proclaiming that the favorable
120
expression of their views was an act of ratification. In this respect subjective

factors, which defy judicial analysis and adjudication, are necessarily
involved.
In positing the problem within an identifiable frame of reference we find no

need to consider whether or not the regime established by President
Marcos since he declared martial law and under which the new
Constitution was submitted to the Citizens Assemblies was a revolutionary
one. The pivotal question is rather whether or not the effectivity of the said
Constitution by virtue of Presidential Proclamation No. 1102, upon the
recommendation of the Katipunan ng mga Barangay, was intended to be
definite and irrevocable, regardless of non-compliance with the pertinent
constitutional and statutory provisions prescribing the procedure for
ratification. We must confess that after considering all the available
evidence and all the relevant circumstances we have found no reasonably
reliable answer to the question. On one hand we read, for instance, the
following public statements of the President:
Speaking about the proclamation of martial law, he said:
I reiterate what I have said in the past: there is no

turning back for our people.
We have committed ourselves to this revolution.

We have pledged to it our future, our fortunes,
our lives, our destiny. We have burned our bridges
behind us. Let no man misunderstand the
strength of our resolution. (A Report to the
Nation, Jan. 7, 1973.)
On the occasion of the signing of Proclamation No. 1102 on January 17,

1973, the President said the following, among other things:
... We can, perhaps delimit the power of the

people to speak on legal matters, on justiciable
matters, on matters that may come before the
121
experts and interpreters of the law. But we cannot

disqualify the people from speaking on what we
and the people consider purely political matters
especially those that affect the fundamental law
of the land.
... The political questions that were presented to

the people are exactly those that refer to the form
of government which the people want ... The
implications of disregarding the people's will are
too awesome to be even considered. For if any
power in government should even dare to
disregard the people's will there would be valid
ground for revolt.
... Let it be known to everybody that the people

have spoken and they will no longer tolerate any
attempt to undermine the stability of their
Republic; they will rise up in arms not in revolt
against the Republic but in protection of the
Republic which they have installed. It is quite clear
when the people say, we ratify the Constitution,
that they mean they will not discard, the
Constitution.
On January 19, 1973 the Daily Express published statement of the President

made the day before, from which the following portion is quoted:
... the times are too grave and the stakes too high
for us permit the customary concessions to
traditional democratic process to hold back our
people's clear and unequivocal resolve and
mandate to meet and overcome the extraordinary
challenges presented by these extraordinary
times.
122
On the same occasion of the signing of Proclamation No. 1102 the

President made pointed reference to "the demand of some of our
citizens ... that when all other measures should fail, that the President be
directed to organize and establish a Revolutionary Government," but in the
next breath added: "... if we do ratify the Constitution, how can we speak of
Revolutionary Government? They cannot be compatible ..." "(I)t is my
feeling," he said, "that the Citizens' Assemblies which submitted this
recommendation merely sought articulate their impatience with the status
quo that has brought about anarchy, confusion and misery to the
masses ..." The only alternatives which the President clearly implied by the
foregoing statements were the ratification of the new Constitution and the
establishment of a revolutionary government, the latter being unnecessary,
in his opinion, because precisely the Constitution had been ratified. The
third obvious alternative was entirely ruled out, namely, a return to the
1935 Constitution, for it was thestatus quo under that Constitution that had
caused "anarchy, confusion and misery." The message seems clear: rather
than return to such status quo, he would heed the recommendation of the
Citizens' Assemblies to establish a revolutionary government, because that
would be the only other way to carry out the reforms he had envisioned
and initiated — reforms which, in all fairness and honesty, must be given
credit for the improved quality of life in its many aspects, except only in the
field of civil liberties.
If there is any significance, both explicit and implicit, and certainly

unmistakable, in the foregoing pronouncements, it is that the step taken in
connection with the ratification of the Constitution was meant to be
irreversible, and that nothing anyone could say would make the least
difference. And if this is a correct and accurate assessment of the situation,
then we would say that since it has been brought about by political action
and is now maintained by the government that is in undisputed authority
and dominance, the matter lies beyond the power of judicial review.
On the other hand, by avowals no less significant if not so emphatic in

terms, President Marcos has professed fealty to the Constitution. In
"Today's Revolution: Democracy" he says:
123
I believe, therefore, in the necessity of Revolution

as an instrument of individual and social change ...
but that in a democratic society, revolution is of
necessity, constitutional, peaceful, and legal.
In his TV address of September 23, 1972, President Marcos told the nation:
I have proclaimed martial law in accordance with

the powers vested in the President by the
Constitution of the Philippines.
xxx xxx xxx
I repeat, this is not a military takeover of civil

government functions. The Government of
the Republic of the Philippines which was
established by our people in 1946 continues.
xxx xxx xxx
I assure you that I am utilizing this power vested

in me by the Constitution to save the Republic and
reform our society...
I have had to use this constitutional power in

order that we may not completely lose the civil
rights and freedom which we cherish...
... We are against the wall. We must now defend

the Republic with the stronger powers of the
Constitution.
(Vital Documents, pp. 1-12; emphasis supplied).
124
In the report of an interview granted by the President to the Newsweek

Magazine (published in the issue of January 29, 1973), the following
appears:
xxx xxx xxx
Q. Now that you have gotten off

the constitutional track, won't
you be in serious trouble if you
run into critical problems with
your programs?
R. I have never gotten off the

constitutional track. Everything I
am doing is in accordance with
the 1935 Constitution. The only
thing is that instead of 18-year-
olds voting, we have allowed 15-
year-olds the right to vote. But
the 15-year-olds of today are
high-school students, if not
graduates, and they are better
informed than my
contemporaries at that age. On
the matter of whether it is
constitutional to proclaim martial
law, it is constitutional because
the Constitution provides for it in
the event of invasion,
insurrection, rebellion or
immediate danger thereof. We
may quarrel about whether what
we have gone through is
sufficient cause to proclaim
martial law but at the very least
there is a danger of rebellion
125
because so many of our soldiers

have been killed. You must
remember this (martial law
provision) was lifted from the
American legislation that was the
fundamental law of our country.
xxx xxx xxx
In the light of this seeming ambivalence, the choice of what course of

action to pursue belongs to the President. We have earlier made reference
to subjective factors on which this Court, to our mind, is in no position to
pass judgment. Among them is the President's own assessment of the will
of the people as expressed through the Citizens Assemblies and of the
importance of the 1973 Constitution to the successful implementation of
the social and economic reforms he has started or envisioned. If he should
decide that there is no turning back, that what the people recommended
through the Citizens Assemblies, as they were reported to him, demand
that the action he took pursuant thereto be final and irrevocable, then
judicial review is out of the question.
In articulating our view that the procedure of ratification that was followed
was not in accordance with the 1935 Constitution and related statutes, we
have discharged our sworn duty as we conceive it to be. The President
should now perhaps decide, if he has not already decided, whether
adherence to such procedure is weighty enough a consideration, if only to
dispel any cloud of doubt that may now and in the future shroud the
nation's Charter.
In the deliberations of this Court one of the issues formulated for resolution
is whether or not the new Constitution, since its submission to the Citizens
Assemblies, has found acceptance among the people, such issue being
related to the political question theory propounded by the respondents.
We have not tarried on the point at all since we find no reliable basis on
which to form a judgment. Under a regime of martial law, with the free
expression of opinions through the usual media vehicles restricted, we have
126
no means of knowing, to the point of judicial certainty, whether the people

have accepted the Constitution. In any event, we do not find the issue
decisive insofar as our vote in these cases is concerned. To interpret the
Constitution — that is judicial. That the Constitution should be deemed in
effect because of popular acquiescence — that is political, and therefore
beyond the domain of judicial review.
We therefore vote not to give due course to the instant petitions.
BARREDO, J., concurring:
As far as I am concerned, I regard the present petitions as no more than

mere reiterations of the Supplemental Petitions filed by Counsel Lorenzo
M. Tañada on January 15, 1973 in the so called Plebiscite Cases decided by
this Court on January 22, 1978. Of course, there are amplifications of some
of the grounds previously alleged and in the course of the unprecedented
five-day hearing that was held from February 12 to 16 last, more extensive
and illuminating arguments were heard by Us, but, in my estimation, and
with due recognition of the sincerety, brilliance and eloquence of counsels,
nothing more cogent and compelling than what had already been
previously presented by Counsel Tañada is before Us now. Accordingly, I
cannot see any reason why I should change the position I took in regard to
the earlier cases. I reiterate, therefore, the vote I cast when these petitions
were initially considered by the Court; namely, to dismiss them.
In view, however, of the transcendental importance of the issues before

the Court and the significance to our people and in history of the individual
stands of the members of the Court in relation to said issues and to the
final outcome of these cases, and considering that I reserved before the
filing of a more extended opinion, I will take this opportunity to explain
further why I hold that the 1973 Constitution is already in force, if only to
clarify that apart from the people's right of revolution to which I made
pointed reference in my previous opinion, I can see now, after further
reflection, that the vote of the people in the referendum in the Citizens
Assemblies held on January 10 to 15, 1973, upon the result of which
Proclamation 1102 is based, may be viewed more importantly as a political
127
act than as a purely legal one with the result that such vote to consider the
1973 Constitution as ratified without the necessity of holding a plebiscite in
the form followed in the previous ratification plebiscites in 1935 of the
Constitution itself, 1937 of women's suffrage, 1939 of the amendments to
the Ordinance Appended to the Constitution, 1940 of the re-election of the
President, the bicameral legislature and the Commission on Elections, 1947
of the parity amendment and 1967, rejecting the proposed increase in the
members of the House of Representatives and eligibility of members of
Congress to the Constitutional Convention, may be deemed as a valid
ratification substantially in compliance with the basic intent of Article XV of
the 1935 Constitution. If indeed this explanation may be considered as a
modification of my rationalization then, I wish to emphasize that my
position as to the fundamental issue regarding the enforceability of the
new Constitution is even firmer now than ever before. As I shall elucidate
anon, paramount considerations of national import have led me to the
conviction that the best interests of all concerned would be best served by
the Supreme Court holding that the 1973 Constitution is now in force, not
necessarily as a consequence of the revolutionary concept previously
suggested by me, but upon the ground that as a political, more than as a
legal, act of the people, the result of the referendum may be construed as a
compliance with the substantiality of Article XV of the 1935 Constitution.
The facts that gave rise to these proceedings are historical and well known.
Generally, they may be taken judicial notice of. They revolve around the
purported ratification of the Constitution of 1973 declared in Proclamation
1102 issued by the President on January 17, 1973.
Pursuant to a joint resolution of the Congress sitting as a constituent

assembly approved on March 16, 1967, delegates to a constitutional
convention to propose amendments to the Constitution of 1935 were
elected in accordance with the implementing law, Republic Act 6132, on
November 10, 1970. Known as the Constitutional Convention of 1971, the
assembly began its sessions on June 1, 1971. After encountering a lot of
difficulties, due to bitter rivalries over important positions and committees
128
and an incomprehensible fear of overconcentrating powers in their officers,

the delegates went about their work in comparatively slow pace, and by
the third quarter of 1972 had finished deliberations and second-reading
voting only on an insignificant number of proposals — until September 21,
1972, when the President, not altogether unexpectedly, yet abruptly,
issued Proclamation 1081 declaring martial law throughout the country. An
attempt was made to have the Convention recessed until after the lifting of
martial law, and not long after the motion of Delegate Kalaw to such effect
was turned down, the activities within the assembly shifted to high gear. As
if unmindful of the arrest and continued detention of several of its
members, the convention gathered swift momentum in its work, and on
November 30, 1972, it approved by overwhelming vote the draft of a
complete constitution, instead of mere specific amendments of particular
portions of the Constitution of 1935. Needless to say, before martial law
was declared, there was full and unlimited coverage of the workings in the
convention by the mass media. At the same time, public debates and
discussions on various aspects of proposed amendments were not
uncommon.
Earlier, on November 22, 1972, the Convention had Resolution No. 5843
proposing "to President Ferdinand Marcos that a decree be issued calling a
plebiscite for ratification of the proposed new Constitution on appropriate
date as he shall determine and providing for necessary funds therefor."
Acting under this authority, December 1, 1972, the President issued
Presidential Decree No. 73 submitting the draft constitution for ratification
by the people at a plebiscite set for January 15, 1973. This order contained
provisions more or less similar to the plebiscite laws passed by Congress
relative to the past plebiscites held in connection with previous proposed
amendments.
In connection with the plebiscite thus contemplated, General Order No. 17

was issued ordering and enjoining the authorities to allow and encourage
public and free discussions on proposed constitution. Not only this,
subsequently, under date of December 17, 1972, the President ordered the
suspension the effects of martial law and lifted the suspension of privilege
of the writ of habeas corpus insofar as activities connected with the
129
ratification of the draft constitution were concerned. These two orders

were not, however, to last very long. On January 7, 1973, the President,
invoking information related to him that the area of public debate and
discussion had opened by his previous orders was being taken advantage of
by subversive elements to defeat the purposes for which they were issued
and to foment public confusion, withdrew said orders and enjoined full and
stricter implementation of martial law.
In the meantime, the President had issued on December 3, 1972

Presidential Decree No. 86 creating Citizens Assemblies "so as to afford
ample opportunities for the citizenry to express their views on important
national issues" and one of the questions presented to said assemblies was:
"Do you like the plebiscite on the proposed Constitution to be held later"
So, the same order of January 7, 1973, General Order No. 20, the President
ordered, "that the plebiscite scheduled to be held January 15, 1973, be
postponed until further notice".
In the meanwhile also, on January 5, 1973, the President issued Presidential

Decree, No. 86-A providing as follows:
PRESIDENTIAL DECREE NO. 86-A
STRENGTHENING AND DEFINING THE ROLE OF

BARANGAYS (CITIZENS ASSEMBLIES)
WHEREAS, on the basis of preliminary and initial

reports from the field as gathered from barangays
(citizens assemblies) that have so far been
established, the people would like to decide for
themselves questions or issues, both local and
national, affecting their day-to-day lives and their
future;
WHEREAS, the barangays (citizens assemblies)

would like themselves to be the vehicle for
130
expressing the views of the people on important

national issues;
WHEREAS, such barangays (citizens assemblies)

desire that they be given legal status and due
recognition as constituting the genuine, legitimate
and valid expression of the popular will; and
WHEREAS, the people would like the citizens

assemblies to conduct immediately a referendum
on certain specified questions such as the
ratification of the new Constitution, continuance
of martial law, the convening of Congress on
January 22, 1973, and the elections in November
1973 pursuant to the 1935 Constitution.
NOW, THEREFORE, I, FERDINAND E. MARCOS,

powers vested in me by the Constitution as
Commander-in-Chief of all Armed Forces of the
Philippines, do hereby declare as part of the law
of the land the following:
1. The present barangays (citizens assemblies) are

created under Presidential Decree No. 86 dated
December 31, 1972, shall constitute the base for
citizen participation in governmental affairs and
their collective views shall be considered in the
formulation of national policies or programs and,
wherever practicable, shall be translated into
concrete and specific decision;
2. Such barangays (citizens assemblies) shall

consider vital national issues now confronting the
country, like the holding of the plebiscite on the
new Constitution, the continuation of martial rule,
131
the convening of Congress on January 22, 1973,

and the holding of elections in November 1973,
and others in the future, which shall serve as
guide or basis for action or decision by the
national government;
3. The barangays (citizens assemblies) shall

conduct between January 10 and 15, 1973, a
referendum on important national issues,
including those specified in paragraph 2 hereof,
and submit results thereof to the Department of
Local Governments Community Development
immediately thereafter, pursuant to express will
of the people as reflected in the reports gathered
from the many thousands of barangays (citizens
assemblies) throughout the country.
4. This Decree shall take effect immediately.
Done in the City of Manila, this 5th day of January,

in the year of Our Lord, nineteen hundred and
seventy three.
And on January 7, 1973, this was followed by Presidential Decree No. 86-B
reading thus:
DEFINING FURTHER THE ROLE OF BARANGAYS (CITIZENS

ASSEMBLIES)
WHEREAS, since their creation pursuant to

Presidential Decree No. 86 dated December 31,
1972, the Barangays (Citizens Assemblies) have
petitioned the Office of the President to submit
them for resolution important national issues;
132
WHEREAS, one of the questions persistently

mentioned refers to the ratification of the
Constitution proposed by the 1971 Constitutional
Convention;
WHEREAS, on the basis of the said petitions, it is

evident that the people believe that the
Citizens Assemblies or Barangays should be taken
as a plebiscite in itself in view of the fact that
freedom of debate has always been limited to the
leadership in political, economic and social fields,
and that it is now necessary to bring this down to
the level of the people themselves through the
Barangays or Citizens Assemblies;
NOW THEREFORE, I, FERDINAND E. MARCOS,

hereby order that important national issues shall
from time to time be referred to the Barangays
(Citizens Assemblies) for resolution in accordance
with Presidential Decree No. 86-A dated January
5, 1973 and that the initial referendum shall
include the matter of ratification of the
Convention.
The Secretary of the Department of Local

Governments and Community Development shall
insure the implementation of this Order.
Done in the City of Manila, this 7th day of January

seventy-three.
133
And so it was that by January 10, 1973, when the Citizens Assemblies thus
created started the referendum which was held from said date to January
15, 1973, the following questions were submitted to them:
(1) Do you like the New Society?
(2) Do you like the reforms under martial law?
(3) Do you like Congress again to hold sessions?
(4) Do you like the plebiscite to be held later?
(5) Do you like the way President Marcos is

running the affairs of the government?.
but on January 11, 1973, six questions were added as follows:

(2) Do you approve of the New Constitution?



you want it to be called?
(6) Do you want martial law to continue?
134
It is not seriously denied that together with the question the voters were
furnished "comments" on the said questions more or less suggestive of the
answer desired. It may assumed that the said "comments" came from
official sources, albeit specifically unidentified. As petitioners point out, the
most relevant of these "comments" were the following:
COMMENTS ON
xxx xxx xxx
QUESTION No. 2

Interim Assembly to be convoke.
Or if it is to be convened at all, it
should not be done so until after
at least seven (7) years from the
approval of the New Constitution
by the Citizens Assemblies.
QUESTION No. 3

New Constitution.

approve of the new Constitution
be deemed ratified.
The Solicitor General claims, and there seems to be showing otherwise,

that the results of the referendum were determined in the following
manner:
135
Thereafter, the results of the voting were collated

and sent to the Department of Local
Governments. The transmission of the results was
made by telegram, telephone, the provincial
government SSB System in each province
connecting all towns; the SSB communication of
the PACD connecting most provinces; the
Department of Public Information Network
System; the Weather Bureau Communication
System connecting all provincial capitals and the
National Civil Defense Network connecting all
provincial capitals. The certificates of results were
then flown to Manila to confirm the previous
figures received by the aforementioned means of
transmission. The certificates of results tallied
with the previous figures taken with the exception
of few cases of clerical errors.
The Department adopted a system of

regionalizing the receiving section of the Citizens
Assemblies operation at the Department wherein
the identity of the barrio and the province was
immediately given to a staff in charge of each
region. Every afternoon at 2:00 o'clock, the 11
regions submitted the figures they received from
the field to the central committee to tabulate the
returns. The last figures were tabulated at 12
midnight of January 16, 1973 and early morning of
January 17, 1973 and were then communicated to
the President by the Department of Local
Governments.
The development culminated in the issuance by the President of

Proclamation 1102 on January 17, 1973. Said proclamation reads:
136
PROCLAMATION NO. 1102 ANNOUNCING THE

RATIFICATION BY THE FILIPINO PEOPLE OF THE
CONSTITUTION PROPOSED BY THE 1971
CONSTITUTIONAL CONVENTION.
WHEREAS, the Constitution proposed by the

people;
WHEREAS, Citizens Assemblies were created in

barrios in municipalities and in districts/wards in
No. 6, dated December 31, 1972, composed of all
persons who are residents of the barrio, district or
ward for at least six months, fifteen years of age
or over, citizens of the Philippines and who are
registered in the list of Citizen Assembly members
kept by the barrio, district or ward secretary;
WHEREAS, the said Citizens Assemblies were

establish precisely to broaden the base of citizen
participation in the democratic process and to
afford ample opportunity for the citizen to express
their views on important national issues;
WHEREAS, responding to the clamor of the people

an pursuant to Presidential Decree No. 86-A,
dated January 5, 1973, the following questions
were posed before Citizens' Assemblies or
Barangays: Do you approve of the New
Constitution? Do you still want a plebiscite to be
called to ratify the new Constitution?
WHEREAS, fourteen million nine hundred seventy-

six thousand five hundred sixty one (14,976,561)
137
members of all the Barangays (Citizens

Assemblies) voted for the adoption of the
proposed Constitution, as against seven hundred
forty-three thousand eight hundred sixty nine
(743,869) who voted for its rejection; while on the
question as to whether or not the people would
still like a plebiscite to be called to ratify the new
Constitution fourteen million two hundred ninety-
eight thousand eight hundred fourteen
(14,298,814) answered that there was no need for
plebiscite and that the vote of the Barangays
(Citizens Assemblies) should be considered as a
vote in a plebiscite;
WHEREAS, since the referendum results show that

more than ninety-five (95) percent of the
members of the Barangays (Citizen Assemblies)
are in favor of the New Constitution, the
Katipunan ng Mga Barangay has strongly

ratified by an overwhelmingly majority of all of
the votes cast by the members of all the
Barangays (Citizens Assemblies) throughout the
Philippines, and has thereby come into effect.
IN WITNESS WHEREOF, I have hereunto set my

138
Done in the City of Manila, this 17th day of

The first attempt to question the steps just enumerated taken by the
President was in the so-called Plebiscite Cases, ten in number, which were
filed by different petitioners during the first half of December 1972. 1 Their
common target then was Presidential Decree No. 73, but before the said
cases could be decided, the series of moves tending in effect to make them
moot and academic insofar as they referred exclusively to the said
Presidential Decree began to take shape upon the issuance of Presidential
Decree No. 86-A, quoted above. And when Presidential Decree No. 86-B,
also above quoted, was issued and the six additional questions which were
first publicized on January 11, 1973 were known, together with the
"comments", petitioners sensed that a new and unorthodox procedure was
being adopted to secure approval by the people of the new Constitution,
hence Counsel Tañada, not being satisfied with the fate of his urgent
motion for early decision of the above ten cases dated January 12, 1973,
filed on January 15, 1973, his supplemental motion seeking the prohibition
against and injunction of the proceedings going on. Principal objective was
to prevent that the President be furnished the report of the results of the
referendum and thereby disable him from carrying out what petitioners
were apprehensively foreseeing would be done — the issuance of some
kind of proclamation, order or decree, declaring that the new Constitution
had been ratified. Reacting swiftly, the Court resolved on the same day,
January 15, which was Monday, to consider the supplemental motion as a
supplemental petition and to require the respondents to answer the same
the next Wednesday, January 17th, before the hour of the hearing of the
petition which set for 9:30 o'clock in the morning of that day. The details
what happened that morning form part of the recital of facts the decision
rendered by this Court in the ten cases on January 22, 1973 and need not
be repeated here. Suffice it to state no that before the hearing could be
closed and while Counsel Tañada was still insisting on his prayer for
preliminary injunction or restraining order, the Secretary of Justice arrived
and personally handed to the Chief Justice a copy Proclamation 1102 which
had been issued at about 11:00 o'clock that same morning. In other words,
the valiant and persistent efforts of petitioners and their counsels were
139
overtaken by adverse developments, and in the mind of the majority of the

members of the Court, the cases had become academic. For my part, I took
the view that even on the basis of the supplemental petition and the
answer thereto filed by respondents, the Court could already decide on the
fundamental issue of the validity Proclamation 1102, as Justices Zaldivar,
Antonio and Esguerra also believed, inasmuch as Counsel Tañada's pleading
and argument had anticipated its issuance, but the majority felt it was not
ready to resolve the matter, for lack, according them, of full ventilation, and
so, the decision reserved petitioners the filing of the "appropriate" cases,
evidently, the present ones.
II
At the threshold, I find myself confronted by a matter which, although

believed to be inconsequential by my learned brethren, I strongly feel
needs special attention. I refer to the point raised by Counsel Arturo M.
Tolentino for respondent Gil J. Puyat and Jose Roy, who have been sued as
President and President Pro Tempore of the Senate, to the effect that
change in the composition of the Supreme Court provided for the 1973
Constitution, from the 11-man tribunal under the 1935 Constitution to a
15-man Court, makes of these cases which were filed after January 17,
1973 the date when Proclamation 1102 declared the new Constitution as
ratified, political nature and beyond our jurisdiction. The main
consideration submitted in this connection is that inasmuch as the number
votes needed for a decision of this Court has been increased from six to
eight in ordinary cases and from eight to ten for the declaration of
unconstitutionality of a treaty, executive agreement 2 or law, the Court
would have to resolve first as a prejudicial question whether the Court is
acting in these cases as the 15-man or the 11-man Court, in which event, it
would be faced with the dilemma that if it acts either as the former or as
the latter, it would be prejudging the very matter in issue one way or the
other, and, in effect, it would be choosing between two constitutions,
which is a political determination not within the Court's competence.
While I agree that the problem is at first blush rather involved, I do not
share the view that the premises laid down by counsel necessarily preclude
140
this Court from taking a definite stand on whether the Court is acting in
these cases as the 15-Man or the 11-man Court. I feel very strongly that the
issue should not be ignored or dodged, if only to make the world know that
the Supreme Court of the Philippines is never incognizant of the capacity in
which it is acting, much less lacking in courage or wisdom to resolve an
issue that relates directly to its own composition. What a disgrace it would
be to admit that this Supreme Court does not know, to use a common apt
expression, whether it is fish or fowl. Withal, scholars and researchers who
might go over our records in the future will inevitably examine minutely
how each of us voted and upon what considerations we have individually
acted, and, indeed, doubts may arise as to whether or not, despite the
general result we might announce, there had been the requisite number of
votes for a valid collegiate action.
For instance, it may be argued that the present cases do not involve an
issue of unconstitutionality, hence, if we are acting as the 11-man Court,
only six votes would suffice to declare Proclamation 1102 ineffective, and if
upon analysis of our respective opinions it should be inferable therefrom
that six of us have considered the matter before the Court as justiciable and
at the same time have found the procedure of ratification adopted in
Presidential Decrees 86-A and 86-B and related orders of the President as
not being in conformity with Article XV of the old Constitution, a cloud
would exist as to efficacy of the dispositive portion of Our decision dismiss
these cases, even if we have it understood that by the vote of justices in
favor of such dismissal, We intended to mean the implementation or
enforcement of the new Constitution now being done could continue.
Be that as it may, I am against leaving such an important point open to

speculation. By nature I am averse to ambiguity and equivocation and as a
member of the Supreme Court, last thing I should knowingly countenance is
uncertainty as to the juridical significance of any decision of the Court
which is precisely being looked upon as the haven in which doubts are
supposed to be authoritatively dispelled. Besides, from very nature of
things, one thing is indubitably beyond dispute — we cannot act in both
capacities of a 15-man and an 11-man Court at the same time, in like
manner that it is inconceivable that the 1935 and 1973 Constitution can be
141
considered by Us both in force. Our inescapable duty is to make a choice

between them, according to what law and other considerations inherent to
our function dictate. I cannot bear the thought that someone may someday
say that the Supreme Court of the Philippines once decided a case without
knowing the basis of its author to act or that it was ever wanting in judicial
courage to define the same.
Accordingly, with full consciousness of my limitations but compelled by my

sense of duty and propriety to straighten out this grave of issue touching on
the capacity in which the Court acting in these cases, I hold that we have no
alternative but adopt in the present situation the orthodox rule that when
validity of an act or law is challenged as being repugnant constitutional
mandate, the same is allowed to have effect until the Supreme Court rules
that it is unconstitutional. Stated differently, We have to proceed on the
assumption that the new Constitution is in force and that We are acting in
these cases as the 15-man Supreme Court provided for there Contrary to
counsel's contention, there is here no prejudgment for or against any of the
two constitutions. The truth of matter is simply that in the normal and
logical conduct governmental activities, it is neither practical nor wise to
defer the course of any action until after the courts have ascertained their
legality, not only because if that were to be the rule, the functioning of
government would correspondingly be undesirably hesitative and
cumbersome, but more importantly, because the courts must at the first
instance accord due respect to the acts of the other departments, as
otherwise, the smooth running of the government would have to depend
entirely on the unanimity of opinions among all its departments, which is
hardly possible, unless it is assumed that only the judges have the exclusive
prerogative of making and enforcing the law, aside from being its sole
interpreter, which is contrary to all norms of juridical and political thinking.
To my knowledge, there is yet no country in the world that has recognized
judicial supremacy as its basic governmental principle, no matter how
desirable we might believe the idea to be.
Indeed, it is not hard to visualize the difficulty if not absurdity of Our acting
on the assumption that this Court is still functioning under the 1935
Constitution. It is undeniable that the whole government, including the
142
provincial, municipal and barrio units and not excluding the lower courts up
to the Court of Appeals, is operating under the 1973 Constitution. Almost
daily, presidential orders and decrees of the most legislative character
affecting practically every aspect of governmental and private activity as
well as the relations between the government and the citizenry are pouring
out from Malacañang under the authority of said Constitution. On the other
hand, taxes are being exacted and penalties in connection therewith are
being imposed under said orders and decrees. Obligations have been
contracted and business and industrial plans have been and are being
projected pursuant to them. Displacements of public officials and
employees in big numbers are going on in obedience to them. For the ten
justices of the Supreme Court to constitute an island of resistance in the
midst of these developments, which even unreasoning obstinacy cannot
ignore, much less impede, is unimaginable, let alone the absurd and
complicated consequences such a position entails in the internal workings
within the judiciary amount its different components, what with the lower
courts considering such orders and decrees as forming part of the law of
the land in making their orders and decisions, whereas the Supreme Court
is holding, as it were, their effectivity at bay if it is not being indifferent to
or ignoring them.
It is suggested that the President, being a man of law, committed to abide

by the decision of the Supreme Court, and if the Court feels that it cannot
in the meantime consider the enforcement of the new Constitution, he can
wait for its decision. Accepting the truth of this assertion, it does
necessarily follow that by this attitude of the President, considers the
Supreme Court as still operating under the Constitution. Quite on the
contrary, it is a fact that he has given instructions for the payment of the
justices in accordance with the rate fixed in the New Constitution. Not only
that, official alter ego, the Secretary of Justice, has been shoving this Court,
since January 18, 1973, all matters related to the administrative supervision
of the lower courts which by the new charter has been transferred from the
Department of Justice to the Supreme Court, and as far as I know, President
has not countermanded the Secretary's steps in that direction. That, on the
other hand, the President has not augmented the justices of the Court to
complete the prescribed number of fifteen is, in my appraisal, of no
consequence considering that with the presence of ten justices who are the
143
Court now, there is a working quorum, and the addition of new justices
cannot in anyway affect the voting on the constitutional questions now
before Us because, while there sufficient justices to declare by their
unanimous vote illegality of Proclamation 1102, the votes of the justices to
added would only be committed to upholding the same, since they cannot
by any standard be expected to vote against legality of the very
Constitution under which they would be appointed.
Moreover, what makes the premise of presumptive valid preferable and,

even imperative, is that We are dealing here with a whole constitution that
radically modifies or alters only the form of our government from
presidential parliamentary but also other constitutionally institutions vitally
affecting all levels of society. It is, to mind, unrealistic to insist on that,
fundamentally, the 1973 Constitution is the same 1935 Constitution, with a
few improvements. A cursory perusal of the former should convince
anyone that it is in essence a new one. While it does retain republicanism
as the basic governmental tenet, the institutional changes introduced
thereby are rather radical and its social orientation is decidedly more
socialistic, just as its nationalistic features are somewhat different in certain
respects. One cannot but note that the change embraces practically every
part of the old charter, from its preamble down to its amending and
effectivity clauses, involving as they do the statement of general principles,
the citizenship and suffrage qualifications, the articles on the form of
government, the judiciary provisions, the spelling out of the duties and
responsibilities not only of citizens but also of officers of the government
and the provisions on the national economy as well as the patrimony of the
nation, not to mention the distinctive features of the general provisions.
What is more, the transitory provisions notably depart from traditional and
orthodox views in that, in general, the powers of government during the
interim period are more or less concentrated in the President, to the extent
that the continuation or discontinuance of what is now practically a one-
man-rule, is even left to his discretion. Notably, the express ratification of
all proclamations, orders, decrees and acts previously issued or done by the
President, obviously meant to encompass those issued during martial law,
is a commitment to the concept of martial law powers being implemented
by President Marcos, in defiance of traditional views and prevailing
jurisprudence, to the effect that the Executive's power of legislation during
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a regime of martial law is all inclusive and is not limited to the matters
demanded by military necessity. In other words, the new constitution
unlike any other constitution countenances the institution by the executive
of reforms which normally is the exclusive attribute of the legislature.
Withal, the best proofs that by its expressed and implied intent, the
Constitution of 1973 is a new one, are that (1) Section 16 of its Article XVII
which provides that this constitution shall "supersede the Constitution of
nineteen hundred and thirty-five and all amendments thereto" and (2) its
transitory provisions expressly continue the effectivity of existing laws,
offices and courts as well as the tenure of all incumbent officials, not
adversely affected by it, which would have been unnecessary if the old
constitution were being merely amended.
The new Constitution, in its Section 10, Article XVII, provides that "(T)he
incumbent members of the Judiciary (which include the Chief Justice and
Associate Justices of Supreme Court) may continue in office (under the
constitution) until they reach the age of seventy years, etc." By virtue of the
presumptive validity of the new charter, all of form part of the 15-man-
Court provided for therein correspondingly, We have in legal
contemplation, ceased in the meanwhile to be members of the 11-man-
Court in the 1935 Constitution. Should the Court finally decide that the
Constitution is invalid, then We would automatically revert to our positions
in the 11-man- Court, otherwise, We would just continue to be in our
membership in the 15-man-Court, unless We feel We cannot in conscience
accept the legality of existence. On the other hand, if it is assumed that We
are the 11-man-Court and it happens that Our collective decision is in favor
of the new constitution, it would be problematical for any dissenting justice
to consider himself as included automatically in the 15-man-Court, since
that would tantamount to accepting a position he does not honestly believe
exists.
III
In brief, the main contention of the petitioners is that Proclamation 1102 is

invalid because the ratification of the 1973 Constitution it purports to
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declare as having taken place as a result of the referendum above-referred

to is ineffective since it cannot be said on the basis of the said referendum
that said Constitution has been "approved by a majority of the votes cast at
an election" in the manner prescribed by Article XV the Constitution of
1935. More specifically, they maintain that the word "election" in the said
Article has already acquired a definite accepted meaning out of the
consistent holding in the past of ratification plebiscites, and accordingly, no
other form of ratification can be considered contemplated by the framers
of the Old Constitution than that which had been followed 1935, 1937,
1939, 1940, 1946 and 1967, the last three or four which were held under
the supervision of the Commission on Elections. Furthermore, they
emphatically deny the veracity of the proclaimed results of the referendum
because, according to them the referendum was a farce and its results
were manufactured or prefabricated, considering that Mr. Francisco Cruz,
who is supposed to have submitted the final report to the President, which
served as basis for Proclamation 1102, had no official authority to render
the same, and it is inconceivable and humanly impossible for anyone to
have been able to gather, tabulate and canvass the 15 million votes
allegedly reported within the short period of time employed. Of course,
they also contend that in any event, there was no proper submission
because martial law per secreates 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
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the manner of reporting and canvassing conducted in connection with the

referendum, I cannot say that Article XV of the Old Constitution has been
complied with, albeit I held that nonetheless, the Constitution of 1973 is
already in force. In order, however, to make myself clearer on some
relevant points, I would like to add a few considerations to what I have
already said in the former cases.
In my opinion in those cases, the most important point I took into account
was that in the face of the Presidential certification through Proclamation
1102 itself that the New Constitution has been approved by a majority of
the people and having in mind facts of general knowledge which I have
judicial notice of, I am in no position to deny that the result of the
referendum was as the President had stated. I can believe that the figures
referred to in the proclamation may not accurate, but I cannot say in
conscience that all of them are manufactured or prefabricated, simply
because I saw with own eyes that people did actually gather and listen
discussions, if brief and inadequate for those who are abreast of current
events and general occurrences, and that they did vote. I believe I can
safely say that what I have seen have also been seen by many others
throughout the country and unless it can be assumed, which honestly, I do
not believe to be possible, that in fact there were actually no meetings held
and no voting done in more places than those wherein there were such
meetings and votings, I am not prepared to discredit entirely the
declaration that there was voting and that the majority of the votes were in
favor of the New Constitution. If in fact there were substantially less than
14 million votes of approval, the real figure, in my estimate, could still be
significant enough and legally sufficient to serve as basis for a valid
ratification.
It is contended, however, that the understanding was that the referendum

among the Citizens Assemblies was to be in the nature merely of a loose
consultation and not an outright submission for purposes of ratification. I
can see that at the outset, when the first set of questions was released,
such may have been the idea. It must not be lost sight of, however, that if
the newspaper reports are to be believed, and I say this only because
petitioners would consider the newspapers as the official gazettes of the
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administration, the last set of six questions were included precisely because
the reaction to the idea of mere consultation was that the people wanted
greater direct participation, thru the Citizens Assemblies, in decision-
making regarding matters of vital national interest. Thus, looking at things
more understandingly and realistically the two questions emphasized by
counsel, namely, (1) Do yo approve of the New Constitution? and (2) Do
you want plebiscite to be called to ratify the new Constitution? should be
considered no longer as loose consultations but as direct inquiries about
the desire of the voters regarding the matters mentioned. Accordingly, I
take it that if the majority had expressed disapproval of the new
Constitution, the logical consequence would have been the complete
abandonment of the idea of holding any plebiscite at all. On the other
hand, it is very plain to see that since the majority has already approved the
new Constitution, a plebiscite would be superfluous. Clear as these
rationalizations may be, it must have been thought that if the holding of a
plebiscite was to be abandoned, there should be a direct and expressed
desire of the people to such effect in order to forestall as much as possible
any serious controversy regarding the non-holding of the plebiscite
required by the letter of Section 16 of Article XVII, the effectivity clause, of
the new Constitution. Oddly enough, the "comments" accompanying the
questions do strongly suggest this view. And as it turned out, the majority
found no necessity in holding a plebiscite.
In connection with the question, Do you approve of the New Constitution?

capital is being made of the point that as so framed, the thrust of the said
question does not seek an answer of fact but of opinion. It is argued that it
would have been factual were it worded categorically thus — Do you
approve the New Constitution? The contention would have been weighty
were it not unrealistic. I remember distinctly that the observation regarding
the construction of the subject question was not originally made by any of
the talented counsels for petitioners. It came from Mr. Justice Fred Ruiz
Castro whose mastery of the English language can rightly be the cause of
envy of even professors of English. None of the other members of the
Court, as far as I can recall, ever noticed how the said question is phrased,
or if anyone of Us did, I am not aware that he gave it more than passing
attention. What I mean is that if neither any of the distinguished and
learned counsels nor any member of the Court understood the said
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question otherwise than calling for a factual answer instead of a mere

opinion, how could anyone expect the millions of unlettered members of
the Citizens Assemblies to have noticed the point brought out by Justice
Castro? Truth to tell, I myself did not realize the difference until Justice
Castro gave it emphasis. Besides, reading the question in the light of the
accompanying "comment" corresponding to it in particular, I am certain
that any one who answered the same understood it in no other sense than
a direct inquiry as to whether or not, as a matter of fact, he approves the
New Constitution, and naturally, affirmative answer must be taken as a
categorical vote of approval thereof, considering, particularly, that
according to the reported result of the referendum said answer was even
coupled with the request that the President defer the convening of the
Interim National Assembly.
It is also contended that because of this reference in answer to that

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

declared, the circumstances surrounding making of the Constitution
acquired a different and more meaningful aspect, namely, the formation of
a new society. From the point of view of the President and on the basis of
intelligence reports available to him, the only way to meet situation created
by the subversive elements was to introduce immediately effective reforms
calculated to redeem the people from the depth of retrogression and
stagnation caused by rampant graft and corruption in high places, influence
peddling, oligarchic political practices, private armies, anarchy,
deteriorating conditions of peace and order, the so inequalities widening
the gap between the rich and the poor, and many other deplorable long
standing maladies crying for early relief and solution. Definitely, as in the
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case of rebellious movement that threatened the Quirino Administration,

the remedy was far from using bullets alone. If a constitution was to be
approved as an effective instrument towards the eradication of such grave
problems, it had to be approved without loss of time and sans the
cumbersome processes that, from the realistic viewpoint, have in the past
obstructed rather than hastened the progress of the people. Stated
otherwise, in the context of actualities, the evident objective in having a
new constitution is to establish new directions in the pursuit of the national
aspirations and the carrying out of national policies. Only by bearing these
considerations in mind can the "comments" already referred to be properly
appreciated. To others said "comments" may appear as evidence of
corruption of the will of those who attended the assemblies, but actually,
they may also be viewed in the same light as the sample ballots commonly
resorted to in the elections of officials, which no one can contend are per
se means of coercion. Let us not forget that the times are abnormal, and
prolonged dialogue and exchange of ideas are not generally possible, nor
practical, considering the need for faster decisions and more resolute
action. After all voting on a whole new constitution is different from voting
on one, two or three specific proposed amendments, the former calls for
nothing more than a collective view of all the provisions of the whole
charter, for necessarily, one has to take the good together with the bad in
it. It is rare for anyone to reject a constitution only because of a few specific
objectionable features, no matter how substantial, considering the ever
present possibility that after all it may be cured by subsequent amendment.
Accordingly, there was need to indicate to the people the paths open to
them in their quest for the betterment of their conditions, and as long as it
is not shown that those who did not agree to the suggestions in the
"comments" were actually compelled to vote against their will, I am not
convinced that the existence of said "comments" should make any
appreciable difference in the court's appraisal of the result of the
referendum.
I must confess that the fact that the referendum was held during martial
law detracts somehow from the value that the referendum would
otherwise have had. As I intimated, however, in my former opinion, it is not
fair to condemn and disregard the result of the referendum barely because
of martial law per se. For one thing, many of the objectionable features of
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martial law have not actually materialized, if only because the

implementation of martial law since its inception has been generally
characterized by restraint and consideration, thanks to the expressed
wishes of the President that the same be made "Philippine style", which
means without the rigor that has attended it in other lands and other times.
Moreover, although the restrictions on the freedom of speech, the press
and movement during martial law do have their corresponding adverse
effects on the area of information which should be open to a voter, in its
real sense what "chills" his freedom of choice and mars his exercise of
discretion is suspension of the privilege of the writ of habeas corpus. The
reason is simply that a man may freely and correctly vote even if the
needed information he possesses as to the candidates or issues being voted
upon is more or less incomplete, but when he is subject to arrest and
detention without investigation and without being informed of the cause
thereof, that is something else which may actually cause him to cast a
captive vote. Thus it is the suspension of the writ of habeas
corpus accompanying martial law that can cause possible restraint on the
freedom choice in an election held during martial law. It is a fact, however,
borne by history and actual experience, that in the Philippines, the
suspension of the privilege of the writ habeas corpus has never produced
any chilling effect upon the voters, since it is known by all that only those
who run afoul the law, saving inconsequential instances, have any cause for
apprehension in regard to the conduct by them of the normal activities of
life. And so it is recorded that in the elections 1951 and 1971, held while
the privilege of writ ofhabeas corpus was under suspension, the Filipino
voters gave the then opposition parties overwhelming if not sweeping
victories, in defiance of the respective administrations that ordered the
suspensions.
At this juncture, I think it is fit to make it clear that I am not trying to show
that the result of the referendum may considered as sufficient basis for
declaring that the New Constitution has been ratified in accordance with
the amending clause of the 1935 Constitution. I reiterate that in point of
law, I find neither strict nor substantial compliance. The foregoing
discussion is only to counter, if I may, certain impression regarding the
general conditions obtaining during and in relation to the referendum
which could have in one way or another affected the exercise of the
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freedom of choice and the use of discretion by the members of the Citizens
Assemblies, to the end that as far as the same conditions may be relevant
in my subsequent discussions of the acceptance by the people of the New
Constitution they may also be considered.
IV
It is my sincere conviction that the Constitution of 1973 has been accepted

or adopted by the people. And on this premise, my considered opinion is
that the Court may no longer decide these cases on the basis of purely legal
considerations. Factors which are non-legal but nevertheless ponderous
and compelling cannot be ignored, for their relevancy is inherent in the
issue itself to be resolved.
In my opinion in the Plebiscite Cases, I joined my colleagues in holding that

the question of whether or not there was proper submission under
Presidential Decree No. 73 is justiciable, and I still hold that the propriety of
submission under any other law or in any other form is constitutionally a fit
subject for inquiry by the courts. The ruling in the decided cases relied upon
by petitioners are to this effect. In view, however, of the factual
background of the cases at bar which include ratification itself, it is
necessary for me to point out that when it comes to ratification, I am
persuaded that there should be a boundary beyond which the competence
of the courts no longer has any reason for being, because the other side is
exclusively political territory reserved for their own dominion by the
people.
The main basis of my opinion in the previous cases was acceptance by the
people. Others may feel there is not enough indication of such acceptance
in the record and in the circumstances the Court can take judicial notice of.
For my part, I consider it unnecessary to be strictly judicial in inquiring into
such fact. Being personally aware, as I have already stated, that the Citizens
Assemblies did meet and vote, if irregularly and crudely, it is not for me to
resort, for the purposes of these cases, to judicial tape and measure, to find
out with absolute precision the veracity of the total number of votes
actually cast. After all, the claims that upon a comparison of conflicting
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reports, cases of excess votes may be found, even if extrapolated will not,
as far as I can figure out, suffice to overcome the outcome officially
announced. Rather than try to form a conclusion out of the raw evidence
before Us which the parties did not care to really complete, I feel safer by
referring to the results announced in the proclamation itself. Giving
substantial allowances for possible error and downright manipulation, it
must not be overlooked that, after all, their having been accepted and
adopted by the President, based on official reports submitted to him in due
course of performance of duty of appropriate subordinate officials,
elevated them to the category of an act of a coordinate department of the
government which under the principle separation of powers is clothed with
presumptive correctness or at least entitled to a high degree of
acceptability, until overcome by better evidence, which in these cases does
not exist. In any event, considering that due to the unorthodoxy of the
procedure adopted and the difficulty of an accurate checking of all the
figures, I am unable to conceive of any manageable means of acquiring
information upon which to predicate a denial, I have no alternative but to
rely on what has been officially declared. At this point, I would venture to
express the feeling that if it were not generally conceded that there has
been sufficient showing of the acceptance in question by this time, there
would have been already demonstrative and significant indications of a
rather widespread, if not organized resistance in one form or another.
Much as they are to be given due recognition as magnificent manifestations
of loyalty and devotion to principles, I cannot accord to the filing of these
cases as indicative enough of the general attitude of the people.
It is true that in the opinion I had the privilege of penning the Court in
Tolentino vs. Comelec, 41 SCRA 702, I made strong and unequivocal
pronouncements to the effect that any amendment to the Constitution of
1935, to be valid, must appear to have been made in strict conformity with
the requirements of Article XV thereof. What is more, that decision
asserted judicial competence to inquire into the matter of compliance or
non compliance as a justiciable matter. I still believe in the correctness of
those views and I would even add that I sincerely feel it reflects the spirit of
the said constitutional provision. Without trying to strain any point
however, I, submit the following considerations in the context of the
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peculiar circumstances of the cases now at bar, which are entirely different
from those in the backdrop of the Tolentino rulings I have referred to.
1. Consider that in the present case what is involved is not just an

amendment of a particular provision of an existing Constitution; here, it is,
as I have discussed earlier above, an entirely new Constitution that is being
proposed. This important circumstance makes a great deal of difference.
No less than counsel Tolentino for herein respondents Puyat and Roy, who
was himself the petitioner in the case I have just referred to is, now inviting
Our attention to the exact language of Article XV and suggesting that the
said Article may be strictly applied to proposed amendments but may
hardly govern the ratification of a new Constitution. It is particularly
stressed that the Article specifically refers to nothing else but
"amendments to this Constitution" which if ratified "shall be valid as part of
this Constitution." Indeed, how can a whole new constitution be by any
manner of reasoning an amendment to any other constitution and how can
it, if ratified, form part of such other constitution? In fact, in the Tolentino
case I already somehow hinted this point when I made reference in the
resolution denying the motion for reconsideration to the fact that Article
XV must be followed "as long as any amendment is formulated and
submitted under the aegis of the present Charter." Said resolution even
added. "(T)his is not to say that the people may not, in the exercise of their
inherent revolutionary powers, amend the Constitution or promulgate an
entirely new one otherwise.".
It is not strange at all to think that the amending clause of a constitution

should be confined in its application only to proposed changes in any part
of the same constitution itself, for the very fact that a new constitution is
being adopted implies a general intent to put aside the whole of the old
one, and what would be really incongrous is the idea that in such an
eventuality, the new Constitution would subject its going into effect to any
provision of the constitution it is to supersede, to use the language
precisely of Section 6, Article XVII, the effectivity clause, of the New
Constitution. My understanding is that generally, constitutions are self-
born, they very rarely, if at all, come into being, by virtue of any provision
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of another constitution. 3 This must be the reason why every constitution

has its own effectivity clause, so that if, the Constitutional Convention had
only anticipated the idea of the referendum and provided for such a
method to be used in the ratification of the New Constitution, I would have
had serious doubts as to whether Article XV could have had priority of
application.
2. When an entirely new constitution is proposed to supersede the existing

one, we cannot but take into consideration the forces and the
circumstances dictating the replacement. From the very nature of things,
the proposal to ordain a new constitution must be viewed as the most
eloquent expression of a people's resolute determination to bring about a
massive change of the existing order, a meaningful transformation of the
old society and a responsive reformation of the contemporary institutions
and principles. Accordingly, should any question arise as to its effectivity
and there is some reasonable indication that the new charter has already
received in one way or another the sanction of the people, I would hold
that the better rule is for the courts to defer to the people's judgment, so
long as they are convinced of the fact of their approval, regardless of the
form by which it is expressed provided it be reasonably feasible and
reliable. Otherwise stated, in such instances, the courts should not bother
about inquiring into compliance with technical requisites, and as a matter
of policy should consider the matter non-justiciable.
3. There is still another circumstance which I consider to be of great

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

should not be deemed as the be all and end all the nation. More important
than even the Constitution itself with all its excellent features, are the
people living under it — their happiness, their posterity and their national
destiny. There is nothing that cannot be sacrificed in the pursuit of these
objectives, which constitute the totality of the reasons for national
existence. The sacred liberties and freedom enshrined in it and the
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commitment and consecration thereof to the forms of democracy we have

hitherto observed are mere integral parts of this totality; they are less
important by themselves.
What seems to me to be bothering many of our countrymen now is that by

denying the present petitions, the Court would be deemed as sanctioning,
not only the deviations from traditional democratic concepts and principles
but also the qualified curtailment of individual liberties now being
practiced, and this would amount, it is feared, to a repudiation of our oath
to support and defend the Constitution of 1935. This is certainly something
one must gravely ponder upon. When I consider, however, that the
President, the Vice President, the members of both Houses of Congress,
not to speak of all executive departments and bureaus under them as well
as all the lower courts, including the Court of Appeals have already
accepted the New Constitution as an instrument of a meaningful
nationwide-all-level change in our government and society purported to
make more realistic and feasible, rather than idealistic and cumbersomely
deliberative, the attainment of our national aspirations, I am led to wonder
whether or not we, as members of the Supreme Court are being true to our
duty to our people by refusing to follow suit and accept the realities of the
moment, despite our being convinced of the sincerity and laudableness of
their objectives, only because we feel that by the people's own act of
ratifying the Constitution of 1935, they have so encased themselves within
its provisions and may, therefore, no longer take measures to redeem
themselves from the situation brought about by the deficiencies of the old
order, unless they act in strict conformity therewith. I cannot believe that
any people can be so stifled and enchained. In any event, I consider it a
God-given attribute of the people to disengage themselves, if necessary,
from any covenant that would obstruct their taking what subsequently
appears to them to be the better road to the promotion and protection of
their welfare. And once they have made their decision in that respect,
whether sophisticatedly or crudely, whether in legal form or otherwise,
certainly, there can be no court or power on earth that can reverse them.
I would not be human if I should be insensitive to the passionate and

eloquent appeals of Counsels Tañada and Salonga that these cases be
159
decided on the basis of conscience. That is exactly what I am doing. But if

counsel mean that only by granting their petitions can this Court be
worthily the bulwark of the people's faith in the government, I cannot
agree, albeit my admiration and respect are all theirs for their zeal and
tenacity, their industry and wisdom, their patriotism and devotion to
principle. Verily, they have brought out everything in the Filipino that these
cases demand.
In times of national emergencies and crises, not arising from foreign

invasion, we need not fear playing opposite roles, as long as we are all
animated by sincere love of country and aim exclusively at the attainment
of the national destiny. Our heroes of the past, Rizal, Bonifacio, Aguinaldo,
Antonio Luna, Mabini and so also with our patriots of the recent
generations, Quezon, Osmeña, Roxas, Laurel and Recto, to mention only
some of them, had their differences of views — and they did not hesitate to
take diametrically opposing sides — that even reached tragic proportions,
but all of them are admired and venerated.
It is my faith that to act with absolute loyalty to our country and people is
more important than loyalty to any particular precept or provision of the
Constitution or to the Constitution itself. My oath to abide by the
Constitution binds me to whatever course of action I feel sincerely is
demanded by the welfare and best interests of the people.
In this momentous juncture of our history, what is imperative is national

unity. May God grant that the controversies the events leading to these
cases have entail will heal after the decision herein is promulgated, so that
all us Filipinos may forever join hands in the pursuit of our national destiny.
IN VIEW OF ALL THE FOREGOING, I vote to dismiss these petitions

for mandamus and prohibition without costs.
MAKASIAR, J., concurring:
Assuming, without conceding, that Article XV of the 1935 Constitution

prescribes a procedure for the ratification of constitutional amendments or
160
of a new Constitution and that such procedure was no complied with, the
validity of Presidential Proclamation No. 1102 is a political, not a justiciable,
issue; for it is inseparably or inextricably link with and strikes at, because it
is decisive of, the validity of ratification and adoption of, as well as
acquiescence of people in, the 1973 Constitution and the legitimacy of the
government organized and operating thereunder. And being political, it is
beyond the ambit of judicial inquiry, tested by the definition of a political
question enunciated in Tañada, et. al. vs. Cuenco, et al. (103 Phil. 1051),
aside from the fact the this view will not do violence to rights vested under
the new Constitution, to international commitments forged pursuant
thereto and to decisions rendered by the judicial as well as quasi-judicial
tribunals organized and functioning or whose jurisdiction has been altered
by the 1973 Constitution and the government established thereunder, and
will dissipate any confusion in the minds of the citizenry, who have been
obeying the mandates of the new Constitution, as well as exercising the
rights and performing the obligations defined by the new Constitution, and
decrees and orders issued in implementation of the same and cooperating
with the administration in the renovation of our social, economic and
political system as re-structured by the 1973 Constitution and by the
implementing decrees and orders (see Miller vs. Johnson, 18 SW 522, 522-
526, 1892).
In 1957, Mr. Chief Justice Roberto Concepcion, then Associate Justice, in

behalf of the Court, defined a political question as one which, under the
Constitution, is "to be decided by the people in their sovereign capacity, or
in regard to which full discretionary authority had been delegated to the
Legislature or Executive branch of the government." (Tañada, et al. vs.
Cuenco, et al., supra).
Article XV of the 1935 Constitution provides: "Such amendments shall be

valid as part of this Constitution when approved by a majority of the votes
cast at an election at which the amendments are submitted to the people
for ratification." Under Article XV of the 1935 Constitution, the power to
propose constitutional amendments is vested in Congress or in a
constitutional convention; while the power to ratify or reject such proposed
amendments or new Constitution is reserved by the sovereign people. The
161
nullification of Proclamation No. 1102 would inevitably render inoperative

the 1973 Constitution, which is in fact the express prayer of the petitioners
in G.R. No. L-36164. Regardless of the modality of submission or ratification
or adoption — even if it deviates from or violates the procedure delineated
therefore by the old Constitution — once the new Constitution is ratified,
adopted and/or acquiesced in by the people or ratified even by a body or
agency not duly authorized therefor but is subsequently adopted or
recognized by the people and by the other official organs and functionaries
of the government established under such a new Constitution, this Court is
precluded from inquiring into the validity of such ratification, adoption or
acquiescence and of the consequent effectivity of the new Constitution.
This is as it should be in a democracy, for the people are the repository of
all sovereign powers as well as the source of all governmental authority
(Pole vs. Gray, 104 SO 2nd 841 [1958]). This basic democratic concept is
expressly restated in Section 1 of Article II of the Declaration of Principles of
the 1935 and 1973 Constitutions, thus: "Sovereignty resides in the people
and all government authority emanates from them."
The legality of the submission is no longer relevant; because the

ratification, adoption and/or acquiescence by the people cures any infirmity
in its submission or any other irregularities therein which are deemed
mandatory before submission as they are considered merely directory after
such ratification or adoption or acquiescence by the people. As Mr. Justice
Brewer, then of the Kansas State Supreme Court and later Associate Justice
of the Federal Supreme Court, stated in re Prohibitory Amendment Cases
(24 Kansas 700 & 710 Reprint 499, 506): "The two important, vital elements
of the Legislature and a majority of the popular vote. Beyond these, other
provisions are mere machineries and forms. They may not be disregarded,
because by them certainty as to the essentials is secured. But they are not
themselves the essentials." (Cited in Larken vs. Gronna, 285 NW 59, 61-64,
1939).
This was the ruling by the American Supreme Court in the 1939 case
of Coleman vs. Miller (307 U.S. 433, 83 L.ed. 1385), where Chief Justice
Hughes, speaking for the majority, stated that:
162
... Thus the political departments of the

government dealt with the effect of both previous
rejection and attempted withdrawal and
determined that both were ineffectual in the
presence of an actual ratification ... . This decision
by the political departments of the Government
as to the validity of the adoption of the
Fourteenth amendment has been accepted.
We think that in accordance with this historic

precedent the question of the efficacy of
ratifications by state legislatures, in the light of
previous rejection or attempted withdrawal,
should be regarded as a political question
pertaining to the political departments, with the
ultimate authority in the Congress in the exercise
of its control over the promulgation of the
adoption of the amendment.
This view was likewise emphasized by Mr. Justice Black in his concurring
opinion, in which Mr. Justices Roberts, Frankfurter, and Douglas join, thus:
The Constitution grants Congress exclusive power

to control submission of constitutional
amendments. Final determination by Congress
that ratification by three-fourths of the States has
taken place "is conclusive upon the courts." In the
exercise of that power, Congress, of course, is
governed by the Constitution. However, whether
submission, intervening procedure or
Congressional determination of ratification
conforms to the commands of the Constitution,
calls for decisions by a "political department" of
questions of a type which this Court has
frequently designated "political." And decision of
a "political question" by the "political
163
department" to which the Constitution has

committed it "conclusively binds the judges, as
well as all other officers, citizens and subjects
of...government." Proclamation under authority of
Congress that an amendment has been ratified
will carry with it a solemn assurance by the
Congress that ratification has taken place as the
Constitution commands. Upon this assurance a
proclaimed amendment must be accepted as a
part of the Constitution, leaving to the judiciary its
traditional authority of interpretation. To the
extent that the Court's opinion in the present case
even impliedly assumes a power to make judicial
interpretation of the exclusive constitutional
authority of Congress over submission and
ratification of amendments, we are unable to
agree... (American Constitutional Issues, by
Pritchett, 1962 Ed., p. 44).
The doctrine in the aforesaid case of Coleman vs. Miller was adopted by
Our Supreme Court in toto in Mabanag vs. Lopez Vito (78 Phil. 1).
The ruling in the cases of Gonzales vs. Comelec, et al. (L-28224, Nov. 29,
1967, 21 SCRA 774) and Tolentino vs. Comelec, et al. (L-34150, Oct. 16,
1971, 41 SCRA 702) on which petitioners place great reliance — that the
courts may review the propriety of a submission of a proposed
constitutional amendment before the ratification or adoption of such
proposed amendment by the sovereign people, hardly applies to the cases
at bar; because the issue involved in the aforesaid cases refers to only the
propriety of the submission of a proposed constitutional amendment to the
people for ratification, unlike the present petitions, which challenge
inevitably the validity of the 1973 Constitution after its ratification or
adoption thru acquiescence by the sovereign people. As heretofore stated,
it is specious and pure sophistry to advance the reasoning that the present
petitions pray only for the nullification of the 1973 Constitution and the
government operating thereunder.
164
It should be stressed that even in the Gonzales case, supra, We held that:
Indeed, the power to amend the Constitution or

to propose amendments thereto is not included in
the general grant of legislative powers to
Congress. It is part of the inherent powers of
the people — as the repository of sovereignty in a
republican state, such as ours — to make, and
hence, to amend their own Fundamental Law.
Congress may propose amendments to the same
explicitly grants such power. Hence, when
exercising the same, it is said that Senators and
Members of the House of Representatives
act, notas members, but as component elements
of a constituent assembly. When acting as such,
the members of Congress derive their authority
from the Constitution, unlike the people, when
performing the same function, for their authority
does not emanate from the Constitution — they
are the very source of all powers of
government, including the Constitution itself. (21
SCRA 787)
We did not categorically and entirely overturn the doctrine in Mabanag vs.
Lopez Vito (78 Phil. 1) that both the proposal to amend and the ratification
of such a constitutional amendment are political in nature forming as they
do the essential parts of one political scheme — the amending process. WE
merely stated therein that the force of the ruling in the said case
of Mabanag vs. Lopez Vito has been weakened by subsequent cases. Thus,
We pronounced therein:
It is true that in Mabanag vs. Lopez Vito, this Court

characterizing the issue submitted thereto as a
political one, declined to pass upon the question
whether or not a given number of votes cast in
Congress in favor of a proposed amendment to
165
the Constitution — which was being submitted to

the people for ratification — satisfied the three
fourths vote requirement of the fundamental law.
The force of this precedent has been weakened,
however, by Suanes vs. Chief Accountant of the
Senate, Avelino vs. Cuenco, Tañada vs. Cuenco
and Macias vs. Commission on Elections. In the
first, we held the officers and employees of the
Senate Electoral Tribunal are supervision and
control, not of that of the Senate President,
claimed by the latter; in the second, this Court
proceeded to determine the number of Senators
necessary for a quorum in the Senate; in the third
we nullified the election, by Senators belonging to
the party having the largest number of votes in
said chamber purporting to act on behalf of the
party having the second largest number of votes
therein, of two (2) Senators belonging to the first
party, as members, for the second party, of the
Senate Electoral Tribunal; and in the fourth, we
declared unconstitutional an act of Congress
purporting to apportion the representative
districts for the House of Representatives, upon
the ground that the apportionment had not been
made as may be possible according to the number
of inhabitants of each province. Thus we rejected
the theory advanced in these four (4) cases, that
the issues therein raised were political questions
the determination of which is beyond judicial
review. (21 SCRA pp. 785-786);
for which reason We concluded
In short, the issue whether or not a resolution of

Congress before acting as a constituent assembly
— violates the Constitution is essentially
166
justiciable, not political, and, hence, subject to

judicial review, and to the extent that this view
may be inconsistent with the stand taken in
Mabanag vs. Lopez Vito, the latter should be
deemed modified accordingly. (p. 787, emphasis
supplied.)
In the Tolentino case, supra, We reiterated the foregoing statements (41

SCRA 703-714).
The inevitable consequence therefore is that the validity of the ratification

or adoption of or acquiescence by the people in the 1973 Constitution,
remains a political issue removed from the jurisdiction of this Court to
review.
One more word about the Gonzales and Tolentino cases. Both primarily
stressed on the impropriety of the submission of a proposed constitutional
amendment. Courts do not deal with propriety or wisdom or absence of
either of an official act or of a law. Judicial power concerns only with the
legality or illegality, constitutionality or unconstitutionality of an act: it
inquires into the existence of power or lack of it. Judicial wisdom is not to
be pitted against the wisdom of the political department of the
government.
The classic example of an illegal submission that did not impair the validity
of the ratification or adoption of a new Constitution is the case of the
Federal Constitution of the United States. It should be recalled that the
thirteen (13) original states of the American Union — which succeeded in
liberating themselves from England after the revolution which began on
April 19, 1775 with the skirmish at Lexington, Massachusetts and ended
with the surrender of General Cornwallis at Yorktown, Virginia, on October
19, 1781(Encyclopedia Brit., Vol. I, 1933 Ed., p. 776) — adopted their
Articles of Confederation and Perpetual Union, that was written from 1776
to 1777 and ratified on March 1, 1781 (Encyclopedia Brit., Vol. II, 1966 Ed.,
p. 525). About six thereafter, the Congress of the Confederation passed a
resolution on February 21, 1787 calling for a Federal Constitutional
167
Convention "for the sole and express purpose of revising the articles of

confederation ... ." (Appendix I, Federalist, Modern Library ed., p. 577,
emphasis supplied).
The Convention convened at Philadelphia on May 14, 1787. Article XIII of

the Articles of Confederation and Perpetual Union stated specifically:
The articles of this confederation shall be

inviolably observed in every state, and the union
shall be perpetual; nor shall any alterations at any
time hereafter be made in any of them; unless
such alteration be agreed to in a congress of the
united states, and be afterwards confirmed by the
legislatures of every state. (See the Federalist,
Appendix II, Modern Library Ed., 1937, p. 584;
emphasis supplied.)
But the foregoing requirements prescribed by the Articles of Confederation

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

recorded that:
It would have been a counsel of perfection to

consign the new constitution to the tender
mercies of the legislatures of each and all of the
13 states. Experience clearly indicated that
ratification then would have had the same chance
as the scriptural camel passing through the eye of
168
a needle. It was therefore determined to

recommend to Congress that the new Constitution
be submitted to conventions in the several states
especially elected to pass upon it and that,
furthermore, the new government should go into
effect if and when it should be ratified by nine of
the thirteen states ... . (The Federalist, Modern
Library Ed., 1937, Introduction by Edward Earle
Mead, pp. viii-ix; emphasis supplied)
Historian Samuel Eliot Morison similarly recounted:
The Convention, anticipating that the influence of

many state politicians would be Antifederalist,
provided for ratification of the Constitution by
popularly elected conventions in each state.
Suspecting that Rhode Island, at least, would
prove recalcitrant, it declared that the
Constitution would go into effect as soon as nine
states ratified. The convention method had the
further advantage that judges, ministers, and
others ineligible to state legislatures, could be
elected to a convention. The nine-state provision
was, of course, mildly revolutionary. But the
Congress of the Confederation, still sitting in New
York to carry on federal government until
relieved, formally submitted the new constitution
to the states and politely faded out before the
first presidential inauguration. (The Oxford History
of the Am. People, by Samuel Eliot Morison, 1965
ed., p. 312).
And so the American Constitution was ratified by nine (9) states on June 21,
1788 and by the last four states on May 29, 1790 (12 C.J. p. 679 footnote,
16 C.J.S., 27. — by the state conventions and not by all thirteen (13) state
legislatures as required by Article XIII of the Articles of Confederation and
169
Perpetual Union aforequoted — and in spite of the fact that the Federal
Constitution as originally adopted suffers from two basic infirmities,
namely, the absence of a bill of Rights and of a provision affirming the
power of judicial review.
The liberties of the American people were guaranteed by subsequent

amendments to the Federal Constitution. The doctrine of judicial review
has become part of American constitutional law only by virtue of a judicial
pronouncement by Chief Justice Marshall in the case of Marbury vs.
Madison (1803, 1 Cranch 137).
Until this date, no challenge has been launched against the validity of the
ratification of the American Constitution, nor against the legitimacy of the
government organized and functioning thereunder.
In the 1946 case of Wheeler vs. Board of Trustees (37 SE 2nd 322, 326-330),
which enunciated the principle that the validity of a new or revised
Constitution does not depend on the method of its submission or
ratification by the people, but on the fact or fiat or approval or adoption or
acquiescence by the people which fact of ratification or adoption or
acquiescence is all that is essential, the Court cited precisely the case of the
irregular revision and ratification by state conventions of the Federal
Constitution, thus:
No case identical in its facts with the case now

under consideration has been called to our
attention, and we have found none. We think that
the principle which we apply in the instant case
was very clearly applied in the creation of the
constitution of the United States. The convention
created by a resolution of Congress had authority
to do one thing, and one only, to wit, amend the
articles of confederation. This they did not do, but
submitted to the sovereign power, the people, a
new constitution. In this manner was the
constitution of the United States submitted to the
170
people and it became operative as the organic law

of this nation when it had been properly adopted
by the people.
Pomeroy's Constitutional Law, p. 55, discussing

the convention that formulated the constitution
of the United States, has this to say: "The
convention proceeded to do, and did accomplish,
what they were not authorized to do by a
resolution of Congress that called them together.
That resolution plainly contemplated amendments
to the articles of confederation, to be submitted to
and passed by the Congress, and afterwards
ratified by all the State legislatures, in the manner
pointed out by the existing organic law. But the
convention soon became convinced that any
amendments were powerless to effect a cure; that
the disease was too deeply seated to be reached
such tentative means. They saw that the system
they were called to improve must be totally
abandoned, and that the national idea must be re-
established at the center of their political society.
It was objected by some members, that they had
no power, no authority, to construct a new
government. They had no authority, if their
decisions were to be final; and no authority
whatsoever, under the articles of confederation,
to adopt the course they did. But they knew that
their labors were only to be suggestions; and that
they as well as any private individuals, and any
private individuals as well as they, had a right to
propose a plan of government to the people for
their adoption. They were, in fact, a mere
assemblage of private citizens, and their work had
no more binding sanction than a constitution
drafted by Mr. Hamilton in his office would have
had. The people, by their expressed will,
171
transformed this suggestion, this proposal, into an

organic law, and the people might have done the
same with a constitution submitted to them by a
single citizen."
xxx xxx xxx
... When the people adopt a completely revised or

new constitution, the framing or submission of the
instrument is not what gives it binding force and
effect. The fiat of the people and only the fiat of
the people, can breathe life into a constitution.
xxx xxx xxx
... We do not hesitate to say that a court is never

justified in placing by implication a limitation upon
the sovereign. This would be an authorized
exercise of sovereign power by the court. In State
v. Swift, 69 Ind. 505, 519, the Indiana Supreme
Court said: "The people of a State may form an
original constitution, or abrogate an old one and
form a new one, at any time, without any political
restriction except the constitution of the United
States; ... ." (37 SE 327-328, 329, emphasis
supplied.)
In the 1903 case of Weston vs. Ryan, the Court held:
It remains to be said that if we felt at liberty to

pass upon this question, and were compelled to
hold that the act of February 23, 1887, is
unconstitutional and void, it would not, in our
opinion, by any means follow that the
amendment is not a part of our state Constitution.
In the recent case of Taylor vs.
172
Commonwealth (Va.) 44 S.E. 754, the Supreme

Court of Virginia hold that their state Constitution
of 1902, having been acknowledged and accepted
by the officers administering the state
government, and by the people, and being in force
without opposition, must be regarded as an
existing Constitution irrespective of the question
as to whether or not the convention which
promulgated it had authority so to do without
submitting it to a vote of the people. In Brittle v.
People, 2 Neb. 198, is a similar holding as to
certain provisions of the Nebraska Constitution of
1886, which were added by the Legislature at the
requirement of Congress, though never submitted
to the people for their approval." (97 NW 349-
350; emphasis supplied).
Against the decision in the Wheeler case, supra, confirming the validity of

the ratification and adoption of the American Constitution, in spite of the
fact that such ratification was in clear violation of the prescription on
alteration and ratification of the Articles of Confederation and Perpetual
Union, petitioners in G.R. No. L-36165 dismissed this most significant
historical fact by calling the Federal Constitution of the United States as a
revolutionary one, invoking the opinion expressed in Vol. 16, Corpus Juris
Secundum, p. 27, that it was a revolutionary constitution because it did not
obey the requirement that the Articles of Confederation and Perpetual
Union can be amended only with the consent of all thirteen (13) state
legislatures. This opinion does not cite any decided case, but merely refers
to the footnotes on the brief historic account of the United States
Constitution on p. 679 of Vol. 12, CJS. Petitioners, on p. 18 of their main
Notes, refer US to pp. 270-316 of the Oxford History of the American
People, 1965 Ed. by Samuel Eliot Morison, who discusses the Articles of
Confederation and Perpetual Union in Chapter XVIII captioned
"Revolutionary Constitution Making, 1775 1781" (pp. 270-281). In Chapter
XX on "The Creative Period in Politics, 1785-1788," Professor Morison
delineates the genesis of the Federal Constitution, but does not refer to it
even implicitly as revolutionary constitution (pp. 297-316). However, the
173
Federal Constitution may be considered revolutionary from the view point

of McIver if the term revolution is understood in "its wider sense to
embrace decisive changes in the character of government, even though
they do not involve the violent overthrow of an established order, ... ."
(R.M. MacIver, The Web of Government, 1965 ed., p. 203).
It is rather ridiculous to refer to the American Constitution as a

revolutionary constitution. The Articles of Confederation and Perpetual
Union that was in force from July 12, 1776 to 1788, forged as it was during
the war of independence was a revolutionary constitution of the thirteen
(13) states. In the existing Federal Constitution of the United States which
was adopted seven (7) or nine (9) years after the thirteen (13) states won
their independence and long after popular support for the government of
the Confederation had stabilized was not a product of a revolution. The
Federal Constitution was a "creation of the brain and purpose of man" in an
era of peace. It can only be considered revolutionary in the sense that it is a
radical departure from its predecessor, the Articles of Confederation and
Perpetual Union.
It is equally absurd to affirm that the present Federal Constitution of the

United States is not the successor to the Articles of Confederation and
Perpetual Union. The fallacy of the statement is so obvious that no further
refutation is needed.
As heretofore stated, the issue as to the validity of Proclamation No. 1102

strikes at the validity and enforceability of the 1973 Constitution and of the
government established and operating thereunder. Petitioners pray for a
declaration that the 1973 Constitution is inoperative (L-36164). If
Proclamation No. 1102 is nullified, then there is no valid ratification of the
1973 Constitution and the inevitable conclusion is that the government
organized and functioning thereunder is not a legitimate government.
That the issue of the legitimacy of a government is likewise political and not
justiciable, had long been decided as early as the 1849 case of Luther vs.
Borden (7 How. 1, 12 L.ed., 581), affirmed in the 1900 case of Taylor vs.
Beckham(178 U.S. 548, 44 L.ed. 1187) and re-enunciated in 1912 in the case
174
of Pacific States Telephone and Telegraph Company vs. Oregon (223 U.S.

118, 133-151, 56 L.ed. 377-386). Because it reaffirmed the pronouncements
in both Borden and Beckham cases, it is sufficient for us to quote the
decision in Pacific States Telephone and Telegraph Co.,supra, penned by
Mr. Chief Justice White, who re-stated:
In view of the importance of the subject, the

apparent misapprehension on one side and
seeming misconception on the other, suggested
by the argument as to the full significance of the
previous doctrine, we do not content ourselves
with a mere citation of the cases, but state more
at length than we otherwise would the issues and
the doctrine expounded in the leading and
absolutely controlling case— Luther v. Borden, 7
How. 1, 12 L.ed. 581.
xxx xxx xxx
... On this subject it was said (p. 38):
"For if this court is authorized to enter upon this

inquiry, proposed by the plaintiff, and it should be
decided that the character government had no
legal existence during the period of time above
mentioned, — if it had been annulled by the
adoption of the opposing government, — then
the laws passed by its legislature during that time
were nullities; its taxes wrongfully collected, its
salaries and compensations to its officers illegally
paid ; its public accounts improperly settled and
the judgments and sentences of its courts in civil
and criminal cases null and void, and the officers
who carried their decisions into operation
answerable as trespassers, if not in some cases as
criminals."
175
xxx xxx xxx
"The fourth section of the fourth article of the

Constitution of the United States shall guarantee
to every state in the Union a republican form of
government, and shall protect each of them
against invasion; and on the application of the
Legislature or of the Executive (when the
legislature cannot be convened) against domestic
violence.
"Under this article of the Constitution it rests with

Congress to decide what government is
established one in a state. For, as the United State
guarantee to each state a republican
government, Congress must necessarily decide
what government is established in the state
before it can determine whether it is republican or
not. And when the senators and representatives of
a state are admitted into the Councils of the
Union, the authority of the government under
which they were appointed, as well as its
republican character, is recognized by the proper
constitutional authority. And its decision is binding
on every other department of the government,
and could not be questioned in a judicial tribunal.
It is true that the contest in this case did not last
long enough to bring the matter to this issue; and
as no senators or representatives were elected
under the authority of the government of which
Mr. Dorr was the head, Congress was not called
upon to decide the controversy. Yet the right to
decide is placed there and not in the courts."
xxx xxx xxx
176
... We do not stop to cite other cases which

indirectly or incidentally refer to the subject, but
conclude by directing attention to the statement
by the court, speaking through Mr. Chief Justice
Fuller, in Taylor vs. Beckham, 178 U.S. 548, 44
L.ed. 1187, 20 Sup. Ct. Rep. 890, 1009, where,
after disposing of a contention made concerning
the 14th Amendment, and coming to consider a
proposition which was necessary to be decided
concerning the nature and effect of the guaranty
of S 4 of article 4, it was said (p. 578):
"But it is said that the 14th Amendment must be

read with S 4 of article 4, of the Constitution,
providing that the United States shall guarantee
to every state in this Union a republican form of
against invasion; and on application of the
legislature, or the Executive (when the legislature
cannot be convened), against domestic violence."
xxx xxx xxx
"It was long ago settled that the enforcement of

this guaranty belonged to the political
department. Luther v. Borden, 7 How. 1, 12 L.ed.
581. In that case it was held that the question,
which of the two opposing governments of Rhode
Island, namely, the charter government or the
government established by a voluntary
convention, was the legitimate one, was a
question for the determination of the political
department; and when that department had
decided, the courts were bound to take notice of
the decision and follow it."
177
xxx xxx xxx
As the issues presented, in their very essence, are,

and have long since by this Court been, definitely
determined to be political and governmental, and
embraced within the scope of the scope of the
powers conferred upon Congress, and not,
therefore within the reach of judicial power, it
follows that the case presented is not within our
jurisdiction, and the writ of error must therefore
be, and it is, dismissed for want of jurisdiction.
(223 U.S. pp. 142-151; emphasis supplied).
Even a constitutional amendment that is only promulgated by the

Constitutional Convention without authority therefor and without
submitting the same to the people for ratification, becomes valid, when
recognized, accepted and acted upon the by Chief of State and other
government functionaries, as well as by the people. In the 1903 case
of Taylor vs. Commonwealth (44 SE 754-755), the Court ruled:
The sole ground urged in support of the

contention that Constitution proclaimed in 1902 is
invalid is that it was ordained and promulgated by
the convention without being submitted for
ratification or rejection by the people of the
commonwealth.
The Constitution of 1902 was ordained and

proclaimed by convention duly called by direct
vote of the people of the state to revise and
amend the Constitution of 1869. The result of the
work that the convention has been recognized,
accepted, and acted upon as the only valid
Constitution of the state by the Governor in
swearing fidelity to it and proclaiming it, as
directed thereby; by the Legislature in its formal
178
official act adopting a joint resolution, July 15,

1902, recognizing the Constitution ordained by
the convention which assembled in the city of
Richmond on the 12th day of June 1901, as the
Constitution of Virginia; by the individual oaths of
members to support it, and by its having been
engaged for nearly a year in legislating under it
and putting its provisions into operation but the
judiciary in taking the oath prescribed thereby to
support and by enforcing its provisions; and by
the people in their primary capacity by peacefully
accepting it and acquiescing in it, registering as
voters under it to the extent of thousands through
the state, and by voting, under its provisions, at a
general election for their representatives in the
Congress of the United States. (p. 755).
The Court in the Taylor case above-mentioned further said:
While constitutional procedure for adoption or

proposal to amend the constitution must be duly
followed, without omitting any requisite steps,
courts should uphold amendment, unless satisfied
that the Constitution was violated in submitting
the proposal. ... Substance more than form must
be regarded in considering whether the complete
constitutional system for submitting the proposal
to amend the constitution was observed.
In the 1925 case of Taylor vs. King (130 A 407, 408 410), the Court stated:
There may be technical error in the manner in

which a proposed amendment is adopted, or in its
advertisement, yet, if followed, unobjected to, by
approval of the electors, it becomes part of the
Constitution. Legal complaints to the submission
179
may be made prior to taking the vote, but, if once

sanctioned, the amendment is embodied therein,
and cannot be attacked, either directly or
collaterally, because of any mistake antecedent
thereto. Even though it be submitted at an
improper time, it is effective for all purposes when
accepted by the majority. Armstrong v. King, 281
Pa. 207, 126 A. 263. (130 A 409).
Even if the act of the Constitutional Convention is beyond its authority,

such act becomes valid upon ratification or adoption or acquiescence by
the people. Thus, in the 1905 case of Ex parte Birmingham and A.R.
Company (42 SO pp. 118 & 123), the Alabama Supreme Court upheld this
principle and stated that: "The authorities are almost uniform that this
ratification of an unauthorized act by the people (and the people are the
principal in this instance) renders the act valid and binding."
It has likewise been held that it is not necessary that voters ratifying the
new Constitution are registered in the book of voters; it is enough that they
are electors voting on the new Constitution. (Bott vs. Wurts, 40 A 740
[1899]; 45 LRA 251, emphasis supplied).
In the 1956 case of Thomson vs. Peoples State Bank (75 NW 2nd 370, 375),
the Supreme Court of Wisconsin ruled that "irregularity in the procedure
for the submission of the proposed constitutional amendment will not
defeat the ratification by the people."
Again, in the 1958 case of Swaim vs. Tuscaloosa County (103 SO 2nd 769),
the Alabama Supreme Court pronounced that "the irregularity in failing to
publish the proposed constitutional amendment once in each of the 4
calendar weeks next preceding the calendar week in which the election was
held or once in each of the 7-day periods immediately preceding the day of
the election as required by the Constitution, did not invalidate the
amendment which was ratified by the people."
180
The same principle was reiterated in 1961 by the Mississippi Supreme Court

in Barnes, et al. v. Ladner (131) SO 2nd 45 462), where they admitted
irregularities or illegalities committed in the procedure for submission of
the proposed constitutional amendment to the people for ratification
consisted of: "(a) the alleged failure of the county election commissioners
of the several counties to provide a sufficient number of ballot boxes
'secured by good and substantial locks,' as provided by Section 3249, Code
of 1942, Rec., to be used in the holding of the special election on the
constitutional amendment, and (b) the alleged failure of the State Election
Commissioners to comply with the requirements of Code Sections 3204 and
3205 in the appointment of election commissioners in each of the 82
counties. The irregularities complained of, even if proved, were not such
irregularities would have invalidated the election." (Emphasis supplied; see
also Sylvester vs. Tindall, 8 SO 2nd 892; 154 Fla. 663).
Even prior to the election in November, 1970 of delegates of the

Constitutional Convention and during the deliberations of the
Constitutional Convention from June 1, 1971 until martial law was
proclaimed on Sept. 21, 1972, the salient reforms contained in the 1973
Constitution which have long been desired by the people, had been
thoroughly discussed in the various committees of the Constitutional
Convention, on the floor of the Convention itself, in civic forums and in all
the media of information. Many of the decrees promulgated by the Chief
Executive from Sept. 22, 1972 to Jan. 17, 1973 implement some of the
reforms and had been ratified in Sec. 3(2) of Article XVII of the 1973
Constitution.
Petitioners cannot safely state that during martial law the majority of the
people cannot freely vote for these reforms and are not complying with the
implementing decrees promulgated by the President.
Free election is not inevitably incompatible with martial law. We had free
elections in 1951 and 1971 when the opposition won six out of eight
senatorial seats despite the suspension of the privileges of the writ
of habeas corpus(see Lansang vs. Garcia, et al., Dec. 14, 1971, 42 SCRA
448), which suspension implies constraint on individual freedom as the
181
proclamation of martial law. In both situations, there is no total blackout of

human rights and civil liberties.
All the local governments, dominated either by Nacionalistas or Liberals, as

well as officials of the Legislative and Executive branches of the government
elected and/or appointed under the 1935 Constitution have either
recognized or are now functioning under the 1973 Constitution, aside from
the fact of its ratification by the sovereign people through the Citizens
Assemblies. Ninety-five (95) of a total of one hundred ten (110) members of
the House of Representatives including the Speaker and the Speaker Pro
Tempore as well as about eleven (11) Congressmen who belong to the
Liberal Party and fifteen (15) of a total of twenty-four (24) senators
including Liberal senators Edgar U. Ilarde and John Osmeña opted to serve
in the Interim Assembly, according to the certification of the Commission
on Elections dated February 19, 1973 (Annex Rejoinder-3 to Consolidated
Rejoinder of petitioners in L-36165). Only the five (5) petitioners in L-36165
close their eyes to a fait accompli. All the other functionaries recognize the
new government and are performing their duties and exercising their
powers under the 1973 Constitution, including the lower courts. The civil
courts, military tribunals and quasi-judicial bodies created by presidential
decrees have decided some criminal, civil and administrative cases
pursuant to such decrees. The foreign ambassadors who were accredited to
the Republic of the Philippines before martial law continue to serve as such
in our country; while two new ambassadors have been accepted by the
Philippines after the ratification of the 1973 Constitution on January 17,
1973. Copies of the 1973 Constitution had been furnished the United
Nations Organization and practically all the other countries with which the
Philippines has diplomatic relations. No adverse reaction from the United
Nations or from the foreign states has been manifested. On the contrary,
our permanent delegate to the United Nations Organization and our
diplomatic representatives abroad appointed before martial law continue
to remain in their posts and are performing their functions as such under
the 1973 Constitution.
Even the Commission on Elections is now implementing the provisions of

the 1973 Constitution by requiring all election registrars to register 18-year
182
olds and above whether literates or not, who are qualified electors under
the 1973 Constitution (see pars. 1-A(c), (d), & (e) of Annex A to Notes of
respondents Puyat and Roy in L-36165).
In brief, it cannot be said that the people are ignoring the 1973 Constitution
and the government which is enforcing the same for over 10 weeks now
With the petitioners herein, secessionists, rebels and subversives as the
only possible exceptions, the rest of the citizenry are complying with
decrees, orders and circulars issued by the incumbent President
implementing the 1973 Constitution.
Of happy relevance on this point is the holding in Miller vs. Johnson 18 SW

522:
If a set of men, not selected by the people

according to the forms of law, were to formulate
an instrument and declare it the constitution, it
would undoubtedly be the duty of the courts
declare its work a nullity. This would be
revolution, and this the courts of the existing
government must resist until they are overturned
by power, and a new government
established. The convention, however, was the
offspring of law. The instrument which we are
asked to declare invalid as a constitution has been
made and promulgated according to the forms of
law. It is a matter of current history that both the
executive and legislative branches of the
government have recognized its validity as a
constitution, and are now daily doing so. Is the
question, therefore, one of a judicial character? It
is our undoubted duty, if a statute be
unconstitutional to so declare it; also, if a
provision of the state constitution be in conflict
with the federal constitution, to hold the former
invalid. But this is a very different case. It may be
183
said, however, that, for every violation of or non-

compliance with the law, there should be a
remedy in the courts. This is not, however, always
the case. For instance, the power of a court as to
the acts of the other departments of the
government is not an absolute one, but merely to
determine whether they have kept within
constitutional limits, it is a duty rather than a
power, The judiciary cannot compel a co-equal
department to perform a duty. It is responsible to
the people; but if it does act, then, when the
question is properly presented, it is the duty of
the court to say whether it has conformed to the
organic law. While the judiciary should protect the
rights of the people with great care and jealousy,
because this is its duty, and also because, in times
of great popular excitement, it is usually their last
resort, yet it should at the same time be careful to
overstep the proper bounds of its power, as being
perhaps equally dangerous; and especially where
such momentous results might follow as would be
likely in this instance, if the power of the judiciary
permitted, and its duty required, the overthrow of
the work of the convention.
After the American Revolution the state of Rhode

Island retained its colonial character as its
constitution, and no law existed providing for the
making of a new one. In 1841 public meetings
were held, resulting in the election of a
convention to form a new one, — to be submitted
to a popular vote. The convention framed one,
submitted it to a vote, and declared it adopted.
Elections were held for state officers, who
proceeded to organize a new government. The
charter government did not acquiesce in these
proceedings, and finally declared the state under
184
martial law. It called another convention, which in

1843 formed a new constitution. Whether the
charter government, or the one established by the
voluntary convention, was the legitimate one, was
uniformly held by the courts of the state not to be
a judicial, but a political question; and the political
department having recognized the one, it was
held to be the duty of the judiciary to follow its
decision. The supreme court of the United States,
in Luther v. Borden, 7 How. 1, while not expressly
deciding the principle, as it held the federal court,
yet in the argument approves it, and in substance
says that where the political department has
decided such a matter the judiciary should abide
by it.
Let us illustrate the difficulty of a court deciding

the question: Suppose this court were to hold that
the convention, when it reassembled, had no
power to make any material amendment, and
that such as were made are void by reason of the
people having theretofore approved the
instrument. Then, next, this court must determine
what amendments were material; and we find the
court, in effect, making a constitution. This would
be arrogating sovereignty to itself. Perhaps the
members of the court might differ as to what
amendments are material, and the result would
be confusion and anarchy. One judge might say
that all the amendments, material and immaterial,
were void; another, that the convention had then
the implied power to correct palpable errors, and
then the court might differ as to what
amendments are material. If the instrument as
ratified by the people could not be corrected or
altered at all, or if the court must determine what
changes were material, then the instrument, as
185
passed upon by the people or as fixed by the court

would be lacking a promulgation by the
convention; and, if this be essential, then the
question would arise, what constitution are we
now living under, and what is the organic law of
the state? A suggestion of these matters shows
what endless confusion and harm to the state
might and likely would arise. If, through error of
opinion, the convention exceeded its power, and
the people are dissatisfied, they have ample
remedy, without the judiciary being asked to
overstep the proper limits of its power. The
instrument provides for amendment and change.
If a wrong has been done, it can, in the proper
way in which it should be remedied, is by the
people acting as a body politic. It is not a question
of whether merely an amendment to a
constitution, made without calling a convention,
has been adopted, as required by that
constitution. If it provides how it is to be done,
then, unless the manner be followed, the
judiciary, as the interpreter of that constitution,
will declare the amendment invalid. Koehler v.
Hill, 60 Iowa, 543, 14 N.W. Rep. 738, and 15 N.W.
Rep. 609; State v. Tuffy, 1 Nev. 391, 12 Pac. Rep.
835. But it is a case where a new constitution has
been formed and promulgated according to the
forms of law. Great interests have already arisen
under it; important rights exist by virtue of it;
persons have been convicted of the highest crime
known to the law, according to its provisions; the
political power of the government has in many
ways recognized it; and, under such
circumstances, it is our duty to treat and regard it
as a valid constitution, and now the organic law of
our commonwealth.
186
We need not consider the validity of the

amendments made after the convention
reassembled. If the making of them was in excess
of its powers, yet, as the entire instrument has
been recognized as valid in the manner suggested,
it would be equally an abuse of power by the
judiciary and violative of the rights of the people,
— who can and properly should remedy the
matter, if not to their liking, — if it were to declare
the instrument of a portion invalid, and bring
confusion and anarchy upon the state. (emphasis
supplied).
If this Court inquires into the validity of Proclamation No. 1102 and
consequently of the adoption of the 1973 Constitution it would be
exercising a veto power on the act of the sovereign people, of whom this
Court is merely an agent, which to say the least, would be anomalous. This
Court cannot dictate to our principal, the sovereign people, as to how the
approval of the new Constitution should be manifested or expressed. The
sovereign people have spoken and we must abide by their decision,
regardless of our notion as to what is the proper method of giving assent to
the new Charter. In this respect, WE cannot presume to know better than
the incumbent Chief Executive, who, unlike the members of this Court, only
last January 8, 1973, We affirmed in Osmeña vs. Marcos (Pres. Election
Contest No. 3, Jan. 8, 1973), was re-elected by the vote of over 5 million
electors in 1969 for another term of four years until noon of December 30,
1973 under the 1935 Constitution. This Court, not having a similar mandate
by direct fiat from the sovereign people, to execute the law and administer
the affairs of government, must restrain its enthusiasm to sally forth into
the domain of political action expressly and exclusively reserved by the
sovereign people themselves.
The people in Article XV of the 1935 Constitution did not intend to tie their
hands to a specific procedure for popular ratification of their organic law.
That would be incompatible with their sovereign character of which We are
187
reminded by Section 1, of Article II of both the 1935 and the 1973

Constitutions.
The opinion of Judge Thomas McIntire Cooley that the sovereign people
cannot violate the procedure for ratification which they themselves define
in their Constitution, cannot apply to a unitary state like the Republic of the
Philippines. His opinion expressed in 1868 may apply to a Federal State like
the United States, in order to secure and preserve the existence of the
Federal Republic of the United States against any radical innovation
initiated by the citizens of the fifty (50) different states of the American
Union, which states may be jealous of the powers of the Federal
government presently granted by the American Constitution. This
dangerous possibility does not obtain in the case of our Republic.
Then again, Judge Cooley advanced the aforesaid opinion in 1868 when he
wrote his opus "Constitutional Limitations."* (Vol. 6, Encyclopedia Brit.,
1969 ed. pp. 445 446). It is possible that, were he live today, in a milieu
vastly different from 1868 to 1898, he might have altered his views on the
matter.
Even if conclusiveness is to be denied to the truth of the declaration by the

President in Proclamation No. 1102 that the people through their Citizens'
Assemblies had overwhelmingly approved the new Constitution due regard
to a separate, coordinate and co-equal branch of the government demands
adherence to the presumption of correctness of the President's declaration.
Such presumption is accorded under the law and jurisprudence to officials
in the lower levels of the Executive branch, there is no over-riding reason to
deny the same to the Chief of State as head of the Executive Branch. WE
cannot reverse the rule on presumptions, without being presumptuous, in
the face of the certifications by the Office the Secretary of the Department
of Local Government and Community Development. (Annexes 1, to 1-E,
Annexes 2 to 2-O to the compliance with manifestation filed by the Solicitor
General on behalf of the respondents public officers dated March 7, 1973).
There is nothing in the records that contradicts, much less overthrow the
results of the referendum as certified. Much less are We justified in
reversing the burden of proof — by shifting it from the petitioners to the
188
respondents. Under the rules on pleadings, the petitioners have the duty to
demonstrate by clear and convincing evidence their claim that the people
did not ratify through the Citizens' Assemblies nor adopt by acquiescence
the 1973 Constitution. And have failed to do so.
No member of this Tribunal is justified in resolving the issues posed by the

cases at bar on the basis of reports relayed to him from private sources
which could be biased and hearsay, aside from the fact that such reports
are not contained in the record. Proclamation No. 1102 is not just an
ordinary act of the Chief Executive. It is a well-nigh solemn declaration
which announces the highest act of the sovereign people —
their imprimatur to the basic Charter that shall govern their lives hereafter
— may be for decades, if not for generations.
Petitioners decry that even 15-year olds, ex convicts and illiterates were
allowed to vote in the Citizens' Assemblies, despite their admission that the
term "Filipino people" in the preamble as well as "people" in Sections 1 and
5 of Article II of the 1935 Constitution and in Section 1(3) of Article III of the
Bill of Rights includes all Filipino citizens of all ages, of both sexes, whether
literate or illiterate, whether peaceful citizens, rebels, secessionists,
convicts or ex-convicts. Without admitting that ex-convicts voted in the
referendum, about which no proof was even offered, these sectors of our
citizenry, whom petitioners seem to regard with contempt or decision and
whom petitioners would deny their sovereign right to pass upon the basic
Charter that shall govern their lives and the lives of their progenies, are
entitled as much as the educated, the law abiding, and those who are 21
years of age or above to express their conformity or non conformity to the
proposed Constitution, because their stake under the new Charter is not
any less than the stake of the more fortunate among us. As a matter of fact,
these citizens, whose juridical personality or capacity to act is limited by
age, civil interdiction or ignorance deserve more solicitude from the State
than the rest of the citizenry. In the ultimate analysis, the inclusion of those
from 15 years up to below 21 years old, the ex-convicts and the ignorant, is
more democratic as it broadens the base of democracy and therefore more
faithful to the express affirmation in Section 1 of Article II of the Declaration
189
of Principles that "sovereignty resides in the people and all government

authority emanates from them."
Moreover, ex-convicts granted absolute pardon are qualified to vote. Not

all ex-convicts are banned from voting. Only those who had been sentenced
to at least one year imprisonment are disenfranchised but they recover
their right of suffrage upon expiration of ten years after service of sentence
(Sec. 102, 1971 Rev. Elec. Code). Furthermore, ex-convicts and imbeciles
constitute a very negligible number in any locality or barrio, including the
localities of petitioners.
Included likewise in the delegated authority of the President, is the

prerogative to proclaim the results of the plebiscite or the voting the
Citizens' Assemblies. Petitioners deny the accuracy or correctness of
Proclamation No. 1102 that the 1973 Constitution was ratified by the
overwhelming vote of close to 15 million citizens because there was no
official certification to the results of the same from the Department of Local
Governments. But there was such certification as per Annex 1 to 1-A to the
Notes submitted by the Solicitor General counsel for respondents public
officers. This should suffice to dispose of this point. Even in the absence of
such certification, in much the same way that in passing law, Congress or
the legislative body is presumed to be in possession of the facts upon which
such laws are predicated (Justice Fernando, The Power of Judicial Review,
1967 Ed., pp. 112-11 citing Lorenzo vs. Dir., etc., [1927] 50 Phil. 595 and
O'Gonmore, et al: vs. Hartford, etc., [1931] 282 U.S. 251), it should likewise
be presumed that the President was in possession of the fact upon which
Proclamation No. 1102 was based. This presumption is further
strengthened by the fact that the Department of Local Governments, the
Department National Defense and the Philippine Constabulary as well the
Bureau of Posts are all under the President, which offices as his alter ego,
are presumptively acting for and in behalf of the President and their acts
are valid until disapproved or reprobated by the President (Planas vs. Gil,
67 Phil. 62; Villen vs. Secretary of Interior, 67 Phil. 451). To deny the truth
or the proclamation of the President as to the overwhelming majority vote
in the Citizens' Assemblies in favor of the new Constitution, is to charge the
President with falsification, which is a most grievous accusation. Under the,
190
rules of pleadings and evidence, the petitioners have the burden of proof
by preponderance of evidence in civil cases and by proof beyond
reasonable doubt in criminal prosecutions, where the accused is always
presumed to be innocent. Must this constitutional right be reversed simply
because the petitioner all assert the contrary? Is the rule of law they
pretend invoke only valid as long as it favors them?
The presumption of regularity in the performance of official functions is

accorded by the law and jurisprudence to acts of public officers whose
category in the official hierarchy is very much lower than that of the Chief
of State. What reason is there to withhold such a presumption in favor of
the President? Does the fact that the President belong to the party in
power and that four (4) of the five (5) senators who are petitioners in L-
36165 belong to the opposition party, justify a discrimination against the
President in matters of this nature? Unsupported as their word is by any
credible and competent evidence under the rules of evidence, must the
word of the petitioners prevail over that of the Chief Executive, because
they happen to be former senators and delegates to the Constitutional
Convention? More than any of the petitioners herein in all these cases, the
incumbent President realizes that he risks the wrath of his people being
visited upon him and the adverse or hostile verdict of history; because of
the restrictions on the civil liberties of his people, inevitable concomitants
of martial law, which necessarily entail some degree of sacrifice on the part
of the citizenry. Until the contrary is established or demonstrated, herein
petitioners should grant that the Chief Executive is motivated by what is
good for the security and stability of the country, for the progress and
happiness of the people. All the petitioners herein cannot stand on the
proposition that the rights under the 1935 Constitution are absolute and
invulnerable to limitations that may be needed for the purpose of bringing
about the reforms for which the petitioners pretend to be clamoring for
and in behalf of the people. The five (5) petitioners in L-36165 and four (4)
of the seven (7) petitioners in L-36164 were all participants in the political
drama of this country since 1946. They are witness to the frustrations of
well-meaning Presidents who wanted to effect the reforms, especially for
the benefit of the landless and the laboring class — how politics and
political bargaining had stymied the effectuation of such reforms thru
legislation. The eight (8) petitioners in L-36164 and L-36165 may not have
191
participated in the systematic blocking of the desired reforms in Congress

or outside of it; but the question may be asked as to what exactly they did
to support such reforms. For the last seven (7) decades since the turn of the
century, for the last thirty-five (35) years since the establishment of the
Commonwealth government in 1935 and for the last twenty seven (27)
years since the inauguration of the Republic on July 4, 1946, no tangible
substantial reform had been effected, funded and seriously implemented,
despite the violent uprisings in the thirties, and from 1946 to 1952, and the
violent demonstrations of recent memory. Congress and the oligarchs acted
like ostriches, "burying their heads in timeless sand. "Now the hopes for the
long-awaited reforms to be within a year or to are brighter. It would seem
therefore to the duty of everyone including herein petitioners to give the
present leadership the opportunity to institute and carry out the needed
reforms as provided for in the new or 1973 Constitution and thru the
means prescribed in that same Constitution.
As stated in Wheeler vs. Board of Trustees, "a court is never justified in

placing by implication a limitation upon the sovereign."
This Court in the Gonzales and Tolentino cases transcended its proper
sphere and encroached upon the province exclusively reserved to and by
the sovereign people. This Court did not heed to the principle that the
courts are not the fountain of all remedies for all wrongs. WE cannot
presume that we alone can speak with wisdom as against the judgment of
the people on the basic instrument which affects their very lives. WE
cannot determine what is good for the people or ought to be their
fundamental law. WE can only exercise the power delegated to Us by the
sovereign people, to apply and interpret the Constitution and the laws for
the benefit of the people, not against them nor to prejudice them. WE
cannot perform an act inimical to the interest of Our principal, who at any
time may directly exercise their sovereign power ratifying a new
Constitution in the manner convenient to them.
It is pertinent to ask whether the present Supreme Court can function

under the 1935 Constitution without being a part of the government
established pursuant thereto. Unlike in the Borden case, supra, where
192
there was at least another government claiming to be the legitimate organ

of the state of Rhode Island (although only on paper as it had no
established organ except Dorr who represented himself to be its head; in
the cases at bar there is no other government distinct from and maintaining
a position against the existing government headed by the incumbent Chief
Executive. (See Taylor vs. Commonwealth, supra). There is not even a rebel
government duly organized as such even only for domestic purposes, let
alone a rebel government engaged in international negotiations. As
heretofore stated, both the executive branch and the legislative branch
established under the 1935 Constitution had been supplanted by the
government functioning under the 1973 Constitution as of January 17,
1973. The vice president elected under the 1935 Constitution does not
asset any claim to the leadership of the Republic of the Philippines. Can this
Supreme Court legally exist without being part of any government?
Brilliant counsel for petitioners in L-36165 has been quite extravagant in his
appraisal of Chief Justice Roger Brooke Taney whom he calls the "hero of
the American Bar," because during the American civil war he apparently
had the courage to nullify the proclamation of President Lincoln suspending
the privileges of the writ of habeas corpus in Ex parte Merryman (Federal
Case No. 9487 [1861]). But who exactly was Chief Justice Roger Brooke
Taney? The Editorial Board of Vol. 21 of the Encyclopedia Brit., 1966 ed.
(pp. 778-779, 1969 ed., pp. 654-657), briefly recounts that he was born in
1777 in Calvert County, Maryland, of parents who were landed aristocrats
as well as slave owners. Inheriting the traditional conservatism of his
parents who belonged to the landed aristocracy, Taney became a lawyer in
1799, practiced law and was later appointed Attorney General of Maryland.
He also was a member of the Maryland state legislature for several terms.
He was a leader of the Federalist Party, which disintegrated after the war of
1812, compelling him to join the Democratic Party of Andrew Jackson, also
a slave owner and landed aristocrat, who later appointed him first as
Attorney General of the United States, then Secretary of the Treasury and
in 1836 Chief Justice of the United States Supreme Court to succeed Chief
Justice John Marshall, in which position he continued for 28 years until he
died on October 21, 1864. His death "went largely unnoticed and
unregretted." Because he himself was a slave owner and a landed
aristocrat, Chief Justice Taney sympathized with the Southern States and,
193
even while Chief Justice, hoped that the Southern States would be allowed
to secede peacefully from the Union. That he had no sympathy for the
Negroes was revealed by his decision in Dred Scott vs. Sandford (19 How.
398 [1857]) where he pronounced that the American Negro is not entitled
to the rights of an American citizen and that his status as a slave is
determined by his returning to a slave state. One can therefore discern his
hostility towards President Lincoln when he decided Ex parte Merryman,
which animosity to say the least does no befit a judicial mind. Such a man
could hardly be spoken of as a hero of the American Bar, least of all of the
American nation. The choice of heroes should not be expressed
indiscriminately just to embellish one's rhetoric.
Distinguished counsel in L-36165 appears to have committed another

historical error, which may be due to his rhetorical in the Encyclopedia
Britannica (Vol. 9, 1969 ed., pp. 508-509) to this effect. On the contrary,
Encyclopedia Britannica (Vol. 17 Encyclopedia Brit., 1966 & 1969 eds., 732-
733), refers to Marshal Henri Philippe Petain as the genuine hero or "Savior
of Verdun"; because he held Verdun against the 1916 offensive of the
German army at the cost of 350,000 of his French soldiers, who were then
demoralized and plotting mutiny. Certainly, the surviving members of the
family of Marshal Petain would not relish the error. And neither would the
members of the clan of Marshal Foch acknowledge the undeserved
accolade, although Marshal Foch has a distinct place in history on his own
merits. The foregoing clarification is offered in the interest of true
scholarship and historical accuracy, so that the historians, researchers and
students may not be led astray or be confused by esteemed counsel's
eloquence and mastery of the spoken and written word as well as by his
eminence as law professor, author of law books, political leader, and
member of the newly integrated Philippine Bar.
It is quite intriguing why the eminent counsel and co-petitioner in L-36164

did not address likewise his challenge to the five (5) senators who are
petitioners in L-36165 to also act as "heroes and idealists," to defy the
President by holding sessions by themselves alone in a hotel or in their
houses if they can muster a quorum or by causing the arrest of other
senators to secure a quorum and thereafter remove respondents Puyat and
194
Roy (Avelino, et al. vs. Cuenco, et al. [1949] 83 Phil. 17), if they believe most
vehemently in the justice and correctness of their position that the 1973
Constitution has not been validly ratified, adopted or acquiesced in by the
people since January 18, 1973 until the present. The proclaimed conviction
of petitioners in L-36165 on this issue would have a ring of credibility, if
they proceeded first to hold a rump session outside the legislative building;
because it is not unreasonable to demand or to exact that he who exhorts
others to be brave must first demonstrate his own courage. Surely, they will
not affirm that the mere filing of their petition in L-36165 already made
them "heroes and idealists." The challenge likewise seems to insinuate that
the members of this Court who disagree with petitioners' views are
materialistic cowards or mercenary fence-sitters. The Court need not be
reminded of its solemn duty and how to perform it. WE refuse to believe
that petitioners and their learned as well as illustrious counsels, scholars
and liberal thinkers that they are, do not recognize the sincerity of those
who entertain opinions that clash with their own. Such an attitude does not
sit well with the dictum that "We can differ without being difficult; we can
disagree without being disagreeable," which distinguished counsel in L-
36165 is wont to quote.
WE reserve the right to prepare an extensive discussion of the other points

raised by petitioners, which We do not find now necessary to deal with in
view of Our opinion on the main issue.
IN VIEW OF THE FOREGOING, ALL THE PETITIONS IN THESE FIVE

CASES SHOULD BE DISMISSED.
Pursuant to Our reservation, We now discuss the other issues raised by the
petitioners.
II
195
EVEN IF ISSUE IS JUSTICIABLE, PEOPLE'S RATIFICATION, ADOPTION OR

ACQUIESCENCE CREATES STRONG PRESUMPTION OF VALIDITY OF 1973
CONSTITUTION.
As intimated in the aforecited cases, even the courts, which affirm the
proposition that the question as to whether a constitutional amendment or
the revised or new Constitution has been validly submitted to the people
for ratification in accordance with the procedure prescribed by the existing
Constitution, is a justiciable question, accord all presumption of validity to
the constitutional amendment or the revised or new Constitution after the
government officials or the people have adopted or ratified or acquiesced in
the new Constitution or amendment, although there was an illegal or
irregular or no submission at all to the people. (Collier vs. Gray, 4th Dec.
Dig. 935 [1934], Hammond vs. Clark, 71 SE 482-483; People vs. Sours, 31
Colo. 369, 74 Pac. 167, 102 Am. St. Rep. 34; Thompson vs. Winneth, 78
Neb. 379, 110 NW 1113, 10 L.R.A. [N.S.] 149; State vs. Laylin, 69 Ohio St.
Rep. 1, 68 NE 574; Weston vs. Ryan, 70 Neb. 211, 97 NW 347; Combs vs.
State, 81 Ga. 780, 8 SE 318; Woodward vs. State, 103 Ga. 496, 30 SE 522;
Corre vs. Cooney, 70 Mont. 355, 225 P 1007, 1009). As late as 1971, the
courts stressed that the constitutional amendment or the new Constitution
should not be condemned "unless our judgment its nullity is manifest
beyond reasonable doubt" (1971 case of Moore vs. Shanahan, 486 Pac. 2d
506, 207 Kan. 1, 645; and the 1956 case of Tipton vs. Smith, et al., supra).
Mr. Justice Enrique M. Fernando, speaking for the Court, pronounced that
the presumption of constitutionality must persist in the absence of factual
foundation of record to overthrow such presumption (Ermita-Malate Hotel,
etc. vs. City Mayor, L-24698, July 31, 1967, 20 SCRA 849).
III
CONSTITUTIONAL CONVENTION — CO-EQUAL WITH AND INDEPENDENT OF

CONGRESS, EXECUTIVE AND JUDICIARY.
The Constitutional Convention is co-ordinate and co-equal with, as well as

independent of, the three grand departments of the Government, namely,
196
the legislative, the executive and the judicial. As a fourth separate and
distinct branch, to emphasize its independence, the Convention cannot be
dictated to by either of the other three departments as to the content as
well as the form of the Charter that it proposes. It enjoys the same
immunity from interference or supervision by any of the aforesaid branches
of the Government in its proceedings, including the printing of its own
journals (Tañada and Fernando, Constitution of the Philippines, 1952 ed.,
Vol. I, pp. 8 9; Malcolm and Laurel, Phil. Const. Law, p. 22; Frantz vs. Autry,
91 Pac. 193). Implicit in that independence, for the purpose of maintaining
the same unimpaired and in order that its work will not be frustrated, the
Convention has the power to fix the date for the plebiscite and to provide
funds therefor. To deny the Convention such prerogative, would leave it at
the tender mercy of both legislative and executive branches of the
Government. An unsympathetic Congress would not be disposed to submit
the proposed Constitution drafted by the Constitutional Convention to the
people for ratification, much less appropriate the necessary funds therefor.
That could have been the fate of the 1973 Constitution, because the same
abolished the Senate by creating a unicameral National Assembly to be
presided by a Prime Minister who wields both legislative and executive
powers and is the actual Chief Executive, for the President contemplated in
the new Constitution exercises primarily ceremonial prerogatives. The new
Constitution likewise shortened abruptly the terms of the members of the
present Congress (whose terms end on December 31, 1973, 1975 and
1977) which provides that the new Constitution shall take effect
immediately upon its ratification (Sec. 16, Article XVII, 1973 Constitution).
The fact that Section 2 of the same Article XVIII secures to the members of
Congress membership in the interim National Assembly as long as they opt
to serve therein within thirty (30) days after the ratification of the proposed
Constitution, affords them little comfort; because the convening of the
interim National Assembly depends upon the incumbent President (under
Sec. 3[1], Art. XVII, 1973 Constitution). Under the foregoing circumstances,
the members of Congress, who were elected under the 1935 Constitution,
would not be disposed to call a plebiscite and appropriate funds therefor to
enable the people to pass upon the 1973 Constitution, ratification of which
means their elimination from the political scene. They will not provide the
means for their own liquidation.
197
Because the Constitutional Convention, by necessary implication as it is

indispensable to its independence and effectiveness, possesses the power
to call a plebiscite and to appropriate funds for the purpose, it inescapably
must have the power to delegate the same to the President, who, in
estimation of the Convention can better determine appropriate time for
such a referendum as well as the amount necessary to effect the same; for
which reason the Convention thru Resolution No. 29 approved on
November 22, 1972, which superseded Resolution No. 5843 adopted on
November 16, 1972, proposed to the President "that a decree be issued
calling a plebiscite for the ratification of the proposed new Constitution
necessary funds therefor, ...," after stating in "whereas" clauses that the
1971 Constitutional Convention expected to complete its work by the end
of November, 1972 that the urgency of instituting reforms rendered
imperative the early approval of the new Constitution, and that the
national and local leaders desire that there be continuity in the immediate
transition from the old to the new Constitution.
If Congress can legally delegate to the Chief Executive or his subaltern the
power to promulgate subordinate rules and regulations to implement the
law, this authority to delegate implementing rules should not be denied to
the Constitutional Convention, a co-equal body.
Apart from the delegation to the Chief Executive of the power to call a
plebiscite and to appropriate funds therefor by the Constitutional
Convention thru its Resolution No. 29, the organization of the Citizens'
Assemblies for consultation on national issues, is comprehended within the
ordinance-making power of the President under Section 63 of the Revised
Administrative Code, which expressly confers on the Chief Executive
the power to promulgate administrative acts and commands touching on
the organization or mode of operation of the government or re-arranging or
re-adjusting any district, division or part of the Philippines "or disposing of
issues of general concern ... ." (Emphasis supplied). Hence, as consultative
bodies representing the localities including the barrios, their creation by the
President thru Presidential Decree No. 86 of December 31, 1972, cannot be
successfully challenged.
198
The employment by the President of these Citizens' Assemblies for

consultation on the 1973 Constitution or on whether there was further
need of a plebiscite thereon, — both issues of national concern — is still
within the delegated authority reposed in him by the Constitutional
Convention as aforesaid.
It should be noted that Resolution No. 29, which superseded Resolution No.
5843, does not prescribe that the plebiscite must be conducted by the
Commission on Elections in accordance with the provisions of the 1971
Revised Election Code. If that were the intention of the Constitutional
Convention in making the delegation, it could have easily included the
necessary phrase for the purpose, some such phrase like "to call a
plebiscite to be supervised by the Commission on Elections in accordance
with the provisions of the 1971 Revised Election Code (or with existing
laws)." That the Constitutional Convention omitted such phrase, can only
mean that it left to the President the determination of the manner by
which the plebiscite should be conducted, who shall supervise the
plebiscite, and who can participate in the plebiscite. The fact that said
Resolution No. 29 expressly states "that copies of this resolution as
approved in plenary session be transmitted to the President of the
Philippines and the Commission on Elections for implementation," did not
in effect designate the Commission on Elections as supervisor of the
plebiscite. The copies of said resolution that were transmitted to the
Commission on Elections at best serve merely to notify the Commission on
Elections about said resolution, but not to direct said body to supervise the
plebiscite. The calling as well as conduct of the plebiscite was left to the
discretion of the President, who, because he is in possession of all the facts
funnelled to him by his intelligence services, was in the superior position to
decide when the plebiscite shall be held, how it shall be conducted and
who shall oversee it.
It should be noted that in approving said Resolution No. 29, the

Constitutional Convention itself recognized the validity of, or validated
Presidential Proclamation No. 1081 placing the entire country under martial
law by resolving to "propose to President Ferdinand E. Marcos that
a decree be issued calling a plebiscite ... ." The use of the term "decree" is
199
significant for the basic orders regulating the conduct of all inhabitants are
issued in that form and nomenclature by the President as the Commander
in Chief and enforcer of martial law. Consequently, the issuance by the
President of Presidential Decree No. 73 on December 1, 1972 setting the
plebiscite on January 15, 1973 and appropriating funds therefor pursuant
to said Resolution No. 29, is a valid exercise of such delegated authority.
Such delegation, unlike the delegation by Congress of the rule-making

power to the Chief Executive or to any of his subalterns, does not need
sufficient standards to circumscribe the exercise of the power delegated,
and is beyond the competence of this Court to nullify. But even if adequate
criteria should be required, the same are contained in the "Whereas"
clauses of the Constitutional Convention Resolution No. 29, thus:
WHEREAS, the 1971 Constitutional Convention is

expected to complete its work of drafting a
proposed new Constitution for the Republic by the
end of November, 1972;
WHEREAS, in view of the urgency of instituting

reforms, the early approval of the New
Constitution has become imperative;
WHEREAS, it is the desire of the national and local

leaders that there be continuity in the immediate
political transition from the old to the New
Constitution;" (Annex "1" of Answer, Res. No. 29,
Constitutional Convention).
As Mr. Justice Fernando, with whom Messrs. Justices Barredo, Antonio and
the writer concurred in the Plebiscite Cases, stated:
... Once this work of drafting has been completed,

it could itself direct the submission to the people
for ratification as contemplated in Article XV of
the Constitution. Here it did not do so. With
200
Congress not being in session, could the President,

by the decree under question, call for such a
plebiscite? Under such circumstances, a negative
answer certainly could result in the work of the
Convention being rendered nugatory. The view
has been repeatedly expressed in many American
state court decisions that to avoid such
undesirable consequence the task of submission
becomes ministerial, with the political branches
devoid of any discretion as to the holding of an
election for that purpose. Nor is the appropriation
by him of the amount necessary to be considered
as offensive to the Constitution. If it were done by
him in his capacity as President, such an objection
would indeed have been formidable, not to say
insurmountable. If the appropriation were made
in his capacity as agent of the Convention to
assure that there be submission to the people,
then such an argument loses force. The
Convention itself could have done so. It is
understandable why it should be thus. If it were
otherwise, then a legislative body, the
appropriating arm of the government, could
conceivably make use of such authority to compel
the Convention to submit to its wishes, on pain of
being rendered financially distraught. The
President then, if performing his role as its agent,
could be held as not devoid of such competence.
(pp. 2-3, concurring opinion of J. Fernando in L-
35925, etc., emphasis supplied).
IV
VAGUENESS OR AMBIGUITY DOES NOT INVALIDATE THE

1973 CONSTITUTION
201
(1) Petitions challenge the 1973 draft as vague and incomplete, and alluded
to their arguments during the hearings on December 18 and 19, 1972 on
the Plebiscite Cases. But the inclusion of questionable or ambiguous
provisions does not affect the validity of the ratification or adoption of the
1973 Constitution itself (Pope vs. Gray, 104 SO, 2d 841; 7th Dec. pp. 212-
219, 1956-1966).
Alexander Hamilton, one of the leading founders and defenders of the

American Constitution, answering the critics of the Federal Constitution,
stated that: "I never expect to see a perfect work from imperfect man. The
result of the deliberations of all collective bodies must necessarily be a
compound, as well of the errors and prejudices as of the good sense and
wisdom, of the individuals of whom they are composed. The compacts
which are to embrace thirteen distinct States in a common bond of amity
and union, must necessarily be a compromise of as many dissimilar
interests and inclinations. How can perfection spring from such materials?"
(The Federalist, Modern Library Ed., pp. xx-xxi).
(2) The 1973 Constitution is likewise impugned on the ground that it

contains provisions which are ultra vires or beyond the power of the
Constitutional Convention to propose.
This objection relates to the wisdom of changing the form of government

from Presidential to Parliamentary and including such provisions as Section
3 of Article IV, Section 15 of Article XIV and Sections 3(2) and 12 of Article
XVII in the 1973 Constitution.
Article IV —
Sec. 3. The right of the people to be secure in their

persons, houses, papers, and effects against
unreasonable searches and seizures of whatever
nature and for any purpose shall not be violated,
and no search warrant or warrant of arrest shall
issue except upon probable cause to be
determined by the judge, or such other
202
responsible officer as may be authorized by law,

after examination under oath or affirmation of the
complainant and the witnesses may produce, and
particularly describing the place to be searched,
and the persons or things to be seized.
Article XIV —
Sec. 15. Any provision of paragraph one, Section

fourteen, Article Eight and of this Article
notwithstanding, the Prime Minister may enter
into international treaties or agreements as the
national welfare and interest may require."
(Without the consent of the National Assembly.)
Article XVII —
Sec. 3(2) All proclamations, orders, decrees,

instructions, and acts promulgated, issued, or
done by the incumbent President shall be part of
the law of the land, and shall remain valid, legal,
binding and effective even after lifting of martial
law or the ratification of this Constitution, unless
modified, revoked, or superseded by subsequent
proclamations, orders, decrees, instructions, or
other acts of the incumbent President, or unless
expressly and explicitly modified or repealed by
the regular National Assembly.
xxx xxx xxx
Sec. 12. All treaties, executive agreements, and

contracts entered into by the Government, or any
subdivision, agency, or instrumentality thereof,
including government-owned or controlled
corporations, are hereby recognized as legal, valid
203
and binding. When the national interest so

requires, the incumbent President of the
Philippines or the interim Prime Minister may
review all contracts, concessions, permits, or
other forms of privileges for the exploration,
development, exploitation, or utilization of natural
resources entered into, granted, issued or
acquired before the ratification of this
Constitution.
In the Plebiscite Cases (L-35925, L-35929, L-35940, L-35942, L-35948, L-

35953, L-35961, L-35965, & L-35979), Chief Justice Roberto Concepcion,
concurred in by Justices Fernando, Barredo, Antonio and the writer,
overruled this objection, thus:
... Regardless of the wisdom and

moral aspects of the contested
provisions of the proposed
Constitution, it is my considered
view that the Convention was
legally deemed fit to propose —
save perhaps what is or may be
insistent with what is now
known, particularly in
international law, as Jus
Cogens — not only because the
Convention exercised sovereign
powers delegated thereto by the
people — although insofar only
as the determination of the
proposals to be made and
formulated by said body is
concerned — but also, because
said proposals cannot be valid as
part of our Fundamental Law
unless and until "approved by the
204
majority of the votes cast at an

election which" said proposals
"are submitted to the people for
their ratification," as provided in
Section 1 of Article XV of the
1935 Constitution. (Pp. 17-18,
Decision in L-35925, etc.).
This Court likewise enunciated in Del Rosario vs. Comelec (L-32476, Oct. 20,
1970, 35 SCRA 367) that the Constitutional Convention has the authority to
"entirely overhaul the present Constitution and propose an entirely new
Constitution based on an ideology foreign to the democratic system ...;
because the same will be submitted to the people for ratification. Once
ratified by the sovereign people, there can be no debate about the validity
of the new Constitution."
Mr. Justice Fernando, concurring in the same Plebiscite Cases, cited the
foregoing pronouncement in the Del Rosario case, supra, and added: "... it
seems to me a sufficient answer that once convened, the area open for
deliberation to a constitutional convention ..., is practically limitless" (citing
Cf. Koehler vs. Hill, 14 NW 738, 60 Iowa 543 [1883]; Hatch Stoneman, 6 P
734, 66 Cal. 632 [1885]; MacMillan v. Blattner, 25 NW 245, 67 Iowa 287
[1895]; State v. Powell, 27 SO 297, 77 Miss. 543 [1900]; Hammond v. Clark,
71 SE 479, 136 Ga. 313 [1911]; Hamilton v. Vaughan, 179 NW 533, 212
Mich. 31 [1920]; State v. Smith, 138 NE 881, 105 Ohio St. 570 [1922];
Looney vs. Leeper, 292 P 365, 145 Okl. 202 [1930]; School District vs. City of
Pontiac, 247 NW 474, 262 Mich. 338 [1933]).
Mr. Justice Barredo, in his concurring opinion in said Plebiscite Cases,

expressed the view "that when the people elected the delegates to the
Convention and when the delegates themselves were campaigning, such
limitation of the scope of their function and objective was not in their
minds."
205
1973 CONSTITUTION DULY ADOPTED AND

PROMULGATED.
Petitioners next claim that the 1971 Constitutional Convention adjourned

on November 30, 1972 without officially promulgating the said Constitution
in Filipino as required by Sections 3(1) of Article XV on General Provisions of
the 1973 Constitution. This claim is without merit because their Annex "M"
is the Filipino version of the 1973 Constitution, like the English version,
contains the certification by President Diosdado Macapagal of the
Constitutional Convention, duly attested by its Secretary, that the proposed
Constitution, approved on second reading on the 27th day of November,
1972 and on third reading in the Convention's 291st plenary session on
November 29, 1972 and accordingly signed on November 1972 by the
delegates whose signatures are thereunder affixed. It should be recalled
that Constitutional Convention President Diosdado Macapagal was, as
President of the Republic 1962 to 1965, then the titular head of the Liberal
Party to which four (4) of the petitioners in L-36165 including their counsel,
former Senator Jovito Salonga, belong. Are they repudiating and disowning
their former party leader and benefactor?
VI
ARTICLE XV OF 1935 CONSTITUTION DOES NOT

PRESCRIBE ANY PROCEDURE FOR RATIFICATION OF
1973 CONSTITUTION.
(1) Article XV of the 1935 Constitution simply provides that "such

amendments shall be valid as part of this Constitution when approved by a
majority of the votes cast at an election at which the amendments are
submitted to the people for ratification."
But petitioners construe the aforesaid provision to read: "Such

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
206
with the existing election law and after such amendments shall have been
published in all the newspapers of general circulation for at least four
months prior to such election."
This position certainly imposes limitation on the sovereign people, who

have the sole power of ratification, which imposition by the Court is never
justified (Wheeler vs. Board of Trustees, supra).
In effect, petitioners and their counsels are amending by a strained and

tortured construction Article XV of the 1935 Constitution. This is a clear
case of usurpation of sovereign power they do not possess — through
some kind of escamotage. This Court should not commit such a grave error
in the guise of judicial interpretation.
In all the cases where the court held that illegal or irregular submission, due
to absence of substantial compliance with the procedure prescribed by the
Constitution and/or the law, nullifies the proposed amendment or the new
Constitution, the procedure prescribed by the state Constitution is so
detailed that it specifies that the submission should be at a general or
special election, or at the election for members of the State legislature only
or of all state officials only or of local officials only, or of both state and
local officials; fixes the date of the election or plebiscite limits the
submission to only electors or qualified electors; prescribes the publication
of the proposed amendment or a new Constitution for a specific period
prior to the election or plebiscite; and designates the officer to conduct the
plebiscite, to canvass and to certify the results, including the form of the
ballot which should so state the substance of the proposed amendments to
enable the voter to vote on each amendment separately or authorizes
expressly the Constitutional Convention or the legislature to determine the
procedure or certain details thereof. See the State Constitutions of
Alabama [1901]; Arizona [1912]; Arkansas [1874]; Colorado [1976];
Connecticut [1818]; Florida [1887]; Georgia [1945]; Illinois [1970]; Indiana
[1851]; Iowa [1857]; Kansas [1861]; Kentucky [1891]; Louisiana [1921];
Maryland [1867]; Massachusetts [1790]; Michigan [1909]; Minnesota
[1857]; Mississippi [1890]; and Missouri [1945]).
207
As typical examples:
Constitution of Alabama (1901):
Article XVIII. Mode of Amending the Constitution
Sec. 284. Legislative Proposals. Amendments may

be proposed to this Constitution by the legislature
in the manner following: The proposed
amendments shall be read in the house in which
they originate on three several days, and, if upon
the third reading, three-fifths of all the members
elected to that house shall vote in favor thereof,
the proposed amendments shall be sent to the
other house, in which they shall likewise be read
on three several days, and if upon the third
reading, three-fifths of all the members elected
that house shall vote in favor of the proposed
amendments, the legislature shall order an
election by the qualified electors of the state upon
such proposed amendments, to be held either at
the general election next succeeding the session of
the legislature at which the amendments are
proposed or upon another day appointed by the
legislature, not less than three months after the
final adjournment of the session of the legislature
at which the amendments were proposed. Notice
of such election, together with the proposed
amendments, shall be given by proclamation of
the governor, which shall be published in every
county in such manner as the legislature shall
direct, for at least eight successive weeks next
preceding the day appointed for such election. On
the day so appointed an election shall be held for
the vote of the qualified electors of the state upon
the proposed amendments. If such election be
held on the day of the general election, the
208
officers of such general election shall open a poll

for the vote of the qualified electors upon the
proposed amendments; if it be held on a day
other than that of a general election, officers for
such election shall be appointed; and the election
shall be held in all things in accordance with the
law governing general elections. In all elections
upon such proposed amendments,the votes cast
thereat shall be canvassed, tabulated, and returns
thereof be made to the secretary of state, and
counted, in the same manner as in elections for
representatives to the legislature; and if it shall
thereupon appear that a majority of the qualified
electors who voted at such election upon the
proposed amendments voted in favor of the
same, such amendments shall be valid to all
intents and purposes as parts of this Constitution.
The result of such election shall be made known
by proclamation of the governor. Representation
in the legislature shall be based upon population,
and such basis of representation shall not be
changed by constitutional amendments.
Sec. 285. Form of ballot for amendment. Upon the

ballots used at all elections provided for in section
284 of this Constitution, the substance or subject
matter of each proposed amendment shall be so
printed that the nature thereof shall be clearly
indicated. Following each proposed amendment
on the ballot shall be printed the word "Yes" and
immediately under that shall be printed the word
"No". The choice of the elector shall be indicated
by a cross mark made by him or under his
direction, opposite the word expressing his desire,
and no amendment shall be adopted unless it
receives the affirmative vote of a majority of all
the qualified electors who vote at such election.
209
Constitution of Arkansas (1874):
Article XIX. Miscellaneous Provisions.
Sec. 22. Constitutional amendments. Either

branch of the General Assembly at a regular
session thereof may propose amendments to this
Constitution, and, if the same be agreed to by a
majority of all the members, elected to each
house, such proposed amendments shall be
entered on the journal with the yeas and nays,
and published in at least one newspaper in each
county, where a newspaper is published, for six
months immediately preceding the next general
election for Senators and Representatives, at
which time the same shall be submitted to the
electors of the State for approval or rejection, and
if a majority of the electors voting at such election
adopt such amendments, the same shall become
a part of this Constitution; but no more than three
amendments shall be proposed or submitted at
the same time. They shall be so submitted as to
enable the electors to vote on each amendment
separately.
Constitution of Kansas (1861):
Article XIV. Amendments.
Sec. 1. Proposal of amendments; publications;

elections. Propositions for the amendment of this
constitution may be made by either branch of the
legislature; and if two thirds of all the members
elected to each house shall concur therein, such
proposed amendments, together with the yeas
and nays, shall be entered on the journal; and the
210
secretary of state shall cause the same to be

published in at least one newspaper in each
county of the state where a newspaper is
published, for three months preceding the next
election for representatives, at which time, the
same shall be submitted to the electors, for their
approval or rejection; and if a majority of the
electors voting on said amendments, at said
election, shall adopt the amendments, the same
shall become a part of the constitution. When
more than one amendment shall be submitted at
the same time, they shall be so submitted as to
enable the electors to vote on each amendments
separately; and not more than three propositions
to amend shall be submitted at the same election.
Constitution of Maryland (1867):
Article XIV. Amendments to the Constitution.
Sec. 1. Proposal in general assembly; publication;

submission to voters; governor's proclamation.
The General Assembly may propose Amendments
to this Constitution; provided that each
Amendment shall be embraced in a separate bill,
embodying the Article or Section, as the same will
stand when amended and passed by three fifths
of all the members elected to each of the two
Houses, by yeas and nays, to be entered on the
Journals with the proposed Amendment. The bill
or bills proposing amendment or amendments
shall be published by order of the Governor, in at
least two newspapers, in each County, where so
many may be published, and where not more
than one may be published, then in the
newspaper, and in three newspapers published in
211
the City of Baltimore, once a week for four weeks

immediately preceding the next ensuing general
election, at which the proposed amendment or
amendments shall be submitted, in a form to be
prescribed by the General Assembly, to the
qualified voters of the State for adoption or
rejection. The votes cast for and against said
proposed amendment or amendments, severally,
shall be returned to the Governor, in the manner
prescribed in other cases, and if it shall appear to
the Governor that a majority of the votes cast at
said election on said amendment or amendments,
severally, were cast in favor thereof, the Governor
shall, by his proclamation, declare the said
amendment or amendments having received said
majority of votes, to have been adopted by the
people of Maryland as part of the Constitution
thereof, and henceforth said amendment or
amendments shall be part of the said
Constitution. When two or more amendments
shall be submitted in the manner aforesaid, to the
voters of this State at the same election, they shall
be so submitted as that each amendment shall be
voted on separately.
Constitution of Missouri (1945):
Article XII. Amending the Constitution.
Sec. 2(b). Submission of amendments proposed by

general assembly or by the initiative. All
amendments proposed by the general assembly
or by the initiative shall be submitted to the
electors for their approval or rejection by official
ballot title as may be provided by law, on a
separate ballot without party designation, at the
212
next general election, or at a special election

called by the governor prior thereto, at which he
may submit any of the amendments. No such
proposed amendment shall contain more than
one amended and revised article of this
constitution, or one new article which shall not
contain more than one subject and matters
properly connected therewith. If possible, each
proposed amendment shall be published once a
week for two consecutive weeks in two
newspapers of different political faith in each
county, the last publication to be not more than
thirty nor less than fifteen days next preceding the
election. If there be but one newspaper in any
county, publication of four consecutive weeks
shall be made. If a majority of the votes cast
thereon is in favor of any amendment, the same
shall take effect at the end of thirty days after the
election. More than one amendment at the same
election shall be so submitted as to enable the
electors to vote on each amendment separately.
Article XV of the 1935 Constitution does not require a specific procedure,

much less a detailed procedure for submission or ratification. As heretofore
stated, it does not specify what kind of election at which the new
Constitution shall be submitted; nor does it designate the Commission on
Elections to supervise the plebiscite. Neither does it limit the ratification to
the qualified electors as defined in Article V of the 1935 Constitution. Much
less does it require the publication of the proposed Constitution for any
specific period before the plebiscite nor does it even insinuate that the
plebiscite should be supervised in accordance with the existing election
law.
(2) As aforequoted, Article XV does not indicate the procedure for

submission of the proposed Constitution to the people for ratification. It
does not make any reference to the Commission on Elections as the body
213
that shall supervise the plebiscite. And Article XV could not make any
reference to the Commission on Elections because the original 1935
Constitution as ratified on May 14, 1935 by the people did not contain
Article X on the Commission on Elections, which article was included
therein pursuant to an amendment by that National Assembly proposed
only about five (5) years later — on April 11, 1940, ratified by the people on
June 18, 1940 as approved by the President of the United States on
December 1940 (see Sumulong vs. Commission, 70 Phil. 703, 713, 715;
Gonzales, Phil. Const. Law, 1966 ed., p. 13). So it cannot be said that the
original framers of the 1935 Constitution as ratified May 14, 1935 intended
that a body known as the Commission on Elections should be the one to
supervise the plebiscite, because the Commission on Elections was not in
existence then as was created only by Commonwealth Act No. 607
approved on August 22, 1940 and amended by Commonwealth Act No. 657
approved on June 21, 1941 (see Tañada & Carreon, Political Law of the
Philippines, Vol. I, 1961 ed., pp. 475-476; Sumulong vs. Commission, 170
Phil. 703, 708-715; 73 Phil. 288, 290-300; Tañada & Fernando, Constitution
of the Philippines, 1953 ed., Vol. I, p. 5, Vol. II,
pp. 11-19).
Because before August, 1940 the Commission on Election was not yet in
existence, the former Department of Interior (now Department of Local
Governments and Community Development) supervised the plebiscites on
the 1937 amendment on woman's suffrage, the 1939 amendment to the
Ordinance appended to the 1935 Constitution (Tydings-Kocialkowski Act of
the U.S. Congress) and the three 1940 amendments on the establishment
of a bicameral Congress, the re-election of the President and the Vice-
President, and the creation of the Commission on Elections (ratified on June
18, 1940). The supervision of said plebiscites by the then Department of
Interior was not automatic, but by virtue of an express authorization in
Commonwealth Act Nos. 34, 49 and 517.
If the National Assembly then intended that the Commission on Elections

should also supervise the plebiscite for ratification of constitutional
amendments or revision, it should have likewise proposed the
corresponding amendment to Article XV by providing therein that the
214
plebiscite on amendments shall be supervised by the Commission on

Elections.
3) If the framers of the 1935 Constitution and the people in ratifying the
same on May 14, 1935 wanted that only the qualified voters under Article V
of the 1935 Constitution should participate in the referendum on any
amendment or revision thereof, they could have provided the same in 1935
or in the 1940 amendment by just adding a few words to Article XV by
changing the last phrase to "submitted for ratification to the qualified
electors as defined in Article V hereof," or some such similar phrases.
Then again, the term "people" in Article XV cannot be understood to

exclusively refer to the qualified electors under Article V of the 1935
Constitution because the said term "people" as used in several provisions of
the 1935 Constitution, does not have a uniform meaning. Thus in the
preamble, the term "Filipino people" refer, to all Filipino citizens of all ages
of both sexes. In Section 1 of Article II on the Declaration of Principles, the
term "people" in whom sovereignty resides and from whom all government
authority emanates, can only refer also to Filipino citizens of all ages and of
both sexes. But in Section 5 of the same Article II on social justice, the term
"people" comprehends not only Filipino citizens but also all aliens residing
in the country of all ages and of both sexes. Likewise, that is the same
connotation of the term "people" employed in Section 1(3) of Article III on
the Bill of Rights concerning searches and seizures.
When the 1935 Constitution wants to limit action or the exercise of a right
to the electorate, it does so expressly as the case of the election of senators
and congressmen. Section 2 Article VI expressly provides that the senators
"shall be chosen at large by the qualified electors of the Philippines as may
provided by law." Section 5 of the same Article VI specifically provides that
congressmen shall "be elected by the qualified electors." The only provision
that seems to sustain the theory of petitioners that the term "people" in
Article XV should refer to the qualified electors as defined in Article V of the
1935 Constitution is the provision that the President and Vice-President
shall be elected "by direct vote of the people." (Sec. 2 of Art. VII of the 1935
Constitution). But this alone cannot be conclusive as to such construction,
215
because of explicit provisions of Sections 2 and 5 of Article VI, which

specifically prescribes that the senators and congressmen shall be elected
by the qualified electors.
As aforesaid, most of the constitutions of the various states of the United

States, specifically delineate in detail procedure of ratification of
amendments to or revision of said Constitutions and expressly require
ratification by qualified electors, not by the generic term "people".
The proposal submitted to the Ozamis Committee on the Amending Process

of the 1934-35 Constitutional Conventionsatisfied that the amendment
shall be submitted to qualified election for ratification. This proposal was
not accepted indicating that the 1934-35 Constitutional Convention did
intend to limit the term "people" in Article XV of the 1935 Constitution to
qualified electors only. As above demonstrated, the 1934-35 Constitutional
Convention limits the use of the term "qualified electors" to elections of
public officials. It did not want to tie the hands of succeeding future
constitutional conventions as to who should ratify the proposed
amendment or revision.
(4) It is not exactly correct to opine that Article XV of 1935 Constitution on

constitutional amendment contemplates the automatic applicability of
election laws to plebiscites on proposed constitutional amendments or
revision.
The very phraseology of the specific laws enacted by the National Assembly
and later by Congress, indicates that there is need of a statute expressly
authorizing the application of the election laws to plebiscites of this nature.
Thus, Com. Act No. 34 on the woman's suffrage amendment enacted on
September 30, 1936, consists of 12 sections and, aside from providing that
"there shall be held a plebiscite on Friday, April 30, 1937, on the question of
woman's suffrage ... and that said amendment shall be published in the
Official Gazette in English and Spanish for three consecutive issues at least
fifteen (15) days prior to said election, ... and shall be posted in a
conspicuous place in its municipal and provincial office building and in its
polling place not later than April 22, 1937" (Sec. 12, Com. Act No. 34),
216
specifies that the provisions of the Election Law regarding, the holding of
a special election, insofar as said provisions are not in conflict with it,
should apply to the said plebiscite (Sec. 3, Com. Act No. 34)1; and, that the
votes cast according to the returns of the board of inspectors shall be
counted by the National Assembly (Sec. 10, Com. Act No. 34).
The election laws then in force before 1938 were found in Sections 392-483
of the Revised Administrative Code.
Sec. 1 of Com. Act No. 357, the previous Election Code enacted on August
22, 1938, makes it expressly applicable to plebiscites. Yet the subsequent
laws, namely, Com. Act Nos. 492 and 517 and Rep. Act No. 73 calling for the
plebiscite on the constitutional amendments in 1939, 1940 and 1946,
including the amendment creating the Commission on Elections, specifically
provided that the provisions of the existing election law shall apply to such
plebiscites insofar as they are not inconsistent with the aforesaid Com. Act
Nos. 492 and 517, as well as Rep. Act No. 73. Thus —
Commonwealth Act No. 492, enacted on September 19, 1939, calling for a
plebiscite on the proposed amendments to the Constitution adopted by the
National Assembly on September 15, 1939, consists of 8 sections and
provides that the proposed amendments to the Constitution adopted in
Resolution No. 39 on September 15, 1939 "shall be submitted to the
Filipino people for approval or disapproval at a general election to be held
throughout the Philippines on Tuesday, October 24, 1939"; that the
amendments to said Constitution proposed in "Res. No. 38, adopted on the
same date, shall be submitted at following election of local officials," (Sec.
1, Com. Act No. 492) that the said amendments shall be published in
English and Spanish in three consecutive issues of the Official Gazette at
least ten (10) days prior to the elections; that copies thereof shall be posted
not later than October 20, 1939 (Sec. 2, Com. Act 492); that the election
shall be conducted according to provisions of the Election Code insofar as
the same may be applicable; that within thirty (30) days after the
election, Speaker of the National Assembly shall request the President to
call a special session of the Assembly for the purpose of canvassing the
returns and certify the results thereof (Sec. 6, Com. Act No. 492).
217
Commonwealth Act No. 517, consisting of 11 sections, was approved on

April 25, 1940 and provided, among others: that the plebiscite on the
constitutional amendments providing bicameral Congress, re-election of
the President and Vice-President, and the creation of a Commission on
Elections shall be held at a general election on June 18, 1940 (Sec. 1); that
said amendments shall be published in three consecutive issues of the
Official Gazette in English and Spanish at least 20 days prior to the election
and posted in every local government office building and polling place not
later than May 18, 1940 (Sec. 2); that the election shall be conducted in
conformity with the Election Code insofar as the same may be applicable
(Sec. 3) that copies of the returns shall be forwarded to the Secretary of
National Assembly and the Secretary of Interior (Sec. 7); that the National
Assembly shall canvass the returns to certify the results at a special session
to be called by President (Sec. 8).
Republic Act No. 73 approved on October 21, 1946 calling for a plebiscite
on the parity amendment consists of 8 sections provides that the
Amendment "shall be submitted to the people, for approval or
disapproval, at a general election which shall be held on March 11, 1947, in
accordance with the provisions of this Act" (Sec. 1, R.A. No. 73); that the
said amendment shall be published in English and Spanish in three
consecutive issues of the Official Gazetteat least 20 days prior to the
election; that copies of the same shall be posted in a conspicuous place and
in every polling place not later than February 11, 1947 (Section 2, R.A. No.
73); that the provisions of Com. Act No. 357 (Election Code) and Com. Act
No. 657 creating the Commission on Elections, shall apply to the election
insofar as they are not inconsistent with this Act (Sec. 3, R.A. No. 73); and
that within 30 days after the election, the Senate and House of
Representatives shall hold a joint session to canvass the returns and certify
the results thereof (Section 6, R.A. No. 73).
From the foregoing provisions, it is patent that Article XV of the 1935

Constitution does not contemplate nor envision the automatic application
of the election law; and even at that, not all the provisions of the election
law were made applicable because the various laws aforecited contain
several provisions which are inconsistent with the provisions of the Revised
218
Election Code (Com. Act No. 357). Moreover, it should be noted that the
period for the publication of the copies of the proposed amendments was
about 10 days, 15 days or 20 days, and for posting at least 4 days, 8 days or
30 days.
Republic Acts Nos. 180 and 6388 likewise expressly provide that the
Election Code shall apply to plebiscites (See. 2, R.A. No. 180, as amended,
and Section 2, Rep. Act No. 6388).
If the Election Code ipso facto applies to plebiscites under Article XV of the

1935 Constitution, there would be no need for Congress to expressly
provide therefor in the election laws enacted after the inauguration of the
Commonwealth government under the 1935 Constitution.
(5) Article XV of the 1935 Constitution does not specify who can vote and
how they shall vote. Unlike the various State Constitutions of the American
Union (with few exceptions), Article XV does not state that only qualified
electors can vote in the plebiscite. As above-intimated, most of the
Constitutions of the various states of the United States provide for very
detailed amending process and specify that only qualified electors can vote
at such plebiscite or election.
Congress itself, in enacting Republic Act No. 3590, otherwise known as the
Barrio Charter, which was approved on June 17, 1967 and superseded
Republic Act No. 2370, expanded the membership of the barrio assembly to
include citizens who are at least 18 years of age, whether literate or not,
provided they are also residents of the barrio for at least 6 months (Sec. 4,
R.A. No. 3590).
Sec. 4. The barrio assembly. — The barrio

assembly shall consist of all persons who are
residents of the barrio for at least six
months, eighteen years of age or over, citizens of
the Republic of the Philippines and who are duly
registered in the list of barrio assembly
members kept by the Barrio Secretary.
219
The barrio assembly shall meet at least once a

year to hear the annual report of the barrio
council concerning the activities and finances of
the barrio.
It shall meet also at the case of the barrio council

or upon written petition of at least One-Tenth of
the members of the barrio assembly.
No meeting of the barrio assembly shall take place

unless notice is given one week prior to the
meeting except in matters involving public safety
or security in which case notice within a
reasonable time shall be sufficient. The barrio
captain, or in his absence, the councilman acting
as barrio captain, or any assembly member
selected during the meeting, shall act as presiding
officer at all meetings of the barrio assembly. The
barrio secretary or in his absence, any member
designated by the presiding officer to act as
secretary shall discharge the duties of secretary of
the barrio assembly.
For the purpose of conducting business and taking

any official action in the barrio assembly, it is
necessary that at least one-fifth of the members
of the barrio assembly be present to constitute a
quorum. All actions shall require a majority vote
of these present at the meeting there being a
quorum.
Sec. 5. Powers of the barrio assembly. — The

powers of the barrio assembly shall be as follows:
220
a. To recommend to the barrio

council the adoption of measures
for the welfare of the barrio;
b. To decide on the holding of a

plebiscite as provided for in
Section 6 of this Act;
c. To act on budgetary and

supplemental appropriations and
special tax ordinances submitted
for its approval by the barrio
council; and
d. To hear the annual report

council concerning the activities
and finances of the assembly.
Sec. 6. Plebiscite. — A plebiscite may be held in

the barrio when authorized by a majority vote of
the members present in the barrio assembly,
there being a quorum, or when called by at least
four members of the barrio council; Provided,
however, That no plebiscite shall be held until
after thirty days from its approval by either body,
and such plebiscite has been given the widest
publicity in the barrio, stating the date, time, and
place thereof, the questions or issues to be
decided, action to be taken by the voters, and
such other information relevant to the holding of
the plebiscite.
All duly registered barrio assembly members

qualified to vote may vote in the plebiscite. Voting
procedures may be made either in writing as in
regular election, and/or declaration by the
221
voters to the board of election tellers. The board

of election tellers shall be the same board
envisioned by section 8, paragraph 2 of this Act, in
case of vacancies in this body, the barrio council
may fill the same.
A plebiscite may be called to decide on the recall

of any member of the barrio council. A plebiscite
shall be called to approve any budgetary,
supplemental appropriations or special tax
ordinances.
For taking action on any of the above enumerated

measures, majority vote of all the barrio assembly
members registered in the list of barrio secretary
is necessary.
xxx xxx xxx
Sec 10. Qualifications of voters and candidates. —

Every citizen of the Philippines, twenty-one years
of age or over, able to read and write, who has
been a resident of the barrio during the six
months immediately preceding the election, duly
registered in the list of voters kept by the barrio
secretary, who is not otherwise disqualified, may
vote or be a candidate in the barrio elections.
The following persons shall not be qualified to

vote:
a. Any person who has been

sentenced by final judgment to
suffer one year or more of
imprisonment, within two years
after service of his sentence;
222
b. Any person who has violated

his allegiance to the Republic of
the Philippines; and
c. Insane or feeble-minded
persons.
All these barrio assembly members, who are at least 18 years of age,
although illiterate, may vote at the plebiscite on the recall of any member
of the barrio council or on a budgetary, supplemental appropriation, or
special ordinances, a valid action on which requires "a majority vote of all
of the barrio assembly members registered in the list of the barrio
secretary" (par. 5, Sec. 6, R.A. No. 3590). Such plebiscite may be authorized
by a majority vote of the members present in the barrio assembly, there
being a quorum (par. 1, Sec. 6).
However, in the case of election of barrio officials, only Filipino citizens,

who are at least 21 years of age, able to read and write, residents of the
barrio during the 6 months immediately preceding the election and duly
registered in the list of voters kept by the barrio secretary, not otherwise
disqualified, may vote (Sec. 10, R.A. No. 3590).
Paragraph 2 of Section 6 likewise authorizes open voting as it provides that

"voting procedures may be made ... either in writing as in regular elections,
and/or declaration by the voters to the board of election tellers."
That said paragraph 2 of Section 6 provides that "all duly registered barrio
assembly members qualified to vote may vote in the plebiscite," cannot
sustain the position of petitioners in G.R. No. L-36165 that only those who
are 21 years of age and above and who possess all other qualifications of a
voter under Section 10 of R.A. No. 3590, can vote on the plebiscites
referred to in Section 6; because paragraph 3 of Section 6 does not
expressly limit the voting to those with the qualifications under Section 10
as said Section 6 does not distinguish between those who are 21 or above
on the one hand and those 18 or above but below 21 on the other, and
whether literate or not, to constitute a quorum of the barrio assembly.
223
Consequently, on questions submitted for plebiscite, all the registered

members of the barrio assembly can vote as long as they are 18 years of
age or above; and that only those who are 21 years of age or over and can
read and write, can vote in the elections of barrio officials.
Otherwise there was no sense in extending membership in the barrio

assembly to those who are at least 18 years of age, whether literate or not.
Republic Act No. 3590 could simply have restated Section 4 of Republic Act
No. 2370, the old Barrio Charter, which provided that only those who are
21 and above can be members of the barrio assembly.
Counsels Salonga and Tañada as well as all the petitioners in L-36165 and
two of the petitioners in L-36164 participated in the enactment of Republic
Act No. 3590 and should have known the intendment of Congress in
expanding the membership of the barrio assembly to include all those 18
years of age and above, whether literate or not.
If Congress in the exercise of its ordinary legislative power, not as a

constituent assembly, can include 18-year olds as qualified electors for
barrio plebiscites, this prerogative can also be exercised by the Chief
Executive as delegate of the Constitutional Convention in regard to the
plebiscite on the 1973 Constitution.
As heretofore stated, the statement by the President in Presidential

Proclamation No. 1102 that the 1973 Constitution was overwhelmingly
ratified by the people through the Citizens' Assemblies in a referendum
conducted from January 10 to 15, 1973, should be accorded the
presumption of correctness; because the same was based on the
certification by the Secretary of the Department of Local Government and
Community Development who tabulated the results of the referendum all
over the country. The accuracy of such tabulation and certification by the
said Department Secretary should likewise be presumed; because it was
done in the regular performance of his official functions aside from the fact
that the act of the Department Secretary, as an alter ego of the President,
is presumptively the act of the President himself unless the latter
disapproves or reprobates the same (Villena vs. Secretary of Interior, 67
224
Phil. 451 ). The truth of the certification by the Department Secretary and
the Chief Executive on the results of the referendum, is further
strengthened by the affidavits and certifications of Governor Isidro
Rodriguez of Rizal, Mayor Norberto S. Amoranto of Quezon City and
Councilor Eduardo T. Parades of Quezon City.
The procedure for the ratification of the 1937 amendment on woman

suffrage, the 1939 amendment to the ordinance appended to the 1935
Constitution, the 1940 amendments establishing the bicameral Congress,
creating the Commission on Elections and providing for two consecutive
terms for the President, and the 1947 parity amendment, cannot be
invoked; because those amendments were proposed by the National
Assembly as expressly authorized by Article V of the 1935 Constitution
respecting woman suffrage and as a constituent assembly in all the other
amendments aforementioned and therefore as such, Congress had also the
authority to prescribe the procedure for the submission of the proposed
amendments to the 1935 Constitution.
In the cases at bar, the 1973 Constitution was proposed by an independent

Constitutional Convention, which as heretofore discussed, has the equal
power to prescribe the modality for the submission of the 1973
Constitution to the people for ratification or delegate the same to the
President of the Republic.
The certification of Governor Isidro Rodriguez of Rizal and Mayor Norberto

Amoranto could be utilized as the basis for the extrapolation of the Citizens'
Assemblies in all the other provinces, cities and municipalities in all the
other provinces, cities and municipalities, and the affirmative votes in the
Citizens' Assemblies resulting from such extrapolation would still constitute
a majority of the total votes cast in favor of the 1973 Constitution.
As claimed by petitioners in L-36165, against the certification of the

Department of Local Government and Community Development that in
Rizal there were 1,126,000 Yes votes and 100,310 No votes, the
certification of Governor Isidro Rodriguez of Rizal, shows only 614,157 Yes
votes against 292,530 No votes. In Cavite province, there were 249,882 Yes
225
votes against 12,269 No votes as disclosed in Annex 1-A of respondents'

Compliance (the certification by the Department of Local Government and
Community Development), while the alleged certification of Governor Lino
Bocalan of Cavite shows only 126,163 Yes votes and 5,577 No votes. If such
a ratio is extended by way of extrapolation to the other provinces, cities
and towns of the country, the result would still be an overwhelming vote in
favor of the 1973 Constitution.
The alleged certification by Governor Lino Bocalan of Cavite, is not true;

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

City also issued an affidavit dated March 15, 1973 stating that a certain
Atty. Delia Sutton of the Salonga Law Office asked him for the results of the
referendum; that he informed her that he had in his possession unsigned
226
copies of such results which may not be considered official as they had then
no knowledge whether the original thereof had been signed by the mayor;
and that in spite of his advice that said unsigned copies were not official,
she requested him if she could give her the unofficial copies thereof, which
he gave in good faith (Annex C-Rejoinder to the Sol. Gen.).
There were 118,010 Yes votes as against 5,588 No votes in the Citizens'
Assemblies of Quezon city (Annex V to Petitioners' Notes in L-36165). The
fact that a certain Mrs. Remedio Gutierrez, wife of alleged barrio treasurer
Faustino Gutierrez, of barrio South Triangle, Quezon City, states that "as far
as we know, there has been no Citizens' Assembly meeting in our Area,
particularly in January of this year," does not necessarily mean that there
was no such meeting in said barrio; for she may not have been notified
thereof and as a result she was not able to attend said meeting. Much less
can it be a basis for the claim that there was no meeting at all in the other
barrios of Quezon City. The barrio captain or the secretary of the barrio
assembly could have been a credible witness.
Councilor Eduardo T. Paredes, chairman of the Secretariat of Quezon City

Ratification and Coordinating Council, certified on March 12, 1973 that as
such chairman he was in charge of the compilation and tabulation of the
results of the referendum among the Citizens' Assemblies in Quezon City
based on the results submitted to the Secretariat by the different Citizens'
Assemblies; but many results of the referendum were submitted direct to
the national agencies having to do with such activity and all of which he has
no knowledge, participation and control (Annex 4 Rejoinder of the Sol.
Gen.).
Governor Isidro Rodriguez of Rizal issued a certification dated March 16,

1973 that he prepared a letter to the President dated January 15, 1973
informing him of the results of the referendum in Rizal, in compliance with
the instruction of the National Secretariat to submit such letter 2 or 3 days
from January 10 to show the trend of voting in the Citizens' Assemblies;
that the figures 614,157 and 292,530 mentioned in said letter were based
on the certificates of results in his possession as of January 14, 1973, which
results were made the basis of the computation of thepercentage of voting
227
trend in the province; that his letter was never intended to show the final or
complete result in the referendum in the province as said referendum was
then still going on from January 14-17, 1973, for which reason the said
letter merely stated that it was only a "summary result"; and that after
January 15, 1973, he sent to the National Secretariat all the certificates of
results in 26 municipalities of Rizal for final tabulation (Annex 3-Rejoinder
of the Sol. Gen.; emphasis supplied).
Lydia M. Encarnacion, acting chief of the Records Section, Department of

Local Government and Community Development, issued a certificate dated
March 16, 1973 that she was shown xerox copies of unsigned letters
allegedly coming from Governor Lino Bocalan dated January 15, 1973 and
marked "Rejoinder Annex Cavite" addressed to the President of the
Philippines through the Secretary of the Department of Local Government
and Community Development and another unsigned letter reportedly from
Mayor Pablo Cuneta dated January 15, 1973 and marked "Rejoinder Annex
Pasay City" addressed to the Secretary of the Department of Local
Government and Community Development; that both xerox copies of the
unsigned letters contain figures showing the results of the referendum of
the Citizens' Assemblies in those areas; and that the said letters were not
received by her office and that her records do not show any such
documents received by her office (Annex 2-Rejoinder of the Sol. Gen.).
Thus it would seem that petitioners in L-36165 have attempted to deceive

this Court by representing said unsigned letters and/or certificates as duly
signed and/or containing the complete returns of the voting in the Citizens'
Assemblies.
The observation We made with respect to the discrepancy between the

number of Yes votes and No votes contained in the summary report of
Governor Rodriguez of Rizal as well as those contained in the alleged report
of Governor Lino Bocalan of Cavite who repudiated the same as not having
been signed by him for he was then under house arrest, on the one hand,
and the number of votes certified by the Department of Local Government
and Community Development, on the other, to the effect that even
assuming the correctness of the figures insisted on by counsel for
228
petitioners in L-36165, if they were extrapolated and applied to the other

provinces and cities of the country, the Yes votes would still be
overwhelmingly greater than the No votes, applies equally to the alleged
discrepancy between the figures contained in the certification of the
Secretary of the Department of Local Government and Community
Development and the figures furnished to counsel for petitioners in L-
36165 concerning the referendum in Camarines Sur, Bataan and Negros
Occidental.
The fact that the referendum in the municipality of Pasacao, Camarines Sur,
shows that there were more votes in favor of the plebiscite to be held
later than those against, only serve to emphasize that there was freedom
of voting among the members of the Citizens' Assemblies all over the
country during the referendum from January 10 to 15, 1973 (Annex-6
Camarines Sur to Rejoinder of Petitioners in L-36165). If there was no such
freedom of choice, those who wanted a plebiscite would not outnumber
those against holding such plebiscite.
The letter of Governor Felix O. Alfelor, Sr. dated January 1973 confirms the
"strong manifestation of approval of the new Constitution by almost 97%
by the members of the Citizens' Assemblies in Camarines Sur" (Annex-
Camarines Sur to Rejoinder of Petitioners in L-36165).
The report of Governor Efren B. Pascual of Bataan shows that the members
of the Citizens' Assemblies voted overwhelmingly in favor of the new
Constitution despite the fact that the second set of questions including the
question "Do you approve of the new Constitution?" was received only on
January 10. Provincial Governor Pascual stated that "orderly conduct and
favorable results of the referendum" were due not only to the coordinated
efforts and cooperation of all teachers and government employees in the
area but also to the enthusiastic participation by the people, showing "their
preference and readiness to accept this new method of government to
people consultation in shaping up government policies." (Annex-Bataan to
Rejoinder of Petitioners in L-36165).
229
As heretofore stated, it is not necessary that voters ratifying the new

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

on the computation of the estimated turnover in the Citizens' Assemblies
referendum on January 10 to 15, 1973 by a certain Professor Benjamin R.
Salonga, of the Mapua Institute of Technology, ostensibly a close relative of
former Senator Jovito R. Salonga, eminent counsel for petitioners in L-
36165 (Annex M-as amended, to Consolidated Rejoinder of petitioners in L-
36165 to the Notes of Arguments and Memorandum of respondents).
Professor Salonga is not a qualified statistician, which all the more impairs
his credibility. Director Tito A. Mijares of the Bureau of Census and
230
Statistics, in his letter dated March 16, 1973 address to the Secretary of the
Department of Local Government and Community Development, refutes
the said computation of Professor Benjamin R. Salonga, thus:
1) I do not quite understand why (Problem 1) all

qualified registered voters and the 15-20-year-old
youths (1972) will have to be estimated in order
to give a 101.9% estimate of the percentage
participation of the "15-20 year old plus total
number of qualified voters" which does not deem
to answer the problem. This computation
apparently fails to account for some 5.6 million
persons "21 years old and over" who were not
registered voters (COMELEC), but who might be
qualified to participate at the Citizen's Assembly.
2) The official population projection of this office

(medium assumption) for "15 year olds and over"
as of January 1, 1973 is 22.506 million. If total
number of participants at the Citizens' Assembly
Referendum held on January 10-15, 1973 was
16.702 million, participation rate will therefore be
the ratio of the latter figure to the former which
gives 74.2%.
3) 1 cannot also understand c-2 "Solution to

Problem 11." The "difference or implied number
of 15-20 year olds" of 5,039,906 would represent
really not only all 15-year olds and over who
participated at the Citizens' Assembly but might
not have been registered voters at the time,
assuming that all the 11,661,909 registered voted
at Citizens' Assembly. Hence, the "estimate
percentage participation of 15-20 years olds" of
105.6% does not seem to provide any meaningful
information.
231
To obtain the participation rate of "15-20 years

old" one must divide the number in this age
group, which was estimated to be 4.721 million as
of January 1, 1973 by the population of "15 years
old and over" for the same period which was
estimated to be 22.506 million, giving 21.0%.
In Problem III, it should be observed that

registered voters also include names of voters
who are already dead. It cannot therefore be
assumed that all of them participated at the
Citizens' Assembly. It can therefore be inferred
that "a total number of persons 15 and over
unqualified/disqualified to vote" will be more than
10,548,197 and hence the "difference or implied
number of registered voters that participated" will
be less than 6,153,618.
I have reservations on whether an "appropriate

number of qualified voters that supposedly voted"
could be meaningfully estimated.
5) The last remark will therefore make the ratio

(a) [Solution to Problem] more than 1.71 and that
for (b), accordingly, will also be less than 36.8%."
(Annex F Rejoinder).
From the foregoing analysis of the Director of Census and Statistics as of

January 21, 1973, the official population projection for 15-year olds and
over is 22,506,000. If 16,702,000 voted in the referendum, the participation
ratio would be 74.2% of 22,506,000.
If the registered electors as of the election of November 8, 1971 numbered

11,661,909, the difference between 16,702,000 who participated in the
referendum and the registered electors of 11,661,909 for the November 8,
1971 elections, is 5,040,091, which may include not only the 15-year olds
232
and above but below 21 but also the qualified electors who were not
registered before the November 8, 1971 elections as well as illiterates who
are 15 years old and above but below 21.
Moreover, in the last Presidential election in November, 1969, We found

that the incumbent President obtained over 5,000,000 votes as against
about 3,000,000 votes for his rival LP Senator Sergio Osmeña, Jr., garnering
a majority of from about 896,498 to 1,436,118 (Osmeña, Jr. vs. Marcos,
Presidential Election Contest No. 3, Jan. 8, 1973).
The petitioners in all the cases at bar cannot state with justification that
those who voted for the incumbent President in 1969 did not vote in favor
of the 1973 Constitution during the referendum from January 10 to 15,
1973. It should also be stressed that many of the partisans of the President
in the 1969 Presidential elections, have several members in their families
and relatives who are qualified to participate in the referendum because
they are 15 years or above including illiterates, which fact should
necessarily augment the number of votes who voted for the 1973
Constitution.
(6) It is also urged that martial law being the rule of force, is necessarily
inconsistent with freedom of choice, because the people fear to disagree
with the President and Commander-in-Chief of the Armed Forces of the
Philippines and therefore cannot voice views opposite to or critical of the
position of the President on the 1973 Constitution and on the mode of its
ratification.
It is also claimed or urged that there can be no free choice during martial
law which inevitably generates fear in the individual. Even without martial
law, the penal, civil or administrative sanction provided for the violation of
ordinarily engenders fear in the individual which persuades the individual
to comply with or obey the law. But before martial law was proclaimed,
many individuals fear such sanctions of the law because of lack of effective
equal enforcement or implementation thereof — in brief,
compartmentalized justice and extraneous pressures and influences
frustrated the firm and just enforcement of the laws. The fear that is
233
generated by martial law is merely the fear of immediate execution and

swift enforcement of the law and therefore immediate infliction of the
punishment or sanction prescribed by the law whenever it is transgressed
during the period of martial law. This is not the fear that affects the voters'
freedom of choice or freedom to vote for or against the 1973 Constitution.
Those who cringe in fear are the criminals or the law violators. Surely,
petitioners do not come under such category.
(7) Petitioners likewise claim that open voting by viva voce or raising of
hands violates the secrecy of the ballot as by the election laws. But the
1935 Constitution does not require secret voting. We search in vain for
such guarantee or prescription in said organic law. The Commission on
Elections under the 1940 Amendment, embodied as Article X is merely
mandated to insure "free, orderly and honest election." Congress, under its
plenary law-making authority, could have validly prescribed in the election
law open voting in the election of public officers, without trenching upon
the Constitution. Any objection to such a statute concerns its wisdom or
propriety, not its legality or constitutionality. Secret balloting was
demanded by partisan strife in elections for elective officials. Partisanship
based on party or personal loyalties does not generally obtain in a
plebiscite on proposed constitutional amendments or on a new
Constitution. We have seen even before and during martial law that voting
in meetings of government agencies or private organizations is usually done
openly. This is specially true in sessions of Congress, provincial boards, city
councils, municipal boards and barrio councils when voting on national or
local issues, not on personalities.
Then again, open voting was not a universal phenomenon in the Citizens'
Assemblies. It might have been true in certain areas, but that does not
necessarily mean that it was done throughout the country.
The recent example of an open voting is the last election on March 3, 1973
of the National Press Club officers who were elected by acclamation
presided over by its former president, petitioner Eduardo Monteclaro in L-
36236 (see Bulletin Today, p. 8, March 3, 1973 issue). There can be no more
hardboiled group of persons than newspapermen, who cannot say that
234
voting among them by acclamation was characterized by fear among the

members of the National Press Club.
Moreover, petitioners would not be willing to affirm that all the members
of the citizenry of this country are against the new Constitution. They will
not deny that there are those who favor the same, even among the
400,000 teachers among whom officers of the Department of Education
campaigned for the ratification of the new Constitution.
Not one of the petitioners can say that the common man — farmer,
laborer, fisherman, lowly employee, jeepney driver, taxi driver, bus driver,
pedestrian, salesman, or salesgirl — does not want the new Constitution, or
the reforms provided for therein.
(8) Petitioners likewise claim that there was no sufficient publicity given to
the new Constitution. This is quite inaccurate; because even before the
election in November, 1970 of delegates to the Constitutional Convention,
the proposed reforms were already discussed in various forums and
through the press as well as other media of information. Then after the
Constitutional Convention convened in June, 1971, specific reforms
advanced by the delegates were discussed both in committee hearings as
well as in the tri-media — the press, radio and television. Printed materials
on the proposed reforms were circulated by their proponents. From June,
1971 to November 29, 1972, reforms were openly discussed and debated
except for a few days after the proclamation of martial law on September
21, 1972. From the time the Constitutional Convention reconvened in
October, 1972 until January 7, 1973, the provisions of the new Constitution
were debated and discussed in forums sponsored by private organizations
universities and debated over the radio and on television. The Philippines is
a literate country, second only to Japan in the Far East, and more literate
perhaps than many of mid-western and southern states of the American
Union and Spain. Many residents in about 1,500 towns and 33,000 barrios
of the country have radios. Even the illiterates listened to radio broadcasts
on and discussed the provisions of the 1973 Constitution.
235
As reported by the eminent and widely read columnist, Teodoro Valencia in

his column in Bulletin Today, March 4, 1973 issue, "Otto Lang, Hollywood
producer director (Tora, Tora, Tora) went around the country doing a 30-
minute documentary on the Philippines for American television stated that
what impressed him most in his travel throughout the country was the
general acceptance of the New Society by the people which he saw in his 6-
week travel from Aparri to Jolo."
The report of Frank Valeo (Bulletin Today, March 3 and 4, 1973 and Daily
Express, March 3, and Sunday Express, March 4), Secretary of the United
States Senate, who conducted a personal survey of the country as delegate
of Senator Mike Mansfield, Chairman, Committee on US-Philippine
relations, states:
Martial law has paved the way for a re-ordering of

the basic social structure of the Philippines.
President Marcos has been prompt and sure-
footed in using the power of presidential decree
under martial law for this purpose. He has zeroed
in on areas which have been widely recognized as
prime sources of the nation's difficulties — land
tenancy, official corruption, tax evasion and abuse
of oligarchic economic power. Clearly, he knows
the targets. What is not yet certain is how
accurate have been his shots. Nevertheless, there
is marked public support for his leadership and
tangible alternatives have not been forthcoming.
That would suggest that he may not be striking
too far from the mark.
The United States business community in Manila

seems to have been re-assured by recent
developments ... . (Emphasis supplied.)
Petitioners cannot safely assume that all the peaceful citizens of the
country, who constitute the majority of the population, do not like the
236
reforms stipulated in the new Constitution, as well as the decrees, orders

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

LEGISLATIVE POWERS DURING MARTIAL LAW.
The position of the respondent public officers that undermartial law, the
President as Commander-in-Chief is vested with legislative powers, is
sustained by the ruling in the 1949 case of Kuroda vs. Jalandoni, et al. (83
Phil. 171, 177-178) which reiterates the 1945 case of Yamashita vs.
Styer (75 Phil. 563, 571-72). The trial of General Kuroda was after the
surrender of Japan on October 2, 1945 (23 Encyc. Brit. 1969 ed., p. 799) and
hence no more martial law in the Philippines.
... Consequently, in the promulgation and

enforcement of Executive Order No. 68, the
President of the Philippines has acted in
237
conformity with the generally accepted principles

and policies of international law which are part of
our Constitution.
The promulgation of said executive order is an

exercise by the President of his powers as
Commander in Chief of all our armed forces, as
upheld by this Court in the case of Yamashita vs.
Styver (L-129, 42 Off. Gaz., 664) when we said —
"War is not ended simply

because hostilities have ceased.
After cessation of armed
hostilities, incidents of war may
remain pending which should be
disposed of as in time of war.
"An important incident to a
conduct of war is the adoption
measures by the military
command not only to repel and
defeat the enemies but to seize
and subject to disciplinary
measures those enemies who in
their attempt to thwart or
impede our military effort have
violated the law of war." (Ex
parte Quirin, 317 U.S., 1; 63 Sup.
Ct., 2.) Indeed, the power to
create a military commission for
the trial and punishment of war
criminals is an aspect of waging
war. And, in the language of a
writer, a military commission
"has jurisdiction so long as the
technical state of war continues.
This includes the period of an
238
armistice, or military occupation,

up to the effective date of treaty
of peace, and may extend
beyond, by treaty agreement."
(Cowles, Trial of War Criminals by
Military Tribunals, American Bar
Association Journal, June, 1944).
Consequently, the President as Commander-in-

Chief is fully empowered to consummate this
unfinished aspect of war, namely the trial and
punishment of war criminals, through the
issuance and enforcement of Executive Order No.
68. (83 Phil. 177-178; emphasis supplied).
Chief Justice Stone of the United States Supreme Court likewise appears to
subscribe to this view, when, in his concurring opinion in Duncan vs.
Kahanamoku (327 U.S. 304 [1946]), he defined martial law as "the exercise
of the power which resides in the executive branch of the government to
preserve order and insure the public safety in times of emergency, when
other branches of the government are unable to function, or their
functioning would itself threaten the public safety." (Emphasis supplied).
There is an implied recognition in the aforesaid definition of martial law
that even in places where the courts can function, such operation of the
courts may be affected by martial lawshould their "functioning ... threaten
the public safety." It is possible that the courts, in asserting their authority
to pass upon questions which may adversely affect the conduct of the
punitive campaign against rebels, secessionists, dissidents as well as
subversives, martial law may restrict such judicial function until the danger
to the security of the state and of the people shall have been decimated.
The foregoing view appears to be shared by Rossiter when he stated:
Finally, this strong government, which in some

instances might become an outright dictatorship,
can have no other purposes than the preservation
239
of the independence of the state, the maintenance

of the existing constitutional order, and the
defense of the political and social liberties of the
people. It is important to recognize the true and
limited ends of any practical application of the
principle of constitutional dictatorship. Perhaps
the matter may be most clearly stated in this way:
the government of a free state is proceeding on its
way and meeting the usual problems of peace and
normal times within the limiting framework of its
established constitutional order. The functions of
government are parceled out among a number of
mutually independent offices and institutions; the
power to exercise those functions is circumscribed
by well-established laws, customs, and
constitutional prescriptions; and the people for
whom this government was instituted are in
possession of a lengthy catalogue of economic,
political, and social rights which their leaders
recognize as inherent and inalienable. A severe
crisis arises — the country is invaded by a hostile
power, or a dissident segment of the citizenry
revolts, or the impact of a world-wide depression
threatens to bring the nation's economy in ruins.
The government meets the crisis by assuming
more powers and respecting fewer rights. The
result is a regime which can act arbitrarily and
even dictatorially in the swift adaption of
measures designed to save the state and its
people from the destructive effects of the
particular crisis. And the narrow duty to be
pursued by this strong government, this
constitutional dictatorship? Simply this and
nothing more: to end the crisis and restore
normal times. The government assumes no power
and abridges no right unless plainly indispensable
to that end; it extends no further in time than the
240
attainment of that end; and it makes no alteration

in the political, social and economic structure of
the nation which cannot be eradicated with the
restoration of normal times. In short, the aim of
constitutional dictatorship is the complete
restoration of the status quo ante bellum. This
historical fact does not comport with
philosophical theory, that there never has been a
perfect constitutional dictatorship, is an assertion
that can be made without fear of contradiction.
But this is true of all institutions of government,
and the principle of constitutional dictatorship
remains eternally valid no matter how often and
seriously it may have been violated in practice.
(Constitutional Dictatorship, 1948 ed., by Clinton
L. Rossiter, p. 7; emphasis supplied.)
Finally, Rossiter expressly recognizes that during martial law, the Chief
Executive exercises legislative power, whether of temporary or permanent
character, thus:
The measures adopted in the prosecution of a

constitutional dictatorship should never be
permanent in character or effect. Emergency
powers are strictly conditioned by their purpose
and this purpose is the restoration of normal
conditions. The actions directed to this end should
therefore be provisional. For example, measures
of a legislative nature which work a lasting
change in the structure of the state or constitute
permanent derogations from existing law should
not be adopted under an emergency enabling
act, at least not without the positively registered
approval of the legislature. Permanent laws,
whether adopted in regular or irregular times, are
for parliaments to enact. By this same token, the
241
decisions and sentences of extraordinary courts

should be reviewed by the regular courts after the
termination of the crisis.
But what if a radical act of permanent character,

one working lasting changes in the political and
social fabric, is indispensable to the successful
prosecution of the particular constitutional
dictatorship? The only answer can be: it must be
resolutely taken and openly acknowledged.
President Lincoln found it necessary to proceed to
the revolutionary step of emancipation in aid of
his conservative purpose of preserving the Union;
as a constitutional dictator he had a moral right to
take this radical action.Nevertheless, it is
imperative that any action with such lasting
effects should eventually receive the positive
approval of the people or of their representatives
in the legislature. (P. 303, emphasis supplied).
From the foregoing citations, under martial law occasioned by severe crisis
generated by revolution, insurrection or economic depression or
dislocation, the government exercises more powers and respects fewer
rights in order "to end the crisis and restore normal times." The
government can assume additional powers indispensable to the attainment
of that end — the complete restoration of peace. In our particular case,
eradication of the causes that incited rebellion and subversion as secession,
is the sine qua non to the complete restoration of normalcy. Exercise of
legislative power by the President as Commander in Chief, upon his
proclamation of martial law, is justified because, as he professes, it is
directed towards the institution of radical reforms essential to the
elimination of the causes of rebellious, insurgent or subversive conspiracies
and the consequent dismantling of the rebellious, insurgent or subversive
apparatus.
242
Hence, the issuance of Presidential Decree Nos. 86 and 86-A as well as

Proclamation No. 1102 is indispensable to the effectuation of the reforms
within the shortest possible time to hasten the restoration of normalcy.
"Must the government be too strong for the liberties of the people; or must
it be too weak to maintain its existence?" That was the dilemma that vexed
President Lincoln during the American Civil War, when without express
authority in the Constitution and the laws of the United States, he
suspended one basic human freedom — the privilege of the writ of habeas
corpus — in order to preserve with permanence the American Union, the
Federal Constitution of the United States and all the civil liberties of the
American people. This is the same dilemma that presently confronts the
Chief Executive of the Republic of the Philippines, who, more than the
Courts and Congress, must, by express constitutional mandate, secure the
safety of our Republic and the rights as well as lives of the people against
open rebellion, insidious subversion secession. The Chief Executive
announced repeatedly that in choosing to proclaim martial law, the power
expressly vested in him by the 1935 Constitution (Sec. 10[2], Art. VII, 1935
Constitution) to insure our national and individual survival in peace and
freedom, he is in effect waging a peaceful, democratic revolution from the
center against the violent revolution and subversion being mounted by the
economic oligarchs of the extreme right, who resist reforms to maintain
their economic hegemony, and the communist rebels a Maoist oriented
secessionists of the extreme left who demand swift institution of reforms.
In the exercise of his constitutional and statutory powers, to save the state
and to protect the citizenry against actual and threatened assaults from
insurgents, secessionists and subversives, doctrinaire concepts and
principles, no matter how revered they may be by jurisprudence and time,
should not be regarded as peremptory commands; otherwise the dead
hand of the past will regulate and control the security and happiness of the
living present. A contrary view would be to deny the self-evident
proposition that constitutions and laws are mere instruments for the well-
being, peace, security and prosperity of the country and its citizenry. The
law as a means of social control is not static but dynamic. Paraphrasing Mr.
Justice Frankfurter, the Constitution is neither a printed finality nor the
imprisonment of the past, but the enfolding of the future. In the vein of Mr.
Justice Holmes, the meaning of the words of the Constitution is not to be
243
determined by merely opening a dictionary. Its terms must be construed in

the context of the realities in the life of a nation it is intended to serve.
Because experience may teach one generation to doubt the validity and
efficacy of the concepts embodied in the existing Constitution and persuade
another generation to abandon them entirely, heed should be paid to the
wise counsel of some learned jurists that in the resolution of constitutional
questions — like those posed before Us — the blending of idealism and
practical wisdom or progressive legal realism should be applied (see
Alexander M. Bickel, the Supreme Court and the Idea of Progress, 1970 ed.,
pp. 19-21). To Justice Frankfurter, law is "a vital agency for human
betterment" and constitutional law "is applied politics using the word in its
noble sense." (Frankfurter, Law and Politics, 1939 ed., pp. 3 & 6; emphasis
supplied). Justice Brandeis gave utterance to the truth that "Our
Constitution is not a straight jacket. It is a living organism. As such, it is
capable of growth — or expansion and adaptation to new conditions.
Growth implies changes, political, economic and social." (Brandeis Papers,
Harvard Law School; emphasis supplied). Harvard Professor Thomas Reed
Powell emphasizes "practical wisdom," for "the logic of constitutional law is
the common sense of the Supreme Court." (Powell, the Validity of State
Legislation, under the Webb-Kenyon Law, 2 Southern Law Quarterly, pp.
112, 138-139, cited in Bickel's Opus, supra; emphasis supplied).
The eternal paradox in this finite world of mortal and fallible men is that
nothing is permanent except change. Living organisms as well as man-made
institutions are not immutable. Civilized men organize themselves into a
State only for the purpose of serving their supreme interest — their
welfare. To achieve such end, they created an agency known as the
government. From the savage era thru ancient times, the Middle Ages, the
Dark Ages and the Renaissance to this era of sophisticated electronics and
nuclear weaponry, states and governments have mutated in their search
for the magic instrument for their well-being. It was trial and error then as
it is still now. Political philosophies and constitutional concepts, forms and
kinds of government, had been adopted, overturned, discarded, re-adopted
or modified to suit the needs of a given society at a particular given epoch.
This is true of constitutions and laws because they are not "the infallible
instruments of a manifest destiny." No matter how we want the law to be
stable, it cannot stand still. As Mr. Justice Holmes aptly observed, every
244
"constitution is an experiment as all life is an experiment," (Abrahms vs.

U.S., 250 US 616, 631) for "the life of the law is not logic, but experience."
In the pontifical tones of Mr. Justice Benjamin Nathan Cardozo, "so long as
society is inconstant, there can be no constancy in law," and "there will be
change whether we will it or not." As Justice Jose P. Laurel was wont to say,
"We cannot, Canute-like, command the waves of progress to halt."
Thus, political scientists and jurists no longer exalt with vehemence a

"government that governs least." Adherents there are to the poetic dictum
of Alexander Pope: "For forms of government let fools contest; whatever is
best administered is best." (Poems of Pope, 1931 Cambridge ed., p. 750). In
between, the shades vary from direct democracy, representative
democracy, welfare states, socialist democracy, mitigated socialism, to
outright communism which degenerated in some countries into
totalitarianism or authoritarianism.
Hence, even the scholar, who advances academic opinions unrelated to

factual situations in the seclusion of his ivory tower, must perforce submit
to the inexorable law of change in his views, concepts, methods and
techniques when brought into the actual arena of conflict as a public
functionary — face to face with the practical problems of state,
government and public administration. And so it is that some learned
jurists, in the resolution of constitutional issues that immediately affect the
lives, liberties and fortunes of the citizens and the nation, recommend the
blending of idealism with practical wisdom which legal thinkers prefer to
identify as progressive legal realism. The national leader, who wields the
powers of government, must and has to innovate if he must govern
effectively to serve the supreme interests of the people. This is especially
true in times of great crises where the need for a leader with vision,
imagination, capacity for decision and courageous action is greater, to
preserve the unity of people, to promote their well-being, and to insure the
safety and stability of the Republic. When the methods of rebellion and
subversion have become covert, subtle and insidious, there should be a
recognition of the corresponding authority on the part of the Commander-
in-Chief of the Armed Forces to utilize all the available techniques to
suppress the peril to the security of the government and the State.
245
Over a century and a half ago, Thomas Jefferson, one of the founding
fathers of the American Constitution and former President of the United
States, who personifies the progressive liberal, spoke the truth when he
said that some men "ascribe men of the preceding age a wisdom more than
human, and suppose what they did to be beyond amendment. ... But I
know also, that laws and institutions must go hand in hand with the
progress of the human mind. As that becomes more developed, more
enlightened, as new discoveries are made, new truths disclosed and
manners and opinions change, with the change of circumstances,
institutions must also advance, and keep pace with the times." (Vol. 12,
Encyclopedia Britanica, 1969 ed., p. 989).
The wisdom of the decision of the Chief Executive can only be judged in the
perspective of history. It cannot be adequately and fairly appraised within
the present ambience, charged as it is with so much tension and emotion, if
not partisan passion. The analytical, objective historians will write the final
verdict in the same way that they pronounced judgment on President
Abraham Lincoln who suspended the privilege of the writ of habeas
corpus without any constitutional or statutory authority therefor and of
President Franklin Delano Roosevelt who approved the proclamation of
martial law in 1941 by the governor of Hawaii throughout the Hawaiian
territory. President Lincoln not only emancipated the Negro slaves in
America, but also saved the Federal Republic of the United States from
disintegration by his suspension of the privilege of the writ of habeas
corpus, which power the American Constitution and Congress did not then
expressly vest in him. No one can deny that the successful defense and
preservation of the territorial integrity of the United States was due in part,
if not to a great extent, to the proclamation of martial law over the territory
of Hawaii — main bastion of the outer periphery or the outpost of the
American defense perimeter in the Pacific — which protected the United
States mainland not only from actual invasion but also from aerial or naval
bombardment by the enemy. Parenthetically, the impartial observer cannot
accurately conclude that the American Supreme Court acted with courage
in its decision in the cases of Ex parte Milligan and Duncan vs.
Kahanamoku (filed on May 10, 1865 argued on March 5 to 13, 1866,
decided on April 3, 1866, and opinion delivered on December 17, 1866)
after the lifting of the proclamation suspending the privilege of the writ
246
of habeas corpus, long after the Civil War and the Second World ended
respectively on April 9 or 26, 18-65 (Vol. 1, Encyclopedia Britannica, 1969
ed., pp. 730, 742) and on September 2, 1945 (Vol. 23, Encyclopedia
Britannica, 1969 ed., p. 799). Was the delay on the part of the American
Supreme Court in deciding these cases against the position of the United
States President — in suspending the privilege of the writ of habeas
corpus in one case and approving the proclamation of martial law in the
other — deliberate as an act of judicial statesmanship and recognition on
their part that an adverse court ruling during the period of such a grave
crisis might jeopardize the survival of the Federal Republic of the United
States in its life-and-death struggle against an organized and well armed
rebellion within its own borders and against a formidable enemy from
without its territorial confines during the last global armageddon?
VIII
DOCTRINE OF SEPARATION OF POWERS PRECLUDES

MANDAMUS AGAINST SENATORS.
In G.R. No. L-36165, mandamus will not lie to compel respondents Gil Puyat

and Jose Roy to convene the Senate of the Philippines even on the
assumption that the 1935 Constitution still subsists; because pursuant to
the doctrine of separation of powers under the 1935 Constitution, the
processes of this Court cannot legally reach a coordinate branch of the
government or its head. This is a problem that is addressed to the Senate
itself for resolution; for it is purely an internal problem of the Senate. If a
majority of the senators can convene, they can elect a new Senate
President and a new Senate President Pro Tempore. But if they have no
quorum, those present can order the arrest of the absent members (Sec.
10[2], Art. VI, 1935 Constitution). If this fails, then there is no remedy
except an appeal to the people. The dictum ubi jus, ubi remedium, is not
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
247
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
248
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
249
be not achieved, the 1973 Constitution must be deemed to be valid, in

force and operative.
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,
250
that the same is true of temporary detention to prevent apprehended

harm." (Moyer vs. Peabody, 212 U.S. 77, 85, 53 L ed., 411, 417).
The rhetoric of freedom alone is not enough. It must be the rhetoric of

freedom with order and security for all, that should be the shibboleth; for
freedom cannot be enjoyed in an environment of disorder and anarchy.
The incumbent Chief Executive who was trying to gain the support for his
reform program long before September 21, 1972, realized almost too late
that he was being deceived by his partymates as well as by the opposition,
who promised him cooperation, which promises were either offered as a
bargaining leverage to secure concessions from him or to delay the
institution of the needed reforms. The people have been victimized by such
bargaining and dilly-dallying. To vert a terrifying blood bath and the
breakdown of the Republic, the incumbent President proclaimed martial
law to save the Republic from being overrun by communists, secessionists
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.
251
He who toys with revolution will be swallowed by that same revolution.

History is replete with examples of libertarians who turned tyrants and
were burned at stake or beheaded or hanged or guillotined by the very
people whom they at first championed and later deceived. The most bloody
of such mass executions by the wrath of a wronged people, was the
decapitation by guillotine of about 15,000 Frenchmen including the leaders
of the French revolution, like Robespierre, Danton, Desmoulins and Marat.
He is fully cognizant of the lessons of history.
HENCE, THE DISMISSAL OF THESE FIVE CASES IS JUSTIFIED.
ESGUERRA, J., concurring:
These petitions seek to stop and prohibit the respondents Executive

Officers from implementing the Constitution signed on November 30, 1972;
in L-36165, to compel respondents Gil Puyat and Jose J. Roy, President and
President Pro-Tempore, respectively, of the Senate under the 1935
Constitution, to convene the Senate in regular session which should have
started on January 22, 1973; to nullify Proclamation No. 1102 of the
President, issued on January 17, 1973, which declared the ratification of the
Constitution on November 30, 1972, by the Filipino people, through the
barangays or Citizens Assemblies established under Presidential Decree No.
86 issued on December 31, 1972, which were empowered under
Presidential Decree No. 86-A, issued on January 5, 1973, to act in
connection with the ratification of said Constitution.
Grounds for the petitions are as follows:
1. That the Constitutional Convention was not a free forum for the making
of a Constitution after the declaration of Martial Law on September 21,
1972.
2. The Convention was not empowered to incorporate certain provisions in

the 1972 Constitution because they are highly unwise and objectionable
and the people were not sufficiently informed about them.
252
3. The President had no authority to create and empower the Citizens'

Assemblies to ratify the new Constitution at the referendum conducted in
connection therewith, as said assemblies were merely for consultative
purposes, and
4. The provisions of Article XV of the 1935 Constitution prescribing the

manner of amending the same were not duly observed.
The petitions were not given due course immediately but were referred to
the Solicitor General as counsel for the respondents for comment, with
three members of the Court, including the undersigned, voting to dismiss
them outright. The comments were considered motions to dismiss which
were set for hearing and extensively argued. Thereafter both parties
submitted their notes and memoranda on their oral arguments.
I.
The issues raised for determination, on which the resolution of the Motion
to Dismiss hinges, are as follows:
1. Is the question presented political and, hence, beyond the competence

of this Court to decide, or is it justiciable and fit for judicial determination?
2. Was the new Constitution of November 30, 1972, ratified in accordance

with the amending process prescribed by Article XV of the 1935
Constitution?
3. Has the new Constitution been accepted and acquiesced in by the

Filipino people?
4. Is the new Constitution actually in force and effect?
5. If the answers to questions Nos. 3 and 4 be in the affirmative, are

petitioners entitled to the reliefs prayed for?
II.
253
The pivotal question in these cases is whether the issue raised is highly
political and, therefore, not justiciable. I maintain that this Court should
abstain from assuming jurisdiction, but, instead, as an act of judicial
statesmanship, should dismiss the petitions. In resolving whether or not the
question presented is political, joint discussion of issues Nos. 1, 3 and 4 is
necessary so as to arrive at a logical conclusion. For after the acceptance of
a new Constitution and acquiescence therein by the people by putting it
into practical operation, any question regarding its validity should be
foreclosed and all debates on whether it was duly or lawfully ushered into
existence as the organic law of the state become political and not judicial in
character.
The undisputed facts that led to the issuance of Proclamation No. 1102 and
Presidential Decrees Nos. 86 and 86-A are fully set forth in the majority and
dissenting opinions in the Plebiscite cases decided on January 22, 1973, and
need not be repeated here.
Petitioners seek to set at naught Proclamation No. 1102 and Presidential

Decrees Nos. 86 and 86-A, claiming that the ratification of the new
Constitution pursuant to the said decrees is invalid and of no effect.
Presidential Decree No. 86 organized the barangays or Citizens Assemblies
composed of all citizens at least fifteen years of age, and through these
assemblies the proposed 1972 Constitution was submitted to the people
for ratification. Proclamation No. 1102 of the President announced or
declared the result of the referendum or plebiscite conducted through the
Citizens Assemblies, and that 14,976,561 members thereof voted for the
ratification of the new Constitution and 743,869 voted against it.
Petitioners assail these two acts of the President as unauthorized and
devoid of legal effect.
But looking through the veneer of judicial conformity with which the
petitions have been adroitly contrived, what is sought to be invalidated is
the new Constitution itself — the very framework of the present
Government since January 17, 1973. The reason is obvious. The Presidential
decrees set up the means for the ratification and acceptance of the new
Constitution and Proclamation No. 1102 simply announced the result of the
254
referendum or plebiscite by the people through the Citizens Assemblies.

The Government under the new Constitution has been running on its tracks
normally and apparently without obstruction in the form of organized
resistance capable of jeopardizing its existence and disrupting its operation.
Ultimately the issue is whether the new Constitution may be set aside by
this Court. But has it the power and authority to assume such a stupendous
task when the result of such invalidation would be to subject this nation to
divisive controversies that may totally destroy the social order which the
Government under the new Constitution has been admirably protecting
and promoting under Martial Law? That the new Constitution has taken
deep root and the people are happy and contended with it is a living reality
which the most articulate critics of the new order cannot deny. 95 out of
108 members of the House of Representatives have opted to serve in the
interim National Assembly provided for under the new Constitution. 15 out
of 24 Senators have done likewise. The members of the Congress did not
meet anymore last January 22, 1973, not because they were really
prevented from so doing but because of no serious effort on their parts to
assert their offices under the 1935 Constitution. In brief, the Legislative
Department under the 1935 Constitution is a thing of the past. The
Executive Department has been fully reorganized; the appointments of key
executive officers including those of the Armed Forces were extended and
they took an oath to support and defend the new Constitution. The courts,
except the Supreme Court by reason of these cases, have administered
justice under the new constitution. All government offices have dealt with
the public and performed their functions according to the new Constitution
and laws promulgated thereunder.
If the real purpose of the petitions is to set aside the new Constitution, how
can this Court justify its assumption of jurisdiction when no power has ...
conferred upon it the jurisdiction to declare the Constitution or any part
thereof null and void? It is the height of absurdity and impudence for a
court to wage open war against the organic act to which it owes its
existence. The situation in which this Court finds itself does not permit it to
pass upon the question whether or not the new Constitution has entered
into force and has superseded the 1935 Constitution. If it declares that the
present Constitution has not been validly ratified, it has to uphold the 1935
Constitution as still the prevailing organic law. The result would be too
255
anomalous to describe, for then this Court would have to declare that it is
governed by one Constitution or the 1935 Constitution, and the legislative
and executive branches by another or the 1972 Constitution.
If it declares that the 1972 Constitution is now operative, how can it

exercise judicial discretion in these cases when it would have no other
choice but to uphold the new Constitution as against any other one? In the
circumstances it would be bereft of judicial attributes as the matter would
then be not meet for judicial determination, but one addressed to the
sovereign power of the people who have already spoken and delivered
their mandate by accepting the fundamental law on which the government
of this Republic is now functioning. To deny that the new Constitution has
been accepted and actually is in operation would be flying in the face of
reason and pounding one's bare head against a veritable stone wall or a
heavily reinforced concrete, or simply "kicking the deadly pricks" with one's
bare foot in an effort to eliminate the lethal points.
When a Constitution has been in operation for sometime, even without

popular ratification at that, submission of the people thereto by the
organization of the government provided therein and observance of its
prescriptions by public officers chosen thereunder, is indicative of approval.
Courts should be slow in nullifying a Constitution claimed to have been
adopted not in accordance with constitutional or statutory directives
[Miller vs. Johnson, 92 Ky. 589; 189 S.W. 522; Taylor vs Commonwealth,
101; Va. 829; 44 S.E. 754; Smith vs. Good, 34 F 204, 207; Wiston vs. Ryan,
70 Neb. 211; 97 N.W. 347].
In Miller vs. Johnson, supra, the Court said:
... But it is a case where a new constitution has

persons have been convicted of the highest
crimes known to the law, according to its
provisions; the political power of the government
256
has in many ways recognized it; and, under such

our state. We need not consider the validity of the
of its power, yet as the entire instrument has been
recognized as valid in the manner suggested, it
would be equally an abuse of power by the
judiciary, and violative of the rights of the people,
the instrument or a portion invalid, and bring
confusion and anarchy upon the state. (Emphasis
supplied)
In Smith vs. Good, supra, the Court said:
It is said that a state court is forbidden from

entering upon such an inquiry when applied to a
new constitution, and not an amendment,
because the judicial power presupposes an
established government, and if the authority of
that government is annulled and overthrown, the
power of its courts is annulled with it; therefore, if
a state court should enter upon such an inquiry,
come to the conclusion that the government
under which it acted had been displaced by an
opposing government, it would cease to be a
court, and it would be incapable of pronouncing a
judicial decision upon the question before it; but,
if it decides at all, it must necessarily affirm the
existence of the government under which it
exercises its judicial powers. (Emphasis supplied)
257
These rules are all traceable to Luther vs. Borden, 48 U.S (7 How.), 12 L. Ed.
581, 598 (1849) where it was held:
Judicial power presupposes an established

government capable of enacting laws and
enforcing their execution, and appointing judges
to expound and administer them. The acceptance
of the judicial office is a recognition of the
authority of government from which it is derived.
And if the authority of the government is annulled
and overthrown, the power of its courts and other
officers is annulled with it. And if a State court
should enter upon the inquiry proposed in this
case, and should come to conclusion that the
government under which it acted had been put
aside and displaced by an opposing government it
would cease to be a court, and be incapable of
pronouncing a judicial decision upon the question
it undertook to try. If it decides at all as a court, it
necessarily affirms the existence and authority of
the government under which it is exercising
judicial power.
The foreign relations of the Republic of the Philippines have been normally
conducted on the basis of the new Constitution and no state with which we
maintain diplomatic relations has withdrawn its recognition of our
government. (For particulars about executive acts done under the new
Constitution, see pages 22-25 of the Comments of the Solicitor General,
dated February 3, 1973.)
Certainly the invalidation of Proclamation No. 1102 and Presidential

Decrees Nos. 86 and 86-A by this Court would smack of plain political
meddling which is described by the United States Supreme Court as
"entering a political thicket" in Colegrove vs. Green, 328 U.S. p. 549. At this
juncture it would be the part of wisdom for this Court to adopt the proper
attitude towards political upheavals and realize that the question before Us
258
is political and not fit for judicial determination. For a political question is
one entrusted to the people for judgment in their sovereign capacity
(Tañada vs. Cuenco, G.R. No. L-10520, Feb. 28,1967; 100 Phil. 1101), or to a
co-equal and coordinate branch of the Government (Vera vs. Arellano, 77
Phil. 192; Mabanag vs. Lopez Vito, 78 Phil. 1; Alejandrino vs. Quezon, 46
Phil. 35; Cabili vs. Francisco, G.R. No. 4638, May 8, 1931). A case involves a
political question when there would be "the impossibility of undertaking
independent resolutions without expressing a lack of respect due to
coordinate branches of government", or when there is "the potentiality of
embarrassment from multifarious pronouncements by various departments
on one question."
To preserve the prestige and eminence that this Court has long enjoyed as
the "ultimate organ of the "Supreme Law of the Land" in that vast range of
legal problems often strongly entangled in popular feeling on which this
Court must pronounce", let us harken to the following admonition of
Justice Frankfurter in his dissent in Baker vs. Carr, 369 U.S. 186; 82 S. Ct.
691; 7 L. Ed. 2d. 663:
The Court's authority — possessed neither of the

purse nor the sword — ultimately rests on
sustained public confidence in its moral sanction.
Such feeling must be nourished by the Court's
complete detachment, in fact and appearance,
from political entanglements and abstention from
injecting itself into the clash of political forces in
political settlement. ..." (Emphasis supplied)
The people have accepted and submitted to a Constitution to replace the

1935 Constitution. The new organic law is now in the plenitude of its
efficacy and vigor. We are now living under its aegis and protection and
only the cynics will deny this. This Court should not in the least attempt to
act as a super-legislature or a super-board of canvassers and sow confusion
and discord among our people by pontificating there was no valid
ratification of the new Constitution. The sober realization of its proper role
and delicate function and its consciousness of the limitations on its
259
competence, especially situations like this, are more in keeping with the
preservation of our democratic tradition than the blatant declamations of
those who wish the Court to engage in their brand of activism and would
not mind plunging it into the whirlpool of passion and emotion in an effort
to capture the intoxicating applause of the multitude.
For all the foregoing, I vote to dismiss all petitions.
ZALDIVAR, J., concurring and dissenting:
In these five cases, the main issue to be resolved by Court is whether or not
the Constitution proposed by the Constitutional Convention of 1971 had
been ratified in accordance with the provisions of Article XV of the 1935
Constitution. In the plebiscite cases, which were decided by this Court on
January 22, 1973 1, I held the view that this issue could be properly resolved
by this Court, and that it was in the public interest that this Court should
declare then whether or not the proposed Constitution had been validly
ratified. The majority of this Court, however, was of the view that the issue
was not squarely raised in those cases, and so the Court, as a body, did
make any categorical pronouncement on the question of whether or not
the Constitution proposed by the 1971 Convention was validly ratified. I
was the only one who expressed the opinion that the proposed
Constitution was not validly ratified and therefore "it should not be given
force and effect."
The Court is now called upon to declare, and to inform the people of this
country, whether or not that proposed Constitution had been validly
ratified and had come into effect.
The Solicitor General, however, contends that this Court has no jurisdiction
to resolve the issue that we have mentioned because that issue is a political
question that cannot be decided by this Court. This contention by the
Solicitor General is untenable. A political question relates to "those
questions which under the Constitution are to be decided by the people in
their sovereign capacity or in regard to which full discretionary authority
has been delegated to the legislative, or to the executive, branch of the
260
government. 2 The courts have the power to determine whether the acts of

the executive are authorized by the Constitution and the laws whenever
they are brought before the court in a judicial proceeding. The judicial
department of the government exercises a sort of controlling, or rather
restraining, power over the two other departments of the government.
Each of the three departments, within its proper constitutional sphere, acts
independently of the other, and restraint is only placed on one department
when that sphere is actually transcended. While a court may not restrain
the executive from committing an unlawful act, it may, when the legality of
such an act is brought before it in a judicial proceeding, declare it to be
void, the same as it may declare a law enacted by the legislature to be
unconstitutional. 3 It is a settled doctrine that every officer under a
constitutional government must act according to law and subject to its
restrictions, and every departure therefrom, or disregard thereof, must
subject him to the restraining and controlling power of the people, acting
through the agency of the judiciary. It must be remembered that the
people act through the courts, as well as through the executive or the
legislature. One department is just as representative as the other, and
judiciary is the department which is charged with the special duty of
determining the limitations which the law places upon all official actions 4.
In the case of Gonzales v. Commission on Elections 5, this Court ruled that
the issue as to whether or not a resolution of Congress acting as a
constituent assembly violates the Constitution is not a political question
and is therefore subject to judicial review. In the case ofAvelino v. Cuenco 6,
this Court held that the exception to the rule that courts will not interfere
with a political question affecting another department is when such
political question involves an issue as to the construction and interpretation
of the provision of the constitution. And so, it has been held that the
question of whether a constitution shall be amended or not is a political
question which is not in the power of the court to decide, but whether or
not the constitution has been legally amended is a justiciable question. 7
My study on the subject of whether a question before the court is political

or judicial, based on decisions of the courts in the United States — where,
after all, our constitutional system has been patterned to a large extent —
made me arrive at the considered view that it is in the power of this Court,
as the ultimate interpreter of the Constitution, to determine the validity of
261
the proposal, the submission, and the ratification of any change in the
Constitution. Ratification or non-ratification of a constitutional amendment
is a vital element in the procedure to amend the constitution, and I believe
that the Court can inquire into, and decide on, the question of whether or
not an amendment to the constitution, as in the present cases, has been
ratified in accordance with the requirements prescribed in the Constitution
that was amended. And so, in the cases now before Us, I believe that the
question of whether or not the Constitution proposed by the 1971
Constitutional Convention had been validly ratified or not is a justiciable
question.
The Chief Justice, in his opinion, has discussed lengthily the subject on
whether or not, the cases, before Us involve a political, or a judicial,
question. I fully concur with his conclusion that the question involved in
these cases is justiciable.
On the question now of whether or not the Constitution proposed by the

1971 Constitutional Convention has been validly ratified, I am reproducing
herein pertinent portions of my dissenting opinion in the plebiscite cases:
The ratification of the Constitution proposed by

the 1971 Constitutional Convention must be done
in accordance with the provisions of Section 1,
Article XV of the 1935 Constitution of the
Philippines, which reads:
"Section 1. The Congress in joint

session assembled by a vote of
three fourths of all the Members
of the Senate and of the House of
Representatives voting
separately, may propose
amendments to the Constitution
or call a convention for that
purpose. Such amendments shall
be valid as part of this
262
Constitution when approved by a

election at which the
amendments are submitted to
the people for their ratification."
It is in consonance with the abovequoted

provision of the 1935 Constitution that on March
16, 1967, the Congress of the Philippines
Resolution No. 2 calling a convention to propose
Philippines. Sec. 7 of said Resolution No. 2 reads
as follows:
"Section 7. The amendments

proposed by the Convention shall
be valid and considered part of
the Constitution when approved
by a majority of the votes cast in
an election at which they are
submitted to the people for their
ratification pursuant to Article XV
of the Constitution.
It follows that from the very resolution of the

Congress of the Philippines which called for the
1971 Constitutional Convention, there was a clear
mandate that the amendments proposed by the
1971 Convention, in order to be valid and
considered part of the Constitution, must be
approved by majority of the votes cast in an
election at which they are submitted to the
people for the ratification as provided in the
Constitution.
263
This Court, in the case of Tolentino vs.

Commission Elections, L-35140, October 16, 1971
(41 SCRA 715), speaking through Mr. Justice
Barredo, said:
"The Constitutional Convention

of 1971, as any other convention
of the same nature, owes its
existence and all its authority
and power from the existing
This Convention has not been
called by the people directly as in
the case of a revolutionary
convention which drafts the first
Constitution of an entirely new
government born of either a war
of liberation from a mother
country or of revolution against
an existing government or of a
bloodless seizure of power a la
coup d'etat. As to such kind of
conventions, it is absolutely true
that the convention is completely
without restraint and
omnipotent all wise, and it as to
such conventions that the
remarks of Delegate Manuel
Roxas of the Constitutional
Convention of 1934 quoted by
Senator Pelaez refer. No amount
of rationalization can belie the
fact that the current convention
came into being only because it
was called by a resolution of a
joint session of Congress acting
as a constituent assembly by
264
authority of Section 1, Article XV

of the present Constitution ... ."
xxx xxx xxx
"As to matters not related to its

internal operation and the
performance of its assigned
mission to propose amendments
to the Constitution, the
Convention and its officers and
members are all subject to all the
provisions of the existing
Constitution. Now we hold that
even as to its latter task of
proposing amendments to the
Constitution, it is subject to the
provisions of Section 1 of Article
XV."
In Proclamation No. 1102, issued on January 17,

1973, the President of the Philippines certified
that as a result of the voting before the barangays
(Citizens Assemblies) 14,976,561 members of the
barangays voted for the adoption of the proposed
Constitution, as against 743,869 who voted for its
rejection, and on the basis of the overwhelming
majority of the votes cast by the members of all
the barangays throughout the Philippines, the
President proclaimed that the Constitution
proposed by the 1971 Convention has been
ratified and has thereby come into effect.
It is very plain from the very wordings of

Proclamation No. 1102 that the provisions of
Section 1 of Article XV of the Constitution of 1935
265
were not complied with. It is not necessary that

evidence be produced before this Court to show
that no elections were held in accordance with
the provisions of the Election Code. Proclamation
No. 1102 unequivocally states that the proposed
Constitution of 1972 was voted upon by the
barangays. It is very clear, therefore, that the
voting held in these barangays is not the election
contemplated in the provisions of Section 1,
Article XV, of the 1935 Constitution. The election
contemplated in said constitutional provision is an
election held in accordance with the provisions of
the election law, where only the qualified and
registered voters of the country would cast their
votes, where official ballots prepared for the
purpose are used, where the voters would
prepare their ballots in secret inside the voting
booths in the polling places established in the
different election precincts throughout the
country, where the election is conducted by
election inspectors duly appointed in accordance
with the election law, where the votes are
canvassed and reported in a manner provided for
in the election law. It was this kind of election that
was held on May 14, 1935, when the Constitution
of 1935 was ratified; on April 30, 1937, when the
amendment to the Constitution providing for
Women's Suffrage was ratified; on June 18, 1940,
when the 1940 Amendments to the Constitution
were ratified; on March 11, 1947 when the Parity
Amendment to the Constitution was ratified; and
on November 14, 1967 when the amendments to
the Constitution to increase the number of
Members of the House of Representatives and to
allow the Members of Congress to run in the
elections for Delegates to the Constitutional
Convention of 1971 were rejected.
266
I cannot see any valid reason why the practice or

procedure in the past, in implementing the
constitutional provision requiring the holding, of
an election to ratify or reject an amendment to
the Constitution, has not been followed in the
case of the Constitution proposed by the 1971
Constitutional Convention.
It is my view that the President of the Philippines

cannot by decree order the ratification of the
proposed 1972 Constitution thru a voting in the
barangays and make said result the basis for
proclaiming the ratification of the proposed
constitution. It is very clear, to me, that
Proclamation No. 1102 was issued in complete
disregard or in violation, of the provisions of
Section 1 of Article X of the 1935 Constitution.
Proclamation No. 1102 mentions, furthermore,

that on the question as to whether or not the
ratify the new Constitution, 14,298,814 members
of the barangays answered that there was no
need for a plebiscite but that the vote of the
barangays should be considered a vote in a
plebiscite. It would thus appear that the
barangays assumed the power to determine
whether a plebiscite as ordained in the
Constitution be held or not. Indeed, the provision
of Section 1, Article XV of the Constitution was
completely disregarded.
The affirmative votes cast in the barangays are not

the votes contemplated in Section 1 of Article XV
of the 1935 Constitution. The votes contemplated
in said constitutional provision are votes obtained
267
through the election processes as provided by

law.
"An election is the embodiment

of the popular will, the
expression of the sovereign
power of the people. In common
parlance, an election is the act of
casting and receiving the ballots,
counting them, and making the
return." (Hontiveros vs. Altavas,
24 Phil. 632, 637).
"Election" implies a choice by an

electoral body at the time and
substantially in the manner and
with the safeguards provided by
law with respect to some
question or issue. (Leffel v.
Brown, Com. P1., 159 N.E. 2d
807, 808 cited in 29 C.J.S. 13 at
footnote 6.5).
"... the statutory method

whereby qualified voters or
electors pass on various public
matters submitted to them — the
election of officers, national,
state, county, township — the
passing on various other
questions submitted for their
determination." (29 C.J.S. 13,
citing Iowa-Illinois Gas & Elec. Co.
v. City of Bettendorf, 41 N.W. 2d
1, 5, 241 Iowa 358).
268
"Election" is expression of choice

by voters of body politic.
(Ginsburg v. Giles, 72 S.W. 2d
438, 254 Ky. 720, in Words and
Phrases, Permanent Edition, p.
234).
"The right to vote may be

exercised only on compliance
with such statutory requirements
as have been set by the
legislature." (People ex rel. Rago
v. Lipsky, 63 N.E. 2d 642, 327 III.
App. 63; Rothfels v. Southworth,
356 P. 2d 612, 11 Utah 2d 169 in
29 C.J.S. 38). (Emphasis supplied).
In this connection I herein quote the pertinent

provisions of the Election Code of 1971:
"Sec. 2. Applicability of this Act. — All elections of

public officers except barrio officials and
plebiscites shall be conducted in the manner
provided by this Code."
"Sec 99. Necessity of registration to be entitled to

vote. — In order that a qualified voter may vote in
any regular or special election or in any plebiscite,
he must be registered in the permanent list of
voters for the city, municipality or municipal
district in which he resides: Provided, that no
person shall register more than once without first
applying for cancellation of his previous
registration." (Emphasis supplied). (Please see also
Sections 100-102, Election Code of 1971, R.A. No.
6388)
269
It is stated in Proclamation No. 1102 that the

voting was done by the members of citizens
assemblies who are 15 years of age or over. Under
the provision of Section I of Article V of the 1935
Constitution, the age requirement to be a
qualified voter is 21 years or over.
But what is more noteworthy is the fact that the

voting in the barangays, except in very few
instances, was done by the raising of hands by the
persons indiscriminately gathered to participate in
the voting, where even children below 15 years of
age were included. This is a matter of common
observation, or of common knowledge, which the
Court may take judicial notice of. To consider the
votes in the barangays as expressive of the
popular will and use them as the basis in declaring
whether a Constitution is ratified or rejected is to
resort to a voting by demonstrations, which is
would mean the rule of the crowd, which is only
one degree higher than the rule by the mob.
Certainly, so important a question as to whether
the Constitution, which is the supreme law of the
land, should be ratified or not, must not be
decided by simply gathering people and asking
them to raise their hands in answer to the
question of whether the vote for or against a
proposed Constitution. The election as provided
by law should be strictly observed in determining
the will of the sovereign people in a democracy. In
our Republic, the will of the people must be
expressed through the ballot in a manner that is
provided by law.
It is said that in a democracy, the will of the

people is the supreme law. Indeed, the people are
270
sovereign, but the will of the people must be

expressed in a manner as the law and the
demands a well-ordered society require. The rule
of law must prevail even over the apparent will of
the majority of the people, if that will had not
been expressed, or obtained, in accordance with
the law. Under the rule of law, public questions
must be decided in accordance with the
Constitution and the law. This is specially true in
the case of adoption of a constitution or in the
ratification of an amendment to the Constitution.
The following citations are, to me, very relevant in

the effort to determine whether the proposed
Constitution of 1972 had been validly ratified, or
not:
"When it is said that "the people"

have the right to alter or amend
the constitution, it must not be
understood that term necessarily
includes all the inhabitants of the
state. Since the question of the
adoption or rejection of a
proposed new constitution or
constitutional amendment must
be answered a vote, the
determination of it rests with
those who, by existing
constitution, are accorded the
right of suffrage. But the
qualified electors must be
understood in this, as in many
other cases, as representing
those who have not the right to
participate in the ballot. If a
271
constitution should be abrogated

and a new one adopted, by the
whole mass of people in a state
acting through representatives
not chosen by the "people" in
political sense of the term, but by
the general body of the
populace, the movement would
be extra-legal." (BIack's
Constitutional Law, Second
Edition, pp. 47-48).
"The theory of our political

system is that the ultimate
sovereignty is in the people, from
whom springs all legitimate
authority. The people of the
Union created a national
constitution, and conferred upon
it powers of sovereignty on
certain subjects, and the people
of each State created a State
government, to exercise the
remaining powers of sovereignty
so far as they were disposed to
allow them to be exercised at all.
By the constitution which they
establish, they not only tie up the
hands of their official agencies,
but their own hands as well; and
neither the officers of the State,
nor the whole people as an
aggregate body, are at liberty to
take action in opposition to this
fundamental law." (Cooley's
Constitutional Limitations, 8th
Edition, Vol. I, p. 81 cited in
272
Graham v. Jones, 3 So. 2d. 761,

782).
"The theory that a favorable vote

by the electorate, however
unanimous, on a proposal to
amend a constitution, may cure,
render innocuous, all or any
antecedent failures to observe
commands of that Constitution in
respect of the formulation or
submission of proposed
amendments thereto, does not
prevail in Alabama, where the
doctrine of the stated theory was
denied, in obvious effect, by the
pronouncement 60 years ago of
broad, wholesome constitutional
principles in Collier v.
Frierson, supra, as quoted in the
original opinion, ante. The people
themselves are bound by the
Constitution; and, being so
bound, are powerless, whatever
their numbers, to change or
thwart its mandates, except
through the peaceful means of a
constitutional convention, or of
an amendment according to the
mode therein prescribed, or
through the exertion of the
original right of revolution. "The
Constitution may be set aside by
revolution, but it can only be
amended in the way it provides,"
said Hobson, C.J., in McCreary v.
Speer, 156 Ky. 783, 791, 162 S.W.
273
99, 103. (Johnson vs. Craft, et al.,

87 So. 375, 385, 387, On
Rehearing).
"The fact that a majority voted

for the amendment, unless the
vote was taken as provided by
the Constitution, is not sufficient
to make a change in that
instrument. Whether a proposed
amendment has been legally
adopted is a judicial question, for
the court must uphold and
enforce the Constitution as
written until it is amended in the
way which it provides for."Wood
v. Tooker, 15 Mont. 8, 37 Pac
840, 25 L.R.A. 560; McConaughty
v. State, 106 Minn. 409, 119 N.W.
408; Oakland Paving Company v.
Hilton, 69 Cal. 499, 11 Pac.
3; Utter v. Mosely, 16 Idaho 274,
100 Pac. 1958, 133 Am. St. Rep.
94, 18 Ann. Cas. 723. (McCreary
v. Speer, 162 S.W. 99, 104).
"Provisions of a constitution
regulating its own
amendment, ... are not merely
directory, but are mandatory;
and a strict observance of every
substantial mandatory; and a
strict observance of every
substantial requirement is
essential to the validity of the
proposed amendment. These
274
provisions are as binding on the

people as on the legislature, and
the former are powerless by vote
of acceptance to give legal
sanction to an amendment the
submission of which was made in
disregard of the limitations
contained in the constitution."
(16 C.J.S. 35-36. cited in Graham
v. Jones, 3 So. 2d 761, 782).
"It is said that chaos and

confusion in the government
affairs of the State will result
from the Court's action in
declaring the proposed
constitutional amendment void.
This statement is grossly and
manifestly inaccurate. If
confusion and chaos should
ensue, it will not be due to the
action of the Court but will be
the result of the failure of the
drafters joint resolution to
observe, follow and obey the
plain essential provisions of the
Constitution. Furthermore, to say
that, the Court disregards its
sworn duty to enforce the
Constitution, chaos and
confusion will result, is an
inherently weak argument in
favor of the alleged
constitutionality of the proposed
amendment. It is obvious that, if
the Court were to countenance
the violations of the sacramental
275
provisions Constitution, those

who would thereafter desire to
violate it disregard its clear
mandatory provisions would
resort to the scheme of involving
and confusing the affairs of the
State then simply tell the Court
that it was powerless to exercise
one of its primary functions by
rendering the proper decree to
make the Constitution effective."
(Graham v. Jones, 3 So. 2d. 761,
793-794).
In our jurisprudence I find an instance where this

Court did not allow the will of the majority to
prevail, because the requirements of the law were
not complied with. In the case of Monsale v. Nico,
83 Phil. 758, Monsale and Nico were both
candidates for the office of Municipal Mayor of
Miagao, Iloilo, in the elections of November 11,
1947. Monsale had duly filed his certificate of
candidacy before the expiration of the period for
the filing of the same. However, on October 10,
1947, after the period for the filing of the
certificate of candidacy, Monsale withdrew his
certificate of candidacy. But on November 7, 1947
Monsale attempted to revive his certificate of
candidacy by withdrawing the withdrawal of
certificate of candidacy. The Commission on
Elections, November 8, 1947, ruled that Monsale
could no longer be a candidate. Monsale
nevertheless proceeded with his candidacy. The
boards of inspectors in Miagao, however, did not
count the votes cast for Monsale upon the ground
that the votes cast for him were stray votes,
because he was considered as having no
276
certificate of candidacy. On the other hand, the

boards of inspectors credited Nico with 2,291
votes, and Nico was proclaimed elected. Monsale
filed a protest against the election of Nico in the
Court of First Instance of Iloilo. In the count of the
ballots during the proceedings in the trial court, it
appeared that Monsale had obtained 2,877 votes
while Nico obtained 2,276 votes, or a margin of
601 votes in favor of Monsale. The Court of First
Instance of Iloilo decided the election protest in
favor of Monsale. Upon appeal by Nico, this Court
reversed the decision of the lower court. This
Court declared that because Monsale withdrew
his certificate of candidacy, his attempt to revive it
by withdrawing his withdrawal of his certificate of
candidacy did not restore the effectiveness of his
certificate of candidacy, and this Court declared
Nico the winner in spite of the fact that Monsale
had obtained more votes than he.
We have cited this Monsale case to show that the

will of the majority of the voters would not be
given effect, as declared by this Court, if certain
legal requirements have not been complied with
in order to render the votes valid and effective to
decide the result of an election.
And so, in the cases now before this Court, the

fact that the voting in the citizens assemblies
(barangays) is not the election that is provided for
in the 1935 Constitution for the ratification of the
amendment to the Constitution, the affirmative
votes cast in those assemblies can not be made
the basis for declaring the ratification of the
proposed 1972 Constitution, in spite of the fact
that it was reported that 14,976,561 members of
277
the citizens assemblies voted for the adoption as

against 743,869 for the rejection, because the
votes thus obtained were not in accordance with
the provisions of Section 1 of Article XV of the
1935 Constitution of the Philippines. The rule of
law mast be upheld.
My last observation: One of the valid grounds

against the holding of the plebiscite on January
15, 1973, as provided in Presidential Decree No.
73, is that there is no freedom on the part of the
people to exercise their right of choice because of
the existence of martial law in our country. The
same ground holds true as regards to the voting of
the barangays on January 10 to 15, 1973. More so,
because by General Order No. 20, issued on
January 7, 1973, the President of the Philippines
ordered "that the provisions of Section 3 of
Presidential Decree No. 73 in so far as they allow
free public discussion of the proposed
constitution, as well as my order of December 17,
1972 temporarily suspending the effects of
Proclamation No. 1081 for the purpose of free and
open debate on the proposed constitution, be
suspended in the meantime." It is, therefore, my
view that voting in the barangays on January 10,
1973 was not free, and so this is one added
reason why the results of the voting in the
barangays should not be made the basis for
proclamation of the ratification of the proposed
Constitution.
It is my view, therefore, that Proclamation No.

1102 repugnant to the 1935 Constitution, and so
it is invalid, and should not be given effect. The
Constitution of 1972 proposed by the 1971
278
Constitutional Convention should be considered

as not yet ratified by the people of this Republic,
and so it should not be given force and effect.
It is urged by the Solicitor General, however, that the voting in the citizens
assemblies was a substantial compliance with the provisions of Article XV of
the 1935 Constitution. The Solicitor General maintains that the primary
thrust of the provision of Article XV of the 1935 Constitution is that "to be
valid, amendments must gain the approval of the majority recognition of
the democratic postulate that sovereign resides in the people." It is not
disputed that in a democratic sovereignty resides in the people. But the
term "people" must be understood in its constitutional meaning, and they
are "those persons who are permitted by the Constitution to exercise the
elective franchise." 8 Thus, in Section 2 of Article VII of the 1935
Constitution, it is provided that "the President shall hold his office during a
term of four years and, together with the Vice-President chosen for the
same term, shall be elected by direct vote of the people..." Certainly under
that constitutional provision, the "people" who elect directly the President
and the Vice-President are no other than the persons who, under the
provisions of the same Constitution, are granted the right to vote. In like
manner the provision in Section 1 of Article II of the 1935 Constitution
which says "Sovereignty resides in the people and all government authority
emanates from them", the "people" who exercise the sovereign power are
no other than the persons who have the right to vote under the
Constitution. In the case of Garchitorena vs. Crescini 9, this Court, speaking
through Mr. Justice Johnson, said, "In democracies, the people, combined,
represent the sovereign power of the State. Their sovereign authority is
expressed through the ballot, of the qualified voters, in duly appointed
elections held from time to time, by means of which they choose their
officials for definite fixed periods, and to whom they entrust, for the time
being, as their representatives, the exercise of the powers of government."
In the case of Moya v. Del Fierro, 10 this Court, speaking through Mr. Justice
Laurel, said, "As long as popular government is an end to be achieved and
safeguarded, suffrage, whatever may be the modality and form devised,
must continue to be the means by which the great reservoir of power must
be emptied into the receptacular agencies wrought by the people through
their Constitution in the interest of good government and the common
279
weal. Republicanism, in so far as it implies the adoption of a representative

type of government, necessarily points to the enfranchised citizen as a
particle of popular sovereignty and as the ultimate source of the
established authority." And in the case of Abanil v. Justice of the Peace of
Bacolod, 11 this Court said: "In the scheme of our present republican
government, the people are allowed to have a voice therein through the
instrumentality of suffrage to be availed of by those possessing certain
prescribed qualifications. The people, in clothing a citizen with the elective
franchise for the purpose of securing a consistent and perpetual
administration of the government they ordain, charge him with the
performance of a duty in the nature of a public trust, and in that
respect constitute him a representative of the whole people. This duty
requires that the privilege thus bestowed exclusively for the benefit of the
citizen or class of citizens professing it, but in good faith and with an
intelligent zeal for the general benefit and welfare of the state. (U.S. v.
Cruikshauk, 92 U.S. 588)..." There is no question, therefore, that when we
talk of sovereign people, what is meant are the people who act through the
duly qualified and registered voters who vote during an election that is held
as provided in the Constitution or in the law.
The term "election" as used in Section 1 of Article XV of the 1935

Constitution should be construed along with the term "election" as used in
the Provisions of Section 4 of the Philippine Independence Act of the
Congress of the United States, popularly known as the Tydings-McDuffie
Law (Public Act No. 127). Said Section 4 of the Tydings-McDuffie Law
provides as follows:
Section 4. After the President of the United States

certified that the constitution conforms with the
provisions of this act, it shall be submitted to the
people of the Philippine Islands for their
ratification or rejection at an election to he held
within months after the date of such certification,
on a date to be fixed by the Philippine
Legislature at which election, the qualified voters
of the Philippine Islands shall have an opportunity
280
to vote directly or against the proposed

constitution and ordinances append thereto. Such
election shall be held in such manner as may
prescribed by the Philippine Legislature to which
the return of the election shall be made. The
Philippine Legislature shall certify the result to the
Governor-General of the Philippine Islands,
together with a statement of the votes cast, and a
copy of said constitution ordinances. If a majority
of the votes cast shall be for the constitution, such
vote shall be deemed an expression of the will of
the people of the Philippine Independence, and
the Governor-General shall, within thirty days
after receipt of the certification from the
Philippine Legislature, issue a proclamation for
the election of officers of the government of the
Commonwealth of the Philippine Islands provided
for in the Constitution...
It can safely be said, therefore, that when the framers of the 1935
Constitution used, the word "election" in Section I Article XV of the 1935
Constitution they had no other idea in mind except the elections that were
periodically held in the Philippines for the choice of public officials prior to
the drafting of the 1935 Constitution, and also the "election" mentioned in
the Independence Act at which "the qualified voters of the Philippine
Islands shall have an opportunity to vote directly for or against the
proposed constitution..." It is but logical to expect that the framers of the
1935 Constitution would provide a mode of ratifying an amendment to that
Constitution similar to the mode of ratifying the original Constitution itself.
It is clear therefore, that the ratification or any amendment to the 1935

Constitution could only be done by holding an election, as the term
"election" was understood, and practiced, when the 1935 Constitution as
drafted. The alleged referendum in the citizens assemblies — participated
in by persons aged 15 years or more, regardless of whether they were
qualified voters or not, voting by raising their hands, and the results of the
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voting reported by the barrio or ward captain, to the municipal mayor, who
in turn submitted the report to the provincial Governor, and the latter
forwarding the reports to the Department of Local Governments, all
without the intervention of the Commission on Elections which is the
constitutional body which has exclusive charge of the enforcement and
administration of all laws, relative to the conduct of elections — was not
only a non-substantial compliance with the provisions of Section 1 of Article
XV of the 1935 Constitution but a downright violation of said constitutional
provision. It would be indulging in sophistry to maintain that the voting in
the citizens assemblies amounted to a substantial compliance with the
requirements prescribed in Section 1 of Article XV of the 1935 Constitution.
It is further contended by the Solicitor General, that even if the Constitution

proposed by the 1971 Constitutional Convention was not ratified in
accordance with the provisions of Section 1 of Article XV of the 1935
Constitution, the fact is that after the President of the Philippines had
issued Proclamation No. 1102 declaring that the said proposed Constitution
"has been ratified by overwhelming majority of all the votes cast by the
members of all the barangays (citizens assemblies) throughout the
Philippines and had thereby come into effect" the people have accepted
the new Constitution. What appears to me, however, is that practically it is
only the officials and employees under the executive department of the
Government who have been performing their duties apparently in
observance of the provisions of the new Constitution. It could not be
otherwise, because the President of the Philippines, who is the head of the
executive department, had proclaimed that the new Constitution had come
into effect, and his office had taken the steps to implement the provisions
of the new Constitution. True it is, that some 92 members of the House of
Representatives and 15 members of the Senate, of the Congress of the
Philippines had expressed their option to serve in the interim National
Assembly that is provided for in Section 2 of Article XVII of the proposed
Constitution. It must be noted, however, that of the 15 senators who
expressed their option to serve in the interim National Assembly only one
them took his oath of office; and of the 92 members of the House of
Representatives who opted to serve in the interim National Assembly, only
22 took their oath of office. The fact that only one Senator out of 24, and
only 22 Representative out of 110, took their oath of office, is an indication
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that only a small portion of the members of Congress had manifested the
acceptance of the new Constitution. It is in the taking of the oath of office
where the affiant says that he swears to "support and defend the
Constitution" that the acceptance of the Constitution is made manifest. I
agree with counsel petitioners in L-36165 (Gerardo Roxas, et al. v.
Alejandro Melchor, et al.) when he said that the members of Congress who
opted to serve in the interim National Assembly did only ex abundante
cautela, or by way of a precaution, making sure, that in the event the new
Constitution becomes definitely effective and the interim National
Assembly convened, they can participate in legislative work in the capacity
as duly elected representatives of the people, which otherwise they could
not do if they did not manifest their option to serve, and that option had to
be made within 30 day from January 17, 1973, the date when Proclamation
No. 110 was issued. Of course, if the proposed Constitution does not
become effective, they continue to be members of Congress under the
1935 Constitution. Let it be considered that the members of the House of
Representatives were elected in 1969 to serve a term which will yet expire
on December 31, 1973. Whereas, of the Senators who opted to serve in the
interim National Assembly, the term of some of them will yet expire on
December 31, 1973, some on December 31, 1975, and the rest on
December 31, 1977. Let if be noted that 9 Senators did not opt to serve in
the interim National Assembly, and 18 members of the House of
Representatives also did not opt to serve in the interim National Assembly.
Neither can it be said that the people have accepted the new Constitution. I
cannot, in conscience, accept the reported affirmative votes in the citizens
assemblies as a true and correct expression by the people of their approval,
or acceptance, of the proposed Constitution. I have my serious doubts
regarding the freedom of the people to express their views regarding the
proposed Constitution during the voting in the citizens assemblies, and I
have also my serious doubts regarding the truthfulness and accuracy of the
reports of the voting in the citizens assemblies. This doubt has been
engendered in my mind after a careful examination and study of the
records of these cases, particularly with respect to the reports of the voting
in the citizens assemblies. Perhaps, it may be said that the people, or the
inhabitants of this country, have acquiesced to the new Constitution, in the
sense that they have continued to live peacefully and orderly under the
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government that has been existing since January 17, 1973 when it was
proclaimed that the new Constitution came into effect. But what could the
people do? In the same way that the people have lived under martial law
since September 23, 1972, they also have to live under the government as
it now exists, and as it has existed since the declaration of martial law on
September 21, 1972, regardless of what Constitution is operative —
whether it is the 1935 Constitution or the new Constitution. Indeed, there
is nothing that the people can do under the circumstances actually
prevailing in our country today — circumstances, known to all, and which I
do not consider necessary to state in this opinion. I cannot agree, therefore,
with my worthy colleagues in the Court who hold the view that the people
have accepted the new Constitution, and that because the people have
accepted it, the new Constitution should be considered as in force,
regardless of the fact that it was not ratified in accordance with the
provisions of Section 1 of Article XV of the 1935 Constitution.
It is my honest view that the Constitution proposed by the 1971

Constitutional Convention has not come into effect. I do not say, however,
that the proposed Constitution is invalid. To me, the validity of the
proposed Constitution is not in issue in the cases before Us. What the
petitioners assail is not the validity of the proposed Constitution but the
validity of Presidential Proclamation No. 1102 which declares the proposed
Constitution as having been ratified and has come into effect. It being my
considered view that the ratification of the proposed Constitution, as
proclaimed in Proclamation No. 1102, is not in accordance with the
provisions of Section 1 of Article XV, of the 1935 Constitution, I hold that
Proclamation No. 1102 is invalid and should not be given force and effect.
Their proposed Constitution, therefore, should be considered as not yet
validly ratified, and so it is not in force. The proposed Constitution may still
be submitted to a plebiscite in conformity with Section 1 of Article XV of the
1935 Constitution. Incidentally, I must state that the Constitution is still in
force, and this Court is still functioning under the 1935 Constitution.
I sincerely believe that the proposed Constitution may still be submitted to

the people in an election or plebiscite held in accordance with the
provisions of Section 1 of Article XV of the 1935 Constitution. In fact, as we
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have adverted to in this opinion, this was the mandate of Congress when,
on March 16, 1967, it passed Resolution No. 2 calling a convention to
propose amendments to the 1935 Constitution. The Court may take judicial
notice of the fact that the President of the Philippines has reassured the
nation that the government of our Republic since the declaration of martial
law is not a revolutionary government, and that he has been acting all the
way in consonance with his powers under the Constitution. The people of
this Republic has reason to be happy because, according to the President,
we still have a constitutional government. It being my view that the 1935
Constitution is still in force, I believe Congress may still convene and pass a
law calling for an election at which the Constitution proposed by the 1971
Constitutional Convention will be submitted to the people their ratification
or rejection. A plebiscite called pursuant to Section 1 of Article XV of the
1935 Constitution is an assurance to our people that we still have in our
country the Rule of Law and that the democratic system of government
that has been implanted in our country by the Americans, and which has
become part of our social and political fabric, is still a reality.
The views that I have expressed in this opinion are inspired by a desire on
my part to bring about stability in democratic and constitutional system in
our country. I feel that if this Court would give its imprimatur to the
ratification of the proposed Constitution, as announced in Proclamation No.
1102, it being very clear that the provisions of Section 1 of Article XV of the
1935 Constitution had not been complied with, We will be opening the
gates for a similar disregard of the Constitution in the future. What I mean
is that if this Court now declares that a new Constitution is now in force
because the members of the citizens assemblies had approved the said new
Constitution, although that approval was not in accordance with the
procedure and the requirements prescribed in the 1935 Constitution, it can
happen again in some future time that some amendments to the
Constitution may be adopted, even in a manner contrary to the existing
Constitution and the law, and then said proposed amendment is submitted
to the people in any manner and what will matter is that a basis is claimed
that there was approval by the people. There will not be stability in our
constitutional system, and necessarily no stability in our government. As a
member of this Court I only wish to contribute my humble efforts to
prevent the happening of such a situation in the future.
285
It appearing to me that the announced ratification of the proposed

Constitution through the voting in the citizens assemblies is a clear violation
of the 1935 Constitution, what I say in this opinion is simply an endeavor on
my part to be true to my oath of office to defend and support the 1935
Constitution. I am inspired by what the great jurist and statesman, Jose P.
Laurel, said:
Let our judges be as it were the vestal keepers of

the purity and sanctity of our Constitution, and
the protection and vindication of popular rights
will be safe and secure in their reverential
guardianship.
I only wish to help prevent, if I can, democracy and the liberties of our
people from vanishing in our land, because, as Justice George Sutherland of
the U. S. Supreme Court said:
(t)he saddest epitaph which can be carved in

memory of a vanished liberty is that it was lost
because its possessors failed to stretch forth a
saving hand while yet there was time.
I concur fully with the personal views expressed by the Chief Justice in the
opinion that he has written in these cases. Along with him, I vote to deny
the motion to dismiss and give due course to the petitions in these cases.
FERNANDO, J., dissenting:
No question more momentous, none impressed with such transcendental

significance is likely to confront this Court in the near or distant future as
that posed by these petitions. For while the specific substantive issue is the
validity of Presidential Proclamation No. 1102, an adverse judgment may be
fraught with consequences that, to say the least, are far-reaching in its
implications. As stressed by respondents, "what petitioners really seek to
invalidate is the new Constitution." 1 Strict accuracy would of course qualify
such statement that what is in dispute, as noted in the opinion of the Chief
286
Justice, goes only as far as the validity of its ratification. It could very well
be though that the ultimate outcome is not confined within such limit, and
this is not to deny that under its aegis, there have been marked gains in the
social and economic sphere, but given the premise of continuity in a regime
under a fundamental law, which itself explicitly recognizes the need for
change and the process for bringing it about, 2 it seems to me that the more
appropriate course is this Court to give heed to the plea of petitioners that
the most serious attention be paid to their submission that the challenged
executive act fails to meet the test of constitutionality. Under the
circumstances, with regret and with due respect for the opinion of my
brethren, I must perforce dissent. It would follow therefore that the legal
position taken by the Chief Justice as set forth with his usual lucidity and
thoroughness has, on the whole, my concurrence, subject, of course, to
reservations insofar as it contains views and nuances to which I have in the
past expressed doubts. Nonetheless, I feel that a brief expression of the
reasons for the stand I take would not be amiss.
In coping with its responsibility arising from the function of judicial review,
this Court is not expected to be an oracle given to utterances of eternal
verities, but certainly it is more than just a keen but passive observer of the
contemporary scene. It is, by virtue of its role under the separation of
powers concept, involved not necessarily as a participant in the formation
of government policy, but as an arbiter of its legality. Even then, there is
realism in what Lerner did say about the American Supreme Court as "the
focal point of a set of dynamic forces which [could play] havoc with the
landmarks of the American state and determine the power configuration of
the day." 3 That is why there is this caveat. In the United States as here, the
exercise of the power of judicial review is conditioned on the necessity that
the decision of a case or controversy before it so requires. To repeat, the
Justices of the highest tribunal are not, as Justice Frankfurter made clear,
"architects of policy. They can nullify the policy of others, they are
incapable of fashioning their own solutions for social
problems." 4 Nonetheless, as was stressed by Professors Black 5 and
Murphy,6 a Supreme Court by the conclusion it reaches and the decision it
renders does not merely check the coordinate branches, but also by its
approval stamps with legitimacy the action taken. Thus in affirming
constitutional supremacy, the political departments could seek the aid of
287
the judiciary. For the assent it gives to what has been done conduces to its
support in a regime where the rule of law holds sway. In discharging such a
role, this Court must necessarily take in account not only what the exigent
needs of the present demand but what may lie ahead in the unexplored
and unknown vistas of the future. It must guard against the pitfall of lack of
understanding of the dominant forces at work to seek a better life for all,
especially those suffering from the pangs of poverty and disease, by a blind
determination to adhere to the status quo. It would be tragic, and a clear
case of its being recreant to its trust, if the suspicion can with reason be
entertained that its approach amounts merely to a militant vigilantism that
is violently opposed to any form of social change. It follows then that it
does not suffice that recourse be had only to what passes for scholarship in
the law that could be marred by inapplicable erudition and narrow
legalism. Even with due recognition, such factors, however, I cannot, for
reasons to be set more lengthily and in the light of the opinion of the Chief
Justice, reach the same result as the majority of my brethren. For, in the
last analysis, it is my firm conviction that the institution of judicial review
speaks too clearly for the point to be missed that official action, even with
due allowance made for the good faith that invariably inspires the step
taken, has to face the gauntlet of a court suit whenever there is a proper
case with the appropriate parties.
1. Respondents are acting in the soundest constitutional tradition when, at

the outset, they would seek a dismissal of these petitions. For them, the
question raised is political and thus beyond the jurisdiction of this Court.
Such an approach cannot be indicted for unorthodoxy. It is implicit in the
concept of the rule of law that rights belong to the people and the
government possesses powers only. Essentially then, unless such an
authority may either be predicated on express or implied grant in the
Constitution or the statutes, an exercise thereof cannot survive an inquiry
as to its validity. Respondents through Solicitor-General Mendoza would
deny our competence to proceed further. It is their view, vigorously
pressed and plausibly asserted, that since what is involved is not merely the
effectivity of an amendment but the actual coming into effect of a new
constitution, the matter is not justiciable. The immediate reaction is that
such a contention is to be tested in the light of the fundamental doctrine of
separation of powers that it is not only the function but the solemn duty of
288
the judiciary to determine what the law is and to apply it in cases and
controversies that call for decision. 7 Since the Constitution pre-eminently
occupies the highest rung in the hierarchy of legal norms, it is in the
judiciary, ultimately this Tribunal, that such a responsibility is vested. With
the 1935 Constitution containing, as above noted, an explicit article on the
subject of amendments, it would follow that the presumption to be
indulged in is that the question of whether there has been deference to its
terms is for this Court to pass upon. What is more, the
Gonzales, 8 Tolentino 9 and Planas 10 cases speak unequivocally to that effect.
Nor is it a valid objection to this conclusion that what was involved in those
cases was the legality of the submission and not ratification, for from the
very language of the controlling article, the two vital steps are proposal and
ratification, which as pointed out in Dillon v. Gloss, 11 "cannot be treated as
unrelated acts, but as succeeding steps in a single endeavor." 12 Once an
aspect thereof is viewed as judicial, there would be no justification for
considering the rest as devoid of that character. It would be for me then an
indefensible retreat, deriving no justification from circumstances of weight
and gravity, if this Court were to accede to what is sought by respondents
and rule that the question before us is political.
On this point, it may not be inappropriate to refer to a separate opinion of

mine in Lansang v. Garcia. 13 Thus: "The term has been made applicable to
controversies clearly non-judicial and therefore beyond its jurisdiction or to
an issue involved in a case appropriately subject to its cognizance, as to
which there has been a prior legislative or executive determination to
which deference must be paid. It has likewise been employed loosely to
characterize a suit where the party proceeded against is the President or
Congress, or any branch thereof. If to be delimited with accuracy, "political
questions" should refer to such as would under the Constitution be decided
by the people in their sovereign capacity or in regard to full discretionary
authority is vested either in the President or Congress. It is thus beyond the
competence of the judiciary to pass upon. Unless clearly falling within the
formulation, the decision reached by the political branches whether in the
form of a congressional act or an executive order could be tested in court.
Where private rights are affected, the judiciary has no choice but to look
into its validity. It is not to be lost sight of that such a power comes into
play if there be an appropriate proceeding that may be filed only after each
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coordinate branch has acted. Even when the Presidency or Congress

possesses plenary powers, its improvident exercise or the abuse thereof, if
shown, may give rise to a justiciable controversy. For the constitutional
grant of authority is usually unrestricted. There are limits to what may be
done and how it is to be accomplished. Necessarily then, the courts in the
proper exercise of judicial review could inquire into the question of
whether or not either of the two coordinate branches has adhered to what
is laid down by the Constitution. The question thus posed is judicial rather
than political."14 The view entertained by Professor Dodd is not too
dissimilar. For him such a term "is employed to designate certain types of
functions committed to the political organs of government (the legislative
and executive departments, or either of them) and not subject to judicial
investigation." 15 After a thorough study of American judicial decisions, both
federal and state, he could conclude: "The field of judicial nonenforceability
is important, but is not large when contrasted with the whole body of
written constitutional texts. The exceptions from judicial enforceability fall
primarily within the field of public or governmental interests." 16 Nor was
Professor Weston's formulation any different. As was expressed by him:
"Judicial questions, in what may be thought the more useful sense, are
those which the sovereign has set to be decided in the courts. Political
questions, similarly, are those which the sovereign has entrusted to the so-
called political departments of government or has reserved to be settled by
its own extra-governmental action." 17 What appears undeniable then both
from the standpoint of Philippine as well as American decisions is the care
and circumspection required before the conclusion is warranted that the
matter at issue is beyond judicial cognizance, a political question being
raised.
2. The submission of respondents on this subject of political question,

admittedly one of complexity and importance, deserves to be pursued
further. They would derive much aid and comfort from the writings of both
Professor Bickel 18of Yale and Professor Freund 19 of Harvard, both of whom
in turn are unabashed admirers of Justice Brandeis. Whatever be the merit
inherent in their lack of enthusiasm for a more active and positive role that
must be played by the United States Supreme Court in constitutional
litigation, it must be judged in the light of our own history. It cannot be
denied that from the well nigh four decades of constitutionalism in the
290
Philippines, even discounting an almost similar period of time dating from

the inception of American sovereignty, there has sprung a tradition of what
has been aptly termed as judicial activism. Such an approach could be
traced to the valedictory address before the 1935 Constitutional
Convention of Claro M. Recto. He spoke of the trust reposed in the judiciary
in these words: "It is one of the paradoxes of democracy that the people at
times place more confidence in instrumentalities of the State other than
those directly chosen by them for the exercise of their sovereignty." 20 It
would thus appear that even then this Court was expected not to assume
an attitude of timidity and hesitancy when a constitutional question is
posed. There was the assumption of course that it would face up to such a
task, without regard to political considerations and with no thought except
that of discharging its trust. Witness these words Justice Laurel in an early
landmark case, People v. Vera, 21 decided in 1937: "If it is ever necessary for
us to make vehement affirmance during this formative period of political
history, it is that we are independent of the Executive no less than of the
Legislative department of our government — independent in the
performance of our functions, undeterred by any consideration, free from
politics, indifferent to popularity, and unafraid of criticism in the
accomplishment of our sworn duty as we see it and as we understand
it." 22 The hope of course was that such assertion of independence
impartiality was not mere rhetoric. That is a matter more appropriately left
to others to determine. It suffices to stake that what elicits approval on the
part of our people of a judiciary ever alert to inquire into alleged breaches
of the fundamental law is the realization that to do so is merely to do what
is expected of it and that thereby there is no invasion of spheres
appropriately belonging to the political branches. For it needs to be kept in
kind always that it can act only when there is a suit with proper parties
before it, wherein rights appropriate for judicial enforcement are sought to
be vindicated. Then, too, it does not approach constitutional questions with
dogmatism or apodictic certainty nor view them from the shining cliffs of
perfection. This is not to say though that it is satisfied with an empiricism
untroubled by the search for jural consistency and rational coherence. A
balance has to be struck. So juridical realism requires. Once allowance
made that for all its care and circumspection this Court manned by human
beings fettered by fallibility, nonetheless earnestly and sincerely striving to
do right, the public acceptance of its vigorous pursuit of the task of assuring
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that the Constitution be obeyed is easy to understand. It has not in the past
shirked its responsibility to ascertain whether there has been compliance
with and fidelity to constitutional requirements. Such is the teaching of a
host of cases from Angara v. Electoral
Commission 23 to Planas v. Commission on Elections. 24 It should continue to
exercise its jurisdiction, even in the face of a plausible but not sufficiently
persuasive insistence that the matter before it is political.
Nor am I persuaded that the reading of the current drift in American legal
scholarship by the Solicitor-General and his equally able associates presents
the whole picture. On the question of judicial review, it is not a case of
black and white; there are shaded areas. It goes too far, in my view, if the
perspective is one of dissatisfaction, with its overtones of distrust. This
expression of disapproval has not escaped Dean Rostow of Yale, who began
one of his most celebrated legal essays. The Democratic Character of
Judicial Review, thus: "A theme of uneasiness, and even of guilt, colors the
literature about judicial review. Many of those who have talked, lectured,
and written about the Constitution have been troubled by a sense that
judicial review is undemocratic." 25 He went on to state: "Judicial review,
they have urged, is an undemocratic shoot on an otherwise respectable
tree. It should be cut off, or at least kept pruned and
inconspicuous." 26 His view was precisely the opposite. Thus: "The power of
constitutional review, to be exercised by some part of the government, is
implicit in the conception of a written constitution delegating limited
powers. A written constitution would promote discord rather than order in
society if there were no accepted authority to construe it, at the least in
case of conflicting action by different branches of government or of
constitutionally unauthorized governmental action against individuals. The
limitation and separation of powers, if they are to survive, require a
procedure for independent mediation and construction to reconcile the
inevitable disputes over the boundaries of constitutional power which arise
in the process of government." 27 More than that, he took pains to
emphasize: "Whether another method of enforcing the Constitution could
have been devised, the short answer is that no such method developed.
The argument over the constitutionality of judicial review has long since
been settled by history. The power and duty of the Supreme Court to
declare statutes or executive action unconstitutional in appropriate cases is
292
part of the living Constitution. 'The course of constitutional history,' Mr.

Justice Frankfurter recently remarked, 'has cast responsibilities upon the
Supreme Court which it would be "stultification" for it to evade.' " 28 Nor is it
only Dean Rostow who could point Frankfurter, reputed to belong to the
same school of thought opposed to judicial activism, if not its leading
advocate during his long stay in the United States Supreme Court, as one
fully cognizant of the stigma that attaches to a tribunal which neglects to
meet the demands of judicial review. There is a statement of similar
importance from Professor Mason: "In Stein v. New
York Frankfurter remarked, somewhat self-consciously perhaps, that the
'duty of deference cannot be allowed imperceptibly to slide into
abdication.' " 29 Professor Konefsky, like Dean Rostow, could not accept
characterization of judicial review as undemocratic. Thus his study of
Holmes and Brandeis, the following appears: "When it is said that judicial
review is an undemocratic feature of our political system, it ought also to
be remembered that architects of that system did not equate constitutional
government with unbridled majority rule. Out of their concern for political
stability and security for private rights, ..., they designed a structure whose
keystone was to consist of barriers to the untrammeled exercise of power
by any group. They perceived no contradiction between effective
government and constitutional checks. To James Madison, who may
legitimately be regarded as the philosopher of the Constitution, the scheme
of mutual restraints was the best answer to what he viewed as the chief
problem in erecting a system of free representative government: 'In
framing a government which is to be administered by men over men, the
great difficulty lies in this: you must first enable the government to control
the governed; and in the next place oblige it to control itself.' " 30
There is thus an inevitability to the flowering of judicial review. Could it be

that the tone of discontent apparent in the writings of eminent authorities
on the subject evince at the most fears that the American Supreme Court
might overstep the bounds allotted to the judiciary? It cannot be a denial of
the fitness of such competence being vested in judges and of their being
called upon to fulfill such a trust whenever appropriate to the decision of a
case before them. That is why it has been correctly maintained that
notwithstanding the absence of any explicit provision in the fundamental
law of the United States Constitution, that distinguished American
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constitutional historian, Professor Corwin, could rightfully state that judicial

review "is simply incidental to the power of courts to interpret the law, of
which the Constitution is part, in connection with the decision of
cases." 31 This is not to deny that there are those who would place the
blame or the credit, depending upon one's predilection, on Marshall's
epochal opinion in Marbury v. Madison. 32 Curtis belonged to that
persuasion. As he put it: "The problem was given no answer by the
Constitution. A hole was left where the Court might drive in the peg of
judicial supremacy, if it could. And that is what John Marshall did." 33 At any
rate there was something in the soil of American juristic thought resulting
in this tree of judicial power so precariously planted by Marshall striking
deep roots and showing wonderful vitality and hardiness. It now dominates
the American legal scene. Through it, Chief Justice Hughes, before
occupying that exalted position, could state in a lecture: "We are under a
Constitution, but the Constitution is what the judges say it is ... ." 34 The
above statement is more than just an aphorism that lends itself to inclusion
in judicial anthologies or bar association speeches. It could and did provoke
from Justice Jackson, an exponent of the judicial restraint school of
thought, this meaningful query: "The Constitution nowhere provides that it
shall be what the judges say it is. How, did it come about that the
statement not only could be but could become current as the most
understandable comprehensive summary of American Constitutional
law?" 35 It is no wonder that Professor Haines could pithily and succinctly
sum up the place of the highest American tribunal in the scheme of things
in this wise: "The Supreme Court of the United States has come to be
regarded as the unique feature of the American governmental
system." 36 Let me not be misunderstood. There is here no attempt to close
one's eyes to a discernible tendency on the part of some distinguished
faculty minds to look askance at what for them may be inadvisable
extension of judicial authority. For such indeed is the case as reflected in
two leading cases of recent vintage, Baker v. Carr, 37 decided in 1962
and Powell v. MacCormack, 38 in 1969, both noted in the opinion of the
Chief Justice. The former disregarded the warning of Justice Frankfurter in
Colegrove v. Green 39 about the American Supreme Court declining
jurisdiction on the question of apportionment as to do so would cut very
deep into the very being of Congress." 40 For him, the judiciary "ought not to
enter this political thicket." Baker has since then been followed; it has
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spawned a host of cases. 41 Powell, on the question of the power of a

legislative body to exclude from its ranks a person whose qualifications are
uncontested, for many the very staple of what is essentially political,
certainly goes even further than the authoritative Philippine decision
of Vera v. Avelino, 42 It does look then that even in the United States, the
plea for judicial self-restraint, even if given voice by those competent in the
field of constitutional law, has fallen on deaf ears. There is in the comments
of respondents an excerpt from Professor Freund quoting from one of his
essays appearing in a volume published in 1968. It is not without interest to
note that in another paper, also included therein, he was less than assertive
about the necessity for self-restraint and apparently mindful of the claims
of judicial activism. Thus: "First of all, the Court has a responsibility to
maintain the constitutional order, the distribution of public power, and the
limitations on that power." 43 As for Professor Bickel, it has been said that as
counsel for the New York Times in the famous Vietnam papers case, 44 he
was less than insistent on the American Supreme Court exercising judicial
self-restraint. There are signs that the contending forces on such question,
for some an unequal contest, are now quiescent. The fervor that
characterized the expression of their respective points of view appears to
have been minimized. Not that it is to be expected that it will entirely
disappear, considering how dearly cherished are, for each group, the
convictions, prejudices one might even say, entertained. At least what once
was fitly characterized as the booming guns of rhetoric, coming from both
directions, have been muted. Of late, scholarly disputations have been
centered on the standards that should govern the exercise of the power of
judicial review. In his celebrated Holmes lecture in 1959 at the Harvard Law
School, Professor Wechsler advocated as basis for decision what he termed
neutral principles of constitutional law. 45 It has brought forth a plethora of
law review articles, the reaction ranging from guarded conformity to caustic
criticism. 46 There was, to be sure, no clear call to a court in effect
abandoning the responsibility incumbent on it to keep governmental
agencies within constitutional channels. The matter has been put in
temperate terms by Professor Frank thus: "When allowance has been made
for all factors, it nevertheless seems to me that the doctrine of political
questions ought to be very sharply confined to where the functional
reasons justify it and that in a give involving its expansion there should be
careful consideration also of the social considerations which may militate
295
against it. The doctrine has a certain specious charm because of its nice
intellectualism and because of the fine deference it permits to expertise, to
secret knowledge, and to the prerogatives of others. It should not be
allowed to grow as a merely intellectual plant." 47
It is difficult for me at least, not to be swayed by appraisal, coming from

such impeccable sources of the worth and significance of judicial review in
the United States. I cannot resist the conclusion then that the views
advanced on this subject by distinguished counsel for petitioners, with
Senators Lorenzo M. Tañada and Jovito Salonga at the van, rather than the
advocacy of the Solicitor-General, possess the greater weight and carry
persuasion. So much then for the invocation of the political question
principle as a bar to the exercise of our jurisdiction.
3. That brings me to the issue of the validity of the ratification. The crucial
point that had to be met is whether Proclamation No. 1102 manifests
fidelity to the explicit terms of Article XV. There is, of course, the view not
offensive to reason that a sense of the realities should temper the rigidity
of devotion to the strict letter of the text to allow deference to its spirit to
control. With due recognition of its force in constitutional litigation, 48 if my
reading of the events and the process that led to such proclamation, so
clearly set forth in the opinion of the Chief Justice, is not inaccurate, then it
cannot be confidently asserted that there was such compliance. It would be
to rely on conjectural assumptions that did founder on the rock of the
undisputed facts. Any other conclusion would, for me, require an
interpretation that borders on the strained. So it has to be if one does not
lose sight of how the article on amendments is phrased. A word, to
paraphrase Justice Holmes may not be a crystal, transparent and
unchanged, but it is not, to borrow from Learned Hand, that eminent jurist,
a rubber band either. It would be unwarranted in my view then to assert
that the requirements of the 1935 Constitution have been met. There are
American decisions, 49 and they are not few in number, which require that
there be obedience to the literal terms of the applicable provision. It is
understandable why it should be thus. If the Constitution is the supreme
law, then its mandate must be fulfilled. No evasion is tolerated. Submission
to its commands can be shown only if each and every word is given
296
meaning rather than ignored or disregarded. This is not to deny that a

recognition conclusive effect attached to the electorate manifesting its will
to vote affirmatively on the amendments proposed poses an obstacle to
the judiciary being insistent on the utmost regularity. Briefly stated,
substantial compliance is enough. A great many American State decisions
may be cited in support of such a doctrine.50
Even if the assumption be indulged in that Article XV is not phrased in

terms too clear to be misread, so that this Court is called upon to give
meaning and perspective to what could be considered words of vague
generality, pregnant with uncertainty, still whatever obscurity it possesses
is illumined when the light of the previous legislation is thrown on it. In the
first Commonwealth Act, 51 submitting to the Filipino people for approval or
disapproval certain amendments to the original ordinance appended to the
1935 Constitution, it was made that the election for such purpose was to
"be conducted in conformity with the provisions of the Election Code
insofar as the same may be applicable." 52 Then came the statute, 53 calling
for the plebiscite on the three 1940 amendments providing for the
plebiscite on the three 1930 amendments providing for a bicameral
Congress or a Senate and a House of Representatives to take the place of a
unicameral National Assembly, 54 reducing the term of the President to four
years but allowing his re-election with the limitation that he cannot serve
more than eight consecutive years, 55 and creating an independent
Commission on Elections. 56 Again, it was expressly provided that the
election "shall be conducted in conformity with the provisions of the
Election Code in so far as the same may be applicable." 57 The approval of
the present parity amendment was by virtue of a Republic Act 58 which
specifically made applicable the then Election Code. 59 There is a similar
provision in the
legislation, 60 which in cotemplation of the 1971 Constitutional Convention,
saw to it that there be an increase in the membership of the House of
Representatives a maximum of one hundred eighty and assured the
eligibility of senators and representatives to become members of such
constituent body without forfeiting their seats, as proposed amendments
to be voted on in the 1967 elections. 61 That is the consistent course of
interpretation followed by the legislative branch. It is most persuasive, if
not controlling. The restraints thus imposed would set limits to the
297
Presidential action taken, even on the assumption that either as an agent of

the Constitutional Convention or under his martial law prerogatives, he was
not devoid of power to specify the mode of ratification. On two vital points,
who can vote and how they register their will, Article XV had been given a
definitive construction. That is why I fail to see sufficient justification for
this Court affixing the imprimatur of its approval on the mode employed for
the ratification of the revised Constitution as reflected in Proclamation No.
1102.
4. Nor is the matter before us solely to be determined by the failure to

comply with the requirements of Article XV. Independently of the lack of
validity of the ratification of the new Constitution, if it be accepted by the
people, in whom sovereignty resides according to the Constitution, 62 then
this Court cannot refuse to yield assent to such a political decision of the
utmost gravity, conclusive in its effect. Such a fundamental principle is
meaningless if it does not imply, to follow Laski, that the nation as a whole
constitutes the "single center of ultimate reference," necessarily the
possessor of that "power that is able to resolve disputes by saying the last
word." 63 If the origins of the democratic polity enshrined in the 1935
Constitution with the declaration that the Philippines is a republican state
could be traced back to Athens and to Rome, it is no doubt true, as McIver
pointed out, that only with the recognition of the nation as the separate
political unit in public law is there the juridical recognition of the people
composing it "as the source of political authority." 64 From them, as Corwin
did stress, emanate "the highest possible embodiment of human
will," 65which is supreme and must be obeyed. To avoid any confusion and
in the interest of clarity, it should be expressed in the manner ordained by
law. Even if such is not the case, however, once it is manifested, it is to be
accepted as final and authoritative. The government which is merely an
agency to register its commands has no choice but to submit. Its officials
must act accordingly. No agency is exempt such a duty, not even this Court.
In that sense, the lack of regularity in the method employed to register its
wishes is fatal in its consequences. Once the fact of acceptance by people
of a new fundamental law is made evident, the judiciary is left with no
choice but to accord it recognition. The obligation to render it obeisance
falls on the courts as well.
298
There are American State decisions that enunciate such a doctrine. While
certainly not controlling, they are not entirely bereft of persuasive
significance. In Miller v. Johnson, 66 decided in 1892, it was set forth in the
opinion of Chief Justice Holt that on May 3, 1890, an act was passed in
Kentucky, providing for the calling of a convention for the purpose of
framing a new constitution and the election of delegates. It provided that
before any form of constitution made by them should become operative, it
should be submitted to the vote of the state and ratified by a majority of
those voting. The constitution then in force authorized the legislature, the
preliminary steps having been taken, to call a convention "for the purpose
of readopting, amending, or changing" it contained no provision giving the
legislature the power to require a submission of its work to a vote of the
people. The convention met in September, 1890. By April, 1891, it
completed a draft of a constitution, submitted it to a popular vote, and
then adjourned until September following. When the convention
reassembled, the delegates made numerous changes in instrument. As thus
amended, it was promulgated by the convention of September 28, 1891, as
the new constitution. An action was brought to challenge its validity. It
failed in the lower court. In affirming such judgment dismissing the action,
Chief Justice Holt stated: "If a set of men, not selected by the people
according to the forms of law, were to formulate an instrument and declare
it the constitution, it would undoubtedly be the duty of the courts to
declare its work a nullity. This would be revolution, and this the courts of
the existing government must resist until they are overturned by power,
and a new government established. The convention, however, was the
offspring of law. The instrument which we are asked to declare invalid as a
constitution has been made and promulgated according to the forms of
law. It is a matter of current history that both the executive and legislative
branches of the government have recognized its validity as a constitution,
and are now daily doing so. ... While the judiciary should protect the rights
of the people with great care and jealousy, because this is its duty, and also
because; in times of great popular excitement, it is usually their last resort,
yet it should at the same time be careful not to overstep the proper bounds
of its power, as being perhaps equally dangerous; and especially where
such momentous results might follow as would be likely in this instance, if
the power of the judiciary permitted, and its duty requires, the overthrow
of the work of the convention." 67 In Taylor v. Commonwealth, 68 a 1903
299
decision, it was contended that the Virginia Constitution reclaimed in 1902

is invalid as it was ordained and promulgated by the convention without
being submitted for ratification or rejection by the people. The Court
rejected such a view. As stated in the opinion of Justice Harrison: "The
Constitution of 1902 was ordained and proclaimed by a convention duly
called by direct vote of the people of the state to revise and amend the
Constitution of 1869. The result of the work of the convention has been
recognized, accepted, and acted upon as the only valid Constitution of the
state by the Governor in swearing fidelity to it and proclaiming it, as
directed thereby; by the Legislature in its formal official act adopting a joint
resolution, July 15, 1902, recognizing the Constitution ordained by the
convention which assembled in the city of Richmond on the 12th day of
June, 1901, as the Constitution of Virginia; by the individual oaths of
members to support it, and by enforcing its provisions; and the people in
their primary capacity by peacefully accepting it and acquiescing in it, by
registering as voters under it to the extent of thousands throughout the
state, and by voting, under its provisions, at a general election for their
representatives in the Congress of the United States. The Constitution
having been thus acknowledged and accepted by the office administering
the government and by the people of the state, and there being no
government in existence under the Constitution of 1869 opposing or
denying its validity, we have no difficulty in holding that the Constitution in
question, which went into effect at noon on the 10th day of July, 1902, is
the only rightful, valid, and existing Constitution of this state, and that to it
all the citizens of Virginia owe their obedience and loyal allegiance." 69
It cannot be plausibly asserted then that premises valid in law are lacking
for the claim that the revised Constitution has been accepted by the Filipino
people. What is more, so it has been argued, it is not merely a case of its
being implied. Through the Citizens Assemblies, there was a plebiscite with
the result as indicated in Proclamation No. 1102. From the standpoint of
respondents then, they could allege that there was more than just mere
acquiescence by the sovereign people. Its will was thus expressed formally
and unmistakably. It may be added that there was nothing inherently
objectionable in the informal method followed in ascertaining its
preference. Nor is the fact that Filipinos of both sexes above the age of
fifteen were given the opportunity to vote to be deplored. The greater the
300
base of mass participation, the more there is fealty to the democratic

concept. It does logically follow likewise that such circumstances being
conceded, then no justifiable question may be raised. This Court is to
respect what had thus received the people's sanction. That is not for me
though whole of it. Further scrutiny even then is not entirely foreclosed.
There is still an aspect that is judicial, an inquiry may be had as to whether
such indeed was the result. This is no more than what the courts do in
election cases. There are other factors to bear in mind. The fact that the
President so certified is well-nigh conclusive. There is in addition the
evidence flowing from the conditions of peace and stability. There thus
appears to be conformity to the existing order of things. The daily course of
events yields such a conclusion. What is more, the officials under the 1935
Constitution, including practically all Representatives and a majority of the
Senators, have signified their assent to it. The thought persists, however,
that as yet sufficient time has not elapsed to be really certain.
Nor is this all. There is for me an obstacle to the petitions being dismissed
for such ascertainment of popular will did take place during a period of
martial law. It would have been different had there been that freedom of
debate with the least interference, thus allowing a free market of ideas. If it
were thus, it could be truly said that there was no barrier to liberty of
choice. It would be a clear-cut decision either way. One could be certain as
to the fact of the acceptance of the new or of adherence to the old. This is
not to deny that votes are cast by individuals with their personal concerns
uppermost in mind, worried about their immediate needs and captive to
their existing moods. That is inherent in any human institution, much more
so in a democratic polity. Nor is it open to any valid objection because in
the final analysis the state exists for the individuals who in their collectivity
compose it. Whatever be their views, they are entitled to respect. It is
difficult for me, however, at this stage to feel secure in the conviction that
they did utilize the occasion afforded to give expression to what was really
in their hearts. This is not to imply that such doubt could not be dispelled
by evidence to the contrary. If the petitions be dismissed however, then
such opportunity is forever lost.
301
5. With the foregoing legal principles in mind, I find myself unable to join
the ranks of my esteemed brethren who vote for the dismissal of these
petitions. I cannot yield an affirmative response to the plea of respondents
to consider the matter closed, the proceedings terminated once and for all.
It is not an easy decision to reach. It has occasioned deep thought and
considerable soul-searching. For there are countervailing considerations
that exert a compulsion not easy to resist. It can be asserted with truth,
especially in the field of social and economic rights, that with the revised
Constitution, there is an auspicious beginning for further progress. Then too
it could resolve what appeared to be the deepening contradictions of
political life, reducing at times governmental authority to near impotence
and imparting a sense of disillusionment in democratic processes. It is not
too much to say therefore that there had indeed been the revision of a
fundamental law to vitalize the very values out of which democracy grows.
It is one which has all the earmarks of being responsive to the dominant
needs of the times. It represents an outlook cognizant of the tensions of a
turbulent era that is the present. That is why for some what was done
represented an act of courage and faith, coupled with the hope that the
solution arrived at is a harbinger of a bright and rosy future.
It is such a comfort then that even if my appraisal of the situation had

commanded a majority, there is not, while these lawsuits are being further
considered, the least interference, with the executive department. The
President in the discharge of all his functions is entitled to obedience. He
remains commander-in-chief with all the constitutional powers it implies.
Public officials can go about their accustomed tasks in accordance with the
revised Constitution. They can pursue even the tenor of their ways. They
are free to act according to its tenets. That was so these past few weeks,
even petitions were filed. There was not at any time any thought of any
restraining order. So it was before. That is how things are expected to
remain even if the motions to dismiss were not granted. It might be asked
though, suppose the petitions should prevail? What then? Even so, the
decision of this Court need not be executory right away. Such a disposition
of a case before this Court is not novel. That was how it was done in the
Emergency Powers Act controversy. 70 Once compliance is had with the
requirements of Article XV of the 1935 Constitution, to assure that the
302
coming force of the revised charter is free from any taint of infirmity, then
all doubts are set at rest.
For some, to so view the question before us is to be caught in a web of

unreality, to cherish illusions that cannot stand the test of actuality. What is
more, it may give the impression of reliance on what may, for the practical
man of affairs, be no more than gossamer distinctions and sterile
refinements unrelated to events. That may be so, but I find it impossible to
transcend what for me are the implications of traditional constitutionalism.
This is not to assert that an occupant of the bench is bound to apply with
undeviating rigidity doctrines which may have served their day. He could at
times even look upon them as mere scribblings in the sands to be washed
away by the advancing tides of the present. The introduction of novel
concepts may be carried only so far though. As Cardozo put the matter:
"The judge, even when he is free, is still not wholly free. He is not to
innovate at pleasure. He is not a knight-errant, roaming at will in pursuit of
his own ideal of beauty or of goodness. He is to draw his inspiration from
consecrated principles. He is not to yield to spasmodic sentiment, to vague
and unregulated benevolence. He is to exercise a discretion informed by
tradition, methodized by analogy, disciplined by system, and subordinated
to "the primordial necessity of order in the social life." Wide enough in all
conscience is the field of discretion that remains." 71 Moreover what made it
difficult for this Court to apply settled principles, which for me have not lost
their validity, is traceable to the fact that the revised Constitution was
made to take effect immediately upon ratification. If a period of time were
allowed to elapse precisely to enable the judicial power to be exercised, no
complication would have arisen. Likewise, had there been only one or two
amendments, no such problem would be before us. That is why I do not see
sufficient justification for the orthodoxies of constitutional law not to
operate.
Even with full realization then that the approach pursued is not all that it
ought to have been and the process of reasoning not without its
shortcomings, the basic premises of a constitutional democracy, as I
understand them and as set forth in the preceding pages, compel me to
vote the way I did.
303
TEEHANKEE, J., dissenting:
The masterly opinion of the Chief Justice wherein he painstakingly deals

with the momentous issues of the cases at bar in all their complexity
commands my concurrence.
I would herein make an exposition of the fundamental reasons and

considerations for my stand.
The unprecedented and precedent-setting issue submitted by petitioners

for the Court's resolution is the validity and constitutionality of Presidential
Proclamation No. 1102 issued on January 17, 1973, certifying and
proclaiming that the Constitution proposed by the 1971 Constitutional
Convention "has been ratified by an overwhelming majority of all the votes
cast by the members of all the Barangays (Citizens Assemblies) throughout
the Philippines, and has thereby come into effect."
More specifically, the issue submitted is whether the purported ratification

of the proposed Constitution by means of the Citizens Assemblies has
substantially complied with the mandate of Article XV of the existing
Constitution of 1935 that duly proposed amendments thereto, in toto or
parts thereof, "shall be valid as part of this Constitution when approved by
a majority of the votes cast at an election at which the amendments
are submitted to the people for theirratification." 1
A necessary corollary issue is whether the purported ratification of the

proposed Constitution as signed on November 30, 1972 by the 1971
Constitutional Convention may be said also to have substantially complied
with its own mandate that "(T)his Constitution shall take immediately upon
its ratification by a majority of the votes cast in a plebiscite called for the
purpose and except as herein provided, shall supersede the Constitution of
Nineteen hundred and thirty-five and all amendments thereto." 2
Respondents contend that "(A)lthough apparently

what is sought to be annulled is Proclamation No.
1102, what petitioners really seek to invalidate is
304
the new Constitution", and their actions must be

dismissed,because:
— "the Court may not inquire into the validity of

the procedure for ratification" which
is "political in character" and that "what is sought
to be invalidated is not an act of the President but
of the people;
— "(T)he fact of approval of the new Constitution

by an overwhelming majority of the votes cast
asdeclared and certified in Proclamation No. 1102
is conclusive on the courts;
— "Proclamation No. 1102 was issued by the

President in the exercise of legislative power
under martial law. ... Alternatively, or
contemporaneously, he did so as "agent" of the
Constitutional Convention;"
— "alleged defects, such as absence of secret

voting, enfranchisement of persons less than 21
years,non supervision (by) the Comelec are
matters not required by Article XV of the 1935
Constitution"; (sic)
— "after ratification, whatever defects there

might have been in the procedure are overcome
and mooted(and muted) by the fact of
ratification"; and
— "(A)ssuming finally that Article XV of the 1935

Constitution was not strictly followed, the
ratification of the new Constitution must
nonetheless be respected. For the procedure
outlined in Article XV was not intended to be
305
exclusive of other procedures, especially one which

contemplates popular and direct participation of the
citizenry ... ." 3
To test the validity of respondents' submittal that the Court, in annulling

Proclamation No. 1102 would really be "invalidating the new Constitution",
the terms and premises of the issues have to be defined.
— Respondents themselves assert that

"Proclamation No. 1102 ... is plainly
merely declaratory of the fact that the 1973
Constitution has been ratified and has come into
force. 4
— The measure of the fact of ratification is Article XV

of the 1935 Constitution. This has been consistently
held by the Court in
the Gonzales: 5 and Tolentino 6 cases.
— In the Tolentino case, this Court emphasized "that

Constitution, dealing with the procedure or manner
of amending the fundamental law are binding upon
the Convention and the other departments of the
government. It must be added that ... they are no
less binding upon the people." 7
— In the same Tolentino case, this Court further

proclaimed that "as long as any amendment is
formulated and submitted under the aegis of the
present Charter, any proposal for such amendment
which is not in conformity with
the letter, spirit and intent of the Charter for
effecting amendments, cannot receive the sanction
of this Court." 8
306
— As continues to be held by a majority of this

Court, proposed amendments to the Constitution
"should be ratified in only one way, that is, in an
election or plebiscite held in accordance with law
and participated in only by qualified and duly
registered voters" 9 and under the supervision of the
Commission on Elections. 10
— Hence, if the Court declares Proclamation 1102

null and void because on its face, the purported
ratification of the proposed Constitution has not
faithfully nor substantially observed nor complied
with the mandatory requirements of Article XV of
the (1935) Constitution, it would not be
"invalidating" the proposed new Constitution but
would be simply declaring that the announced
fact of ratification thereof by means of the
Citizens Assemblies referendums does not pass
the constitutional test and that the proposed new
Constitution has not constitutionally come into
existence.
— Since Proclamation 1102 is acknowledged by

respondent to be "plainly merely declaratory" of
the disputed fact of ratification, they cannot
assume the very fact to be established and beg
the issue by citing the self-same declaration as
proof of the purported ratification therein
declared.
What complicates the cases at bar is the fact that the proposed 1972
Constitution was enforced as having immediately taken effect upon the
issuance on January 17, 1973 of Proclamation 1102 and the question of
whether "confusion and disorder in government affairs would (not) result"
from a judicial declaration of nullity of the purported ratification is raised by
the Solicitor-General on behalf of respondents.
307
A comparable precedent of great crisis proportions is found in the

Emergency Powers cases, 11 wherein the Court in its Resolution of
September 16, 1949 after judgment was initially not obtained on August
26, 1949 for lack of the required six (6) votes, finally declared in effect that
the pre-war emergency powers delegated by Congress to the President,
under Commonwealth Act 671 in pursuance of Article VI, section 26 of the
Constitution, had ceased and became inoperative at the latest in May, 1946
when Congress met in its first regular session on May 25, 1946.
Then Chief Justice Manuel V. Moran recited the great interests and
important rights that had arisen under executive orders "issued in good
faith and with the best of intentions by three successive Presidents, and
some of them may have already produced extensive effects on the life of
the nation" — in the same manner as may have arisen under the bona fide
acts of the President now in the honest belief that the 1972 Constitution
had been validly ratified by means of the Citizens Assemblies referendums
— and indicated the proper course and solution therefor, which were duly
abided by and confusion and disorder as well as harm to public interest and
innocent parties thereby avoided as follows:
Upon the other hand, while I believe that the

emergency powers had ceased in June 1945, I am
not prepared to hold that all executive orders issued
thereafter under Commonwealth Act No. 671,
are per se null and void. It must be borne in mind
that these executive orders had been issued in good
faith and with the best of intentions by three
successive Presidents, and some of them may have
already produced extensive effects in the life of the
nation. We have, for instance, Executive Order No.
73, issued on November 12, 1945, appropriating the
sum of P6,750,000 for public works; Executive Order
No. 86, issued on January 7, 1946, amending a
previous order regarding the organization of the
Supreme Court; Executive Order No. 89, issued on
January 1, 1946, reorganizing Courts of First
Instance; Executive Order No. 184, issued on
308
November 19, 1948, controlling rice and palay to

combat hunger; and other executive orders
appropriating funds for other purposes. The
consequences of a blanket nullification of all these
executive orders will be unquestionably serious and
harmful. And I hold that before nullifying
them, other important circumstances should
be inquired into, as for instance, whether or not they
have been ratified by Congress expressly or
impliedly, whether their purposes have already been
accomplished entirely or partially, and in the last
instance, to what extent; acquiescence of
litigants; de facto officers; acts and contracts of
parties acting in good faith; etc. It is my opinion that
each executive order must be viewed in the light of
its peculiar circumstances, and, if necessary and
possible, nullifying it, precautionary measures should
be taken to avoid harm to public interest and
innocent parties. 12
Initially, then Chief Justice Moran voted with a majority of the Court to
grant the Araneta and Guerrero petitions holding null and void the
executive orders on rentals and export control but to defer judgment on
the Rodriguez and Barredo petitions for judicial declarations of nullity of
the executive orders appropriating the 1949-1950 fiscal year budget for the
government and P6 million for the holding of the 1949 national elections.
After rehearsing, he further voted to also declare null and void the last two
executive orders appropriating funds for the 1949 budget and elections,
completing the "sufficient majority" of six against four dissenting justices
"to pronounce a valid judgment on that matter." 13
Then Chief Justice Moran, who penned the Court's majority resolution,
explained his vote for annulment despite the great difficulties and possible
"harmful consequences" in the following passage, which bears re-reading:
However, now that the holding of a special

session of Congress for the purpose of remedying
309
the nullity of the executive orders in question

appears remote and uncertain, I am compelled to,
and do hereby, give my unqualified concurrence
in the decision penned by Mr. Justice Tuason
declaring that these two executive orders were
issued without authority of law.
While in voting for a temporary deferment of the

judgment I was moved by the belief that positive
compliance with the Constitution by the other
branches of the Government, which is our prime
concern in all these cases, would be effected, and
indefinite deferment will produce the opposite
result because it would legitimize a prolonged or
permanent evasion of our organic law. Executive
orders which are, in our opinion, repugnant to the
Constitution, would be given permanent life,
opening the way or practices which may
undermine our constitutional structure.
The harmful consequences which, as I envisioned

in my concurring opinion, would come to pass
should the said executive orders be immediately
declared null and void are still real. They have not
disappeared by reason of the fact that a special
session of Congress is not now forthcoming.
However, the remedy now lies in the hands of the
Chief Executive and of Congress, for the
Constitution vests in the former the power to call
a special session should the need for one arise,
and in the latter, the power to pass a valid
appropriations act.
That Congress may again fail to pass a valid

appropriations act is a remote possibility, for
under the circumstances it fully realizes its great
310
responsibility of saving the nation from breaking

down; and furthermore, the President in the
exercise of his constitutional powers may, if he so
desires, compel Congress to remain in special
session till it approves the legislative measures
most needed by the country.
Democracy is on trial in the Philippines, and surely

it will emerge victorious as a permanent way of
life in this country, if each of the great branches of
the Government, within its own allocated sphere,
complies with its own constitutional duty,
uncompromisingly and regardless of difficulties.
Our Republic is still young, and the vital principles

underlying its organic structure should be
maintained firm and strong, hard as the best of steel,
so as to insure its growth and development along
solid lines of a stable and vigorous democracy. 14
The late Justice Pedro Tuason who penned the initial majority judgment
(declaring null and void the rental and export control executive orders)
likewise observed that "(T)he truth is that under our concept of
constitutional government, in times of extreme perils more than in normal
circumstances 'the various branches, executive, legislative, and judicial,'
given the ability to act, are called upon 'to perform the duties discharge the
responsibilities committed to respectively.' "15
It should be duly acknowledged that the Court's task of discharging its duty
and responsibility has been considerably lightened by the President's public
manifestation of adherence to constitutional processes and of working
within the proper constitutional framework as per his press conference of
January 20,1973, wherein he stated that "(T)he Supreme Court is the final
arbiter of the Constitution. It can and will probably determine the validity
of this Constitution. I did not want to talk about this because actually there
is a case pending before the Supreme Court. But suffice it to say that I
311
recognize the power of the Supreme Court. With respect to appointments,

the matter falls under a general provision which authorizes the Prime
Minister to appoint additional members to the Supreme Court. Until the
matter of the new Constitution is decided, I have no intention of utilizing
that power." 16
Thus, it is that as in an analogous situation wherein the state Supreme

Court of Mississippi held that the questions of whether the submission of
the proposed constitutional amendment of the State Constitution providing
for an elective, instead of an appointive, judiciary and whether the
proposition was in fact adopted, were justifiable and not political questions,
we may echo the words therein of Chief Justice Whitfield that "(W)e do not
seek a jurisdiction not imposed upon us by the Constitution. We could not,
if we would, escape the exercise of that jurisdiction which the Constitution
has imposed upon us. In the particular instance in which we are now acting,
our duty to know what the Constitution of the state is, and in accordance
with our oaths to support and maintain it in its integrity, imposed on us a
most difficult and embarrassing duty, one which we have not sought, but
one which, like all others, must be discharged." 17
In confronting the issues at bar, then, with due regard for my colleagues'
contrary views, we are faced with the hard choice of maintaining a firm and
strict — perhaps, even rigid — stand that the Constitution is a "superior
paramount law, unchangeable by ordinary means" save in the particular
mode and manner prescribed therein by the people, who, in Cooley's
words, so "tied up (not only) the hands of their official agencies, but their
own hands as well" 18 in the exercise of their sovereign will or a liberal and
flexible stand that would consider compliance with the constitutional article
on the amending process as merely directory rather than mandatory.
The first choice of a strict stand, as applied to the cases at bar, signifies that
the Constitution may be amended in totoor otherwise exclusively "by
approval by a majority of the votes cast an election at which the
amendments are submitted to the people for their
ratification", 19 participated in only by qualified and
duly registered voters twenty-one years of age or over 20 and
312
duly supervised by the Commission on Elections, 21 in accordance with the

cited mandatory constitutional requirements.
The alternative choice of a liberal stand would permit a disregard of said

requirements on the theory urged by respondents that "the procedure
outlined in Article XV was not intended to be exclusive of other procedures
especially one which contemplates popular and direct participation of the
citizenry", 22 that the constitutional age and literacy requirements and other
statutory safeguards for ascertaining the will of the majority of the people
may likewise be changed as "suggested, if not prescribed, by the people
(through the Citizens Assemblies) themselves", 23 and that the Comelec is
constitutionally "mandated to oversee ... elections (of public officers)
and not plebiscites." 24
To paraphrase U.S. Chief Justice John Marshall who first declared in the
historic 1803 case of Marbury vs. Madison25 the U.S. Supreme Court's
power of judicial review and to declare void laws repugnant to the
Constitution, there is no middle ground between these two alternatives. As
Marshall expounded it: "(T)he Constitution is either a superior paramount
law, unchangeable by ordinary means, or it is on a level with ordinary
legislative acts, and, like other acts, alterable when the legislature shall
please to alter it. If the former part of the alternative be true, then a
legislative act, contrary to the Constitution, is not law; if the latter part be
true, then written constitutions are absurd attempts on the part of a
people, to limit a power, in its own nature, illimitable."
As was to be restated by Justice Jose P. Laurel a century and a third later in

the 1936 landmark case of Angara vs. Electoral Commission, 26 "(T)he
Constitution sets forth in no uncertain language the restrictions and
limitations upon governmental powers and agencies. If these restrictions
and limitations are transcended it would be inconceivable if the
Constitution had not provided for a mechanism by which to direct the
course of government along constitutional channels, for then the
distribution of powers would be mere verbiage, the bill of rights mere
expressions of sentiment, and the principles of good government mere
political apothegms. Certainly, the limitations of good government and
313
restrictions embodied in our Constitution are real as they should be in any

living Constitution."
Justice Laurel pointed out that in contrast to the United States Constitution,
the Philippine Constitution as "a definition of the powers of government"
placed upon the judiciary the great burden of "determining the nature,
scope and extent of such powers" and stressed that "when the judiciary
mediates to allocate constitutional boundaries, it does not assert any
superiority over the other departments ... but only asserts the solemn and
sacred obligation entrusted to it by the Constitution to determine
conflicting claims of authority under the Constitution and to establish for
the parties in an actual controversy the rights which the instrument secures
and guarantees to them."
II
Marshall was to utter much later in the equally historic 1819 case
of McCulloch vs. Maryland 27 the "climactic phrase,"28 "we must never forget
that it is a constitution we are expounding," — termed by Justice
Frankfurter as "the single most important utterance in the literature of
constitutional law — most important because most comprehensive and
comprehending." 29 This enduring concept to my mind permeated to this
Court's exposition and rationale in the hallmark case of Tolentino, wherein
we rejected the contentions on the Convention's behalf "that the issue ... is
a political question and that the Convention being a legislative body of the
highest order is sovereign, and as such, its acts impugned by petitioner are
beyond the control of Congress and the Courts." 30
This Court therein made its unequivocal choice of strictly

requiring faithful (which really includes substantial) compliance with
the mandatory requirements of the amending process.
1. In denying reconsideration of our judgment of October 16, 1971

prohibiting the submittal in an advance election of 1971 Constitutional
Convention's Organic Resolution No. 1 proposing to amend Article V,
section 1 of the Constitution by lowering the voting age to 18 years (vice 21
314
years) 30a "without prejudice to other amendments that will be proposed

in the future ... on other portions of the amended section", this Court
stated that "the constitutional provision in question (as proposed) presents
no doubt which may be resolved in favor of respondents and intervenors.
We do not believe such doubt can exist only because it is urged that
the end sought to be achieved is to be desired. Paraphrasing no less than
the President of Constitutional Convention of 1934, Claro M. Recto, let
those who would put aside, invoking grounds at best controversial, any
mandate of the fundamental law purportedly in order to attain some
laudable objective bear in mind that someday somehow others with
purportedly more laudable objectives may take advantage of the precedent
and continue the destruction of the Constitution, making those who laid
down the precedent of justifying deviations from the requirements of the
Constitution the victims of their own folly." 31
2. This Court held in Tolentino that:
... as to matters not related to its internal operation

and the performance of its assigned mission to
propose amendments to the Constitution, the
Convention and its officers and members
are all subject to all the provisions of the existing
Constitution. Now We hold that even as to its latter
task of proposing amendments to the Constitution, it
is subject to the provisions of Section 1 of Article XV.
This must be so, because it is plain to Us that the
framers of the Constitution took care that the
process of amending the same should not be
undertaken with the same ease and facility in
changing an ordinary legislation. Constitution making
is the most valued power, second to none, of the
people in a constitutional democracy such as the one
our founding fathers have chosen for this nation,
and which we of the succeeding generations
generally cherish. And because the Constitution
affects the lives, fortunes, future and every other
conceivable aspect of the lives of all the
315
peoplewithin the country and those subject to its

sovereignty, every degree of care is taken in
preparing and drafting it. A constitution worthy of
the people for deliberation and study. It is obvious
that correspondingly, any amendment of the
Constitution is of no less importance than the whole
Constitution itself, and perforce must be conceived
and prepared with as much care and deliberation.
From the very nature of things, the drafters of an
original constitution, as already observed earlier,
operate without any limitations, restraints or
inhibitions save those that they may impose upon
themselves. This is not necessarily true of
subsequent conventions called to amend the original
constitution. Generally, the framers of the latter see
to it that their handiwork is not lightly treated and as
easily mutilated or changed, not only for reasons
purely personal but more importantly, because
written constitutions are supposed to be designed so
as to last for some time, if not for ages, or for, at
least, as long as they can be adopted to the needs
and exigencies of the people, hence, they must
be insulated against precipitate and hasty actions
motivated by more or less passing political moods or
fancies. Thus, as a rule, the original constitutions
carry with them limitations and conditions, more or
less stringent, made so by the people themselves, in
regard to the process of their amendment. And
when such limitations or conditions are so
incorporated in the original constitution, it does not
lie in the delegates of any subsequent convention to
claim that they may ignore and disregard such
conditions because they are powerful and
omnipotent as their original counterparts. 32
3. This Court in Tolentino likewise formally adopted the doctrine of proper

submission first advanced in Gonzales vs. Comelec 33, thus:
316
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
anintelligent appraisal of the nature of
amendment per se as well as its relation to the other
parts of the Constitution with which it has to form a
harmonious whole. In the context of the present
state of things, where the Convention hardly started
considering the merits of hundreds, if not thousands,
proposals to amend the existing Constitution, to
present to people any single proposal or a few of
them cannot comply with this requirement. We are
of the opinion that the present Constitution does not
contemplate in Section 1 of Article XV a plebiscite or
"election" wherein the people are in the dark as to
frame of reference they can base their judgment on.
We reject the rationalization that the present
Constitution is a possible frame of reference, for the
simple reason that intervenors themselves are
stating the sole purpose of the proposed
amendment is to enable the eighteen year olds to
take part in the election for the ratification of the
Constitution to be drafted by the Convention. In
brief, under the proposed plebiscite, there can be, in
the language of Justice Sanchez, speaking for the six
members of the Court in Gonzales, supra, 'no proper
submission.' " 34
4. Four other members of the Court 35 in a separate concurrence

in Tolentino, expressed their "essential agreement" with Justice Sanchez'
separate opinion in Gonzales on the need for "fair
submission (and) intelligent rejection" as "minimum requirements that must
be met in order that there can be a proper submission to the people of a
proposed constitutional amendment" thus:
... amendments must be fairly laid before the people

for their blessing or spurning. The people are not to
317
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
318
this age of permissiveness and dissent, can the 18-

year old be relied upon to vote with judiciousness
when the 21-year old, in the past elections, has
not performed so well? If the proposed
amendment is voted down by the people, will the
Constitutional Convention insist on the said
amendment? Why is there an unseemly haste on
the part of the Constitutional Convention in
having this particular proposed amendment
ratified at this particular time? Do some of the
members of the Convention have future political
plans which they want to begin to subserve by the
approval this year of this amendment? If this
amendment is approved, does it thereby mean
that the 18-year old should not also shoulder the
moral and legal responsibilities of the 21-year old?
Will he be required to compulsory military service
under the colors? Will the contractual consent be
reduced to 18 years? If I vote against the
amendment, will I not be unfair to my own child
who will be 18 years old, come 1973?
The above are just samplings from here, there and

everywhere — from a domain (of searching
questions) the bounds of which are not
immediately ascertainable. Surely, many more
questions can be added to the already long litany.
And the answers cannot except as the questions
are debated fully, pondered upon purposefully,
and accorded undivided attention.
Scanning the contemporary scene, we say that the

people are not, and by election time will not
be, sufficiently informed of the meaning, nature and
effects of the proposed constitutional amendment.
They have not been afforded ample time to
deliberate thereon conscientiously. They have been
319
and are effectively distracted from afull and

dispassionate consideration of the merits and
demerits of the proposed amendment by their
traditional pervasive involvement in local elections
and politics. They cannot thus weigh in tranquility
the need for and the wisdom proposed
amendment. 37
5. This Court therein dismissed the plea of disregarding mandatory

requirements of the amending process "in favor of allowing the sovereign
people to express their decision on the proposed amendments" as
"anachronistic in the real constitutionalism and repugnant to the essence of
the rule of law," in the following terms:
... The preamble of the Constitution says that the

Constitution has been ordained by the 'Filipino
people, imploring the aid of Divine Providence.'
Section 1 of Article XV is nothing than a part of the
Constitution thusordained 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
ofdeparting 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
themanner of its submission to the people for
ratification or rejection conform with the mandate
320
of the peoplethemselves 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
321
impressions. As a consequence, it is bound to

unduly strain the people's faith in the soundness
and validity of democratic processes and
institutions.
— On the plea to allow submission to the

sovereign people of the "fragmentary and
incomplete" proposal, although inconsistent with
the letter and spirit of the Constitution: "The view,
has, also, advanced that the foregoing
considerations are not decisive on the issue
before Us, inasmuch as the people are sovereign,
and the partial amendment involved in this case is
being submitted to them. The issue before Us is
whether or not said partial
amendment may be validly submitted to the
people for ratification "in a plebiscite coincide
with the local elections in November 1971,"
and this particular issue will not be submitted to
the people. What is more, the Constitution
does not permit its submission to the people. The
question sought to be settled in the scheduled
plebiscite is whether or not the people are in
favor of the reduction of the voting age.
— On a "political" rather than "legalistic"

approach: "Is this approach to the problem too
"legalistic?" This term has possible connotations.
It may mean strict adherence to the law, which in
the case at bar is theSupreme Law of the land. On
point, suffice it to say that, in compliance with the
specific man of such Supreme Law, the members
of the Supreme Court taken the requisite "oath to
support and defend the Constitution." ... Then,
again, the term "legalistic" may be used to
suggest inversely that the somewhat strained
322
interpretation of the Constitution being urged

upon this Court be tolerated or, at least,
overlooked, upon the theory that the partial
amendment on voting age is badly needed and
reflects the will of the people, specially the youth.
This course of action favors, in effect, adoption of
a political approach, inasmuch as the advisability
of the amendment and an appraisal of the
people's feeling thereon political matters. In fact,
apart from the obvious message of the mass
media, and, at times, of the pulpit, the Court has
been literally bombarded with scores of
handwritten letters, almost all of which bear the
penmanship and the signature of girls, as well as
letterhead of some sectarian educational
institutions, generally stating that the writer is 18
years of age and urging that she or he be allowed
to vote. Thus, the pressure of public opinion has
brought to bear heavily upon the Court for a
reconsideration of its decision in the case at bar.
As above stated, however, the wisdom of the

amendment and the popularity thereof are
political questions beyond our province. In fact,
respondents and the intervenors originally
maintained that We have no jurisdiction to
entertain the petition herein, upon the ground
that the issue therein raised is a political one.
Aside from the absence of authority to pass upon
political question, it is obviously improper and
unwise for the bench to develop into such
questions owing to the danger of getting
involved in politics, more likely of a partisan
nature, and, hence, of impairing the image and
the usefulness of courts of justice as objective and
impartial arbiters of justiciable controversies.
323
Then, too, the suggested course of action, if

adopted, would constitute a grievous disservice to
the people and the very Convention itself. Indeed,
the latter and the Constitution it is in the process
of drafting stand essentially for the Rule of Law.
However, as the Supreme Law of the land, a
Constitution would not be worthy of its name, and
the Convention called upon to draft it would be
engaged in a futile undertaking, if we did not
exact faithful adherence to the fundamental
tenets set forth in the Constitution and
compliance with its provisions were not
obligatory. If we, in effect, approved, consented to
or even overlooked a circumvention of said tenets
and provisions, because of the good intention
with which Resolution No. 1 is animated, the
Court would thereby become the Judge of
the good or bad intentions of the Convention and
thus be involved in a question essentially political
in nature.
This is confirmed by the plea made in the motions

for reconsideration in favor of the exercise of judicial
statesmanship in deciding the present case. Indeed,
"politics" is the word commonly used to epitomize
compromise, even with principles, for the sake of
political expediency or the advancement of the bid
for power of a given political party. Upon the other
hand, statesmanship is the expression usually
availed of to refer to high politics or politics on the
highest level. In any event, politics, political
approach, political expediency and statesmanship
are generally associated, and often identified, with
the dictum that "the end justifies the means." I
earnestly hope that the administration of justice in
this country and the Supreme Court, in particular,
will adhere to or approve or indorse such dictum." 40
324
Tolentino, he pointed out that although "(M)ovants' submittal that "(T)he

primary purpose for the submission of the proposed amendment lowering
the voting age to the plebiscite on November 8, 1971 is to enable the youth
18 to 20 years who comprise more than three (3) million of our population
to participate in the ratification of the new Constitution in so far as "to
allow young people who would be governed by the Constitution to be given
a say on what kind of Constitution they will have" is a laudable end, ...
those urging the vitality and importance of the proposed constitutional
amendment and its approval ahead of the complete and final draft of the
Constitution must seek a valid solution to achieve it in a manner sanctioned
by the amendatory process ordained by our people in the present
Constitution" 41 — so that there may be "submitted, not piece-meal, but by
way of complete and final amendments as an integrated whole (integrated
either with the subsisting Constitution or with the new proposed
Constitution)..."
9. The universal validity of the vital constitutional precepts and principles

above-enunciated can hardly be gainsaid. I fail to see the attempted
distinction of restricting their application to proposals for amendments of
particular provisions of the Constitution and not to so-called entirely new
Constitutions. Amendments to an existing Constitution presumably may be
only of certain parts or in toto, and in the latter case would rise to an
entirely new Constitution. Where this Court held in Tolentino that
"any amendment of the Constitution is of no less importance than the
whole Constitution itself and perforce must be conceived and prepared
with as much care and deliberation", it would appeal that the reverse
would equally be true; which is to say, that the adoption of a whole new
Constitution would be of no less importance than any particular
amendment and therefore the necessary care and deliberation as well as
the mandatory restrictions and safeguards in the amending process
ordained by the people themselves so that "they (may) be insulated against
precipitate and hasty actions motivated by more or less passing political
moods or fancies" must necessarily equally apply thereto.
III
325
1. To restate the basic premises, the people provided in Article XV of the

Constitution for the amending process only"by approval by a majority of
the votes cast at an election at which the (duly proposed) amendments are
submitted to the people for their ratification."
The people ordained in Article V, section 1 that only those thereby

enfranchised and granted the right of suffrage may speak the "will of the
body politic", viz, qualified literate voters twenty one years of age or over
with one year's residence in the municipality where they have registered.
The people, not as yet satisfied, further provided by amendment duly

approved in 1940 in accordance with Article XV, for the creation of
an independent Commission on Elections with "exclusive charge" for the
purpose of "insuring free, orderly and honest elections" and ascertaining
the true will of the electorate — and more, as ruled by this Court
inTolentino, in the case of proposed constitutional amendments,
insuring proper submission to the electorate of such proposals. 42
2. A Massachussets case 43 with a constitutional system and provisions

analogous to ours, best defined the uses of the term "people" as a body
politic and "people" in the political sense who are synonymous with the
qualified voters granted the right to vote by the existing Constitution and
who therefore are "the sole organs through which the will of the body
politic can be expressed."
It was pointed out therein that "(T)he word 'people' may have somewhat
varying significations dependent upon the connection in which it is used. In
some connections in the Constitution it is confined to citizens and means
the same as citizens. It excludes aliens. It includes men, women and
children. It comprehends not only the sane, competent, law-abiding and
educated, but also those who are wholly or in part dependents and charges
upon society by reason of immaturity, mental or moral deficiency or lack of
the common essentials of education. All these persons are secured
fundamental guarantees of the Constitution in life, liberty and property and
the pursuit of happiness, except as these may be limited for the protection
of society."
326
In the sense of "body politic (as) formed by voluntary association of

individuals" governed by a constitution and common laws in a "social
compact ... for the common good" and in another sense of "people" in a
"practical sense" for "political purposes" it was therein fittingly stated that
in this sense, "people" comprises many who, by reason of want of years, of
capacity or of the educational requirements of Article 20 of the
amendments of the Constitution, can have no voice in any government and
who yet are entitled to all the immunities and protection established by the
Constitution. 'People' in this aspect is coextensive with the body politic. But
it is obvious that 'people' cannot be used with this broad meaning of
political signification. The 'people' in this connection means that part of the
entire body of inhabitants who under the Constitution are intrusted with
the exercise of the sovereign power and the conduct of government.
The'people' in the Constitution in a practical sense means those who under
the existing Constitution possess the right to exercise the elective franchise
and who, while that instrument remains in force unchanged, will be
the sole organsthrough which the will of the body politic can be expressed.
'People' for political purposes must be
consideredsynonymous with qualified voters.' "
As was also ruled by the U.S. Supreme Court, "... While the people are thus
the source of political power, their governments, national and state, have
been limited by constitutions, and they have themselves thereby set
bounds to their own power, as against the sudden impulse of mere
majorities." 44
From the text of Article XV of our Constitution, requiring approval of

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

safeguards as ordained by the Constitution and implementing statutes to
327
ascertain and record the will of the people in free, orderly and honest
elections supervised by the Comelec make it imperative that there be strict
adherence to the constitutional requirements laid down for the process of
amending in toto or in part the supreme law of the land.
Even at barrio level 45 the Revised Barrio Charter fixes certain safeguards
for the holding of barrio plebiscites thus: "SEC. 6. Plebiscite. — A plebiscite
may be held in the barrio when authorized by a majority vote of the
members present in the barrio assembly, there being a quorum, or when
called by at least four members of the barrio council:Provided, however,
That no plebiscite shall be held until after thirty days from its approval by
either body, and such plebiscite has been given the widest publicity in the
barrio, stating the date, time and place thereof, the questions or issues to
be decided, action to be taken by the voters, and such other information
relevant to the holding of the plebiscite." 46
As to voting at such barrio plebiscites, the Charter further requires that

"(A)ll duly registered barrio assembly membersqualified to vote may vote in
the plebiscite. Voting procedures may be made either in writing as in
regular elections, and/or declaration by the voters to the board of election
tellers." 47
The subjects of the barrio plebiscites are likewise delimited thus: "A
plebiscite may be called to decide on the recall of any member of the barrio
council. A plebiscite shall be called to approve any budgetary, supplemental
appropriations or special tax ordinances" and the required majority vote is
specified: "(F)or taking action on any of the above enumerated measures,
majority vote of all the barrio assembly members registered in the list of
the barrio secretary is necessary." 48
The qualifications for voters in such barrio plebiscites and elections of

barrio officials 49 comply with the suffrage qualifications of Article V, section
1 of the Constitution and provide that "(S)EC. 10. Qualifications of Voters
and Candidates. — Every citizen of the Philippines, twenty one years of age
or over, able to read and write, who has been a resident of the barrio
during the six months immediately preceding the election, duly registered
328
in the list of voters by the barrio secretary, who is not otherwise

disqualified, may vote or be a candidate in the barrio elections."50
IV
1. Since it appears on the face of Proclamation 1102 that the mandatory

requirements under the above-cited constitutional articles have not been
complied with and that no election or plebiscite for ratification as therein
provided as well as in section 16 of Article XVII of the proposed Constitution
itself 51 has been called or held, there cannot be said to have been a valid
ratification.
2. Petitioners raised serious questions as to the veracity and genuineness of

the reports or certificates of results purportedly showing unaccountable
discrepancies in seven figures in just five provinces 52 between the reports
as certified by the Department of Local Governments and the reports as
directly submitted by the provincial and city executives, which latter reports
respondents disclaimed inter alia as not final and complete or as not
signed; 53 whether the reported votes of approval of the proposed
Constitution conditioned upon the non-convening of the interim National
Assembly provided in Article XVII, section 1 thereof, 54 may be considered as
valid; the allegedly huge and uniform votes reported; and many others.
3. These questions only serve to justify and show the basic validity of the
universal principle governing written constitutions that proposed
amendments thereto or in replacement thereof may be ratified only in the
particular mode or manner prescribed therein by the people. Under Article
XV, section 1 of our Constitution, amendments thereto may be ratified only
in the one way therein provided, i.e. in an election or plebiscite held in
accordance with law and duly supervised by the Commission on Elections,
and which is participated in only by qualified and duly registered voters. In
this manner, the safeguards provided by the election code generally assure
the true ascertainment of the results of the vote and interested parties
would have an opportunity to thresh out properly before the Comelec all
such questions in pre-proclamation proceedings.
329
4. At any rate, unless respondents seriously intend to question the very

statements and pronouncements in Proclamation 1102 itself which shows
on its face, as already stated, that the mandatory amending process
required by the (1935) Constitution was not observed, the cases at bar
need not reach the stage of answering the host of questions, raised by
petitioners against the procedure observed by the Citizens Assemblies and
the reported referendum results — since the purported ratification is
rendered nugatory by virtue of such non-observance.
5. Finally, as to respondents' argument that the President issued

Proclamation 1102 "as "agent" of the Constitutional Convention" 55 under
Resolution No. 5844 approved on November 22, 1973, and "as agent of the
Convention the President could devise other forms of plebiscite to
determine the will of the majority vis-a-vis the ratification of the proposed
Constitution." 56
The minutes of November 22, 1972, of the Convention, however, do not at

all support this contention. On the contrary, the said minutes fully show
that the Convention's proposal and "agency" was that the President issue a
decree precisely calling a plebiscite for the ratification of the proposed new
Constitution on an appropriate date, under the charge of the Comelec, and
with a reasonable period for an information campaign, as follows:
12. Upon recognition by the Chair, Delegate

Duavit moved for the approval of the resolution,
the resolution portion of which read as follows:
"RESOLVED, AS IT IS HEREBY
RESOLVED, that the 1971
Constitutional Convention
propose to President Ferdinand
E. Marcos that a decree be issued
calling a plebiscite for the
ratification of the proposed New
Constitution on such appropriate
date as he shall determine and
330
providing for the necessary funds

therefor, and that copies of this
resolution as approved in plenary
session be transmitted to the
President of the Philippines and
the Commission on Elections for
implementation."
He suggested that in view of the expected

approval of the final draft of the new Constitution
by the end of November 1972 according to the
Convention's timetable, it would be necessary to
lay the groundwork for the appropriate agencies
of the government to undertake the necessary
preparation for the plebiscite.
xxx xxx xxx
12.2 Interpellating, Delegate Pimentel (V.)

contended that the resolution was unnecessary
because section 15, Article XVII on the Transitory
Provision, which had already been approved on
second and third readings, provided that the new
constitution should be ratified in a plebiscite
called for the purpose by the incumbent
President. Delegate Duavit replied that the
provision referred to did not include
theappropriation of funds for the plebiscite and
that, moreover, the resolution was intended to
serve formal notice to the President and the
Commission on Elections to initiate the necessary
preparations.
xxx xxx xxx
331
12.4 Interpellating, Delegate Madarang suggested

that a reasonable period for an information
campaignwas necessary in order to properly
apprise the people of the implications and
significance of the new charter. Delegate Duavit
agreed, adding that this was precisely why the
resolution was modified to give the President the
discretion to choose the most appropriate date
for the plebiscite.
12.5 Delegate Laggui asked whether a formal

communication to the President informing him of
the adoption of the new Constitution would not
suffice considering that under Section 15 of the
Transitory Provisions, the President would be
duty-bound to call a plebiscite for its ratification.
Delegate Duavit replied in the negative, adding
that the resolution was necessary to serve notice
to the proper authorities to prepare everything
necessary for the plebiscite.
12.6 In reply to Delegate Britanico, Delegate

Duavit stated that the mechanics for the holding
of theplebiscite would be laid down by the
Commission on Elections in coordination with the
President.
12.7 Delegate Catan inquired if such mechanics

for the plebiscite could include a partial lifting of
martial law in order to allow the people to
assemble peaceably to discuss the new
Constitution. Delegate Duavit suggested that the
Committee on Plebiscite and Ratification could
coordinate with the COMELEC on the matter.
332
12.8 Delegate Guzman moved for the previous

question. The Chair declared that there was one
more interpellant and that a prior reservation had
been made for the presentation of such a motion.
1.8a Delegate Guzman withdrew his motion.
12.9 Delegate Astilla suggested in his

interpellation that there was actually no need for
such a resolution in view of the provision of
section 15, Article XVII on the Transitory
Provisions. Delegate Duavit disagreed, pointing
out that the said provision did not provide for the
funds necessary for the purpose.
13. Delegate Ozamiz then moved to close the

debate and proceed to the period of amendment.
13.1 Floor Leader Montejo stated that there were

no reservations to amend the resolution.
13.2 Delegate Ozamiz then moved for the

previous question. Submitted to a vote, the
motion was approved.
Upon request of the Chair, Delegate Duavit

restated the resolution for voting.
14.1. Delegate Ordoñez moved for nominal voting.

Submitted to a vote, the motion was lost.
14.2. Thereupon, the Chair submitted the resolution

to a vote. It was approved by a show of hands. 57
I, therefore, vote to deny respondents' motion to dismiss and to give due

course to the petitions.
333
Promulga
ANTONIO, J., concurring:
In conformity with my reservation, I shall discuss the grounds for my

concurrence.
It is my view that to preserve the independence of the State, the

maintenance of the existing constitutional order and the defense of the
political and social liberties of the people, in times of a grave emergency,
when the legislative branch of the government is unable to function or its
functioning would itself threaten the public safety, the Chief Executive may
promulgate measures legislative in character, for the successful
prosecution of such objectives. For the "President's power as Commander-
in-chief has been transformed from a simple power of military command to
a vast reservoir of indeterminate powers in time of emergency. ... In other
words, the principal canons of constitutional interpretation are ... set aside
so far as concerns both the scope of the national power and the capacity of
the President to gather unto himself all constitutionally available powers in
order the more effectively to focus them upon the task of the hour."
(Corwin, The President: Office & Powers, pp. 317, 318, [1948]).
1. The proclamation of martial rule, ushered the commencement of a crisis

government in this country. In terms of power, crisis government in a
constitutional democracy entails the concentration of governmental power.
"The more complete the separation of powers in a constitutional system,
the more difficult, and yet the more necessary" according to Rossiter, "will
be their fusion in time of crisis... The power of the state in crisis must not
only be concentrated and expanded, it must be freed from the normal
system of constitutional and legal limitations. One of the basic features of
emergency powers is the release of the government from the paralysis of
constitutional restraints" (Rossiter, Constitutional Dictatorship, p. 290).
334
It is clearly recognized that in moments of peril the effective action of the

government is channeled through the person of the Chief Executive.
"Energy in the executive," according to Hamilton, "is essential to the
protection of the community against foreign attacks ... to the protection of
property against those irregular and high-handed combinations which
sometimes interrupt the ordinary course of justice; to the security of liberty
against the enterprises and assaults of ambition, of faction, and of
anarchy." (The Federalist, Number 70). "The entire strength of the nation",
said Justice Brewer in the Debs case (158 U.S. 564; 39 L. ed. 1092), "may be
used to enforce in any part of the land the full and free exercise of all
national powers and the security of all rights entrusted by the constitution
to its care." The marshalling and employment of the "strength of the
nation" are matters for the discretion of the Chief Executive. The
President's powers in time of emergency defy precise definition since their
extent and limitations are largely dependent upon conditions and
circumstances.
2. The power of the President to act decisively in a crisis has been grounded
on the broad conferment upon the Presidency of the Executive power, with
the added specific grant of power under the "Commander-in-Chief" clause
of the constitution. The contours of such powers have been shaped more
by a long line of historical precedents of Presidential action in times of
crisis, rather than judicial interpretation. Lincoln wedded his powers under
the "commander-in-chief" clause with his duty "to take care that the laws
be faithfully executed," to justify the series of extraordinary measures
which he took — the calling of volunteers for military service, the
augmentation of the regular army and navy, the payment of two million
dollars from unappropriated funds in the Treasury to persons unauthorized
to receive it, the closing of the Post Office to "treasonable
correspondence", the blockade of southern ports, the suspension of the
writ of habeas corpus, the arrest and detention of persons "who were
represented to him" as being engaged in or contemplating "treasonable
practices" — all this for the most part without the least statutory
authorization. Those actions were justified by the imperatives of his logic,
that the President may, in an emergency thought by him to require it,
partially suspend the constitution. Thus his famous question: "Are all laws
but one to be unexecuted, and the Government itself go to pieces lest that
335
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
336
keep the defense efforts of the United States a going concern" as well as
"to obtain supplies for which Congress has appropriated money, and which
it has directed the President to obtain." On a similar justification, other
plants and industries were taken over by the government. It is true that in
Youngstown Sheet & Tube vs. Sawyer (343 U.S. 579; 72 S. Ct. 863; 96 L. Ed.
1153, [1952]), the Supreme Court of the United States did not sustain the
claims that the President could, as the Nation's Chief Executive and
Commander-in-Chief of the armed forces, validly order the seizure of most
of the country's steel mills. The Court however did not face the naked
question of the President's power to seize steel plants in the absence of any
congressional enactment or expressions of policy. The majority of the Court
found that this legislative occupation of the field made untenable the
President's claim of authority to seize the plants as an exercise of inherent
executive power or as Commander-in-Chief. Justice Clark, in his
concurrence to the main opinion of the Court, explicitly asserted that the
President does possess, in the absence of restrictive legislation, a residual
or resultant power above or in consequence of his granted powers, to deal
with emergencies that he regards as threatening the national security. The
same view was shared with vague qualification by Justices Frankfurter and
Jackson, two of the concurring Justices. The three dissenting Justices,
speaking through Chief Justice Vinson, apparently went further by quoting
with approval a passage extracted from the brief of the government in the
case ofUnited 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).
337
The accumulation of precedents has thus built up the presidential power

under emergency conditions to "dimensions of executive prerogative as
described by John Locke, of a power to wit, to fill needed gaps in the law, or
even to supersede it so far as may be requisite to realize the fundamental
law of nature and government, namely, that as much as may be all the
members of society are to be preserved." (Corwin and Koenig, The
Presidency Today).
In the light of the accumulated precedents, how could it be reasonably

argued therefore, that the President had no power to issue Presidential
Decree Nos. 86 and 86-A as well as Proclamation No. 1102, since these
measures were considered indispensable to effect the desired reforms at
the shortest time possible and hasten the restoration of normalcy? It is
unavailing for petitioners to contend that we are not faced by an actual
"shooting war" for today's concept of the emergency which justified the
exercise of those powers has of necessity been expanded to meet the
exigencies of new dangers and crisis that directly threaten the nation's
continued and constitutional existence. For as Corwin observed: "... today
the concept of 'war' as a special type of emergency warranting the
realization of constitutional limitations tends to spread, as it were, in both
directions, so that there is not only "the war before the war," but the 'war
after the war.' Indeed, in the economic crisis from which the New Deal may
be said to have issued, the nation was confronted in the opinion of the late
President with an 'emergency greater than war'; and in sustaining certain of
the New Deal measures the Court invoked the justification of 'emergency.'
In the final result constitutional practices of wartime have moulded the
Constitution to greater or less extent for peacetime as well, seem likely to
do so still more pronouncedly under fresh conditions of crisis."
(Corwin, Ibid. p. 318.)
The same view was expressed by Rossiter thus:
The second crisis is rebellion, when the authority

of a constitutional government is resisted openly
by large numbers of citizens who are engaged in
violent insurrection against enforcement of its
338
laws or are bent on capturing it illegally or

destroying it altogether. The third crisis, one
recognized particularly in modern times as
sanctioning emergency action by constitutional
governments, is economic depression. The
economic troubles which plagued all the countries
of the world in the early thirties involved
governmental methods of an unquestionably
dictatorial character in many democracies. It was
thereby acknowledged that an economic
existence as a war or a rebellion. And these are
not the only cases which have justified
extraordinary governmental action in nations like
the United States. Fire, flood, drought,
earthquake, riots, great strikes have all been dealt
with by unusual and of dictatorial methods. Wars
are not won by debating societies, rebellions are
not suppressed by judicial injunctions,
reemployment of twelve million jobless citizens
will not be effected through a scrupulous regard
for the tenets of free enterprise, hardships caused
by the eruptions of nature cannot be mitigated
letting nature take its course. The Civil War, the
depression of 1933 and the recent global conflict
were not and could not have been successfully
resolved by governments similar to those of James
Buchanan, William Howard Taft, or Calvin
Coolidge. (Rossiter, Constitutional
Dictatorship — Crisis of Government in the
Modern Democracies, p. 6 [1948).
II
We are next confronted with the insistence of Petitioners that the

referendum in question not having been done inaccordance with the
provisions of existing election laws, which only qualified voters who are
339
allowed to participate, under the supervision of the Commission on

Elections, the new Constitution, should therefore be a nullity. Such an
argument is predicated upon an assumption, that Article XV of the 1935
Constitution provides the method for therevision of the constitution, and
automatically apply in the final approval of such proposed new Constitution
the provisions of the election law and those of Article V and X of the old
Constitution. We search in vain for any provision in the old charter
specifically providing for such procedure in the case of a total revision or a
rewriting of the wholeconstitution.
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
theimprovement of specific parts of the existing constitution of the addition
of provisions deemed essential as a consequence of new constitutions or
the elimination of parts already considered obsolete or unresponsive to the
needs of the times. 1 The 1973 Constitution is not a mere amendment to the
1935 Constitution. It is a completely new fundamental charter embodying
new political, social and economic concepts.
According to an eminent authority on Political Law, "The Constitution of the

Philippines and that of the United States expressly provide merely for
methods of amendment. They are silent on the subject of revision. But this
is not a fatal omission. There is nothing that can legally prevent a
convention from actually revising the Constitution of the Philippines or of
the United States even were such conventions called merely for the
purpose of proposing and submitting amendments to the people. For in the
final analysis, it is the approval of the people that gives validity to any
proposal of amendment or revision." (Sinco, Philippine Political Law, p. 49).
Since the 1935 Constitution does not specifically provide for the method or
procedure for the revision or for the approval of a new constitution, should
it now be held, that the people have placed such restrictions on themselves
that they are not disabled from exercising their right as the ultimate source
340
of political power from changing the old constitution which, in their view,
was not responsive to their needs and in adopting a new charter of
government to enable them to rid themselves from the shackles of
traditional norms and to pursue with new dynamism the realization of their
true longings and aspirations, except in the manner and form provided by
Congress for previous plebiscites? Was not the expansion of the base of
political participation, by the inclusion of the youth in the process of
ratification who after all constitute the preponderant majority more in
accord with the spirit and philosophy of the constitution that political
power is inherent in the people collectively? As clearly expounded by
Justice Makasiar, in his opinion, in all the cases cited where the Courts held
that the submission of the proposed amendment was illegal due to the
absence of substantial compliance with the procedure prescribed by the
constitution, the procedure prescribed by the state Constitution, is so
detailed, that specified the manner in which such submission shall be
made, the persons qualified to vote for the same, the date of election and
other definite standards, from which the court could safely ascertain
whether or not the submission was in accordance with the Constitution.
Thus the case of In re McConaughy (119 N.E. 408) relied upon in one of the
dissenting opinions involved in the application of the provisions of the state
Constitution of Minnesota which clearly prescribed in detail the procedure
under which the Constitution may be amended or revised. 2 This is not true
with our Constitution. In the case of revision there are no "standards meet
for judicial judgment." 3
The framers of our Constitution were free to provide in the Constitution the
method or procedure for the revision or rewriting of the entire constitution,
and if such was their intention, they could and should have so provided.
Precedents were not wanting. The constitutions of the various states of the
American Union did provide for procedures for theiramendment and
methods for their revision. 4
Certainly We cannot, under the guise of interpretation, modify, revise,

amend, remodel or rewrite the 1935 Charter. To declare what the law is, or
has been, is a judicial power, but to declare what the law shall be is not
within Our judicial competence and authority.
341
Upon the other hand, since our fundamental charter has not provided the
method or procedure for the revision or complete change of the
Constitution, it is evident that the people have reserved such power in
themselves. They decided to exercise it not through their legislature, but
through a Convention expressly chosen for that purpose. The Convention as
an independent and sovereign body has drafted not an amendment but a
completely new Constitution, which decided to submit to the people for
approval, not through an act of Congress, but by means of decrees to be
promulgated by the President. In view of the inability of Congress to act, it
was within the constitutional powers of the President, either as agent of
the Constitutional Convention, or under his authority under martial law, to
promulgate the necessary measures for the ratification of the proposed
new Constitution. The adoption the new Charter was considered as a
necessary basis for all the reforms set in motion under the new society, to
root out the causes of unrest. The imperatives of the emergency
underscored the urgency of its adoption. The people in accepting such
procedure and in voting overwhelmingly for the approval of the new
Constitution have, in effect, ratified the method and procedure taken.
"When the people adopt completely revised or new constitution," said the
Court in Wheeler v. Board of Trustees (37 SE 2nd 322, 326-330), "the
framing or submission of the instrument is not what gives it binding force
and effect. The fiat of the people, and only the fiat of the people, can
breathe life into a constitution."
This has to be so because, in our political system, all political power is

inherent in the people and free governments are founded on their
authority and instituted for their benefit. Thus Section 1 of Article II of the
1935 Constitution declares that: "Sovereignty resides in the people and all
government authority emanate from them." Evidently the
term peoplerefers to the entire citizenry and not merely to the electorate,
for the latter is only a fraction of the people and is only an organ of
government for the election of government officials.
III
342
The more compelling question, however is: Has this Court the authority to
nullify an entire Constitution that is alreadyeffective as it has been accepted
and acquiesced in by the people as shown by their compliance with the
decree promulgated thereunder, their cooperation in its implementation,
and is now maintained by the Government that is in undisputed authority
and dominance?
Of course it is argued that acquiescence by the people can be deduced from

their acts of conformity, because under a regime of martial law the people
are bound to obey and act in conformity with the orders of the President,
and has absolutely no other choice. The flaw of this argument lies in its
application of a mere theoretical assumption based on the experiences of
other nations on an entirely different factual setting. Such an assumption
flounders on the rock of reality. It is true that as a general rule martial law is
the use of military forces to perform the functions of civil government.
Some courts have viewed it as a military regime which can be imposed in
emergency situations. In other words, martial rule exists when the military
rises superior to the civil power in the exercise of some or all the functions
of government. Such is not the case in this country. The government
functions thru its civilian officials. The supremacy of the civil over the
military authority is manifest. Except for the imposition of curfew hours and
other restrictions required for the security of the State, the people are free
to pursue their ordinary concerns.
In short, the existing regime in this Country, does not contain the
oppressive features, generally associated with a regime of Martial law in
other countries. "Upon the other hand the masses of our people have
accepted it, because of its manifold blessings. The once downtrodden rice
tenant has at long last been emancipated — a consummation devoutly
wished by every Philippine President since the 1930's. The laborer now
holds his head high because his rights are amply protected and
respected." * A new sense of discipline has swiftly spread beyond the
corridors of government into the social order. Responding to the challenges
of the New Society, the people have turned in half a million loose firearms,
paid their taxes on undeclared goods and income in unprecedented
numbers and amount, lent their labors in massive cooperation — in land
343
reform, in the repair of dikes, irrigation ditches, roads and bridges, in

reforestation, in the physical transformation of the environment to make
ours a cleaner and greener land. "The entire country is turning into one vast
garden growing food for the body, for thought and for the soul." * More
important the common man has at long last been freed from the incubus of
fear.
"Martial law has paved the way for a re-ordering of the basic social
structure of the Philippines" reported Frank Valeo to the United States
Senate. "President Marcos has been prompt and sure-footed in using the
power of presidential decree under martial law for this purpose. He has
zeroed in on areas which have been widely recognized as prime sources of
the nation's difficulties — land tenancy, official corruption, tax evasion and
abuse of oligarchic economic power. Clearly he knows his targets ... there is
marked public support for his leadership..." (Bulletin Today, March 3 and 4,
1973)..
In a similar vein, C.L. Sulzberger, a foreign affairs columnist wrote, in the

April 11 issue of The New York Times:
During his first Presidential term (1965-1969), Mr.

Marcos was discouraged by the failure of
legislators to approve urgently needed reforms.
He found his second term further frustrated by
spread riots, a Maoist uprising in Luzon and a
much more serious Moslem insurrection in the
southern islands from Mindanao across the Sulu
archipelago to the frontier regions of Malaysia
and Indonesia. Manila claims this war is Maoist-
coordinated.
Mr. Marcos has now in effect taken all the reins of

power and makes no promise as to when he will
relinquish them. But, while fettering a free press,
terminating Congress and locking up some
opponents (many of whom were later
344
amnestied), he has hauled the Philippines out of

stagnation.
Sharecropping is being ended as more than three

million acres of arable land are redistributed with
state funds. New roads have been started. The
educational system is undergoing revision, a
corruption is diminished. In non-communist Asia it
is virtually impossible to wholly end it and this
disagreeable phenomenon still reaches very high.
Mr. Marcos, an imaginative, gifted man, hopes to

reshape society by creating an agrarian middle-
class to replace the archaic sharecropper-
absentee landlord relationship. He is even pushing
for a birth control program with the tacit
acceptance of the Catholic Church. He has started
labor reforms and increased wages. (Daily Express,
April 15, 1973)
As explained in this writer's opinion of April 24, 1973 on the "Constancia"

and "Manifestation" of counsel for petitioners:
The new Constitution is considered effective "if the norms created in

conformity with it are by and large applied and obeyed. As soon as the old
Constitution loses its effectiveness and the new Constitution has become
effective, the acts that appear with the subjective meaning of creating or
applying legal norms are no longer interpreted by presupposing the old
basic norm, but by presupposing the new one. The statutes issued under
the old Constitution and not taken over are no longer regarded as valid, and
the organs authorized by the old Constitution no longer competent."
(Kelsen, Pure Theory of Law, [1967].)
The essentially political nature of the question is at once made manifest by

understanding that in the final analysis, what is assailed is not merely the
validity of Proclamation No. 1102 of the President, which is merely
345
declaratory of the fact of approval or ratification, but the legitimacy of the

government. It is addressed more to the framework and political character
of this Government which now functions under the new Charter. It seeks to
nullify a Constitution that is already effective.
In such a situation, We do not see how the question posed by petitioners

could be judicially decided. "Judicial power presupposes an established
government capable of enacting laws and enforcing their execution, and of
appointing judges to expound and administer them. If it decides at all as a
court, it necessarily affirms the existence and authority of the government
under which it is exercising judicial power." (Luther v. Borden, 48 U.S. [7
How.] 1, 12 L. Ed. 598.)
In other words, where a complete change in the fundamental law has been
effected through political action, the Court whose existence is affected by
such change is, in the words of Mr. Melville Fuller Weston, "precluded from
passing upon the fact of change by a logical difficulty which is not to be
surmounted." 5 Such change in the organic law relates to the existence of a
prior point in the Court's "chain of title" to its authority and "does not
relate merely to a question of the horizontal distribution of powers." 6 It
involves in essence a matter which "the sovereign has entrusted to the so-
its own extra governmental action." 7
The non-judicial character of such a question has been recognized in

American law. "From its earliest opinions this Court has consistently
recognized," said Justice Frankfurter, in his illuminating dissent in Baker v.
Carr, 369 U.S. 186, 7 L. Ed. 2d. 633, 722, 726, 727), "a class of controversies
which do not lend themselves to judicial standards and judicial remedies.
To classify the various instances as "political questions" is rather a form of
stating this conclusion than revealing of analysis ... The crux of the matter is
that courts are not fit instruments of decision where what is essentially at
stake is the composition of those large contests of policy traditionally
fought out in non-judicial forums, by which governments and the actions of
governments are made and unmade."
346
The diversity of views contained in the opinions of the members of this

Court, in the cases at bar, cannot be a case on "right" or "wrong" views of
the Constitution. It is one of attitudes and values. For there is scarcely any
principle, authority or interpretation which has not been countered by the
opposite. At bottom, it is the degree of one's faith — in the nation's
leadership and in the maturity of judgment of our people.
IN VIEW OF THE FOREGOING, the dismissal of

these five cases, and the conclusion of this Court
in its judgment of March question becomes wholly
moot except for this consideration, that, when the
judges as individuals or as a body of individuals
come to decide which king or which constitution
they will support and assert to represent, it may
often be good judgment for them to follow the
lead of the men who as a practical matter are
likely to be looked to by the people as more
representative of themselves and conversely are
likely to be more directly in touch with popular
sentiment. If, however, the judges hold too strong
views of their own to be able to take this course,
they may follow their own leads at their own
hazard. No question of law is involved. (Political
Questions, 38 Harvard Law Review [1924-25], pp.
305-309.)
31, 1973 are fully justified.
Barredo, Makasiar and Esguerra, JJ., concur.
APPENDIX TO OPINION
(G.R. Nos. L-36142, 36164, 36165, 36236 & 36283)
PROVISIONS OF STATE CONSTITUTIONS SPECIFICALLY

PROVIDING FOR AMENDMENT AND REVISION @
347
1. Alaska (1959) — Art. XIII. Amendment and Revision.
Sec. 1. Amendments. Amendments to this constitution may be proposed by

a two-thirds vote of each house of the legislature. The secretary of state
shall prepare a ballot title and proposition summarizing each proposed
amendment, and shall place them on the ballot for the next statewide
election. If a majority of the votes cast on the proposition favor
the amendment, it becomes effective thirty days after the certification of
the election returns by the secretary of state.
Sec. 2. Convention. The legislature may call constitutional conventions at

any time.
Sec. 3. Call by referendum. If during any ten-year period a constitutional

convention has not been held, the secretary of state shall place on the
ballot for the next general election the question: "Shall there be a
Constitutional Convention?" If a majority of the votes cast on the question
are in the negative, the question need not be placed on the ballot until the
end of the next ten-year period. If a majority of the votes cast on the
question are in the affirmative, delegates to the convention shall be chosen
at the next regular statewide election, unless the legislature provides for
the election of the election delegates at a special election. The secretary of
state shall issue the call for the convention. Unless other provisions have
been made by law, the call shall conform as nearly as possible to the act
calling the Alaska Constitutional Convention of 1955, including, but not
limited to, number of members, districts, election and certification of
delegates, and submission and ratification of revisions and ordinances. ... .
Sec. 4. Powers. Constitutional conventions shall have plenary power to

amend or revise the constitution, subject only to ratification by the people.
No call for a constitutional convention shall limit these powers of the
convention.
2. California (1879) — Art. XVIII. Amending and Revising the Constitution.
348
Sec. 1. Constitutional amendments. Any amendment or amendments to this

Constitution may be proposed in the Senate or Assembly, and if two-thirds
of all the members elected to each of the houses shall vote in favor thereof,
such proposed amendment or amendments shall be entered in their
Journals, with the yeas and nays taken thereon; and it shall be the duty of
the Legislature to submit such proposed amendment or amendments to
the people in such manner, and at such time, and after such publication as
may be deemed expedient. Should more amendments than one be
submitted at the same election they shall be so prepared and distinguished,
by numbers or otherwise, that each can be voted on separately. If the
people shall approve and ratify such amendment or amendments, or any of
them, by a majority of the qualified electors voting thereon such
amendment or amendments shall become a part of this constitution.
Sec. 2. Constitutional convention. Whenever two-thirds of the members

elected to each branch of the Legislature shall deem it necessary to revise
this Constitution, they shall recommend to the electors to vote at the next
general for or against a Convention for that purpose, and if a majority of
the electors voting at such election on the proposition for a Convention
shall vote in favor thereof, the Legislature shall, at its next session, provide
by law for calling the same. The Convention shall consist of a number of
delegates not to exceed that of both branches of the Legislature, who shall
be chosen in the same manner, and have the same qualifications, as
Members of the Legislature. The delegates so elected shall meet within
three months after their election at such place as the Legislature may
direct. At a special election to be provided for by law, the Constitution that
may be agreed upon by such Convention shall be submitted to the people
for their ratification or rejection, in such manner as the Convention may
determine. The returns of such election shall, in such manner as the
Convention shall direct, be certified to the Executive of the State, who shall
call to his assistance the Controller, Treasurer, and Secretary of State, and
compare the returns so certified to him; and it shall be the duty of the
Executive to declare, by his proclamation, such Constitution, as may have
been ratified by a majority of all the votes cast at such special election, to
be the Constitution of the State of California.
349
3. Colorado (1876) — Art. XIX. Amendments.
Sec. 1. Constitutional convention; how called. The general assembly may at

any time be a vote of two-thirds of the members elected to each house,
recommend to the electors of the state, to vote at the next general election
for or against a convention to revise, alter and amend this constitution; and
if a majority of those voting on the question shall declare in favor of such
convention, the general assembly shall, at the next session, provide for the
calling thereof. The number of members of the convention shall be twice
that of the senate and they shall be elected in the same manner, at the
same places, and in the same districts. The general assembly shall, in the
act calling the convention, designate the day, hour and place of its meeting;
fix the pay of its members and officers, and provide for the payment of the
same, together with the necessary expenses of the convention. Before
proceeding, the members shall take an oath to support the constitution of
the United States, and of the state of Colorado, and to faithfully discharge
their duties as members of the convention. The qualifications of members
shall be the same as of members of the senate; and vacancies occurring
shall be filled in the manner provided for filling vacancies in the general
assembly. Said convention shall meet within three months after such
election and prepare such revisions, alterations or amendments to the
constitution as may be deemed necessary; which shall be submitted to
the electors for their ratification or rejection at an election appointed by the
convention for that purpose, not less than two nor more than six months
after adjournment thereof; and unless so submitted and approved by a
majority of the electors voting at the election, no such revision, alteration
or amendment shall take effect.
Sec. 2. Amendments to constitution; how adopted. Any amendment or

amendments to this constitution may be proposed in either house of the
general assembly, and if the same shall be voted for by two-thirds of all the
members elected to each house, such proposed amendment or
amendments, together with the ayes and noes of each house hereon, shall
be entered in full on their respective journals; the proposed amendment or
amendments shall be published with the laws of that session of the general
assembly, and the secretary of state shall also cause the said amendment
350
or amendments to be published in full in not more than one newspaper of

general circulation in each county, for four successive weeks previous to
the next general election for members of the general assembly; and at said
election the said amendment or amendments shall be submitted to
the qualified electors of the state for their approval or rejection, and such
as are approved by a majority of those voting thereon shall become part of
this constitution.
Provided, that if more than one amendment be submitted at any general

election, each of said amendments shall be voted upon separately and
votes thereon cast shall be separately counted the same as though but one
amendment was submitted. But the general assembly shall have no power
to propose amendments to more than six articles of this constitution at the
same session.
4. Delaware (1897) — Art. XVI. Amendments and Conventions.
Sec. 1. Proposal of constitutional amendments in general assembly;

procedure. Any amendment or amendments to this Constitution may be
proposed in the Senate or House of Representatives; and if the same shall
be agreed to by two-thirds of all the members elected to each House, such
proposed amendment or amendments shall be entered on their journals,
with the yeas and nays taken thereon, and the Secretary of State shall
cause such proposed amendment or amendments to be published three
months before the next general election in at least three newspapers in
each County in which such newspaper shall be published; and if in the
General Assembly next after the said election such proposed amendment
or amendments shall upon yea and nay vote be agreed to by two-thirds of
all the members elected to each House, the same shall thereupon become
part of the Constitution.
Sec. 2. Constitutional conventions; procedure; compensation of delegates;

quorum; powers and duties; vacancies. The General Assembly by a two-
thirds vote of all the members elected to each House may from time to
time provide for the submission to the qualified electors of the State at the
general election next thereafter the question, "Shall there be a Convention
351
to revise the Constitution and amend the same?;" and upon such
submission, if a majority of those voting on said question shall decide in
favor of a Convention for such purpose, the General Assembly at its next
session shall provide for the election of delegates to such convention at the
next general election. Such Convention shall be composed of forty-one
delegates, one of whom shall be chosen from each Representative District
by the qualified electors thereof, and two of whom shall be chosen from
New Castle County, two from Kent County and two from Sussex County by
the qualified electors thereof respectively. The delegates so chosen shall
convene at the Capital of the State on the first Tuesday in September next
after their election. Every delegate shall receive for his services such
compensation as shall be provided by law. A majority of the Convention
shall constitute a quorum for the transaction of business. The Convention
shall have the power to appoint such officers, employees and assistants as
it may be deem necessary, and fix their compensation, and provide for the
printing of its documents, journals, debates and proceedings. The
Convention shall determine the rules of its proceedings, and be the judge of
the elections, returns and qualifications of its members. Whenever there
shall be a vacancy in the office of delegate from any district or county by
reason of failure to elect, ineligibility, death, resignation or otherwise, a
writ of election to fill such vacancy shall be issued by the Governor, and
such vacancy shall be filled by the qualified electors of such district or
county.
5. Florida (1887) — Art. XVII. Amendments.
Sec. 1. Method of amending constitution. Either branch of the Legislature,

at any regular session, or at any special or extra-ordinary session thereof
called for such purpose either in the governor's original call or any
amendment thereof, may propose the revision or amendment of any
portion or portions of this Constitution. Any such revision or amendment
may relate to one subject or any number of subjects, but no amendment
shall consist of more than one revised article of the Constitution.
If the proposed revision or amendment is agreed to by three-fifths of the

members elected to each house, it shall be entered upon their respective
352
journals with the yeas and nays and published in one newspaper in each
county where a newspaper is published for two times, one publication to
be made not earlier than ten weeks and the other not later than six weeks,
immediately preceding the election at which the same is to be voted upon,
and thereupon submitted to the electors of the State for approval or
rejection at the next general election, provided, however, that
such revision oramendment may be submitted for approval or rejection in a
special election under the conditions described in and in the manner
provided by Section 3 of Article XVII of the Constitution. If a majority of the
electors voting upon the amendment adopt such amendment the same
shall become a part of this Constitution.
Sec. 2. Method of revising constitution. If at any time the Legislature, by a

vote of two-thirds of all the members of both Houses, shall determine that
a revision of this Constitution is necessary, such determination shall be
entered upon their respective Journals, with yea's and nay's thereon.
Notice of said action shall be published weekly in one newspaper in every
county in which a newspaper is published, for three months preceding the
next general election of Representatives, and in those countries where no
newspaper is published, notice shall be given by posting at the several
polling precincts in such counties for six weeks next preceding said election.
The electors at said election may vote for or against the revision in
question. If a majority of the electors so voting be in favor of revision, the
Legislature chosen at such election shall provide by law for a Convention to
revise the Constitution, said Convention to be held within six months after
the passage of such law. The Convention shall consist of a number equal to
the membership of the House of Representatives, and shall be apportioned
among the several counties in the same manner as members of said House.
6. Idaho (1890) — Art. XIX. Amendments.
Sec. 1. How amendments may be proposed. Any amendment or

amendments to this Constitution may be proposed in either branch of the
legislature, and if the same shall be agreed to by two-thirds of all the
members of each of the two houses, voting separately, such proposed
amendment or amendments shall, with the yeas and nays thereon, be
353
entered on their journals, and it shall be the duty of the legislature to

submit such amendment or amendments to the electors of the state at the
next general election, and cause the same to be published without delay for
at least six consecutive weeks, prior to said election, in not less than one
newspaper of the general circulation published in each county; and if a
majority of the electors shall ratify the same, such amendment or
amendments shall become a part of this Constitution.
Sec. 3. Revision or amendments by convention. Whenever two-thirds of the

members elected to each branch of the legislature shall deem it necessary
to call a convention to revise or amend this Constitution, they shall
recommend to the electors to vote at the next general election, for or
against a convention, and if a majority of all the electors voting at said
election shall have voted for a convention, the legislature shall at the next
session provide by law for calling the same; and such convention shall
consist of a number of members, not less than double the number of the
most numerous branch of the legislature.
7. Iowa (1857) — Art. X. Amendments to the Constitution.
Sec. 3. Convention. At the general election to be held in the year one

thousand eight hundred and seventy, and in each tenth year thereafter,
and also at such times as the General Assembly may, by law, provide, the
question, "Shall there be a Convention to revise the Constitution,
and amend the same?" shall be decided by the electors qualified to vote for
members of the General Assembly; and in case a majority of the electors so
qualified, voting at such election, for and against such proposition, shall
decide in favor of a Convention for such purpose, the General Assembly, at
its next session, shall provide by law for the election of delegates to such
Convention.
8. Michigan (1909) — Art. XVII. Amendments and Revision.
Sec. 1. Amendments to constitution; proposal by legislature; submission to

electors. Any amendment or amendments to this constitution may be
proposed in the senate or house of representatives. If the same shall be
354
agreed to by 2/3 of the members elected to each house,

such amendment or amendments shall be entered on the journals,
respectively, with the yeas and nays taken thereon; and the same shall be
submitted to the electors at the next spring or autumn election thereafter,
as the legislature shall direct; and, if a majority of the electors qualified to
vote for members of the legislature voting thereon shall ratify and approve
such amendment or amendments, the same shall become part of the
constitution.
Sec. 4. General revision; convention; procedure. At the Biennial Spring

Election to be held in the year 1961, in each sixteenth year thereafter and
at such times as may be provided by law, the question of a General
Revision of the Constitution shall be submitted to the Electors qualified to
vote for members of the Legislature. In case a majority of the Electors
voting on the question shall decide in favor of a Convention for such
purpose, at an Election to be held not later than four months after the
Proposal shall have been certified as approved, the Electors of each House
of Representatives District as then organized shall Elect One Delegate for
each Electors of each Senatorial District as then organized shall Elect One
Delegate for each State Senator to which the District is entitled. The
Delegates so elected shall convene at the Capital City on the First Tuesday
in October next succeeding such election, and shall continue their sessions
until the business of the convention shall be completed. A majority of the
delegates elected shall constitute a quorum for the transaction of
business. ... No proposed constitution or amendment adopted by such
convention shall be submitted to the electors for approval as hereinafter
provided unless by the assent of a majority of all the delegates elected to
the convention, the yeas and nays being entered on the journal. Any
proposed constitution or amendments adopted by such convention shall be
submitted to the qualified electors in the manner provided by such
convention on the first Monday in April following the final adjournment of
the convention; but, in case an interval of at least 90 days shall not
intervene between such final adjournment and the date of such election.
Upon the approval of such constitution or amendments by a majority of the
qualified electors voting thereon such constitution or amendments shall
take effect on the first day of January following the approval thereof.
355
9. Minnesota (1857) — Art. XIV. Amendments to the Constitution.
Sec. 1. Amendments to constitution; majority vote of electors voting makes

amendment valid. Whenever a majority of both houses of the legislature
shall deem it necessary to alter or amend this Constitution, they may
proposed such alterations or amendments, which proposed amendments
shall be published with the laws which have been passed at the same
session, and said amendments shall be submitted to the people for their
approval or rejection at any general election, and if it shall appear, in a
manner to be provided by law, that a majority of all the electors voting at
said election shall have voted for and ratified such alterations or
amendments, the same shall be valid to all intents and purposes as a part
of this Constitution. If two or more alterations or amendments shall be
submitted at the same time, it shall be so regulated that the voters shall
vote for or against each separately.
Sec. 2. Revision of constitution. Whenever two-thirds of the members

elected to each branch of the legislature shall think it necessary to call a
convention to revise this Constitution, they shall recommend to the
electors to vote at the next general election for members of the legislature,
for or against a convention; and if a majority of all the electors voting at
said election shall have voted for a convention, the legislature shall, at their
next session, provide by law for calling the same. The convention shall
consist of as many members as the House of Representatives, who shall be
chosen in the same manner, and shall meet within three months after their
election for the purpose aforesaid.
Sec. 3. Submission to people of revised constitution drafted at convention.

Any convention called to revise this constitution shall submit any revision
thereof by said convention to the people of the State of Minnesota for their
approval or rejection at the next general election held not less than 90 days
after the adoption of such revision, and, if it shall appear in the
manner provided by law that three-fifths of all the electors voting on the
question shall have voted for and ratified such revision, the same shall
constitute a new constitution of the State of Minnesota. Without such
submission and ratification, said revision shall be of no force or effect.
356
Section 9 of Article IV of the Constitution shall not apply to election to the

convention.
10. Nevada (1864) — Art. 16. Amendments.
Sec. 1. Constitutional amendments; procedure. Any amendment or

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

Legislature by a vote of two-thirds of the Members elected to each house,
shall determine that it is necessary to cause a revision of this entire
Constitution they shall recommend to the electors at the next election for
Members of the Legislature, to vote for or against a convention, and if it
shall appear that a majority of the electors voting at such election, shall
have voted in favor of calling a Convention, the Legislature shall, at its next
session provide by law for calling a Convention to be holden within six
months after the passage of such law, and such Convention shall consist of
a number of Members not less that of both branches of the legislature. In
determining what is a majority of the electors voting such election,
reference shall be had to the highest number of vote cast at such election
for the candidates of any office or on any question.
357
11. New Hamspire (1784) —
Art. 99. Revision of constitution provided for. It shall be the duty of the
selectmen, and assessors, of the several towns and places in this state, in
warning the first annual meetings for the choice of senators, after the
expiration of seven years from the adoption of this constitution, as
amended, to insert expressly in the warrant this purpose, among the others
for the meeting, to wit, to take the sense of the qualified voters on the
subject of a revision of the constitution; and, the meeting being warned
accordingly, and not otherwise, the moderator shall take the sense of the
qualified voters present as to the necessity of a revision; and a return of the
number of votes for and against such necessity, shall be made by the clerk
sealed up, and directed to the general court at their then next session; and
if, it shall appear to the general court by such return, that the sense of the
people of the state has taken, and that, in the opinion of the majority of the
qualified voters in the state, present and voting at said meetings, there is a
necessity for a revision of the constitution, it shall be the duty of the
general court to call a convention for that purpose, otherwise the general
court shall direct the sense of the people to be taken, and then proceed in
the manner before mentioned. The delegates to be chosen in the same
manner, and proportioned, as the representatives to the general court;
provided that no alterations shall be made in this constitution, before the
same shall be laid before the towns and unincorporated places, and
approved by two thirds of the qualified voters present and voting on the
subject.
12. Oklahoma (1907) — Art. XXIV. Constitutional Amendments.
Sec. 1. Amendments proposed by legislature; a submission to vote.

Any amendment or amendments to this Constitution may be proposed in
either branch of the Legislature, and if the same shall be agreed to by a
majority of all the members elected to each of the two houses, such
proposed amendment or amendments shall, with yeas and nays thereon,
be entered in their journals and referred by the Secretary of State to the
people for their approval or rejection, at the next regular general election,
except when the Legislature, by a two-thirds vote of each house, shall order
358
a special election for that purpose. If a majority of all the electors voting at

such election shall vote in favor of any amendment thereto, it shall thereby
become a part of this Constitution.
If two or more amendments are proposed they shall be submitted in such

manner that electors may vote for or against them separately.
No proposal for the amendment or alteration of this Constitution which is

submitted to the voters shall embrace more than one general subject and
the voters shall vote separately for or against each proposal submitted;
provided, however, that in the submission of proposals for
the amendment of this Constitution by articles, which embrace one general
subject, each proposed article shall be deemed a single proposals or
proposition
Sec. 2. Constitutional convention to propose amendments or new

constitution. No convention shall be called by the Legislature to
propose alterations, revisions, or amendments to this Constitution, or
to propose a new Constitution, unless the law providing for such
convention shall first be approved by the people on a referendum vote at a
regular or special election, and any amendments, alterations, revisions, or
new Constitution, proposed by such convention, shall be submitted to the
electors of the State at a general or special election and be approved by a
majority of the electors voting thereon, before the same shall become
effective Provided, That the question of such proposed convention shall be
submitted to the people at least once in every twenty years.
13. Oregon (1859) — Art. XVII. Amendments and Revisions.
Sec. 1. Method of amending constitution. Any amendment or amendments

to this Constitution may be proposed in either branch of the legislative
assembly, and if the same shall be agreed to by a majority of all the
amendments shall, with the yeas and nays thereon, be entered in their
journals and referred by the secretary of state to the people for their
approval or rejection, at the next regular election, except when the
359
legislative assembly shall order a special election for that purpose. If a

majority of the electors voting on any such amendment shall vote in favor
thereof, it shall thereby become a part of this Constitution. The votes for
and against such amendment, or amendments, severally, whether
proposed by the legislative assembly or by initiative petition, shall be
canvassed by the secretary of state in the presence of the governor, and if
it shall appear to the governor that the majority of the votes cast at said
election on said amendment, or amendments, severally, are cast in favor
thereof, it shall be his duty forthwith after such canvass, by his
proclamation, to declare the said amendment, or amendments, severally,
having received said majority of votes to have been adopted by the people
of Oregon as part of the Constitution thereof, and the same shall be in
effect as a part of the Constitution from the date of such proclamation.
When two or more amendments shall be submitted in the manner
aforesaid to the voters of this state at the same election, they shall be so
submitted that each amendment shall be voted on separately. No
convention shall be called to amend or propose amendments to this
Constitution, or to propose a new Constitution, unless the law providing for
such convention shall first be approved by the people on a referendum vote
at a regular general election. This article shall not be construed to impair
the right of the people to amend this Constitution by vote upon an initiative
petition therefor.
Sec. 2. Method of revising constitution. (1) In addition to the power to

amend this Constitution granted by section 1, Article IV, and section 1 of
this Article, a revision of all or part of this Constitution may be proposed in
either house of the Legislative Assembly and, if the proposed revision is
agreed to by at least two-thirds of all the members of each house, the
proposed revision shall, with the yeas and nays thereon, be entered in their
journals and referred by the Secretary of State to the people for their
approval or rejection, notwithstanding section 1, Article IV of this
Constitution, at the next regular state-wide primary election, except when
the Legislative Assembly orders a special election for that purpose. A
proposed revision may deal with more than one subject and shall be voted
upon as one question. The votes for and against the proposed revision shall
be canvassed by the Secretary of State in the presence of the Governor
and, if it appears to the Governor that the majority of the votes cast in the
360
election on the proposed revision are in favor of the proposed revision, he

shall, promptly following the canvass, declare, by his proclamation, that the
proposed revision has received a majority of votes and has been adopted
by the people as the Constitution of the State of Oregon, as the case may
be. The revision shall be in effect as the Constitution or as a part of this
Constitution from the date of such proclamation.
14. Utah (1896) — Art. 23. Amendments.
Sec. 1. Amendments; method of proposal and approval. Any amendments

to his Constitution may be proposed in either house of the Legislature, and
if two-thirds of all the members elected of the two houses, shall vote in
favor thereof, such proposed amendment or amendments shall be entered
on their respective journals with the yeas and nays taken thereon; and the
Legislature shall cause the same to be published in at least one newspaper
in every county of the State, where a newspaper is published, for two
months immediately preceding the next general election, at which time the
said amendment or amendments shall be submitted to the electors of the
State, for their approval or rejection, and if a majority of the electors voting
thereon shall approve the same, such amendment or amendments shall
become part of this Constitution. If two or more amendments are
proposed, they shall be so submitted as to enable the electors to vote on
each of them separately.
Sec. 2. Revision of the Constitution by convention. Whenever two-thirds of

the members, elected to each branch of the Legislature, shall deem it
necessary to call a convention to revise or amend this Constitution, they
shall recommend to the electors to vote at the next general election, for or
against a convention, and, if a majority of all the electors, voting at such
election, shall vote for a convention. The Legislature, at its next session,
shall provide by law for calling the same. The convention shall consist of not
less than the number of members in both branches of the Legislature.
15. Wyoming (1890) — Art. XX. Amendments.
361
Sec. 1. Procedure for amendments. Any amendment or amendments to this

Constitution may be proposed in either branch of the legislature, and, if the
same shall be agreed to by two-thirds of all the members of the two
houses, voting separately, such proposed amendment or amendments
shall, with the yeas and nays thereon, be entered on their journals, and it
shall be the duty of the legislature to submit such amendment or
amendments to the electors of the state at the next general election, in at
least one newspaper of general circulation, published in each county, and if
a majority of the electors shall ratify the same, such amendment or
amendments shall become a part of this constitution.
Sec. 2. How voted for. If two or more amendments are proposed, they shall
be submitted in such manner that the electors shall vote for or against each
of them separately.
Sec. 3. Constitutional convention; provision for. Whenever two-thirds of the

to call a convention to revise or amend this constitution, they shall
recommend to the electors to vote at the next general election for or
against a convention, and if a majority of all the electors voting at such
session provide by a law for calling the same; and such convention shall
consist of a number of members, not less than double that of the most
numerous branch of the legislature.
Sec. 4. New constitution. Any constitution adopted by such convention shall

have no validity until it has been submitted to and adopted by the people.
Separate Opinions
MAKALINTAL, J., concurring:
362
CASTRO, J., concurring:
The preliminary question before this Court was whether or not the
petitioners had made out a sufficient prima faciecase in their petitions to
justify their being given due course. Considering on the one hand the
urgency of the matter and on the other hand its transcendental
importance, which suggested the need for hearing the side of the
respondents before that preliminary question was resolved, We required
them to submit their comments on the petitions. After the comments were
filed We considered them as motions to dismiss so that they could be orally
argued. As it turned out, the hearing lasted five days, morning and
afternoon, and could not have been more exhaustive if the petitions had
been given due course from the beginning.
The major thrust of the petitions is that the act of the Citizens Assemblies
as certified and proclaimed by the President on January 17, 1973
(Proclamation No. 1102) was not an act of ratification, let alone a valid one,
of the proposed Constitution, because it was not in accordance with the
existing Constitution (of 1935) and the Election Code of 1971. Other
grounds are relied upon by the petitioners in support of their basic
proposition, but to our mind they are merely subordinate and peripheral.
Article XV, Section 1, of the 1935 Constitution provides that amendments

(proposed either by Congress in joint session or by a Convention called by it
for the purpose) "shall be valid part of this Constitution when approved by
a majority of votes cast at an election at which the amendments submitted
to the people for their ratification." At the time Constitution was approved
by the Constitutional Convention on February 8, 1935, and ratified in a
plebiscite held on following May 14, the word "election" had already a
definite meaning in our law and jurisprudence. It was not a vague and
amorphous concept, but a procedure prescribed by statute ascertaining the
people's choices among candidates for public offices, or their will on
important matters submitted to the pursuant to law, for approval. It was in
this sense that word was used by the framers in Article XV (also in Articles
VI and VII), and in accordance with such procedure that plebiscites were
held to ratify the very same Constitution in 1935 as well as the subsequent
363
amendments thereto, thus: in 1939 (Ordinance appended to the

Constitution); 1940 (establishment of a bicameral legislature; eligibility of
the President and the Vice President for re election; creation of the
Commission of Elections); 1947 (Parity Amendment); and 1967 (increase in
membership of the House of Representatives and eligibility of members of
Congress to run for the Constitutional Convention without forfeiture of
their offices).
The Election Code of 1971, in its Section 2, states that "all elections of
public officers except barrio officials andplebiscites shall be conducted in
the manner provided by this Code." This is a statutory requirement
designed, as were the other election laws previously in force, to carry out
the constitutional mandate relative to the exercise of the right suffrage,
and with specific reference to the term "plebiscites," the provision of
Article XV regarding ratification of constitutional amendments.
The manner of conducting elections and plebiscites provided by the Code is

spelled out in other sections thereof. Section 99 requires that qualified
voters be registered in a permanent list, the qualifications being those set
forth in Article V, Section 1, of the 1935 Constitution on the basis of age
(21), literacy and residence. These qualifications are reiterated in Section
101 of the Election Code. Section 102 enumerates the classes of persons
disqualified to vote. Succeeding sections prescribe the election
paraphernalia to be used, the procedure for registering voters, the records,
of registration and the custody thereof, the description and printing of
official ballots, the actual casting of votes and their subsequent counting by
the boards of inspectors, the rules for appreciation of ballots, and then the
canvass and proclamation of the results.
With specific reference to the ratification of the 1972 draft Constitution,

several additional circumstances should be considered:
(1) This draft was prepared and approved by a Convention which had been
convened pursuant to Resolution No. 2 passed by Congress on March 16,
1967, which provides:
364
Sec. 7. The amendments proposed by the

Convention shall be valid and considered part of
the Constitution when approved by a majority of
the votes cast in an election at which they are
submitted to the people for their ratification
pursuant to Article XV of the Constitution.
(2) Article XVII, Section 16, of the draft itself states:
Sec. 16. This Constitution shall take effect

immediately upon its ratification by a majority of
the votes cast in a plebiscite called for the
purpose and, except as herein provided, shall
supersede the Constitution of nineteen hundred
and thirty-five and all amendments thereto.
The same procedure is prescribed in Article XVI, Section 2, for the

ratification of any future amendment to or revision of the said Constitution.
(3) After the draft Constitution was approved by the Constitutional

Convention on November 30, 1972 the said body adopted Resolution No.
5843, proposing "to President Ferdinand E. Marcos that a decree be issued
calling aplebiscite for the ratification of the proposed New Constitution on
necessary funds therefor." Pursuant to said Resolution the President issued
Decree No. 73 on the same day, calling a plebiscite to be held on January
15, 1973, at which the proposed Constitution "shall be submitted to the
people for ratification or rejection." The Decree had eighteen (18) sections
in all, prescribing in detail the different steps to be taken to carry out the
process of ratification, such as: (a) publication of the proposed Constitution
in English and Pilipino; (b) freedom of information and discussion; (c)
registration of voters: (d) appointment of boards of election inspectors and
designation of watchers in each precinct; (e) printing of official ballots; (f)
manner of voting to insure freedom and secrecy thereof; (g) canvass of
plebiscite returns; and (h) in general, compliance with the provisions of the
365
Election Code of 1971, with the Commission on Elections exercising its

constitutional and statutory powers of supervision of the entire process.
There can hardly be any doubt that in everybody's view — from the framers
of the 1935 Constitution through all the Congresses since then to the 1971
Constitutional Convention — amendments to the Constitution should be
ratified in only one way, that is, in an election or plebiscite held in
accordance with law and participated in only by qualified and duly
registered voters. Indeed, so concerned was this Court with the importance
and indispensability of complying with the mandate of the (1935)
Constitution in this respect that in the recent case of Tolentino vs.
Commission on Elections, No. L-34150, October 16, 1971 (41 SCRA 702), a
resolution of the (1971) Constitutional Convention submitting a proposed
amendment for ratification to a plebiscite to be held in November 1971 was
declared null and void. The amendment sought to reduce the voting age
from twenty-one to eighteen years and was approved by the Convention
for submission to a plebiscite ahead of and separately from other
amendments still being or to be considered by it, so as to enable the youth
to be thus enfranchised to participate in the plebiscite for the ratification of
such other amendments later. This Court held that such separate
submission was violative of Article XV, Section 1, of the Constitution, which
contemplated that "all the amendments to be proposed by the same
Convention must be submitted to the people in a single "election" or
plebiscite." * Thus a grammatical construction based on a singular, instead
of plural, rendition of the word "election" was considered a sufficient
ground to rule out the plebiscite which had been called to ratify a proposed
amendment in accordance with the procedure and under all the safeguards
provided in the Election Law.
In the cases now before Us what is at issue is not merely the ratification of
just one amendment, as in Tolentino vs. COMELEC, but the ratification of an
entire charter setting up a new form of government; and the issue has
arisen not because of a disputed construction of one word or one provision
in the 1935 Constitution but because no election or plebiscite in accordance
with that Constitution and with the Election Code of 1971 was held for the
purpose of such ratification.
366
The Citizens Assemblies which purportedly ratified the draft Constitution

were created by Presidential Decree No. 86 dated December 31, 1972, "to
broaden the base of citizen participation in the democratic process and to
afford ample opportunities for the citizenry to express their views on
important national issues." The Assemblies "shall consist of all persons who
are residents of the barrio, district or ward for at least six
months, fifteen years of age or over, citizens of the Philippines and who are
registered in the lists of Citizen Assembly members kept by the barrio,
district or ward secretary." By Presidential Decree No. 86-A, dated January
5, 1973, the Assemblies were convened for a referendum between January
10 and 15, to "consider vital national issues now confronting the country,
like the holding of the plebiscite on the new Constitution, the continuation
of martial rule, the convening of Congress on January 22, 1973, and the
holding of elections in November 1973."
On January 5, 1973 the newspapers came out with a list of four questions
to be submitted to the Citizens Assemblies, the fourth one being as follows:
"How soon would you like plebiscite on the new Constitution to be held?" It
should be noted in this connection that the President had previously
announced that he had ordered the postponement of plebiscite which he
had called for January 15, 1973 (Presidential Decree No. 73) for the
ratification of the Constitution, and that he was considering two new dates
for the purpose — February 19 or March 5; that he had ordered that the
registration of voters (pursuant to Decree No. 73) be extended to
accommodate new voters; and that copies of the new Constitution would
be distributed in eight dialects the people. (Bulletin Today, December 24,
1972.)
On January 10, 1973 it was reported that one more question would be
added to the original four which were to be submitted to the Citizens
Assemblies. The question concerning plebiscite was reworded as follows:
"Do you like the plebiscite to be held later?" The implication, it may
likewise be noted, was that the Assemblies should express their views as to
the plebiscite should be held, not as to whether or not it should be held at
all.
367
The next day, January 11, it was reported that six additional questions
would be submitted, namely:

of national interest?
(2) Do you approve of the new Constitution?


November, 1973 accordance with the provisions
of the 1935 Constitution?

(6) Do you want martial law to continue? [Bulletin

Today, January 11, 1973; emphasis supplied].
Appended to the six additional questions above quoted were the suggested
answers, thus:
COMMENTS ON
QUESTION No. 1
In order to broaden the base of

citizens' participation in
government.
QUESTION No. 2
368

QUESTION No. 3

be deemed ratified.

New Constitution.
QUESTION No. 4

QUESTION No. 5

369
QUESTION No. 6

program and establish normalcy
Marcos to declare a
without the ad interim Assembly.
So it was that on January 11, 1973, the second day of the purported
referendum, the suggestion was broached, for the first time, that the
plebiscite should be done away with and a favorable vote by the
Assemblies deemed equivalent ratification. This was done, not in the
questionnaire itself, but in the suggested answer to question No. 3.
Strangely, however, it was not similarly suggested that an unfavorable vote
be considered as rejection.
There should be no serious dispute as to the fact that the manner in which
the voting was conducted in the Citizen Assemblies, assuming that such
voting was held, was not within the intendment of Article XV, Section 1, of
the 1935 Constitution nor in accordance with the Election Code of 1971.
The referendum can by no means be considered as the plebiscite
contemplated in Section 2 of said Code and in Article XVII, Section 16, of
the draft Constitution itself, or as the election intended by Congress when it
passed Resolution No. 2 on March 16, 1967 calling a Convention for the
revision of the 1935 Constitution. The Citizens Assemblies were not limited
to qualified, let alone registered voters, but included all citizens from the
age of fifteen, and regardless of whether or not they were illiterates,
feeble-minded, or ex convicts * — these being the classes of persons
370
expressly disqualified from voting by Section 102 of the Election Code. In

short, the constitutional and statutory qualifications were not considered in
the determination of who should participate. No official ballots were used
in the voting; it was done mostly by acclamation or open show of hands.
Secrecy, which is one of the essential features of the election process, was
not therefore observed. No set of rules for counting the votes or of
tabulating them and reporting the figures was prescribed or followed. The
Commission on Elections, which is the constitutional body charged with the
enforcement and administration of all laws relative to the conduct of
elections, took no part at all, either by way of supervision or in the
assessment of the results.
It has been suggested that since according to Proclamation No. 1102 the
overwhelming majority of all the members of the Citizens Assemblies had
voted for the adoption of the proposed Constitution there was a substantial
compliance with Article XV, Section 1, of the 1935 Constitution and with the
Election Code of 1971. The suggestion misses the point entirely. It is of the
essence of a valid exercise of the right of suffrage that not only must a
majority or plurality of the voters carry the day but that the same must be
duly ascertained in accordance with the procedure prescribed by law. In
other words the very existence of such majority or plurality depends upon
the manner of its ascertainment, and to conclude that it exists even if it has
not been ascertained according to law is simply to beg the issue, or to
assume the very fact to be established. Otherwise no election or plebiscite
could be questioned for non-compliance with the provisions of the Election
Law as long as it is certified that a majority of the citizens had voted
favorably or adversely on whatever it was that was submitted to them to
vote upon.
However, a finding that the ratification of the draft Constitution by the

Citizens Assemblies, as certified by the President in Proclamation No. 1102,
was not in accordance with the constitutional and statutory procedure laid
down for the purpose does not quite resolve the questions raised in these
cases. Such a finding, in our opinion, is on a matter which is essentially
justiciable, that is, within the power of this Court to inquire into. It imports
nothing more than a simple reading and application of the pertinent
371
provisions of the 1935 Constitution, of the Election Code and of other

related laws and official acts. No question of wisdom or of policy is
involved. But from this finding it does not necessarily follow that this Court
may justifiably declare that the Constitution has not become effective, and
for that reason give due course to these petitions or grant the writs herein
prayed for. The effectivity of the said Constitution, in the final analysis, is
the basic and ultimate question posed by these cases, to resolve which
considerations other than judicial, and therefore beyond the competence
of this Court, are relevant and unavoidable.
Several theories have been advanced respectively by the parties. The

petitioners lay stress on the invalidity of the ratification process adopted by
the Citizens Assemblies and on that premise would have this Court grant
the reliefs they seek. The respondents represented by the Solicitor General,
whose theory may be taken as the official position of the Government,
challenge the jurisdiction of this Court on the ground that the questions
raised in the petitions are political and therefore non-justiciable, and that in
any case popular acquiescence in the new Constitution and the prospect of
unsettling acts done in reliance thereon should caution against
interposition of the power of judicial review. Respondents Gil J. Puyat and
Jose Roy (in L-36165), in their respective capacities as President and
President Pro Tempore of the Senate of the Philippines, and through their
counsel, Senator Arturo Tolentino, likewise invoke the political question
doctrine, but on a ground not concurred in by the Solicitor General, namely,
that approval of the 1973 Constitution by the people was made under a
revolutionary government, in the course of a successful political revolution,
which was converted by act of the people to the present de
jure government under the 1973 Constitution."
Heretofore, constitutional disputes which have come before this Court for
adjudication proceeded on the assumption, conceded by all, that the
Constitution was in full force and effect, with the power and authority of
the entire Government behind it; and the task of this Court was simply to
determine whether or not the particular act or statute that was being
challenged contravened some rule or mandate of that Constitution. The
process employed was one of interpretation and synthesis. In the cases at
372
bar there is no such assumption: the Constitution (1935) has been

derogated and its continued existence as well as the validity of the act of
derogation is issue. The legal problem posed by the situation is aggravated
by the fact that the political arms of the Government — the Executive
Departments and the two Houses of Congress — have accepted the new
Constitution as effective: the former by organizing themselves and
discharging their functions under it, and the latter by not convening on
January 22, 1973 or at any time thereafter, as ordained by the 1935
Constitution, and in the case of a majority of the members by expressing
their option to serve in the Interim National Assembly in accordance with
Article XVIII, Section 2, of the 1973 Constitution. *
The theory advanced by Senator Tolentino, as counsel for respondents

Puyat and Roy, may be taken up and restated at same length if only
because it would constitute, if sustained, the most convenient ground for
the invocation of the political-question doctrine. In support of his theory,
Senator Tolentino contends that after President Marcos declared martial
law on September 21, 1972 (Proclamation No. 1081) he established a
revolutionary government when he issued General Order No. 1 the next
day, wherein he proclaimed "that I shall govern the nation and direct the
operation of the entire government, including all its agencies and
instrumentalities, in my capacity, and shall exercise all the powers and
prerogatives appurtenant and incident to my position as such Commander-
in-Chief of all the Armed Forces of the Philippines." By this order, it is
pointed out, the Commander-in-Chief of the Armed Forces assumed all the
powers of government — executive, legislative, and judicial; and thereafter
proceeded to exercise such powers by a series of Orders and Decrees which
amounted to legislative enactments not justified under martial law and, in
some instances, trenched upon the domain of the judiciary, by removing
from its jurisdiction certain classes of cases, such as "those involving the
validity, legality, or constitutionality of Proclamation No. 1081, or of any
decree, order or act issued, promulgated or performed by me or by my duly
designated representative pursuant thereto." (General Order No. 3 as
amended by General Order No. 3-A, dated September 24, 1972.) The
ratification by the Citizens Assemblies, it is averred, was the culminating act
of the revolution, which thereupon converted the government into a de
jure one under the 1973 Constitution.
373
If indeed it be accepted that the Citizens Assemblies had ratified the 1973
Constitution and that such ratification as well as the establishment of the
government thereunder formed part of a revolution, albeit peaceful, then
the issue of whether or not that Constitution has become effective and, as
necessary corollary, whether or not the government legitimately functions
under it instead of under the 1935 Constitution, is political and therefore
non-judicial in nature. Under such a postulate what the people did in the
Citizen Assemblies should be taken as an exercise of the ultimate sovereign
power. If they had risen up in arms and by force deposed the then existing
government and set up a new government in its place, there could not be
the least doubt that their act would be political and not subject to judicial
review but only to the judgment of the same body politic act, in the context
just set forth, is based on realities. If a new government gains authority and
dominance through force, it can be effectively challenged only by a
stronger force; judicial dictum can prevail against it. We do not see that
situation would be any different, as far as the doctrine of judicial review is
concerned, if no force had been resorted to and the people, in defiance of
the existing Constitution but peacefully because of the absence of any
appreciable opposition, ordained a new Constitution and succeeded in
having the government operate under it. Against such a reality there can be
no adequate judicial relief; and so courts forbear to take cognizance of the
question but leave it to be decided through political means.
The logic of the political-question doctrine is illustrated in statement of the

U.S. Supreme Court in a case * relied upon, curiously enough, by the
Solicitor General, who disagrees with the revolutionary government theory
of Senator Tolentino. The case involved the issue of which of two opposing
governments struggling for supremacy in the State of Rhode Island was the
lawful one. The issue had previously come up in several other cases before
the courts of the State, which uniformly held that the inquiry belonged to
the political power and not to the judicial. Commenting on the ruling thus
arrived at, the U.S. Supreme Court said: "And if a State court should enter
upon the inquiry proposed in this case, and should come to the conclusion
that the government under which it acted had been put aside and displaced
by an opposing government, it would cease to be a court, and incapable of
pronouncing a judicial decision upon the question it undertook to try. If it
decides at all as a court, it necessarily affirms the existence and authority of
374
the government under which it is exercising judicial power." In other words,

since the court would have no choice but to decide in one way alone in
order to be able to decide at all, the question could not be considered
proper for judicial determination.
It should be noted that the above statement from Luther vs. Borden would
be applicable in the cases at bar only on the premise that the ratification of
the Constitution was a revolutionary act and that the government now
functioning it is the product of such revolution. However, we are not
prepared to agree that the premise is justified.
In the first, place, with specific reference to the questioned ratification,

several significant circumstances may be noted. (1) The Citizens Assemblies
were created, according to Presidential Decree No. 86, "to broaden the
base of citizen participation in the democratic process and to afford ample
opportunities for the citizenry to express their views on important national
issues." (2) The President announced, according to the Daily Express of
January 2, 1973, that "the referendum will be in the nature of a loose
consultation with the people." (3) The question, as submitted to them on
the particular point at issue here, was "Do you a approve of the
Constitution?" (4) President Marcos, in proclaiming that the Constitution
had been ratified, stated as follows: "(S)ince the referendum results show
that more than ninety-five (95) per cent of the members of the Barangays
(Citizens Assemblies) are in favor of the new Constitution, the Katipunan ng
mga Barangay has strongly recommended that the new Constitution should
already be deemed ratified by the Filipino people." (5) There was not
enough time for the Citizens Assemblies to really familiarize themselves
with the Constitution, much less with the many other subjects that were
submitted to them. In fact the plebiscite planned for January 15, 1973
under Presidential Decree No. 73 had been postponed to an indefinite date,
the reasons for the postponement being, as attributed to the President in
the newspapers, that "there was little time to campaign for or against
ratification" (Daily Express, Dec. 22, 1972); that he would base his decision
(as to the date, of the plebiscite) on the compliance by the Commission (on
Elections) on the publication requirement of the new Charter and on the
position taken by national leaders" (Daily Express, Dec. 23, 1972); and that
375
"the postponement would give us more time to debate on the merits of the
Charter." (Bulletin Today, Dec. 24, 1972.)
The circumstances above enumerated lead us to the conclusion that the

Citizens Assemblies could not have understood the referendum to be for
the ratification of the Constitution, but only for the expression of their
views on a consultative basis. Indeed, if the expression of those views had
been intended as an act of ratification (or of rejection as a logical corollary)
— there would have been no need for the Katipunan ng mga Barangay to
recommend that the Constitution should already be deemed ratified, for
recommendation imports recognition of some higher authority in whom
the final decision rests.
But then the President, pursuant to such recommendation, did proclaim

that the Constitution had been ratified and had come into effect. The more
relevant consideration, therefore, as far as we can see, should be as to
what the President had in mind in convening the Citizens Assemblies,
submitting the Constitution to them and proclaiming that the favorable
expression of their views was an act of ratification. In this respect subjective
factors, which defy judicial analysis and adjudication, are necessarily
involved.
In positing the problem within an identifiable frame of reference we find no

need to consider whether or not the regime established by President
Marcos since he declared martial law and under which the new
Constitution was submitted to the Citizens Assemblies was a revolutionary
one. The pivotal question is rather whether or not the effectivity of the said
Constitution by virtue of Presidential Proclamation No. 1102, upon the
recommendation of the Katipunan ng mga Barangay, was intended to be
definite and irrevocable, regardless of non-compliance with the pertinent
constitutional and statutory provisions prescribing the procedure for
ratification. We must confess that after considering all the available
evidence and all the relevant circumstances we have found no reasonably
reliable answer to the question. On one hand we read, for instance, the
following public statements of the President:
376
Speaking about the proclamation of martial law, he said:
I reiterate what I have said in the past: there is no

turning back for our people.
We have committed ourselves to this revolution.

We have pledged to it our future, our fortunes,
our lives, our destiny. We have burned our bridges
behind us. Let no man misunderstand the
strength of our resolution. (A Report to the
Nation, Jan. 7, 1973.)
On the occasion of the signing of Proclamation No. 1102 on January 17,

1973, the President said the following, among other things:
... We can, perhaps delimit the power of the

people to speak on legal matters, on justiciable
matters, on matters that may come before the
experts and interpreters of the law. But we cannot
disqualify the people from speaking on what we
and the people consider purely political matters
especially those that affect the fundamental law
of the land.
... The political questions that were presented to

the people are exactly those that refer to the form
of government which the people want ... The
implications of disregarding the people's will are
too awesome to be even considered. For if any
power in government should even dare to
disregard the people's will there would be valid
ground for revolt.
... Let it be known to everybody that the people

have spoken and they will no longer tolerate any
attempt to undermine the stability of their
377
Republic; they will rise up in arms not in revolt

against the Republic but in protection of the
Republic which they have installed. It is quite clear
when the people say, we ratify the Constitution,
that they mean they will not discard, the
Constitution.
On January 19, 1973 the Daily Express published statement of the President

made the day before, from which the following portion is quoted:
... the times are too grave and the stakes too high
for us permit the customary concessions to
traditional democratic process to hold back our
people's clear and unequivocal resolve and
mandate to meet and overcome the extraordinary
challenges presented by these extraordinary
times.
On the same occasion of the signing of Proclamation No. 1102 the

President made pointed reference to "the demand of some of our
citizens ... that when all other measures should fail, that the President be
directed to organize and establish a Revolutionary Government," but in the
next breath added: "... if we do ratify the Constitution, how can we speak of
Revolutionary Government? They cannot be compatible ..." "(I)t is my
feeling," he said, "that the Citizens' Assemblies which submitted this
recommendation merely sought articulate their impatience with the status
quo that has brought about anarchy, confusion and misery to the
masses ..." The only alternatives which the President clearly implied by the
foregoing statements were the ratification of the new Constitution and the
establishment of a revolutionary government, the latter being unnecessary,
in his opinion, because precisely the Constitution had been ratified. The
third obvious alternative was entirely ruled out, namely, a return to the
1935 Constitution, for it was thestatus quo under that Constitution that had
caused "anarchy, confusion and misery." The message seems clear: rather
than return to such status quo, he would heed the recommendation of the
Citizens' Assemblies to establish a revolutionary government, because that
378
would be the only other way to carry out the reforms he had envisioned
and initiated — reforms which, in all fairness and honesty, must be given
credit for the improved quality of life in its many aspects, except only in the
field of civil liberties.
If there is any significance, both explicit and implicit, and certainly

unmistakable, in the foregoing pronouncements, it is that the step taken in
connection with the ratification of the Constitution was meant to be
irreversible, and that nothing anyone could say would make the least
difference. And if this is a correct and accurate assessment of the situation,
then we would say that since it has been brought about by political action
and is now maintained by the government that is in undisputed authority
and dominance, the matter lies beyond the power of judicial review.
On the other hand, by avowals no less significant if not so emphatic in

terms, President Marcos has professed fealty to the Constitution. In
"Today's Revolution: Democracy" he says:
I believe, therefore, in the necessity of Revolution

as an instrument of individual and social change ...
but that in a democratic society, revolution is of
necessity, constitutional, peaceful, and legal.
In his TV address of September 23, 1972, President Marcos told the nation:
I have proclaimed martial law in accordance with

the powers vested in the President by the
xxx xxx xxx
I repeat, this is not a military takeover of civil

government functions. The Government of
the Republic of the Philippines which was
established by our people in 1946 continues.
379
xxx xxx xxx
I assure you that I am utilizing this power vested

in me by the Constitution to save the Republic and
reform our society...
I have had to use this constitutional power in

order that we may not completely lose the civil
rights and freedom which we cherish...
... We are against the wall. We must now defend

the Republic with the stronger powers of the
Constitution.
(Vital Documents, pp. 1-12; emphasis supplied).
In the report of an interview granted by the President to the Newsweek

Magazine (published in the issue of January 29, 1973), the following
appears:
xxx xxx xxx
Q. Now that you have gotten off

the constitutional track, won't
you be in serious trouble if you
run into critical problems with
your programs?
R. I have never gotten off the

constitutional track. Everything I
am doing is in accordance with
the 1935 Constitution. The only
thing is that instead of 18-year-
olds voting, we have allowed 15-
year-olds the right to vote. But
the 15-year-olds of today are
380
high-school students, if not

graduates, and they are better
informed than my
contemporaries at that age. On
the matter of whether it is
constitutional to proclaim martial
law, it is constitutional because
the Constitution provides for it in
the event of invasion,
insurrection, rebellion or
immediate danger thereof. We
may quarrel about whether what
we have gone through is
sufficient cause to proclaim
martial law but at the very least
there is a danger of rebellion
because so many of our soldiers
have been killed. You must
remember this (martial law
provision) was lifted from the
American legislation that was the
fundamental law of our country.
xxx xxx xxx
In the light of this seeming ambivalence, the choice of what course of

action to pursue belongs to the President. We have earlier made reference
to subjective factors on which this Court, to our mind, is in no position to
pass judgment. Among them is the President's own assessment of the will
of the people as expressed through the Citizens Assemblies and of the
importance of the 1973 Constitution to the successful implementation of
the social and economic reforms he has started or envisioned. If he should
decide that there is no turning back, that what the people recommended
through the Citizens Assemblies, as they were reported to him, demand
that the action he took pursuant thereto be final and irrevocable, then
judicial review is out of the question.
381
In articulating our view that the procedure of ratification that was followed
was not in accordance with the 1935 Constitution and related statutes, we
have discharged our sworn duty as we conceive it to be. The President
should now perhaps decide, if he has not already decided, whether
adherence to such procedure is weighty enough a consideration, if only to
dispel any cloud of doubt that may now and in the future shroud the
nation's Charter.
In the deliberations of this Court one of the issues formulated for resolution
is whether or not the new Constitution, since its submission to the Citizens
Assemblies, has found acceptance among the people, such issue being
related to the political question theory propounded by the respondents.
We have not tarried on the point at all since we find no reliable basis on
which to form a judgment. Under a regime of martial law, with the free
expression of opinions through the usual media vehicles restricted, we have
no means of knowing, to the point of judicial certainty, whether the people
have accepted the Constitution. In any event, we do not find the issue
decisive insofar as our vote in these cases is concerned. To interpret the
Constitution — that is judicial. That the Constitution should be deemed in
effect because of popular acquiescence — that is political, and therefore
beyond the domain of judicial review.
We therefore vote not to give due course to the instant petitions.
BARREDO, J., concurring:
As far as I am concerned, I regard the present petitions as no more than

mere reiterations of the Supplemental Petitions filed by Counsel Lorenzo
M. Tañada on January 15, 1973 in the so called Plebiscite Cases decided by
this Court on January 22, 1978. Of course, there are amplifications of some
of the grounds previously alleged and in the course of the unprecedented
five-day hearing that was held from February 12 to 16 last, more extensive
and illuminating arguments were heard by Us, but, in my estimation, and
with due recognition of the sincerety, brilliance and eloquence of counsels,
nothing more cogent and compelling than what had already been
previously presented by Counsel Tañada is before Us now. Accordingly, I
382
cannot see any reason why I should change the position I took in regard to
the earlier cases. I reiterate, therefore, the vote I cast when these petitions
were initially considered by the Court; namely, to dismiss them.
In view, however, of the transcendental importance of the issues before

the Court and the significance to our people and in history of the individual
stands of the members of the Court in relation to said issues and to the
final outcome of these cases, and considering that I reserved before the
filing of a more extended opinion, I will take this opportunity to explain
further why I hold that the 1973 Constitution is already in force, if only to
clarify that apart from the people's right of revolution to which I made
pointed reference in my previous opinion, I can see now, after further
reflection, that the vote of the people in the referendum in the Citizens
Assemblies held on January 10 to 15, 1973, upon the result of which
Proclamation 1102 is based, may be viewed more importantly as a political
act than as a purely legal one with the result that such vote to consider the
1973 Constitution as ratified without the necessity of holding a plebiscite in
the form followed in the previous ratification plebiscites in 1935 of the
Constitution itself, 1937 of women's suffrage, 1939 of the amendments to
the Ordinance Appended to the Constitution, 1940 of the re-election of the
President, the bicameral legislature and the Commission on Elections, 1947
of the parity amendment and 1967, rejecting the proposed increase in the
members of the House of Representatives and eligibility of members of
Congress to the Constitutional Convention, may be deemed as a valid
ratification substantially in compliance with the basic intent of Article XV of
the 1935 Constitution. If indeed this explanation may be considered as a
modification of my rationalization then, I wish to emphasize that my
position as to the fundamental issue regarding the enforceability of the
new Constitution is even firmer now than ever before. As I shall elucidate
anon, paramount considerations of national import have led me to the
conviction that the best interests of all concerned would be best served by
the Supreme Court holding that the 1973 Constitution is now in force, not
necessarily as a consequence of the revolutionary concept previously
suggested by me, but upon the ground that as a political, more than as a
legal, act of the people, the result of the referendum may be construed as a
compliance with the substantiality of Article XV of the 1935 Constitution.
383
The facts that gave rise to these proceedings are historical and well known.
Generally, they may be taken judicial notice of. They revolve around the
purported ratification of the Constitution of 1973 declared in Proclamation
1102 issued by the President on January 17, 1973.
Pursuant to a joint resolution of the Congress sitting as a constituent

assembly approved on March 16, 1967, delegates to a constitutional
convention to propose amendments to the Constitution of 1935 were
elected in accordance with the implementing law, Republic Act 6132, on
November 10, 1970. Known as the Constitutional Convention of 1971, the
assembly began its sessions on June 1, 1971. After encountering a lot of
difficulties, due to bitter rivalries over important positions and committees
and an incomprehensible fear of overconcentrating powers in their officers,
the delegates went about their work in comparatively slow pace, and by
the third quarter of 1972 had finished deliberations and second-reading
voting only on an insignificant number of proposals — until September 21,
1972, when the President, not altogether unexpectedly, yet abruptly,
issued Proclamation 1081 declaring martial law throughout the country. An
attempt was made to have the Convention recessed until after the lifting of
martial law, and not long after the motion of Delegate Kalaw to such effect
was turned down, the activities within the assembly shifted to high gear. As
if unmindful of the arrest and continued detention of several of its
members, the convention gathered swift momentum in its work, and on
November 30, 1972, it approved by overwhelming vote the draft of a
complete constitution, instead of mere specific amendments of particular
portions of the Constitution of 1935. Needless to say, before martial law
was declared, there was full and unlimited coverage of the workings in the
convention by the mass media. At the same time, public debates and
discussions on various aspects of proposed amendments were not
uncommon.
Earlier, on November 22, 1972, the Convention had Resolution No. 5843
proposing "to President Ferdinand Marcos that a decree be issued calling a
plebiscite for ratification of the proposed new Constitution on appropriate
384
date as he shall determine and providing for necessary funds therefor."

Acting under this authority, December 1, 1972, the President issued
Presidential Decree No. 73 submitting the draft constitution for ratification
by the people at a plebiscite set for January 15, 1973. This order contained
provisions more or less similar to the plebiscite laws passed by Congress
relative to the past plebiscites held in connection with previous proposed
amendments.
In connection with the plebiscite thus contemplated, General Order No. 17

was issued ordering and enjoining the authorities to allow and encourage
public and free discussions on proposed constitution. Not only this,
subsequently, under date of December 17, 1972, the President ordered the
suspension the effects of martial law and lifted the suspension of privilege
of the writ of habeas corpus insofar as activities connected with the
ratification of the draft constitution were concerned. These two orders
were not, however, to last very long. On January 7, 1973, the President,
invoking information related to him that the area of public debate and
discussion had opened by his previous orders was being taken advantage of
by subversive elements to defeat the purposes for which they were issued
and to foment public confusion, withdrew said orders and enjoined full and
stricter implementation of martial law.
In the meantime, the President had issued on December 3, 1972

Presidential Decree No. 86 creating Citizens Assemblies "so as to afford
ample opportunities for the citizenry to express their views on important
national issues" and one of the questions presented to said assemblies was:
"Do you like the plebiscite on the proposed Constitution to be held later"
So, the same order of January 7, 1973, General Order No. 20, the President
ordered, "that the plebiscite scheduled to be held January 15, 1973, be
postponed until further notice".
In the meanwhile also, on January 5, 1973, the President issued Presidential

Decree, No. 86-A providing as follows:
PRESIDENTIAL DECREE NO. 86-A
385
STRENGTHENING AND DEFINING THE ROLE OF

BARANGAYS (CITIZENS ASSEMBLIES)
WHEREAS, on the basis of preliminary and initial

(citizens assemblies) that have so far been
established, the people would like to decide for
themselves questions or issues, both local and
national, affecting their day-to-day lives and their
future;
WHEREAS, the barangays (citizens assemblies)

national issues;
WHEREAS, such barangays (citizens assemblies)

WHEREAS, the people would like the citizens


of the land the following:
386
1. The present barangays (citizens assemblies) are

created under Presidential Decree No. 86 dated
December 31, 1972, shall constitute the base for
citizen participation in governmental affairs and
their collective views shall be considered in the
formulation of national policies or programs and,
wherever practicable, shall be translated into
concrete and specific decision;
2. Such barangays (citizens assemblies) shall

3. The barangays (citizens assemblies) shall

and submit results thereof to the Department of
Local Governments Community Development
immediately thereafter, pursuant to express will
of the people as reflected in the reports gathered
from the many thousands of barangays (citizens
assemblies) throughout the country.
4. This Decree shall take effect immediately.
Done in the City of Manila, this 5th day of January,

seventy three.
387
And on January 7, 1973, this was followed by Presidential Decree No. 86-B
reading thus:
DEFINING FURTHER THE ROLE OF BARANGAYS (CITIZENS

ASSEMBLIES)
WHEREAS, since their creation pursuant to

Presidential Decree No. 86 dated December 31,
1972, the Barangays (Citizens Assemblies) have
petitioned the Office of the President to submit
them for resolution important national issues;
WHEREAS, one of the questions persistently

mentioned refers to the ratification of the
Convention;
WHEREAS, on the basis of the said petitions, it is

evident that the people believe that the
Citizens Assemblies or Barangays should be taken
as a plebiscite in itself in view of the fact that
freedom of debate has always been limited to the
leadership in political, economic and social fields,
and that it is now necessary to bring this down to
the level of the people themselves through the
Barangays or Citizens Assemblies;
NOW THEREFORE, I, FERDINAND E. MARCOS,

hereby order that important national issues shall
from time to time be referred to the Barangays
(Citizens Assemblies) for resolution in accordance
388
with Presidential Decree No. 86-A dated January

5, 1973 and that the initial referendum shall
include the matter of ratification of the
Convention.
The Secretary of the Department of Local

Governments and Community Development shall
insure the implementation of this Order.
Done in the City of Manila, this 7th day of January

seventy-three.
And so it was that by January 10, 1973, when the Citizens Assemblies thus
created started the referendum which was held from said date to January
15, 1973, the following questions were submitted to them:
(1) Do you like the New Society?
(2) Do you like the reforms under martial law?
(3) Do you like Congress again to hold sessions?
(4) Do you like the plebiscite to be held later?
(5) Do you like the way President Marcos is

running the affairs of the government?.
but on January 11, 1973, six questions were added as follows:

(2) Do you approve of the New Constitution?

389



you want it to be called?
(6) Do you want martial law to continue?
It is not seriously denied that together with the question the voters were
furnished "comments" on the said questions more or less suggestive of the
answer desired. It may assumed that the said "comments" came from
official sources, albeit specifically unidentified. As petitioners point out, the
most relevant of these "comments" were the following:
COMMENTS ON
xxx xxx xxx
QUESTION No. 2

Interim Assembly to be convoke.
Or if it is to be convened at all, it
should not be done so until after
at least seven (7) years from the
approval of the New Constitution
by the Citizens Assemblies.
QUESTION No. 3

390

New Constitution.

approve of the new Constitution
be deemed ratified.
The Solicitor General claims, and there seems to be showing otherwise,

that the results of the referendum were determined in the following
manner:
Thereafter, the results of the voting were collated

and sent to the Department of Local
Governments. The transmission of the results was
made by telegram, telephone, the provincial
government SSB System in each province
connecting all towns; the SSB communication of
the PACD connecting most provinces; the
Department of Public Information Network
System; the Weather Bureau Communication
System connecting all provincial capitals and the
National Civil Defense Network connecting all
provincial capitals. The certificates of results were
then flown to Manila to confirm the previous
figures received by the aforementioned means of
transmission. The certificates of results tallied
with the previous figures taken with the exception
of few cases of clerical errors.
The Department adopted a system of

regionalizing the receiving section of the Citizens
Assemblies operation at the Department wherein
the identity of the barrio and the province was
immediately given to a staff in charge of each
region. Every afternoon at 2:00 o'clock, the 11
391
regions submitted the figures they received from

the field to the central committee to tabulate the
returns. The last figures were tabulated at 12
midnight of January 16, 1973 and early morning of
January 17, 1973 and were then communicated to
the President by the Department of Local
Governments.
The development culminated in the issuance by the President of

Proclamation 1102 on January 17, 1973. Said proclamation reads:
PROCLAMATION NO. 1102 ANNOUNCING THE

RATIFICATION BY THE FILIPINO PEOPLE OF THE
CONSTITUTION PROPOSED BY THE 1971
CONSTITUTIONAL CONVENTION.
WHEREAS, the Constitution proposed by the

people;
WHEREAS, Citizens Assemblies were created in

barrios in municipalities and in districts/wards in
No. 6, dated December 31, 1972, composed of all
persons who are residents of the barrio, district or
ward for at least six months, fifteen years of age
or over, citizens of the Philippines and who are
registered in the list of Citizen Assembly members
kept by the barrio, district or ward secretary;
WHEREAS, the said Citizens Assemblies were

establish precisely to broaden the base of citizen
participation in the democratic process and to
afford ample opportunity for the citizen to express
their views on important national issues;
392
WHEREAS, responding to the clamor of the people

an pursuant to Presidential Decree No. 86-A,
dated January 5, 1973, the following questions
were posed before Citizens' Assemblies or
Barangays: Do you approve of the New
Constitution? Do you still want a plebiscite to be
called to ratify the new Constitution?
WHEREAS, fourteen million nine hundred seventy-

six thousand five hundred sixty one (14,976,561)
members of all the Barangays (Citizens
Assemblies) voted for the adoption of the
proposed Constitution, as against seven hundred
forty-three thousand eight hundred sixty nine
(743,869) who voted for its rejection; while on the
question as to whether or not the people would
still like a plebiscite to be called to ratify the new
Constitution fourteen million two hundred ninety-
eight thousand eight hundred fourteen
(14,298,814) answered that there was no need for
plebiscite and that the vote of the Barangays
(Citizens Assemblies) should be considered as a
vote in a plebiscite;
WHEREAS, since the referendum results show that

more than ninety-five (95) percent of the
members of the Barangays (Citizen Assemblies)
are in favor of the New Constitution, the
Katipunan ng Mga Barangay has strongly

393

ratified by an overwhelmingly majority of all of
the votes cast by the members of all the
Barangays (Citizens Assemblies) throughout the
Philippines, and has thereby come into effect.
IN WITNESS WHEREOF, I have hereunto set my

Done in the City of Manila, this 17th day of

The first attempt to question the steps just enumerated taken by the
President was in the so-called Plebiscite Cases, ten in number, which were
filed by different petitioners during the first half of December 1972. 1 Their
common target then was Presidential Decree No. 73, but before the said
cases could be decided, the series of moves tending in effect to make them
moot and academic insofar as they referred exclusively to the said
Presidential Decree began to take shape upon the issuance of Presidential
Decree No. 86-A, quoted above. And when Presidential Decree No. 86-B,
also above quoted, was issued and the six additional questions which were
first publicized on January 11, 1973 were known, together with the
"comments", petitioners sensed that a new and unorthodox procedure was
being adopted to secure approval by the people of the new Constitution,
hence Counsel Tañada, not being satisfied with the fate of his urgent
motion for early decision of the above ten cases dated January 12, 1973,
filed on January 15, 1973, his supplemental motion seeking the prohibition
against and injunction of the proceedings going on. Principal objective was
to prevent that the President be furnished the report of the results of the
referendum and thereby disable him from carrying out what petitioners
were apprehensively foreseeing would be done — the issuance of some
kind of proclamation, order or decree, declaring that the new Constitution
had been ratified. Reacting swiftly, the Court resolved on the same day,
394
January 15, which was Monday, to consider the supplemental motion as a

supplemental petition and to require the respondents to answer the same
the next Wednesday, January 17th, before the hour of the hearing of the
petition which set for 9:30 o'clock in the morning of that day. The details
what happened that morning form part of the recital of facts the decision
rendered by this Court in the ten cases on January 22, 1973 and need not
be repeated here. Suffice it to state no that before the hearing could be
closed and while Counsel Tañada was still insisting on his prayer for
preliminary injunction or restraining order, the Secretary of Justice arrived
and personally handed to the Chief Justice a copy Proclamation 1102 which
had been issued at about 11:00 o'clock that same morning. In other words,
the valiant and persistent efforts of petitioners and their counsels were
overtaken by adverse developments, and in the mind of the majority of the
members of the Court, the cases had become academic. For my part, I took
the view that even on the basis of the supplemental petition and the
answer thereto filed by respondents, the Court could already decide on the
fundamental issue of the validity Proclamation 1102, as Justices Zaldivar,
Antonio and Esguerra also believed, inasmuch as Counsel Tañada's pleading
and argument had anticipated its issuance, but the majority felt it was not
ready to resolve the matter, for lack, according them, of full ventilation, and
so, the decision reserved petitioners the filing of the "appropriate" cases,
evidently, the present ones.
II
At the threshold, I find myself confronted by a matter which, although

believed to be inconsequential by my learned brethren, I strongly feel
needs special attention. I refer to the point raised by Counsel Arturo M.
Tolentino for respondent Gil J. Puyat and Jose Roy, who have been sued as
President and President Pro Tempore of the Senate, to the effect that
change in the composition of the Supreme Court provided for the 1973
Constitution, from the 11-man tribunal under the 1935 Constitution to a
15-man Court, makes of these cases which were filed after January 17,
1973 the date when Proclamation 1102 declared the new Constitution as
ratified, political nature and beyond our jurisdiction. The main
consideration submitted in this connection is that inasmuch as the number
395
votes needed for a decision of this Court has been increased from six to
eight in ordinary cases and from eight to ten for the declaration of
unconstitutionality of a treaty, executive agreement 2 or law, the Court
would have to resolve first as a prejudicial question whether the Court is
acting in these cases as the 15-man or the 11-man Court, in which event, it
would be faced with the dilemma that if it acts either as the former or as
the latter, it would be prejudging the very matter in issue one way or the
other, and, in effect, it would be choosing between two constitutions,
which is a political determination not within the Court's competence.
While I agree that the problem is at first blush rather involved, I do not
share the view that the premises laid down by counsel necessarily preclude
this Court from taking a definite stand on whether the Court is acting in
these cases as the 15-Man or the 11-man Court. I feel very strongly that the
issue should not be ignored or dodged, if only to make the world know that
the Supreme Court of the Philippines is never incognizant of the capacity in
which it is acting, much less lacking in courage or wisdom to resolve an
issue that relates directly to its own composition. What a disgrace it would
be to admit that this Supreme Court does not know, to use a common apt
expression, whether it is fish or fowl. Withal, scholars and researchers who
might go over our records in the future will inevitably examine minutely
how each of us voted and upon what considerations we have individually
acted, and, indeed, doubts may arise as to whether or not, despite the
general result we might announce, there had been the requisite number of
votes for a valid collegiate action.
For instance, it may be argued that the present cases do not involve an
issue of unconstitutionality, hence, if we are acting as the 11-man Court,
only six votes would suffice to declare Proclamation 1102 ineffective, and if
upon analysis of our respective opinions it should be inferable therefrom
that six of us have considered the matter before the Court as justiciable and
at the same time have found the procedure of ratification adopted in
Presidential Decrees 86-A and 86-B and related orders of the President as
not being in conformity with Article XV of the old Constitution, a cloud
would exist as to efficacy of the dispositive portion of Our decision dismiss
these cases, even if we have it understood that by the vote of justices in
396
favor of such dismissal, We intended to mean the implementation or

enforcement of the new Constitution now being done could continue.
Be that as it may, I am against leaving such an important point open to

speculation. By nature I am averse to ambiguity and equivocation and as a
member of the Supreme Court, last thing I should knowingly countenance is
uncertainty as to the juridical significance of any decision of the Court
which is precisely being looked upon as the haven in which doubts are
supposed to be authoritatively dispelled. Besides, from very nature of
things, one thing is indubitably beyond dispute — we cannot act in both
capacities of a 15-man and an 11-man Court at the same time, in like
manner that it is inconceivable that the 1935 and 1973 Constitution can be
considered by Us both in force. Our inescapable duty is to make a choice
between them, according to what law and other considerations inherent to
our function dictate. I cannot bear the thought that someone may someday
say that the Supreme Court of the Philippines once decided a case without
knowing the basis of its author to act or that it was ever wanting in judicial
courage to define the same.
Accordingly, with full consciousness of my limitations but compelled by my

sense of duty and propriety to straighten out this grave of issue touching on
the capacity in which the Court acting in these cases, I hold that we have no
alternative but adopt in the present situation the orthodox rule that when
validity of an act or law is challenged as being repugnant constitutional
mandate, the same is allowed to have effect until the Supreme Court rules
that it is unconstitutional. Stated differently, We have to proceed on the
assumption that the new Constitution is in force and that We are acting in
these cases as the 15-man Supreme Court provided for there Contrary to
counsel's contention, there is here no prejudgment for or against any of the
two constitutions. The truth of matter is simply that in the normal and
logical conduct governmental activities, it is neither practical nor wise to
defer the course of any action until after the courts have ascertained their
legality, not only because if that were to be the rule, the functioning of
government would correspondingly be undesirably hesitative and
cumbersome, but more importantly, because the courts must at the first
instance accord due respect to the acts of the other departments, as
397
otherwise, the smooth running of the government would have to depend

entirely on the unanimity of opinions among all its departments, which is
hardly possible, unless it is assumed that only the judges have the exclusive
prerogative of making and enforcing the law, aside from being its sole
interpreter, which is contrary to all norms of juridical and political thinking.
To my knowledge, there is yet no country in the world that has recognized
judicial supremacy as its basic governmental principle, no matter how
desirable we might believe the idea to be.
Indeed, it is not hard to visualize the difficulty if not absurdity of Our acting
on the assumption that this Court is still functioning under the 1935
Constitution. It is undeniable that the whole government, including the
provincial, municipal and barrio units and not excluding the lower courts up
to the Court of Appeals, is operating under the 1973 Constitution. Almost
daily, presidential orders and decrees of the most legislative character
affecting practically every aspect of governmental and private activity as
well as the relations between the government and the citizenry are pouring
out from Malacañang under the authority of said Constitution. On the other
hand, taxes are being exacted and penalties in connection therewith are
being imposed under said orders and decrees. Obligations have been
contracted and business and industrial plans have been and are being
projected pursuant to them. Displacements of public officials and
employees in big numbers are going on in obedience to them. For the ten
justices of the Supreme Court to constitute an island of resistance in the
midst of these developments, which even unreasoning obstinacy cannot
ignore, much less impede, is unimaginable, let alone the absurd and
complicated consequences such a position entails in the internal workings
within the judiciary amount its different components, what with the lower
courts considering such orders and decrees as forming part of the law of
the land in making their orders and decisions, whereas the Supreme Court
is holding, as it were, their effectivity at bay if it is not being indifferent to
or ignoring them.
It is suggested that the President, being a man of law, committed to abide

by the decision of the Supreme Court, and if the Court feels that it cannot
in the meantime consider the enforcement of the new Constitution, he can
398
wait for its decision. Accepting the truth of this assertion, it does
necessarily follow that by this attitude of the President, considers the
Supreme Court as still operating under the Constitution. Quite on the
contrary, it is a fact that he has given instructions for the payment of the
justices in accordance with the rate fixed in the New Constitution. Not only
that, official alter ego, the Secretary of Justice, has been shoving this Court,
since January 18, 1973, all matters related to the administrative supervision
of the lower courts which by the new charter has been transferred from the
Department of Justice to the Supreme Court, and as far as I know, President
has not countermanded the Secretary's steps in that direction. That, on the
other hand, the President has not augmented the justices of the Court to
complete the prescribed number of fifteen is, in my appraisal, of no
consequence considering that with the presence of ten justices who are the
Court now, there is a working quorum, and the addition of new justices
cannot in anyway affect the voting on the constitutional questions now
before Us because, while there sufficient justices to declare by their
unanimous vote illegality of Proclamation 1102, the votes of the justices to
added would only be committed to upholding the same, since they cannot
by any standard be expected to vote against legality of the very
Constitution under which they would be appointed.
Moreover, what makes the premise of presumptive valid preferable and,

even imperative, is that We are dealing here with a whole constitution that
radically modifies or alters only the form of our government from
presidential parliamentary but also other constitutionally institutions vitally
affecting all levels of society. It is, to mind, unrealistic to insist on that,
fundamentally, the 1973 Constitution is the same 1935 Constitution, with a
few improvements. A cursory perusal of the former should convince
anyone that it is in essence a new one. While it does retain republicanism
as the basic governmental tenet, the institutional changes introduced
thereby are rather radical and its social orientation is decidedly more
socialistic, just as its nationalistic features are somewhat different in certain
respects. One cannot but note that the change embraces practically every
part of the old charter, from its preamble down to its amending and
effectivity clauses, involving as they do the statement of general principles,
the citizenship and suffrage qualifications, the articles on the form of
government, the judiciary provisions, the spelling out of the duties and
399
responsibilities not only of citizens but also of officers of the government

and the provisions on the national economy as well as the patrimony of the
nation, not to mention the distinctive features of the general provisions.
What is more, the transitory provisions notably depart from traditional and
orthodox views in that, in general, the powers of government during the
interim period are more or less concentrated in the President, to the extent
that the continuation or discontinuance of what is now practically a one-
man-rule, is even left to his discretion. Notably, the express ratification of
all proclamations, orders, decrees and acts previously issued or done by the
President, obviously meant to encompass those issued during martial law,
is a commitment to the concept of martial law powers being implemented
by President Marcos, in defiance of traditional views and prevailing
jurisprudence, to the effect that the Executive's power of legislation during
a regime of martial law is all inclusive and is not limited to the matters
demanded by military necessity. In other words, the new constitution
unlike any other constitution countenances the institution by the executive
of reforms which normally is the exclusive attribute of the legislature.
Withal, the best proofs that by its expressed and implied intent, the
Constitution of 1973 is a new one, are that (1) Section 16 of its Article XVII
which provides that this constitution shall "supersede the Constitution of
nineteen hundred and thirty-five and all amendments thereto" and (2) its
transitory provisions expressly continue the effectivity of existing laws,
offices and courts as well as the tenure of all incumbent officials, not
adversely affected by it, which would have been unnecessary if the old
constitution were being merely amended.
The new Constitution, in its Section 10, Article XVII, provides that "(T)he
incumbent members of the Judiciary (which include the Chief Justice and
Associate Justices of Supreme Court) may continue in office (under the
constitution) until they reach the age of seventy years, etc." By virtue of the
presumptive validity of the new charter, all of form part of the 15-man-
Court provided for therein correspondingly, We have in legal
contemplation, ceased in the meanwhile to be members of the 11-man-
Court in the 1935 Constitution. Should the Court finally decide that the
Constitution is invalid, then We would automatically revert to our positions
400
in the 11-man- Court, otherwise, We would just continue to be in our

membership in the 15-man-Court, unless We feel We cannot in conscience
accept the legality of existence. On the other hand, if it is assumed that We
are the 11-man-Court and it happens that Our collective decision is in favor
of the new constitution, it would be problematical for any dissenting justice
to consider himself as included automatically in the 15-man-Court, since
that would tantamount to accepting a position he does not honestly believe
exists.
III
In brief, the main contention of the petitioners is that Proclamation 1102 is

invalid because the ratification of the 1973 Constitution it purports to
declare as having taken place as a result of the referendum above-referred
to is ineffective since it cannot be said on the basis of the said referendum
that said Constitution has been "approved by a majority of the votes cast at
an election" in the manner prescribed by Article XV the Constitution of
1935. More specifically, they maintain that the word "election" in the said
Article has already acquired a definite accepted meaning out of the
consistent holding in the past of ratification plebiscites, and accordingly, no
other form of ratification can be considered contemplated by the framers
of the Old Constitution than that which had been followed 1935, 1937,
1939, 1940, 1946 and 1967, the last three or four which were held under
the supervision of the Commission on Elections. Furthermore, they
emphatically deny the veracity of the proclaimed results of the referendum
because, according to them the referendum was a farce and its results
were manufactured or prefabricated, considering that Mr. Francisco Cruz,
who is supposed to have submitted the final report to the President, which
served as basis for Proclamation 1102, had no official authority to render
the same, and it is inconceivable and humanly impossible for anyone to
have been able to gather, tabulate and canvass the 15 million votes
allegedly reported within the short period of time employed. Of course,
they also contend that in any event, there was no proper submission
because martial law per secreates constructive duress which deprives the
voters of the complete freedom needed for the exercise of their right of
401
choice and actually, there was neither time nor opportunity for real debate
before they voted.
On the other hand, the position of the Solicitor General as counsel for the
respondents is that the matter raised in the petitions is a political one
which the courts are not supposed to inquire into, and, anyway, there has
been a substantial compliance with Article XV of the 1935 Constitution,
inasmuch as, disregarding unessential matters of form, the undeniable fact
is that the voting in the referendum resulted in the approval by the people
of the New Constitution.
I need not dwell at length on these variant positions of the parties. In my

separate opinion in the Plebiscite Cases, I already made the observation
that in view of the lack of solemnity and regularity in the voting as well as in
the manner of reporting and canvassing conducted in connection with the
referendum, I cannot say that Article XV of the Old Constitution has been
complied with, albeit I held that nonetheless, the Constitution of 1973 is
already in force. In order, however, to make myself clearer on some
relevant points, I would like to add a few considerations to what I have
already said in the former cases.
In my opinion in those cases, the most important point I took into account
was that in the face of the Presidential certification through Proclamation
1102 itself that the New Constitution has been approved by a majority of
the people and having in mind facts of general knowledge which I have
judicial notice of, I am in no position to deny that the result of the
referendum was as the President had stated. I can believe that the figures
referred to in the proclamation may not accurate, but I cannot say in
conscience that all of them are manufactured or prefabricated, simply
because I saw with own eyes that people did actually gather and listen
discussions, if brief and inadequate for those who are abreast of current
events and general occurrences, and that they did vote. I believe I can
safely say that what I have seen have also been seen by many others
throughout the country and unless it can be assumed, which honestly, I do
not believe to be possible, that in fact there were actually no meetings held
and no voting done in more places than those wherein there were such
402
meetings and votings, I am not prepared to discredit entirely the

declaration that there was voting and that the majority of the votes were in
favor of the New Constitution. If in fact there were substantially less than
14 million votes of approval, the real figure, in my estimate, could still be
significant enough and legally sufficient to serve as basis for a valid
ratification.
It is contended, however, that the understanding was that the referendum

among the Citizens Assemblies was to be in the nature merely of a loose
consultation and not an outright submission for purposes of ratification. I
can see that at the outset, when the first set of questions was released,
such may have been the idea. It must not be lost sight of, however, that if
the newspaper reports are to be believed, and I say this only because
petitioners would consider the newspapers as the official gazettes of the
administration, the last set of six questions were included precisely because
the reaction to the idea of mere consultation was that the people wanted
greater direct participation, thru the Citizens Assemblies, in decision-
making regarding matters of vital national interest. Thus, looking at things
more understandingly and realistically the two questions emphasized by
counsel, namely, (1) Do yo approve of the New Constitution? and (2) Do
you want plebiscite to be called to ratify the new Constitution? should be
considered no longer as loose consultations but as direct inquiries about
the desire of the voters regarding the matters mentioned. Accordingly, I
take it that if the majority had expressed disapproval of the new
Constitution, the logical consequence would have been the complete
abandonment of the idea of holding any plebiscite at all. On the other
hand, it is very plain to see that since the majority has already approved the
new Constitution, a plebiscite would be superfluous. Clear as these
rationalizations may be, it must have been thought that if the holding of a
plebiscite was to be abandoned, there should be a direct and expressed
desire of the people to such effect in order to forestall as much as possible
any serious controversy regarding the non-holding of the plebiscite
required by the letter of Section 16 of Article XVII, the effectivity clause, of
the new Constitution. Oddly enough, the "comments" accompanying the
questions do strongly suggest this view. And as it turned out, the majority
found no necessity in holding a plebiscite.
403
In connection with the question, Do you approve of the New Constitution?

capital is being made of the point that as so framed, the thrust of the said
question does not seek an answer of fact but of opinion. It is argued that it
would have been factual were it worded categorically thus — Do you
approve the New Constitution? The contention would have been weighty
were it not unrealistic. I remember distinctly that the observation regarding
the construction of the subject question was not originally made by any of
the talented counsels for petitioners. It came from Mr. Justice Fred Ruiz
Castro whose mastery of the English language can rightly be the cause of
envy of even professors of English. None of the other members of the
Court, as far as I can recall, ever noticed how the said question is phrased,
or if anyone of Us did, I am not aware that he gave it more than passing
attention. What I mean is that if neither any of the distinguished and
learned counsels nor any member of the Court understood the said
question otherwise than calling for a factual answer instead of a mere
opinion, how could anyone expect the millions of unlettered members of
the Citizens Assemblies to have noticed the point brought out by Justice
Castro? Truth to tell, I myself did not realize the difference until Justice
Castro gave it emphasis. Besides, reading the question in the light of the
accompanying "comment" corresponding to it in particular, I am certain
that any one who answered the same understood it in no other sense than
a direct inquiry as to whether or not, as a matter of fact, he approves the
New Constitution, and naturally, affirmative answer must be taken as a
categorical vote of approval thereof, considering, particularly, that
according to the reported result of the referendum said answer was even
coupled with the request that the President defer the convening of the
Interim National Assembly.
It is also contended that because of this reference in answer to that

question to the deferment of the convening of the interim assembly, the
said answer is at best a conditional approval not proper nor acceptable for
purposes of ratification plebiscite. The contention has no basis. In interest
of accuracy, the additional answer proposed in pertinent "comment" reads
as follows: "But we do not want Ad Interim Assembly to be convoked etc."
On the assumption that the actual answer, as reported, was of similar
tenor, it is not fair to ascribe to it the imposition of a condition. At most,
the intention is no more than a suggestion or a wish.
404
As regards said "comments", it must be considered that a martial law was

declared, the circumstances surrounding making of the Constitution
acquired a different and more meaningful aspect, namely, the formation of
a new society. From the point of view of the President and on the basis of
intelligence reports available to him, the only way to meet situation created
by the subversive elements was to introduce immediately effective reforms
calculated to redeem the people from the depth of retrogression and
stagnation caused by rampant graft and corruption in high places, influence
peddling, oligarchic political practices, private armies, anarchy,
deteriorating conditions of peace and order, the so inequalities widening
the gap between the rich and the poor, and many other deplorable long
standing maladies crying for early relief and solution. Definitely, as in the
case of rebellious movement that threatened the Quirino Administration,
the remedy was far from using bullets alone. If a constitution was to be
approved as an effective instrument towards the eradication of such grave
problems, it had to be approved without loss of time and sans the
cumbersome processes that, from the realistic viewpoint, have in the past
obstructed rather than hastened the progress of the people. Stated
otherwise, in the context of actualities, the evident objective in having a
new constitution is to establish new directions in the pursuit of the national
aspirations and the carrying out of national policies. Only by bearing these
considerations in mind can the "comments" already referred to be properly
appreciated. To others said "comments" may appear as evidence of
corruption of the will of those who attended the assemblies, but actually,
they may also be viewed in the same light as the sample ballots commonly
resorted to in the elections of officials, which no one can contend are per
se means of coercion. Let us not forget that the times are abnormal, and
prolonged dialogue and exchange of ideas are not generally possible, nor
practical, considering the need for faster decisions and more resolute
action. After all voting on a whole new constitution is different from voting
on one, two or three specific proposed amendments, the former calls for
nothing more than a collective view of all the provisions of the whole
charter, for necessarily, one has to take the good together with the bad in
it. It is rare for anyone to reject a constitution only because of a few specific
objectionable features, no matter how substantial, considering the ever
present possibility that after all it may be cured by subsequent amendment.
Accordingly, there was need to indicate to the people the paths open to
405
them in their quest for the betterment of their conditions, and as long as it
is not shown that those who did not agree to the suggestions in the
"comments" were actually compelled to vote against their will, I am not
convinced that the existence of said "comments" should make any
appreciable difference in the court's appraisal of the result of the
referendum.
I must confess that the fact that the referendum was held during martial
law detracts somehow from the value that the referendum would
otherwise have had. As I intimated, however, in my former opinion, it is not
fair to condemn and disregard the result of the referendum barely because
of martial law per se. For one thing, many of the objectionable features of
martial law have not actually materialized, if only because the
implementation of martial law since its inception has been generally
characterized by restraint and consideration, thanks to the expressed
wishes of the President that the same be made "Philippine style", which
means without the rigor that has attended it in other lands and other times.
Moreover, although the restrictions on the freedom of speech, the press
and movement during martial law do have their corresponding adverse
effects on the area of information which should be open to a voter, in its
real sense what "chills" his freedom of choice and mars his exercise of
discretion is suspension of the privilege of the writ of habeas corpus. The
reason is simply that a man may freely and correctly vote even if the
needed information he possesses as to the candidates or issues being voted
upon is more or less incomplete, but when he is subject to arrest and
detention without investigation and without being informed of the cause
thereof, that is something else which may actually cause him to cast a
captive vote. Thus it is the suspension of the writ of habeas
corpus accompanying martial law that can cause possible restraint on the
freedom choice in an election held during martial law. It is a fact, however,
borne by history and actual experience, that in the Philippines, the
suspension of the privilege of the writ habeas corpus has never produced
any chilling effect upon the voters, since it is known by all that only those
who run afoul the law, saving inconsequential instances, have any cause for
apprehension in regard to the conduct by them of the normal activities of
life. And so it is recorded that in the elections 1951 and 1971, held while
the privilege of writ ofhabeas corpus was under suspension, the Filipino
406
voters gave the then opposition parties overwhelming if not sweeping

victories, in defiance of the respective administrations that ordered the
suspensions.
At this juncture, I think it is fit to make it clear that I am not trying to show
that the result of the referendum may considered as sufficient basis for
declaring that the New Constitution has been ratified in accordance with
the amending clause of the 1935 Constitution. I reiterate that in point of
law, I find neither strict nor substantial compliance. The foregoing
discussion is only to counter, if I may, certain impression regarding the
general conditions obtaining during and in relation to the referendum
which could have in one way or another affected the exercise of the
freedom of choice and the use of discretion by the members of the Citizens
Assemblies, to the end that as far as the same conditions may be relevant
in my subsequent discussions of the acceptance by the people of the New
Constitution they may also be considered.
IV
It is my sincere conviction that the Constitution of 1973 has been accepted

or adopted by the people. And on this premise, my considered opinion is
that the Court may no longer decide these cases on the basis of purely legal
considerations. Factors which are non-legal but nevertheless ponderous
and compelling cannot be ignored, for their relevancy is inherent in the
issue itself to be resolved.
In my opinion in the Plebiscite Cases, I joined my colleagues in holding that

the question of whether or not there was proper submission under
Presidential Decree No. 73 is justiciable, and I still hold that the propriety of
submission under any other law or in any other form is constitutionally a fit
subject for inquiry by the courts. The ruling in the decided cases relied upon
by petitioners are to this effect. In view, however, of the factual
background of the cases at bar which include ratification itself, it is
necessary for me to point out that when it comes to ratification, I am
persuaded that there should be a boundary beyond which the competence
of the courts no longer has any reason for being, because the other side is
407
exclusively political territory reserved for their own dominion by the

people.
The main basis of my opinion in the previous cases was acceptance by the
people. Others may feel there is not enough indication of such acceptance
in the record and in the circumstances the Court can take judicial notice of.
For my part, I consider it unnecessary to be strictly judicial in inquiring into
such fact. Being personally aware, as I have already stated, that the Citizens
Assemblies did meet and vote, if irregularly and crudely, it is not for me to
resort, for the purposes of these cases, to judicial tape and measure, to find
out with absolute precision the veracity of the total number of votes
actually cast. After all, the claims that upon a comparison of conflicting
reports, cases of excess votes may be found, even if extrapolated will not,
as far as I can figure out, suffice to overcome the outcome officially
announced. Rather than try to form a conclusion out of the raw evidence
before Us which the parties did not care to really complete, I feel safer by
referring to the results announced in the proclamation itself. Giving
substantial allowances for possible error and downright manipulation, it
must not be overlooked that, after all, their having been accepted and
adopted by the President, based on official reports submitted to him in due
course of performance of duty of appropriate subordinate officials,
elevated them to the category of an act of a coordinate department of the
government which under the principle separation of powers is clothed with
presumptive correctness or at least entitled to a high degree of
acceptability, until overcome by better evidence, which in these cases does
not exist. In any event, considering that due to the unorthodoxy of the
procedure adopted and the difficulty of an accurate checking of all the
figures, I am unable to conceive of any manageable means of acquiring
information upon which to predicate a denial, I have no alternative but to
rely on what has been officially declared. At this point, I would venture to
express the feeling that if it were not generally conceded that there has
been sufficient showing of the acceptance in question by this time, there
would have been already demonstrative and significant indications of a
rather widespread, if not organized resistance in one form or another.
Much as they are to be given due recognition as magnificent manifestations
of loyalty and devotion to principles, I cannot accord to the filing of these
cases as indicative enough of the general attitude of the people.
408
It is true that in the opinion I had the privilege of penning the Court in
Tolentino vs. Comelec, 41 SCRA 702, I made strong and unequivocal
pronouncements to the effect that any amendment to the Constitution of
1935, to be valid, must appear to have been made in strict conformity with
the requirements of Article XV thereof. What is more, that decision
asserted judicial competence to inquire into the matter of compliance or
non compliance as a justiciable matter. I still believe in the correctness of
those views and I would even add that I sincerely feel it reflects the spirit of
the said constitutional provision. Without trying to strain any point
however, I, submit the following considerations in the context of the
peculiar circumstances of the cases now at bar, which are entirely different
from those in the backdrop of the Tolentino rulings I have referred to.
1. Consider that in the present case what is involved is not just an

amendment of a particular provision of an existing Constitution; here, it is,
as I have discussed earlier above, an entirely new Constitution that is being
proposed. This important circumstance makes a great deal of difference.
No less than counsel Tolentino for herein respondents Puyat and Roy, who
was himself the petitioner in the case I have just referred to is, now inviting
Our attention to the exact language of Article XV and suggesting that the
said Article may be strictly applied to proposed amendments but may
hardly govern the ratification of a new Constitution. It is particularly
stressed that the Article specifically refers to nothing else but
"amendments to this Constitution" which if ratified "shall be valid as part of
this Constitution." Indeed, how can a whole new constitution be by any
manner of reasoning an amendment to any other constitution and how can
it, if ratified, form part of such other constitution? In fact, in the Tolentino
case I already somehow hinted this point when I made reference in the
resolution denying the motion for reconsideration to the fact that Article
XV must be followed "as long as any amendment is formulated and
submitted under the aegis of the present Charter." Said resolution even
added. "(T)his is not to say that the people may not, in the exercise of their
inherent revolutionary powers, amend the Constitution or promulgate an
entirely new one otherwise.".
409
It is not strange at all to think that the amending clause of a constitution

should be confined in its application only to proposed changes in any part
of the same constitution itself, for the very fact that a new constitution is
being adopted implies a general intent to put aside the whole of the old
one, and what would be really incongrous is the idea that in such an
eventuality, the new Constitution would subject its going into effect to any
provision of the constitution it is to supersede, to use the language
precisely of Section 6, Article XVII, the effectivity clause, of the New
Constitution. My understanding is that generally, constitutions are self-
born, they very rarely, if at all, come into being, by virtue of any provision
of another constitution. 3 This must be the reason why every constitution
has its own effectivity clause, so that if, the Constitutional Convention had
only anticipated the idea of the referendum and provided for such a
method to be used in the ratification of the New Constitution, I would have
had serious doubts as to whether Article XV could have had priority of
application.
2. When an entirely new constitution is proposed to supersede the existing

one, we cannot but take into consideration the forces and the
circumstances dictating the replacement. From the very nature of things,
the proposal to ordain a new constitution must be viewed as the most
eloquent expression of a people's resolute determination to bring about a
massive change of the existing order, a meaningful transformation of the
old society and a responsive reformation of the contemporary institutions
and principles. Accordingly, should any question arise as to its effectivity
and there is some reasonable indication that the new charter has already
received in one way or another the sanction of the people, I would hold
that the better rule is for the courts to defer to the people's judgment, so
long as they are convinced of the fact of their approval, regardless of the
form by which it is expressed provided it be reasonably feasible and
reliable. Otherwise stated, in such instances, the courts should not bother
about inquiring into compliance with technical requisites, and as a matter
of policy should consider the matter non-justiciable.
3. There is still another circumstance which I consider to be of great

relevancy. I refer to the ostensible reaction of the component elements,
410
both collective and individual, of the Congress of the Philippines. Neither

the Senate nor the House of Representatives has been reported to have
even made any appreciable effort or attempt to convene as they were
supposed to do under the Constitution of 1935 on January 22, 1973 for the
regular session. It must be assumed that being composed of experienced,
knowledgeable and courageous members, it would not have been difficult
for said parliamentary bodies to have conceived some ingenious way of
giving evidence of their determined adherence to the Constitution under
which they were elected. Frankly, much as I admire the efforts of the
handful of senators who had their picture taken in front of the padlocked
portals of the Senate chamber, I do not feel warranted to accord such act
as enough token of resistance. As counsel Tolentino has informed the
court, there was noting to stop the senators and the congressmen to meet
in any other convenient place and somehow officially organize themselves
in a way that can logically be considered as a session, even if nothing were
done than to merely call the roll and disperse. Counsel Tolentino even
pointed out that if there were not enough members to form a quorum, any
smaller group could have ordered the arrest of the absent members. And
with particular relevance to the present cases, it was not constitutionally
indispensable for the presiding officers to issue any call to the members to
convene, hence the present prayers formandamus have no legal and
factual bases. And to top it all, quite to the contrary, the records of the
Commission on Elections show that at least 15 of 24 senators and over 95
out of less than 120 members of the House of Representatives, have
officially and in writing exercised the option given to them to join the
Interim National Assembly under the New Constitution, thereby
manifesting their acceptance of the new charter.
Now, having these facts in mind, and it being obvious that of the three
great departments of the government under the 1935 Constitution, two,
the Executive and the Legislative, have already accepted the New
Constitution and recognized its enforceability and enforcement, I cannot
see how this Supreme Court can by judicial fiat hold back the political
developments taking place and for the sake of being the guardian of the
Constitution and the defender of its integrity and supremacy make its
judicial power prevail against the decision of those who were duly chosen
by the people to be their authorized spokesmen and representatives. It is
411
not alone the physical futility of such a gesture that concerns me. More
than that, there is the stark reality that the Senators and the Congressmen,
no less than the President, have taken the same oath of loyalty to the
Constitution that we, the Justices, have taken and they are, therefore,
equally bound with Us to preserve and protect the Constitution. If as the
representatives of the people, they have already opted to accept the New
Constitution as the more effective instrument for fulfillment of the national
destiny, I really wonder if there is even any idealistic worth in our
desperately clinging by Ourselves alone to Our sworn duty vis-a-vis the
1935 Constitution. Conscious of the declared objectives of the new
dispensation and cognizant of the decisive steps being with the least loss of
time, towards their accomplishment, cannot but feel apprehensive that
instead of serving the best interests of our people, which to me is in reality
the real meaning of our oath of office, the Court might be standing in the
way of the very thing our beloved country needs to retrieve its past glory
and greatness. In other words, it is my conviction that what these cases
demand most of all is not a decision demonstrative of our legal erudition
and Solomonic wisdom but an all rounded judgment resulting from the
consideration of all relevant circumstances, principally the political, or, in
brief, a decision more political than legal, which a court can render only by
deferring to the apparent judgment of the people and the announcement
thereof by the political departments of the government and declaring the
matter non-justiciable.
4. Viewed from the strictly legal angle and in the light of judicial methods of
ascertainment, I cannot agree with the Solicitor General that in the legal
sense, there has been at least substantial compliance with Article XV of the
1935 Constitution, but what I can see is that in a political sense, the
answers to the referendum questions were not given by the people as legal
conclusions. I take it that when they answered that by their signified
approval of the New Constitution, they do not consider it necessary to hold
a plebiscite, they could not have had in mind any intent to do what was
constitutionally improper. Basically accustomed to proceed along
constitutional channels, they must have acted in the honest conviction that
what was being done was in conformity with prevailing constitutional
standards. We are not to assume that the sovereign people were indulging
in a futile exercise of their supreme political right to choose the
412
fundamental charter by which their lives, their liberties and their fortunes
shall be safeguarded. In other words, we must perforce infer that they
meant their decision to count, and it behooves this Court to render
judgment herein in that context. It is my considered opinion that viewed
understandingly and realistically, there is more than sufficient ground to
hold that, judged by such intent and, particularly, from the political
standpoint, the ratification of the 1973 Constitution declared in
Proclamation 1102 complies substantially with Article XV of the 1935
Charter, specially when it is considered that the most important element of
the ratification therein contemplated is not in the word "election", which
conceivably can be in many feasible and manageable forms but in the word
"approved" which may be said to constitute the substantiality of the whole
article, so long as such approval is reasonably ascertained. In the last
analysis, therefore, it can be rightly said, even if only in a broad sense, that
the ratification here in question was constitutionally justified and
justifiable.
5. Finally, if any doubt should still linger as to the legitimacy of the New
Constitution on legal grounds, the same should be dispelled by viewing the
situation in the manner suggested by Counsel Tolentino and by the writer
of this opinion in his separate opinion, oft-referred to above, in the
Plebiscite Cases — that is, as an extra constitutional exercise by the people,
under the leadership of President Marcos, of their inalienable right to
change their fundamental charter by any means they may deem
appropriate, the moment they are convinced that the existing one is no
longer responsive to their fundamental, political and social needs nor
conducive to the timely attainment of their national destiny. This is not only
the teaching of the American Declaration of Independence but is indeed, a
truth that is self-evident. More, it should be regarded as implied in every
constitution that regardless of the language of its amending clause, once
the people have given their sanction to a new charter, the latter may be
deemed as constitutionally permissible even from the point of view of the
preceding constitution. Those who may feel restrained to consider this view
out of respect to the import of Tolentino vs. Comelec, supra., would be well
advised to bear in mind that the case was decided in the context of
submission, not accomplished ratification.
413
The language of the disputed amending clause of the 1935 Constitution

should not be deemed as the be all and end all the nation. More important
than even the Constitution itself with all its excellent features, are the
people living under it — their happiness, their posterity and their national
destiny. There is nothing that cannot be sacrificed in the pursuit of these
objectives, which constitute the totality of the reasons for national
existence. The sacred liberties and freedom enshrined in it and the
commitment and consecration thereof to the forms of democracy we have
hitherto observed are mere integral parts of this totality; they are less
important by themselves.
What seems to me to be bothering many of our countrymen now is that by

denying the present petitions, the Court would be deemed as sanctioning,
not only the deviations from traditional democratic concepts and principles
but also the qualified curtailment of individual liberties now being
practiced, and this would amount, it is feared, to a repudiation of our oath
to support and defend the Constitution of 1935. This is certainly something
one must gravely ponder upon. When I consider, however, that the
President, the Vice President, the members of both Houses of Congress,
not to speak of all executive departments and bureaus under them as well
as all the lower courts, including the Court of Appeals have already
accepted the New Constitution as an instrument of a meaningful
nationwide-all-level change in our government and society purported to
make more realistic and feasible, rather than idealistic and cumbersomely
deliberative, the attainment of our national aspirations, I am led to wonder
whether or not we, as members of the Supreme Court are being true to our
duty to our people by refusing to follow suit and accept the realities of the
moment, despite our being convinced of the sincerity and laudableness of
their objectives, only because we feel that by the people's own act of
ratifying the Constitution of 1935, they have so encased themselves within
its provisions and may, therefore, no longer take measures to redeem
themselves from the situation brought about by the deficiencies of the old
order, unless they act in strict conformity therewith. I cannot believe that
any people can be so stifled and enchained. In any event, I consider it a
414
God-given attribute of the people to disengage themselves, if necessary,

from any covenant that would obstruct their taking what subsequently
appears to them to be the better road to the promotion and protection of
their welfare. And once they have made their decision in that respect,
whether sophisticatedly or crudely, whether in legal form or otherwise,
certainly, there can be no court or power on earth that can reverse them.
I would not be human if I should be insensitive to the passionate and

eloquent appeals of Counsels Tañada and Salonga that these cases be
decided on the basis of conscience. That is exactly what I am doing. But if
counsel mean that only by granting their petitions can this Court be
worthily the bulwark of the people's faith in the government, I cannot
agree, albeit my admiration and respect are all theirs for their zeal and
tenacity, their industry and wisdom, their patriotism and devotion to
principle. Verily, they have brought out everything in the Filipino that these
cases demand.
In times of national emergencies and crises, not arising from foreign

invasion, we need not fear playing opposite roles, as long as we are all
animated by sincere love of country and aim exclusively at the attainment
of the national destiny. Our heroes of the past, Rizal, Bonifacio, Aguinaldo,
Antonio Luna, Mabini and so also with our patriots of the recent
generations, Quezon, Osmeña, Roxas, Laurel and Recto, to mention only
some of them, had their differences of views — and they did not hesitate to
take diametrically opposing sides — that even reached tragic proportions,
but all of them are admired and venerated.
It is my faith that to act with absolute loyalty to our country and people is
more important than loyalty to any particular precept or provision of the
Constitution or to the Constitution itself. My oath to abide by the
Constitution binds me to whatever course of action I feel sincerely is
demanded by the welfare and best interests of the people.
In this momentous juncture of our history, what is imperative is national

unity. May God grant that the controversies the events leading to these
415
cases have entail will heal after the decision herein is promulgated, so that
all us Filipinos may forever join hands in the pursuit of our national destiny.
IN VIEW OF ALL THE FOREGOING, I vote to dismiss these petitions

for mandamus and prohibition without costs.
Assuming, without conceding, that Article XV of the 1935 Constitution

prescribes a procedure for the ratification of constitutional amendments or
of a new Constitution and that such procedure was no complied with, the
validity of Presidential Proclamation No. 1102 is a political, not a justiciable,
issue; for it is inseparably or inextricably link with and strikes at, because it
is decisive of, the validity of ratification and adoption of, as well as
acquiescence of people in, the 1973 Constitution and the legitimacy of the
government organized and operating thereunder. And being political, it is
beyond the ambit of judicial inquiry, tested by the definition of a political
question enunciated in Tañada, et. al. vs. Cuenco, et al. (103 Phil. 1051),
aside from the fact the this view will not do violence to rights vested under
the new Constitution, to international commitments forged pursuant
thereto and to decisions rendered by the judicial as well as quasi-judicial
tribunals organized and functioning or whose jurisdiction has been altered
by the 1973 Constitution and the government established thereunder, and
will dissipate any confusion in the minds of the citizenry, who have been
obeying the mandates of the new Constitution, as well as exercising the
rights and performing the obligations defined by the new Constitution, and
decrees and orders issued in implementation of the same and cooperating
with the administration in the renovation of our social, economic and
political system as re-structured by the 1973 Constitution and by the
implementing decrees and orders (see Miller vs. Johnson, 18 SW 522, 522-
526, 1892).
In 1957, Mr. Chief Justice Roberto Concepcion, then Associate Justice, in

behalf of the Court, defined a political question as one which, under the
Constitution, is "to be decided by the people in their sovereign capacity, or
in regard to which full discretionary authority had been delegated to the
416
Legislature or Executive branch of the government." (Tañada, et al. vs.

Cuenco, et al., supra).
Article XV of the 1935 Constitution provides: "Such amendments shall be

valid as part of this Constitution when approved by a majority of the votes
cast at an election at which the amendments are submitted to the people
for ratification." Under Article XV of the 1935 Constitution, the power to
propose constitutional amendments is vested in Congress or in a
constitutional convention; while the power to ratify or reject such proposed
amendments or new Constitution is reserved by the sovereign people. The
nullification of Proclamation No. 1102 would inevitably render inoperative
the 1973 Constitution, which is in fact the express prayer of the petitioners
in G.R. No. L-36164. Regardless of the modality of submission or ratification
or adoption — even if it deviates from or violates the procedure delineated
therefore by the old Constitution — once the new Constitution is ratified,
adopted and/or acquiesced in by the people or ratified even by a body or
agency not duly authorized therefor but is subsequently adopted or
recognized by the people and by the other official organs and functionaries
of the government established under such a new Constitution, this Court is
precluded from inquiring into the validity of such ratification, adoption or
acquiescence and of the consequent effectivity of the new Constitution.
This is as it should be in a democracy, for the people are the repository of
all sovereign powers as well as the source of all governmental authority
(Pole vs. Gray, 104 SO 2nd 841 [1958]). This basic democratic concept is
expressly restated in Section 1 of Article II of the Declaration of Principles of
the 1935 and 1973 Constitutions, thus: "Sovereignty resides in the people
and all government authority emanates from them."
The legality of the submission is no longer relevant; because the

ratification, adoption and/or acquiescence by the people cures any infirmity
in its submission or any other irregularities therein which are deemed
mandatory before submission as they are considered merely directory after
such ratification or adoption or acquiescence by the people. As Mr. Justice
Brewer, then of the Kansas State Supreme Court and later Associate Justice
of the Federal Supreme Court, stated in re Prohibitory Amendment Cases
(24 Kansas 700 & 710 Reprint 499, 506): "The two important, vital elements
417
of the Legislature and a majority of the popular vote. Beyond these, other
provisions are mere machineries and forms. They may not be disregarded,
because by them certainty as to the essentials is secured. But they are not
themselves the essentials." (Cited in Larken vs. Gronna, 285 NW 59, 61-64,
1939).
This was the ruling by the American Supreme Court in the 1939 case
of Coleman vs. Miller (307 U.S. 433, 83 L.ed. 1385), where Chief Justice
Hughes, speaking for the majority, stated that:
... Thus the political departments of the

government dealt with the effect of both previous
rejection and attempted withdrawal and
determined that both were ineffectual in the
presence of an actual ratification ... . This decision
by the political departments of the Government
as to the validity of the adoption of the
Fourteenth amendment has been accepted.
We think that in accordance with this historic

precedent the question of the efficacy of
ratifications by state legislatures, in the light of
previous rejection or attempted withdrawal,
should be regarded as a political question
pertaining to the political departments, with the
ultimate authority in the Congress in the exercise
of its control over the promulgation of the
adoption of the amendment.
This view was likewise emphasized by Mr. Justice Black in his concurring
opinion, in which Mr. Justices Roberts, Frankfurter, and Douglas join, thus:
The Constitution grants Congress exclusive power

to control submission of constitutional
amendments. Final determination by Congress
that ratification by three-fourths of the States has
418
taken place "is conclusive upon the courts." In the

exercise of that power, Congress, of course, is
governed by the Constitution. However, whether
submission, intervening procedure or
Congressional determination of ratification
conforms to the commands of the Constitution,
calls for decisions by a "political department" of
questions of a type which this Court has
frequently designated "political." And decision of
a "political question" by the "political
department" to which the Constitution has
committed it "conclusively binds the judges, as
well as all other officers, citizens and subjects
of...government." Proclamation under authority of
Congress that an amendment has been ratified
will carry with it a solemn assurance by the
Congress that ratification has taken place as the
Constitution commands. Upon this assurance a
proclaimed amendment must be accepted as a
part of the Constitution, leaving to the judiciary its
traditional authority of interpretation. To the
extent that the Court's opinion in the present case
even impliedly assumes a power to make judicial
interpretation of the exclusive constitutional
authority of Congress over submission and
ratification of amendments, we are unable to
agree... (American Constitutional Issues, by
Pritchett, 1962 Ed., p. 44).
The doctrine in the aforesaid case of Coleman vs. Miller was adopted by
Our Supreme Court in toto in Mabanag vs. Lopez Vito (78 Phil. 1).
The ruling in the cases of Gonzales vs. Comelec, et al. (L-28224, Nov. 29,
1967, 21 SCRA 774) and Tolentino vs. Comelec, et al. (L-34150, Oct. 16,
1971, 41 SCRA 702) on which petitioners place great reliance — that the
courts may review the propriety of a submission of a proposed
419
constitutional amendment before the ratification or adoption of such

proposed amendment by the sovereign people, hardly applies to the cases
at bar; because the issue involved in the aforesaid cases refers to only the
propriety of the submission of a proposed constitutional amendment to the
people for ratification, unlike the present petitions, which challenge
inevitably the validity of the 1973 Constitution after its ratification or
adoption thru acquiescence by the sovereign people. As heretofore stated,
it is specious and pure sophistry to advance the reasoning that the present
petitions pray only for the nullification of the 1973 Constitution and the
government operating thereunder.
It should be stressed that even in the Gonzales case, supra, We held that:
Indeed, the power to amend the Constitution or

to propose amendments thereto is not included in
the general grant of legislative powers to
Congress. It is part of the inherent powers of
the people — as the repository of sovereignty in a
republican state, such as ours — to make, and
hence, to amend their own Fundamental Law.
Congress may propose amendments to the same
explicitly grants such power. Hence, when
exercising the same, it is said that Senators and
Members of the House of Representatives
act, notas members, but as component elements
of a constituent assembly. When acting as such,
the members of Congress derive their authority
from the Constitution, unlike the people, when
performing the same function, for their authority
does not emanate from the Constitution — they
are the very source of all powers of
government, including the Constitution itself. (21
SCRA 787)
We did not categorically and entirely overturn the doctrine in Mabanag vs.
Lopez Vito (78 Phil. 1) that both the proposal to amend and the ratification
420
of such a constitutional amendment are political in nature forming as they

do the essential parts of one political scheme — the amending process. WE
merely stated therein that the force of the ruling in the said case
of Mabanag vs. Lopez Vito has been weakened by subsequent cases. Thus,
We pronounced therein:
It is true that in Mabanag vs. Lopez Vito, this Court

characterizing the issue submitted thereto as a
political one, declined to pass upon the question
whether or not a given number of votes cast in
Congress in favor of a proposed amendment to
the Constitution — which was being submitted to
the people for ratification — satisfied the three
fourths vote requirement of the fundamental law.
The force of this precedent has been weakened,
however, by Suanes vs. Chief Accountant of the
Senate, Avelino vs. Cuenco, Tañada vs. Cuenco
and Macias vs. Commission on Elections. In the
first, we held the officers and employees of the
Senate Electoral Tribunal are supervision and
control, not of that of the Senate President,
claimed by the latter; in the second, this Court
proceeded to determine the number of Senators
necessary for a quorum in the Senate; in the third
we nullified the election, by Senators belonging to
the party having the largest number of votes in
said chamber purporting to act on behalf of the
party having the second largest number of votes
therein, of two (2) Senators belonging to the first
party, as members, for the second party, of the
Senate Electoral Tribunal; and in the fourth, we
declared unconstitutional an act of Congress
purporting to apportion the representative
districts for the House of Representatives, upon
the ground that the apportionment had not been
made as may be possible according to the number
of inhabitants of each province. Thus we rejected
421
the theory advanced in these four (4) cases, that

the issues therein raised were political questions
the determination of which is beyond judicial
review. (21 SCRA pp. 785-786);
for which reason We concluded
In short, the issue whether or not a resolution of

Congress before acting as a constituent assembly
— violates the Constitution is essentially
justiciable, not political, and, hence, subject to
judicial review, and to the extent that this view
may be inconsistent with the stand taken in
Mabanag vs. Lopez Vito, the latter should be
deemed modified accordingly. (p. 787, emphasis
supplied.)
In the Tolentino case, supra, We reiterated the foregoing statements (41

SCRA 703-714).
The inevitable consequence therefore is that the validity of the ratification

or adoption of or acquiescence by the people in the 1973 Constitution,
remains a political issue removed from the jurisdiction of this Court to
review.
One more word about the Gonzales and Tolentino cases. Both primarily
stressed on the impropriety of the submission of a proposed constitutional
amendment. Courts do not deal with propriety or wisdom or absence of
either of an official act or of a law. Judicial power concerns only with the
legality or illegality, constitutionality or unconstitutionality of an act: it
inquires into the existence of power or lack of it. Judicial wisdom is not to
be pitted against the wisdom of the political department of the
government.
The classic example of an illegal submission that did not impair the validity
of the ratification or adoption of a new Constitution is the case of the
422
Federal Constitution of the United States. It should be recalled that the

thirteen (13) original states of the American Union — which succeeded in
liberating themselves from England after the revolution which began on
April 19, 1775 with the skirmish at Lexington, Massachusetts and ended
with the surrender of General Cornwallis at Yorktown, Virginia, on October
19, 1781(Encyclopedia Brit., Vol. I, 1933 Ed., p. 776) — adopted their
Articles of Confederation and Perpetual Union, that was written from 1776
to 1777 and ratified on March 1, 1781 (Encyclopedia Brit., Vol. II, 1966 Ed.,
p. 525). About six thereafter, the Congress of the Confederation passed a
resolution on February 21, 1787 calling for a Federal Constitutional
Convention "for the sole and express purpose of revising the articles of
confederation ... ." (Appendix I, Federalist, Modern Library ed., p. 577,
emphasis supplied).
The Convention convened at Philadelphia on May 14, 1787. Article XIII of

the Articles of Confederation and Perpetual Union stated specifically:
The articles of this confederation shall be

inviolably observed in every state, and the union
shall be perpetual; nor shall any alterations at any
time hereafter be made in any of them; unless
such alteration be agreed to in a congress of the
united states, and be afterwards confirmed by the
legislatures of every state. (See the Federalist,
Appendix II, Modern Library Ed., 1937, p. 584;
emphasis supplied.)
But the foregoing requirements prescribed by the Articles of Confederation

and Perpetual Union for the alteration for the ratification of the Federal
Constitution as drafted by the Philadelphia Convention were not followed.
Fearful the said Federal Constitution would not be ratified by the
legislatures as prescribed, the Philadelphia Convention adopted a
resolution requesting the Congress of the Confederation to pass a
resolution providing that the Constitution should be submitted to elected
state conventions and if ratified by the conventions in nine (9) states, not
necessarily in all thirteen (13) states, the said Constitution shall take effect.
423
Thus, history Professor Edward Earle Mead of Princeton University

recorded that:
It would have been a counsel of perfection to

consign the new constitution to the tender
mercies of the legislatures of each and all of the
13 states. Experience clearly indicated that
ratification then would have had the same chance
as the scriptural camel passing through the eye of
a needle. It was therefore determined to
recommend to Congress that the new Constitution
be submitted to conventions in the several states
especially elected to pass upon it and that,
furthermore, the new government should go into
effect if and when it should be ratified by nine of
the thirteen states ... . (The Federalist, Modern
Library Ed., 1937, Introduction by Edward Earle
Mead, pp. viii-ix; emphasis supplied)
Historian Samuel Eliot Morison similarly recounted:
The Convention, anticipating that the influence of

many state politicians would be Antifederalist,
provided for ratification of the Constitution by
popularly elected conventions in each state.
Suspecting that Rhode Island, at least, would
prove recalcitrant, it declared that the
Constitution would go into effect as soon as nine
states ratified. The convention method had the
further advantage that judges, ministers, and
others ineligible to state legislatures, could be
elected to a convention. The nine-state provision
was, of course, mildly revolutionary. But the
Congress of the Confederation, still sitting in New
York to carry on federal government until
relieved, formally submitted the new constitution
424
to the states and politely faded out before the

first presidential inauguration. (The Oxford History
of the Am. People, by Samuel Eliot Morison, 1965
ed., p. 312).
And so the American Constitution was ratified by nine (9) states on June 21,
1788 and by the last four states on May 29, 1790 (12 C.J. p. 679 footnote,
16 C.J.S., 27. — by the state conventions and not by all thirteen (13) state
legislatures as required by Article XIII of the Articles of Confederation and
Perpetual Union aforequoted — and in spite of the fact that the Federal
Constitution as originally adopted suffers from two basic infirmities,
namely, the absence of a bill of Rights and of a provision affirming the
power of judicial review.
The liberties of the American people were guaranteed by subsequent

amendments to the Federal Constitution. The doctrine of judicial review
has become part of American constitutional law only by virtue of a judicial
pronouncement by Chief Justice Marshall in the case of Marbury vs.
Madison (1803, 1 Cranch 137).
Until this date, no challenge has been launched against the validity of the
ratification of the American Constitution, nor against the legitimacy of the
government organized and functioning thereunder.
In the 1946 case of Wheeler vs. Board of Trustees (37 SE 2nd 322, 326-330),
which enunciated the principle that the validity of a new or revised
Constitution does not depend on the method of its submission or
ratification by the people, but on the fact or fiat or approval or adoption or
acquiescence by the people which fact of ratification or adoption or
acquiescence is all that is essential, the Court cited precisely the case of the
irregular revision and ratification by state conventions of the Federal
Constitution, thus:
No case identical in its facts with the case now

under consideration has been called to our
attention, and we have found none. We think that
425
the principle which we apply in the instant case

was very clearly applied in the creation of the
constitution of the United States. The convention
created by a resolution of Congress had authority
to do one thing, and one only, to wit, amend the
articles of confederation. This they did not do, but
submitted to the sovereign power, the people, a
new constitution. In this manner was the
constitution of the United States submitted to the
people and it became operative as the organic law
of this nation when it had been properly adopted
by the people.
Pomeroy's Constitutional Law, p. 55, discussing

the convention that formulated the constitution
of the United States, has this to say: "The
convention proceeded to do, and did accomplish,
what they were not authorized to do by a
resolution of Congress that called them together.
That resolution plainly contemplated amendments
to the articles of confederation, to be submitted to
and passed by the Congress, and afterwards
ratified by all the State legislatures, in the manner
pointed out by the existing organic law. But the
convention soon became convinced that any
amendments were powerless to effect a cure; that
the disease was too deeply seated to be reached
such tentative means. They saw that the system
they were called to improve must be totally
abandoned, and that the national idea must be re-
established at the center of their political society.
It was objected by some members, that they had
no power, no authority, to construct a new
government. They had no authority, if their
decisions were to be final; and no authority
whatsoever, under the articles of confederation,
to adopt the course they did. But they knew that
426
their labors were only to be suggestions; and that

they as well as any private individuals, and any
private individuals as well as they, had a right to
propose a plan of government to the people for
their adoption. They were, in fact, a mere
assemblage of private citizens, and their work had
no more binding sanction than a constitution
drafted by Mr. Hamilton in his office would have
had. The people, by their expressed will,
transformed this suggestion, this proposal, into an
organic law, and the people might have done the
same with a constitution submitted to them by a
single citizen."
xxx xxx xxx
... When the people adopt a completely revised or

new constitution, the framing or submission of the
instrument is not what gives it binding force and
effect. The fiat of the people and only the fiat of
the people, can breathe life into a constitution.
xxx xxx xxx
... We do not hesitate to say that a court is never

justified in placing by implication a limitation upon
the sovereign. This would be an authorized
exercise of sovereign power by the court. In State
v. Swift, 69 Ind. 505, 519, the Indiana Supreme
Court said: "The people of a State may form an
original constitution, or abrogate an old one and
form a new one, at any time, without any political
restriction except the constitution of the United
States; ... ." (37 SE 327-328, 329, emphasis
supplied.)
427
In the 1903 case of Weston vs. Ryan, the Court held:
It remains to be said that if we felt at liberty to

pass upon this question, and were compelled to
hold that the act of February 23, 1887, is
unconstitutional and void, it would not, in our
opinion, by any means follow that the
amendment is not a part of our state Constitution.
In the recent case of Taylor vs.
Commonwealth (Va.) 44 S.E. 754, the Supreme
Court of Virginia hold that their state Constitution
of 1902, having been acknowledged and accepted
by the officers administering the state
government, and by the people, and being in force
without opposition, must be regarded as an
existing Constitution irrespective of the question
as to whether or not the convention which
promulgated it had authority so to do without
submitting it to a vote of the people. In Brittle v.
People, 2 Neb. 198, is a similar holding as to
certain provisions of the Nebraska Constitution of
1886, which were added by the Legislature at the
requirement of Congress, though never submitted
to the people for their approval." (97 NW 349-
350; emphasis supplied).
Against the decision in the Wheeler case, supra, confirming the validity of

the ratification and adoption of the American Constitution, in spite of the
fact that such ratification was in clear violation of the prescription on
alteration and ratification of the Articles of Confederation and Perpetual
Union, petitioners in G.R. No. L-36165 dismissed this most significant
historical fact by calling the Federal Constitution of the United States as a
revolutionary one, invoking the opinion expressed in Vol. 16, Corpus Juris
Secundum, p. 27, that it was a revolutionary constitution because it did not
obey the requirement that the Articles of Confederation and Perpetual
Union can be amended only with the consent of all thirteen (13) state
428
legislatures. This opinion does not cite any decided case, but merely refers
to the footnotes on the brief historic account of the United States
Constitution on p. 679 of Vol. 12, CJS. Petitioners, on p. 18 of their main
Notes, refer US to pp. 270-316 of the Oxford History of the American
People, 1965 Ed. by Samuel Eliot Morison, who discusses the Articles of
Confederation and Perpetual Union in Chapter XVIII captioned
"Revolutionary Constitution Making, 1775 1781" (pp. 270-281). In Chapter
XX on "The Creative Period in Politics, 1785-1788," Professor Morison
delineates the genesis of the Federal Constitution, but does not refer to it
even implicitly as revolutionary constitution (pp. 297-316). However, the
Federal Constitution may be considered revolutionary from the view point
of McIver if the term revolution is understood in "its wider sense to
embrace decisive changes in the character of government, even though
they do not involve the violent overthrow of an established order, ... ."
(R.M. MacIver, The Web of Government, 1965 ed., p. 203).
It is rather ridiculous to refer to the American Constitution as a

revolutionary constitution. The Articles of Confederation and Perpetual
Union that was in force from July 12, 1776 to 1788, forged as it was during
the war of independence was a revolutionary constitution of the thirteen
(13) states. In the existing Federal Constitution of the United States which
was adopted seven (7) or nine (9) years after the thirteen (13) states won
their independence and long after popular support for the government of
the Confederation had stabilized was not a product of a revolution. The
Federal Constitution was a "creation of the brain and purpose of man" in an
era of peace. It can only be considered revolutionary in the sense that it is a
radical departure from its predecessor, the Articles of Confederation and
Perpetual Union.
It is equally absurd to affirm that the present Federal Constitution of the

United States is not the successor to the Articles of Confederation and
Perpetual Union. The fallacy of the statement is so obvious that no further
refutation is needed.
As heretofore stated, the issue as to the validity of Proclamation No. 1102

strikes at the validity and enforceability of the 1973 Constitution and of the
429
government established and operating thereunder. Petitioners pray for a

declaration that the 1973 Constitution is inoperative (L-36164). If
Proclamation No. 1102 is nullified, then there is no valid ratification of the
1973 Constitution and the inevitable conclusion is that the government
organized and functioning thereunder is not a legitimate government.
That the issue of the legitimacy of a government is likewise political and not
justiciable, had long been decided as early as the 1849 case of Luther vs.
Borden (7 How. 1, 12 L.ed., 581), affirmed in the 1900 case of Taylor vs.
Beckham(178 U.S. 548, 44 L.ed. 1187) and re-enunciated in 1912 in the case
of Pacific States Telephone and Telegraph Company vs. Oregon (223 U.S.
118, 133-151, 56 L.ed. 377-386). Because it reaffirmed the pronouncements
in both Borden and Beckham cases, it is sufficient for us to quote the
decision in Pacific States Telephone and Telegraph Co.,supra, penned by
Mr. Chief Justice White, who re-stated:
In view of the importance of the subject, the

apparent misapprehension on one side and
seeming misconception on the other, suggested
by the argument as to the full significance of the
previous doctrine, we do not content ourselves
with a mere citation of the cases, but state more
at length than we otherwise would the issues and
the doctrine expounded in the leading and
absolutely controlling case— Luther v. Borden, 7
How. 1, 12 L.ed. 581.
xxx xxx xxx
... On this subject it was said (p. 38):
"For if this court is authorized to enter upon this

inquiry, proposed by the plaintiff, and it should be
decided that the character government had no
legal existence during the period of time above
mentioned, — if it had been annulled by the
430
adoption of the opposing government, — then

the laws passed by its legislature during that time
were nullities; its taxes wrongfully collected, its
salaries and compensations to its officers illegally
paid ; its public accounts improperly settled and
the judgments and sentences of its courts in civil
and criminal cases null and void, and the officers
who carried their decisions into operation
answerable as trespassers, if not in some cases as
criminals."
xxx xxx xxx
"The fourth section of the fourth article of the

Constitution of the United States shall guarantee
to every state in the Union a republican form of
against invasion; and on the application of the
Legislature or of the Executive (when the
legislature cannot be convened) against domestic
violence.
"Under this article of the Constitution it rests with

Congress to decide what government is
established one in a state. For, as the United State
guarantee to each state a republican
government, Congress must necessarily decide
what government is established in the state
before it can determine whether it is republican or
not. And when the senators and representatives of
a state are admitted into the Councils of the
Union, the authority of the government under
which they were appointed, as well as its
republican character, is recognized by the proper
constitutional authority. And its decision is binding
on every other department of the government,
431
and could not be questioned in a judicial tribunal.

It is true that the contest in this case did not last
long enough to bring the matter to this issue; and
as no senators or representatives were elected
under the authority of the government of which
Mr. Dorr was the head, Congress was not called
upon to decide the controversy. Yet the right to
decide is placed there and not in the courts."
xxx xxx xxx
... We do not stop to cite other cases which

indirectly or incidentally refer to the subject, but
conclude by directing attention to the statement
by the court, speaking through Mr. Chief Justice
Fuller, in Taylor vs. Beckham, 178 U.S. 548, 44
L.ed. 1187, 20 Sup. Ct. Rep. 890, 1009, where,
after disposing of a contention made concerning
the 14th Amendment, and coming to consider a
proposition which was necessary to be decided
concerning the nature and effect of the guaranty
of S 4 of article 4, it was said (p. 578):
"But it is said that the 14th Amendment must be

read with S 4 of article 4, of the Constitution,
providing that the United States shall guarantee
to every state in this Union a republican form of
against invasion; and on application of the
legislature, or the Executive (when the legislature
cannot be convened), against domestic violence."
xxx xxx xxx
"It was long ago settled that the enforcement of

this guaranty belonged to the political
432
department. Luther v. Borden, 7 How. 1, 12 L.ed.

581. In that case it was held that the question,
which of the two opposing governments of Rhode
Island, namely, the charter government or the
government established by a voluntary
convention, was the legitimate one, was a
question for the determination of the political
department; and when that department had
decided, the courts were bound to take notice of
the decision and follow it."
xxx xxx xxx
As the issues presented, in their very essence, are,

and have long since by this Court been, definitely
determined to be political and governmental, and
embraced within the scope of the scope of the
powers conferred upon Congress, and not,
therefore within the reach of judicial power, it
follows that the case presented is not within our
jurisdiction, and the writ of error must therefore
be, and it is, dismissed for want of jurisdiction.
(223 U.S. pp. 142-151; emphasis supplied).
Even a constitutional amendment that is only promulgated by the

Constitutional Convention without authority therefor and without
submitting the same to the people for ratification, becomes valid, when
recognized, accepted and acted upon the by Chief of State and other
government functionaries, as well as by the people. In the 1903 case
of Taylor vs. Commonwealth (44 SE 754-755), the Court ruled:
The sole ground urged in support of the

contention that Constitution proclaimed in 1902 is
invalid is that it was ordained and promulgated by
the convention without being submitted for
433
ratification or rejection by the people of the

commonwealth.
The Constitution of 1902 was ordained and

proclaimed by convention duly called by direct
vote of the people of the state to revise and
amend the Constitution of 1869. The result of the
work that the convention has been recognized,
accepted, and acted upon as the only valid
Constitution of the state by the Governor in
swearing fidelity to it and proclaiming it, as
directed thereby; by the Legislature in its formal
official act adopting a joint resolution, July 15,
1902, recognizing the Constitution ordained by
the convention which assembled in the city of
Richmond on the 12th day of June 1901, as the
Constitution of Virginia; by the individual oaths of
members to support it, and by its having been
engaged for nearly a year in legislating under it
and putting its provisions into operation but the
judiciary in taking the oath prescribed thereby to
support and by enforcing its provisions; and by
the people in their primary capacity by peacefully
accepting it and acquiescing in it, registering as
voters under it to the extent of thousands through
the state, and by voting, under its provisions, at a
general election for their representatives in the
Congress of the United States. (p. 755).
The Court in the Taylor case above-mentioned further said:
While constitutional procedure for adoption or

proposal to amend the constitution must be duly
followed, without omitting any requisite steps,
courts should uphold amendment, unless satisfied
that the Constitution was violated in submitting
434
the proposal. ... Substance more than form must

be regarded in considering whether the complete
constitutional system for submitting the proposal
to amend the constitution was observed.
In the 1925 case of Taylor vs. King (130 A 407, 408 410), the Court stated:
There may be technical error in the manner in

which a proposed amendment is adopted, or in its
advertisement, yet, if followed, unobjected to, by
approval of the electors, it becomes part of the
Constitution. Legal complaints to the submission
may be made prior to taking the vote, but, if once
sanctioned, the amendment is embodied therein,
and cannot be attacked, either directly or
collaterally, because of any mistake antecedent
thereto. Even though it be submitted at an
improper time, it is effective for all purposes when
accepted by the majority. Armstrong v. King, 281
Pa. 207, 126 A. 263. (130 A 409).
Even if the act of the Constitutional Convention is beyond its authority,

such act becomes valid upon ratification or adoption or acquiescence by
the people. Thus, in the 1905 case of Ex parte Birmingham and A.R.
Company (42 SO pp. 118 & 123), the Alabama Supreme Court upheld this
principle and stated that: "The authorities are almost uniform that this
ratification of an unauthorized act by the people (and the people are the
principal in this instance) renders the act valid and binding."
It has likewise been held that it is not necessary that voters ratifying the
new Constitution are registered in the book of voters; it is enough that they
are electors voting on the new Constitution. (Bott vs. Wurts, 40 A 740
[1899]; 45 LRA 251, emphasis supplied).
In the 1956 case of Thomson vs. Peoples State Bank (75 NW 2nd 370, 375),
the Supreme Court of Wisconsin ruled that "irregularity in the procedure
435
for the submission of the proposed constitutional amendment will not

defeat the ratification by the people."
Again, in the 1958 case of Swaim vs. Tuscaloosa County (103 SO 2nd 769),
the Alabama Supreme Court pronounced that "the irregularity in failing to
publish the proposed constitutional amendment once in each of the 4
calendar weeks next preceding the calendar week in which the election was
held or once in each of the 7-day periods immediately preceding the day of
the election as required by the Constitution, did not invalidate the
amendment which was ratified by the people."
The same principle was reiterated in 1961 by the Mississippi Supreme Court

in Barnes, et al. v. Ladner (131) SO 2nd 45 462), where they admitted
irregularities or illegalities committed in the procedure for submission of
the proposed constitutional amendment to the people for ratification
consisted of: "(a) the alleged failure of the county election commissioners
of the several counties to provide a sufficient number of ballot boxes
'secured by good and substantial locks,' as provided by Section 3249, Code
of 1942, Rec., to be used in the holding of the special election on the
constitutional amendment, and (b) the alleged failure of the State Election
Commissioners to comply with the requirements of Code Sections 3204 and
3205 in the appointment of election commissioners in each of the 82
counties. The irregularities complained of, even if proved, were not such
irregularities would have invalidated the election." (Emphasis supplied; see
also Sylvester vs. Tindall, 8 SO 2nd 892; 154 Fla. 663).
Even prior to the election in November, 1970 of delegates of the

Constitutional Convention and during the deliberations of the
Constitutional Convention from June 1, 1971 until martial law was
proclaimed on Sept. 21, 1972, the salient reforms contained in the 1973
Constitution which have long been desired by the people, had been
thoroughly discussed in the various committees of the Constitutional
Convention, on the floor of the Convention itself, in civic forums and in all
the media of information. Many of the decrees promulgated by the Chief
Executive from Sept. 22, 1972 to Jan. 17, 1973 implement some of the
436
reforms and had been ratified in Sec. 3(2) of Article XVII of the 1973
Constitution.
Petitioners cannot safely state that during martial law the majority of the
people cannot freely vote for these reforms and are not complying with the
implementing decrees promulgated by the President.
Free election is not inevitably incompatible with martial law. We had free
elections in 1951 and 1971 when the opposition won six out of eight
senatorial seats despite the suspension of the privileges of the writ
of habeas corpus(see Lansang vs. Garcia, et al., Dec. 14, 1971, 42 SCRA
448), which suspension implies constraint on individual freedom as the
proclamation of martial law. In both situations, there is no total blackout of
human rights and civil liberties.
All the local governments, dominated either by Nacionalistas or Liberals, as

well as officials of the Legislative and Executive branches of the government
elected and/or appointed under the 1935 Constitution have either
recognized or are now functioning under the 1973 Constitution, aside from
the fact of its ratification by the sovereign people through the Citizens
Assemblies. Ninety-five (95) of a total of one hundred ten (110) members of
the House of Representatives including the Speaker and the Speaker Pro
Tempore as well as about eleven (11) Congressmen who belong to the
Liberal Party and fifteen (15) of a total of twenty-four (24) senators
including Liberal senators Edgar U. Ilarde and John Osmeña opted to serve
in the Interim Assembly, according to the certification of the Commission
on Elections dated February 19, 1973 (Annex Rejoinder-3 to Consolidated
Rejoinder of petitioners in L-36165). Only the five (5) petitioners in L-36165
close their eyes to a fait accompli. All the other functionaries recognize the
new government and are performing their duties and exercising their
powers under the 1973 Constitution, including the lower courts. The civil
courts, military tribunals and quasi-judicial bodies created by presidential
decrees have decided some criminal, civil and administrative cases
pursuant to such decrees. The foreign ambassadors who were accredited to
the Republic of the Philippines before martial law continue to serve as such
in our country; while two new ambassadors have been accepted by the
437
Philippines after the ratification of the 1973 Constitution on January 17,

1973. Copies of the 1973 Constitution had been furnished the United
Nations Organization and practically all the other countries with which the
Philippines has diplomatic relations. No adverse reaction from the United
Nations or from the foreign states has been manifested. On the contrary,
our permanent delegate to the United Nations Organization and our
diplomatic representatives abroad appointed before martial law continue
to remain in their posts and are performing their functions as such under
the 1973 Constitution.
Even the Commission on Elections is now implementing the provisions of

the 1973 Constitution by requiring all election registrars to register 18-year
olds and above whether literates or not, who are qualified electors under
the 1973 Constitution (see pars. 1-A(c), (d), & (e) of Annex A to Notes of
respondents Puyat and Roy in L-36165).
In brief, it cannot be said that the people are ignoring the 1973 Constitution
and the government which is enforcing the same for over 10 weeks now
With the petitioners herein, secessionists, rebels and subversives as the
only possible exceptions, the rest of the citizenry are complying with
decrees, orders and circulars issued by the incumbent President
implementing the 1973 Constitution.
Of happy relevance on this point is the holding in Miller vs. Johnson 18 SW

522:
If a set of men, not selected by the people

according to the forms of law, were to formulate
an instrument and declare it the constitution, it
would undoubtedly be the duty of the courts
declare its work a nullity. This would be
revolution, and this the courts of the existing
government must resist until they are overturned
by power, and a new government
established. The convention, however, was the
offspring of law. The instrument which we are
438
asked to declare invalid as a constitution has been

made and promulgated according to the forms of
law. It is a matter of current history that both the
executive and legislative branches of the
government have recognized its validity as a
constitution, and are now daily doing so. Is the
question, therefore, one of a judicial character? It
is our undoubted duty, if a statute be
unconstitutional to so declare it; also, if a
provision of the state constitution be in conflict
with the federal constitution, to hold the former
invalid. But this is a very different case. It may be
said, however, that, for every violation of or non-
compliance with the law, there should be a
remedy in the courts. This is not, however, always
the case. For instance, the power of a court as to
the acts of the other departments of the
government is not an absolute one, but merely to
determine whether they have kept within
constitutional limits, it is a duty rather than a
power, The judiciary cannot compel a co-equal
department to perform a duty. It is responsible to
the people; but if it does act, then, when the
question is properly presented, it is the duty of
the court to say whether it has conformed to the
organic law. While the judiciary should protect the
rights of the people with great care and jealousy,
because this is its duty, and also because, in times
of great popular excitement, it is usually their last
resort, yet it should at the same time be careful to
overstep the proper bounds of its power, as being
perhaps equally dangerous; and especially where
such momentous results might follow as would be
likely in this instance, if the power of the judiciary
permitted, and its duty required, the overthrow of
the work of the convention.
439
After the American Revolution the state of Rhode

Island retained its colonial character as its
constitution, and no law existed providing for the
making of a new one. In 1841 public meetings
were held, resulting in the election of a
convention to form a new one, — to be submitted
to a popular vote. The convention framed one,
submitted it to a vote, and declared it adopted.
Elections were held for state officers, who
proceeded to organize a new government. The
charter government did not acquiesce in these
proceedings, and finally declared the state under
martial law. It called another convention, which in
1843 formed a new constitution. Whether the
charter government, or the one established by the
voluntary convention, was the legitimate one, was
uniformly held by the courts of the state not to be
a judicial, but a political question; and the political
department having recognized the one, it was
held to be the duty of the judiciary to follow its
decision. The supreme court of the United States,
in Luther v. Borden, 7 How. 1, while not expressly
deciding the principle, as it held the federal court,
yet in the argument approves it, and in substance
says that where the political department has
decided such a matter the judiciary should abide
by it.
Let us illustrate the difficulty of a court deciding

the question: Suppose this court were to hold that
the convention, when it reassembled, had no
power to make any material amendment, and
that such as were made are void by reason of the
people having theretofore approved the
instrument. Then, next, this court must determine
what amendments were material; and we find the
court, in effect, making a constitution. This would
440
be arrogating sovereignty to itself. Perhaps the

members of the court might differ as to what
amendments are material, and the result would
be confusion and anarchy. One judge might say
that all the amendments, material and immaterial,
were void; another, that the convention had then
the implied power to correct palpable errors, and
then the court might differ as to what
amendments are material. If the instrument as
ratified by the people could not be corrected or
altered at all, or if the court must determine what
changes were material, then the instrument, as
passed upon by the people or as fixed by the court
would be lacking a promulgation by the
convention; and, if this be essential, then the
question would arise, what constitution are we
now living under, and what is the organic law of
the state? A suggestion of these matters shows
what endless confusion and harm to the state
might and likely would arise. If, through error of
opinion, the convention exceeded its power, and
the people are dissatisfied, they have ample
remedy, without the judiciary being asked to
overstep the proper limits of its power. The
instrument provides for amendment and change.
If a wrong has been done, it can, in the proper
way in which it should be remedied, is by the
people acting as a body politic. It is not a question
of whether merely an amendment to a
constitution, made without calling a convention,
has been adopted, as required by that
constitution. If it provides how it is to be done,
then, unless the manner be followed, the
judiciary, as the interpreter of that constitution,
will declare the amendment invalid. Koehler v.
Hill, 60 Iowa, 543, 14 N.W. Rep. 738, and 15 N.W.
Rep. 609; State v. Tuffy, 1 Nev. 391, 12 Pac. Rep.
441
835. But it is a case where a new constitution has

persons have been convicted of the highest crime
known to the law, according to its provisions; the
political power of the government has in many
ways recognized it; and, under such
our commonwealth.
We need not consider the validity of the

of its powers, yet, as the entire instrument has
been recognized as valid in the manner suggested,
it would be equally an abuse of power by the
judiciary and violative of the rights of the people,
the instrument of a portion invalid, and bring
confusion and anarchy upon the state. (emphasis
supplied).
If this Court inquires into the validity of Proclamation No. 1102 and
consequently of the adoption of the 1973 Constitution it would be
exercising a veto power on the act of the sovereign people, of whom this
Court is merely an agent, which to say the least, would be anomalous. This
Court cannot dictate to our principal, the sovereign people, as to how the
approval of the new Constitution should be manifested or expressed. The
sovereign people have spoken and we must abide by their decision,
regardless of our notion as to what is the proper method of giving assent to
the new Charter. In this respect, WE cannot presume to know better than
the incumbent Chief Executive, who, unlike the members of this Court, only
last January 8, 1973, We affirmed in Osmeña vs. Marcos (Pres. Election
442
Contest No. 3, Jan. 8, 1973), was re-elected by the vote of over 5 million
electors in 1969 for another term of four years until noon of December 30,
1973 under the 1935 Constitution. This Court, not having a similar mandate
by direct fiat from the sovereign people, to execute the law and administer
the affairs of government, must restrain its enthusiasm to sally forth into
the domain of political action expressly and exclusively reserved by the
sovereign people themselves.
The people in Article XV of the 1935 Constitution did not intend to tie their
hands to a specific procedure for popular ratification of their organic law.
That would be incompatible with their sovereign character of which We are
reminded by Section 1, of Article II of both the 1935 and the 1973
Constitutions.
The opinion of Judge Thomas McIntire Cooley that the sovereign people
cannot violate the procedure for ratification which they themselves define
in their Constitution, cannot apply to a unitary state like the Republic of the
Philippines. His opinion expressed in 1868 may apply to a Federal State like
the United States, in order to secure and preserve the existence of the
Federal Republic of the United States against any radical innovation
initiated by the citizens of the fifty (50) different states of the American
Union, which states may be jealous of the powers of the Federal
government presently granted by the American Constitution. This
dangerous possibility does not obtain in the case of our Republic.
Then again, Judge Cooley advanced the aforesaid opinion in 1868 when he
wrote his opus "Constitutional Limitations."* (Vol. 6, Encyclopedia Brit.,
1969 ed. pp. 445 446). It is possible that, were he live today, in a milieu
vastly different from 1868 to 1898, he might have altered his views on the
matter.
Even if conclusiveness is to be denied to the truth of the declaration by the

President in Proclamation No. 1102 that the people through their Citizens'
Assemblies had overwhelmingly approved the new Constitution due regard
to a separate, coordinate and co-equal branch of the government demands
adherence to the presumption of correctness of the President's declaration.
443
Such presumption is accorded under the law and jurisprudence to officials

in the lower levels of the Executive branch, there is no over-riding reason to
deny the same to the Chief of State as head of the Executive Branch. WE
cannot reverse the rule on presumptions, without being presumptuous, in
the face of the certifications by the Office the Secretary of the Department
of Local Government and Community Development. (Annexes 1, to 1-E,
Annexes 2 to 2-O to the compliance with manifestation filed by the Solicitor
General on behalf of the respondents public officers dated March 7, 1973).
There is nothing in the records that contradicts, much less overthrow the
results of the referendum as certified. Much less are We justified in
reversing the burden of proof — by shifting it from the petitioners to the
respondents. Under the rules on pleadings, the petitioners have the duty to
demonstrate by clear and convincing evidence their claim that the people
did not ratify through the Citizens' Assemblies nor adopt by acquiescence
the 1973 Constitution. And have failed to do so.
No member of this Tribunal is justified in resolving the issues posed by the

cases at bar on the basis of reports relayed to him from private sources
which could be biased and hearsay, aside from the fact that such reports
are not contained in the record. Proclamation No. 1102 is not just an
ordinary act of the Chief Executive. It is a well-nigh solemn declaration
which announces the highest act of the sovereign people —
their imprimatur to the basic Charter that shall govern their lives hereafter
— may be for decades, if not for generations.
Petitioners decry that even 15-year olds, ex convicts and illiterates were
allowed to vote in the Citizens' Assemblies, despite their admission that the
term "Filipino people" in the preamble as well as "people" in Sections 1 and
5 of Article II of the 1935 Constitution and in Section 1(3) of Article III of the
Bill of Rights includes all Filipino citizens of all ages, of both sexes, whether
literate or illiterate, whether peaceful citizens, rebels, secessionists,
convicts or ex-convicts. Without admitting that ex-convicts voted in the
referendum, about which no proof was even offered, these sectors of our
citizenry, whom petitioners seem to regard with contempt or decision and
whom petitioners would deny their sovereign right to pass upon the basic
Charter that shall govern their lives and the lives of their progenies, are
444
entitled as much as the educated, the law abiding, and those who are 21
years of age or above to express their conformity or non conformity to the
proposed Constitution, because their stake under the new Charter is not
any less than the stake of the more fortunate among us. As a matter of fact,
these citizens, whose juridical personality or capacity to act is limited by
age, civil interdiction or ignorance deserve more solicitude from the State
than the rest of the citizenry. In the ultimate analysis, the inclusion of those
from 15 years up to below 21 years old, the ex-convicts and the ignorant, is
more democratic as it broadens the base of democracy and therefore more
faithful to the express affirmation in Section 1 of Article II of the Declaration
of Principles that "sovereignty resides in the people and all government
authority emanates from them."
Moreover, ex-convicts granted absolute pardon are qualified to vote. Not

all ex-convicts are banned from voting. Only those who had been sentenced
to at least one year imprisonment are disenfranchised but they recover
their right of suffrage upon expiration of ten years after service of sentence
(Sec. 102, 1971 Rev. Elec. Code). Furthermore, ex-convicts and imbeciles
constitute a very negligible number in any locality or barrio, including the
localities of petitioners.
Included likewise in the delegated authority of the President, is the

prerogative to proclaim the results of the plebiscite or the voting the
Citizens' Assemblies. Petitioners deny the accuracy or correctness of
Proclamation No. 1102 that the 1973 Constitution was ratified by the
overwhelming vote of close to 15 million citizens because there was no
official certification to the results of the same from the Department of Local
Governments. But there was such certification as per Annex 1 to 1-A to the
Notes submitted by the Solicitor General counsel for respondents public
officers. This should suffice to dispose of this point. Even in the absence of
such certification, in much the same way that in passing law, Congress or
the legislative body is presumed to be in possession of the facts upon which
such laws are predicated (Justice Fernando, The Power of Judicial Review,
1967 Ed., pp. 112-11 citing Lorenzo vs. Dir., etc., [1927] 50 Phil. 595 and
O'Gonmore, et al: vs. Hartford, etc., [1931] 282 U.S. 251), it should likewise
be presumed that the President was in possession of the fact upon which
445
Proclamation No. 1102 was based. This presumption is further

strengthened by the fact that the Department of Local Governments, the
Department National Defense and the Philippine Constabulary as well the
Bureau of Posts are all under the President, which offices as his alter ego,
are presumptively acting for and in behalf of the President and their acts
are valid until disapproved or reprobated by the President (Planas vs. Gil,
67 Phil. 62; Villen vs. Secretary of Interior, 67 Phil. 451). To deny the truth
or the proclamation of the President as to the overwhelming majority vote
in the Citizens' Assemblies in favor of the new Constitution, is to charge the
President with falsification, which is a most grievous accusation. Under the,
rules of pleadings and evidence, the petitioners have the burden of proof
by preponderance of evidence in civil cases and by proof beyond
reasonable doubt in criminal prosecutions, where the accused is always
presumed to be innocent. Must this constitutional right be reversed simply
because the petitioner all assert the contrary? Is the rule of law they
pretend invoke only valid as long as it favors them?
The presumption of regularity in the performance of official functions is

accorded by the law and jurisprudence to acts of public officers whose
category in the official hierarchy is very much lower than that of the Chief
of State. What reason is there to withhold such a presumption in favor of
the President? Does the fact that the President belong to the party in
power and that four (4) of the five (5) senators who are petitioners in L-
36165 belong to the opposition party, justify a discrimination against the
President in matters of this nature? Unsupported as their word is by any
credible and competent evidence under the rules of evidence, must the
word of the petitioners prevail over that of the Chief Executive, because
they happen to be former senators and delegates to the Constitutional
Convention? More than any of the petitioners herein in all these cases, the
incumbent President realizes that he risks the wrath of his people being
visited upon him and the adverse or hostile verdict of history; because of
the restrictions on the civil liberties of his people, inevitable concomitants
of martial law, which necessarily entail some degree of sacrifice on the part
of the citizenry. Until the contrary is established or demonstrated, herein
petitioners should grant that the Chief Executive is motivated by what is
good for the security and stability of the country, for the progress and
happiness of the people. All the petitioners herein cannot stand on the
446
proposition that the rights under the 1935 Constitution are absolute and
invulnerable to limitations that may be needed for the purpose of bringing
about the reforms for which the petitioners pretend to be clamoring for
and in behalf of the people. The five (5) petitioners in L-36165 and four (4)
of the seven (7) petitioners in L-36164 were all participants in the political
drama of this country since 1946. They are witness to the frustrations of
well-meaning Presidents who wanted to effect the reforms, especially for
the benefit of the landless and the laboring class — how politics and
political bargaining had stymied the effectuation of such reforms thru
legislation. The eight (8) petitioners in L-36164 and L-36165 may not have
participated in the systematic blocking of the desired reforms in Congress
or outside of it; but the question may be asked as to what exactly they did
to support such reforms. For the last seven (7) decades since the turn of the
century, for the last thirty-five (35) years since the establishment of the
Commonwealth government in 1935 and for the last twenty seven (27)
years since the inauguration of the Republic on July 4, 1946, no tangible
substantial reform had been effected, funded and seriously implemented,
despite the violent uprisings in the thirties, and from 1946 to 1952, and the
violent demonstrations of recent memory. Congress and the oligarchs acted
like ostriches, "burying their heads in timeless sand. "Now the hopes for the
long-awaited reforms to be within a year or to are brighter. It would seem
therefore to the duty of everyone including herein petitioners to give the
present leadership the opportunity to institute and carry out the needed
reforms as provided for in the new or 1973 Constitution and thru the
means prescribed in that same Constitution.
As stated in Wheeler vs. Board of Trustees, "a court is never justified in

placing by implication a limitation upon the sovereign."
This Court in the Gonzales and Tolentino cases transcended its proper
sphere and encroached upon the province exclusively reserved to and by
the sovereign people. This Court did not heed to the principle that the
courts are not the fountain of all remedies for all wrongs. WE cannot
presume that we alone can speak with wisdom as against the judgment of
the people on the basic instrument which affects their very lives. WE
cannot determine what is good for the people or ought to be their
447
fundamental law. WE can only exercise the power delegated to Us by the

sovereign people, to apply and interpret the Constitution and the laws for
the benefit of the people, not against them nor to prejudice them. WE
cannot perform an act inimical to the interest of Our principal, who at any
time may directly exercise their sovereign power ratifying a new
Constitution in the manner convenient to them.
It is pertinent to ask whether the present Supreme Court can function

under the 1935 Constitution without being a part of the government
established pursuant thereto. Unlike in the Borden case, supra, where
there was at least another government claiming to be the legitimate organ
of the state of Rhode Island (although only on paper as it had no
established organ except Dorr who represented himself to be its head; in
the cases at bar there is no other government distinct from and maintaining
a position against the existing government headed by the incumbent Chief
Executive. (See Taylor vs. Commonwealth, supra). There is not even a rebel
government duly organized as such even only for domestic purposes, let
alone a rebel government engaged in international negotiations. As
heretofore stated, both the executive branch and the legislative branch
established under the 1935 Constitution had been supplanted by the
government functioning under the 1973 Constitution as of January 17,
1973. The vice president elected under the 1935 Constitution does not
asset any claim to the leadership of the Republic of the Philippines. Can this
Supreme Court legally exist without being part of any government?
Brilliant counsel for petitioners in L-36165 has been quite extravagant in his
appraisal of Chief Justice Roger Brooke Taney whom he calls the "hero of
the American Bar," because during the American civil war he apparently
had the courage to nullify the proclamation of President Lincoln suspending
the privileges of the writ of habeas corpus in Ex parte Merryman (Federal
Case No. 9487 [1861]). But who exactly was Chief Justice Roger Brooke
Taney? The Editorial Board of Vol. 21 of the Encyclopedia Brit., 1966 ed.
(pp. 778-779, 1969 ed., pp. 654-657), briefly recounts that he was born in
1777 in Calvert County, Maryland, of parents who were landed aristocrats
as well as slave owners. Inheriting the traditional conservatism of his
parents who belonged to the landed aristocracy, Taney became a lawyer in
448
1799, practiced law and was later appointed Attorney General of Maryland.
He also was a member of the Maryland state legislature for several terms.
He was a leader of the Federalist Party, which disintegrated after the war of
1812, compelling him to join the Democratic Party of Andrew Jackson, also
a slave owner and landed aristocrat, who later appointed him first as
Attorney General of the United States, then Secretary of the Treasury and
in 1836 Chief Justice of the United States Supreme Court to succeed Chief
Justice John Marshall, in which position he continued for 28 years until he
died on October 21, 1864. His death "went largely unnoticed and
unregretted." Because he himself was a slave owner and a landed
aristocrat, Chief Justice Taney sympathized with the Southern States and,
even while Chief Justice, hoped that the Southern States would be allowed
to secede peacefully from the Union. That he had no sympathy for the
Negroes was revealed by his decision in Dred Scott vs. Sandford (19 How.
398 [1857]) where he pronounced that the American Negro is not entitled
to the rights of an American citizen and that his status as a slave is
determined by his returning to a slave state. One can therefore discern his
hostility towards President Lincoln when he decided Ex parte Merryman,
which animosity to say the least does no befit a judicial mind. Such a man
could hardly be spoken of as a hero of the American Bar, least of all of the
American nation. The choice of heroes should not be expressed
indiscriminately just to embellish one's rhetoric.
Distinguished counsel in L-36165 appears to have committed another

historical error, which may be due to his rhetorical in the Encyclopedia
Britannica (Vol. 9, 1969 ed., pp. 508-509) to this effect. On the contrary,
Encyclopedia Britannica (Vol. 17 Encyclopedia Brit., 1966 & 1969 eds., 732-
733), refers to Marshal Henri Philippe Petain as the genuine hero or "Savior
of Verdun"; because he held Verdun against the 1916 offensive of the
German army at the cost of 350,000 of his French soldiers, who were then
demoralized and plotting mutiny. Certainly, the surviving members of the
family of Marshal Petain would not relish the error. And neither would the
members of the clan of Marshal Foch acknowledge the undeserved
accolade, although Marshal Foch has a distinct place in history on his own
merits. The foregoing clarification is offered in the interest of true
scholarship and historical accuracy, so that the historians, researchers and
students may not be led astray or be confused by esteemed counsel's
449
eloquence and mastery of the spoken and written word as well as by his
eminence as law professor, author of law books, political leader, and
member of the newly integrated Philippine Bar.
It is quite intriguing why the eminent counsel and co-petitioner in L-36164

did not address likewise his challenge to the five (5) senators who are
petitioners in L-36165 to also act as "heroes and idealists," to defy the
President by holding sessions by themselves alone in a hotel or in their
houses if they can muster a quorum or by causing the arrest of other
senators to secure a quorum and thereafter remove respondents Puyat and
Roy (Avelino, et al. vs. Cuenco, et al. [1949] 83 Phil. 17), if they believe most
vehemently in the justice and correctness of their position that the 1973
Constitution has not been validly ratified, adopted or acquiesced in by the
people since January 18, 1973 until the present. The proclaimed conviction
of petitioners in L-36165 on this issue would have a ring of credibility, if
they proceeded first to hold a rump session outside the legislative building;
because it is not unreasonable to demand or to exact that he who exhorts
others to be brave must first demonstrate his own courage. Surely, they will
not affirm that the mere filing of their petition in L-36165 already made
them "heroes and idealists." The challenge likewise seems to insinuate that
the members of this Court who disagree with petitioners' views are
materialistic cowards or mercenary fence-sitters. The Court need not be
reminded of its solemn duty and how to perform it. WE refuse to believe
that petitioners and their learned as well as illustrious counsels, scholars
and liberal thinkers that they are, do not recognize the sincerity of those
who entertain opinions that clash with their own. Such an attitude does not
sit well with the dictum that "We can differ without being difficult; we can
disagree without being disagreeable," which distinguished counsel in L-
36165 is wont to quote.
WE reserve the right to prepare an extensive discussion of the other points

raised by petitioners, which We do not find now necessary to deal with in
view of Our opinion on the main issue.
IN VIEW OF THE FOREGOING, ALL THE PETITIONS IN THESE FIVE

CASES SHOULD BE DISMISSED.
450
Pursuant to Our reservation, We now discuss the other issues raised by the
petitioners.
II
EVEN IF ISSUE IS JUSTICIABLE, PEOPLE'S RATIFICATION, ADOPTION OR

ACQUIESCENCE CREATES STRONG PRESUMPTION OF VALIDITY OF 1973
CONSTITUTION.
As intimated in the aforecited cases, even the courts, which affirm the
proposition that the question as to whether a constitutional amendment or
the revised or new Constitution has been validly submitted to the people
for ratification in accordance with the procedure prescribed by the existing
Constitution, is a justiciable question, accord all presumption of validity to
the constitutional amendment or the revised or new Constitution after the
government officials or the people have adopted or ratified or acquiesced in
the new Constitution or amendment, although there was an illegal or
irregular or no submission at all to the people. (Collier vs. Gray, 4th Dec.
Dig. 935 [1934], Hammond vs. Clark, 71 SE 482-483; People vs. Sours, 31
Colo. 369, 74 Pac. 167, 102 Am. St. Rep. 34; Thompson vs. Winneth, 78
Neb. 379, 110 NW 1113, 10 L.R.A. [N.S.] 149; State vs. Laylin, 69 Ohio St.
Rep. 1, 68 NE 574; Weston vs. Ryan, 70 Neb. 211, 97 NW 347; Combs vs.
State, 81 Ga. 780, 8 SE 318; Woodward vs. State, 103 Ga. 496, 30 SE 522;
Corre vs. Cooney, 70 Mont. 355, 225 P 1007, 1009). As late as 1971, the
courts stressed that the constitutional amendment or the new Constitution
should not be condemned "unless our judgment its nullity is manifest
beyond reasonable doubt" (1971 case of Moore vs. Shanahan, 486 Pac. 2d
506, 207 Kan. 1, 645; and the 1956 case of Tipton vs. Smith, et al., supra).
Mr. Justice Enrique M. Fernando, speaking for the Court, pronounced that
the presumption of constitutionality must persist in the absence of factual
foundation of record to overthrow such presumption (Ermita-Malate Hotel,
etc. vs. City Mayor, L-24698, July 31, 1967, 20 SCRA 849).
451
III
CONSTITUTIONAL CONVENTION — CO-EQUAL WITH AND INDEPENDENT OF

CONGRESS, EXECUTIVE AND JUDICIARY.
The Constitutional Convention is co-ordinate and co-equal with, as well as

independent of, the three grand departments of the Government, namely,
the legislative, the executive and the judicial. As a fourth separate and
distinct branch, to emphasize its independence, the Convention cannot be
dictated to by either of the other three departments as to the content as
well as the form of the Charter that it proposes. It enjoys the same
immunity from interference or supervision by any of the aforesaid branches
of the Government in its proceedings, including the printing of its own
journals (Tañada and Fernando, Constitution of the Philippines, 1952 ed.,
Vol. I, pp. 8 9; Malcolm and Laurel, Phil. Const. Law, p. 22; Frantz vs. Autry,
91 Pac. 193). Implicit in that independence, for the purpose of maintaining
the same unimpaired and in order that its work will not be frustrated, the
Convention has the power to fix the date for the plebiscite and to provide
funds therefor. To deny the Convention such prerogative, would leave it at
the tender mercy of both legislative and executive branches of the
Government. An unsympathetic Congress would not be disposed to submit
the proposed Constitution drafted by the Constitutional Convention to the
people for ratification, much less appropriate the necessary funds therefor.
That could have been the fate of the 1973 Constitution, because the same
abolished the Senate by creating a unicameral National Assembly to be
presided by a Prime Minister who wields both legislative and executive
powers and is the actual Chief Executive, for the President contemplated in
the new Constitution exercises primarily ceremonial prerogatives. The new
Constitution likewise shortened abruptly the terms of the members of the
present Congress (whose terms end on December 31, 1973, 1975 and
1977) which provides that the new Constitution shall take effect
immediately upon its ratification (Sec. 16, Article XVII, 1973 Constitution).
The fact that Section 2 of the same Article XVIII secures to the members of
Congress membership in the interim National Assembly as long as they opt
to serve therein within thirty (30) days after the ratification of the proposed
Constitution, affords them little comfort; because the convening of the
452
interim National Assembly depends upon the incumbent President (under

Sec. 3[1], Art. XVII, 1973 Constitution). Under the foregoing circumstances,
the members of Congress, who were elected under the 1935 Constitution,
would not be disposed to call a plebiscite and appropriate funds therefor to
enable the people to pass upon the 1973 Constitution, ratification of which
means their elimination from the political scene. They will not provide the
means for their own liquidation.
Because the Constitutional Convention, by necessary implication as it is

indispensable to its independence and effectiveness, possesses the power
to call a plebiscite and to appropriate funds for the purpose, it inescapably
must have the power to delegate the same to the President, who, in
estimation of the Convention can better determine appropriate time for
such a referendum as well as the amount necessary to effect the same; for
which reason the Convention thru Resolution No. 29 approved on
November 22, 1972, which superseded Resolution No. 5843 adopted on
November 16, 1972, proposed to the President "that a decree be issued
calling a plebiscite for the ratification of the proposed new Constitution
necessary funds therefor, ...," after stating in "whereas" clauses that the
1971 Constitutional Convention expected to complete its work by the end
of November, 1972 that the urgency of instituting reforms rendered
imperative the early approval of the new Constitution, and that the
national and local leaders desire that there be continuity in the immediate
transition from the old to the new Constitution.
If Congress can legally delegate to the Chief Executive or his subaltern the
power to promulgate subordinate rules and regulations to implement the
law, this authority to delegate implementing rules should not be denied to
the Constitutional Convention, a co-equal body.
Apart from the delegation to the Chief Executive of the power to call a
plebiscite and to appropriate funds therefor by the Constitutional
Convention thru its Resolution No. 29, the organization of the Citizens'
Assemblies for consultation on national issues, is comprehended within the
ordinance-making power of the President under Section 63 of the Revised
453
Administrative Code, which expressly confers on the Chief Executive

the power to promulgate administrative acts and commands touching on
the organization or mode of operation of the government or re-arranging or
re-adjusting any district, division or part of the Philippines "or disposing of
issues of general concern ... ." (Emphasis supplied). Hence, as consultative
bodies representing the localities including the barrios, their creation by the
President thru Presidential Decree No. 86 of December 31, 1972, cannot be
successfully challenged.
The employment by the President of these Citizens' Assemblies for

consultation on the 1973 Constitution or on whether there was further
need of a plebiscite thereon, — both issues of national concern — is still
within the delegated authority reposed in him by the Constitutional
Convention as aforesaid.
It should be noted that Resolution No. 29, which superseded Resolution No.
5843, does not prescribe that the plebiscite must be conducted by the
Commission on Elections in accordance with the provisions of the 1971
Revised Election Code. If that were the intention of the Constitutional
Convention in making the delegation, it could have easily included the
necessary phrase for the purpose, some such phrase like "to call a
plebiscite to be supervised by the Commission on Elections in accordance
with the provisions of the 1971 Revised Election Code (or with existing
laws)." That the Constitutional Convention omitted such phrase, can only
mean that it left to the President the determination of the manner by
which the plebiscite should be conducted, who shall supervise the
plebiscite, and who can participate in the plebiscite. The fact that said
Resolution No. 29 expressly states "that copies of this resolution as
approved in plenary session be transmitted to the President of the
Philippines and the Commission on Elections for implementation," did not
in effect designate the Commission on Elections as supervisor of the
plebiscite. The copies of said resolution that were transmitted to the
Commission on Elections at best serve merely to notify the Commission on
Elections about said resolution, but not to direct said body to supervise the
plebiscite. The calling as well as conduct of the plebiscite was left to the
discretion of the President, who, because he is in possession of all the facts
454
funnelled to him by his intelligence services, was in the superior position to

decide when the plebiscite shall be held, how it shall be conducted and
who shall oversee it.
It should be noted that in approving said Resolution No. 29, the

Constitutional Convention itself recognized the validity of, or validated
Presidential Proclamation No. 1081 placing the entire country under martial
law by resolving to "propose to President Ferdinand E. Marcos that
a decree be issued calling a plebiscite ... ." The use of the term "decree" is
significant for the basic orders regulating the conduct of all inhabitants are
issued in that form and nomenclature by the President as the Commander
in Chief and enforcer of martial law. Consequently, the issuance by the
President of Presidential Decree No. 73 on December 1, 1972 setting the
plebiscite on January 15, 1973 and appropriating funds therefor pursuant
to said Resolution No. 29, is a valid exercise of such delegated authority.
Such delegation, unlike the delegation by Congress of the rule-making

power to the Chief Executive or to any of his subalterns, does not need
sufficient standards to circumscribe the exercise of the power delegated,
and is beyond the competence of this Court to nullify. But even if adequate
criteria should be required, the same are contained in the "Whereas"
clauses of the Constitutional Convention Resolution No. 29, thus:
WHEREAS, the 1971 Constitutional Convention is

expected to complete its work of drafting a
proposed new Constitution for the Republic by the
end of November, 1972;
WHEREAS, in view of the urgency of instituting

reforms, the early approval of the New
Constitution has become imperative;
WHEREAS, it is the desire of the national and local

leaders that there be continuity in the immediate
political transition from the old to the New
455
Constitution;" (Annex "1" of Answer, Res. No. 29,

Constitutional Convention).
As Mr. Justice Fernando, with whom Messrs. Justices Barredo, Antonio and
the writer concurred in the Plebiscite Cases, stated:
... Once this work of drafting has been completed,

it could itself direct the submission to the people
for ratification as contemplated in Article XV of
the Constitution. Here it did not do so. With
Congress not being in session, could the President,
by the decree under question, call for such a
plebiscite? Under such circumstances, a negative
answer certainly could result in the work of the
Convention being rendered nugatory. The view
has been repeatedly expressed in many American
state court decisions that to avoid such
undesirable consequence the task of submission
becomes ministerial, with the political branches
devoid of any discretion as to the holding of an
election for that purpose. Nor is the appropriation
by him of the amount necessary to be considered
as offensive to the Constitution. If it were done by
him in his capacity as President, such an objection
would indeed have been formidable, not to say
insurmountable. If the appropriation were made
in his capacity as agent of the Convention to
assure that there be submission to the people,
then such an argument loses force. The
Convention itself could have done so. It is
understandable why it should be thus. If it were
otherwise, then a legislative body, the
appropriating arm of the government, could
conceivably make use of such authority to compel
the Convention to submit to its wishes, on pain of
being rendered financially distraught. The
456
President then, if performing his role as its agent,

could be held as not devoid of such competence.
(pp. 2-3, concurring opinion of J. Fernando in L-
35925, etc., emphasis supplied).
IV
VAGUENESS OR AMBIGUITY DOES NOT INVALIDATE THE

1973 CONSTITUTION
(1) Petitions challenge the 1973 draft as vague and incomplete, and alluded
to their arguments during the hearings on December 18 and 19, 1972 on
the Plebiscite Cases. But the inclusion of questionable or ambiguous
provisions does not affect the validity of the ratification or adoption of the
1973 Constitution itself (Pope vs. Gray, 104 SO, 2d 841; 7th Dec. pp. 212-
219, 1956-1966).
Alexander Hamilton, one of the leading founders and defenders of the

American Constitution, answering the critics of the Federal Constitution,
stated that: "I never expect to see a perfect work from imperfect man. The
result of the deliberations of all collective bodies must necessarily be a
compound, as well of the errors and prejudices as of the good sense and
wisdom, of the individuals of whom they are composed. The compacts
which are to embrace thirteen distinct States in a common bond of amity
and union, must necessarily be a compromise of as many dissimilar
interests and inclinations. How can perfection spring from such materials?"
(The Federalist, Modern Library Ed., pp. xx-xxi).
(2) The 1973 Constitution is likewise impugned on the ground that it

contains provisions which are ultra vires or beyond the power of the
Constitutional Convention to propose.
This objection relates to the wisdom of changing the form of government

from Presidential to Parliamentary and including such provisions as Section
3 of Article IV, Section 15 of Article XIV and Sections 3(2) and 12 of Article
XVII in the 1973 Constitution.
457
Article IV —
Sec. 3. The right of the people to be secure in their

persons, houses, papers, and effects against
unreasonable searches and seizures of whatever
nature and for any purpose shall not be violated,
and no search warrant or warrant of arrest shall
issue except upon probable cause to be
determined by the judge, or such other
responsible officer as may be authorized by law,
after examination under oath or affirmation of the
complainant and the witnesses may produce, and
particularly describing the place to be searched,
and the persons or things to be seized.
Article XIV —
Sec. 15. Any provision of paragraph one, Section

fourteen, Article Eight and of this Article
notwithstanding, the Prime Minister may enter
into international treaties or agreements as the
national welfare and interest may require."
(Without the consent of the National Assembly.)
Article XVII —
Sec. 3(2) All proclamations, orders, decrees,

instructions, and acts promulgated, issued, or
done by the incumbent President shall be part of
the law of the land, and shall remain valid, legal,
binding and effective even after lifting of martial
law or the ratification of this Constitution, unless
modified, revoked, or superseded by subsequent
proclamations, orders, decrees, instructions, or
other acts of the incumbent President, or unless
458
expressly and explicitly modified or repealed by

the regular National Assembly.
xxx xxx xxx
Sec. 12. All treaties, executive agreements, and

contracts entered into by the Government, or any
subdivision, agency, or instrumentality thereof,
including government-owned or controlled
corporations, are hereby recognized as legal, valid
and binding. When the national interest so
requires, the incumbent President of the
Philippines or the interim Prime Minister may
review all contracts, concessions, permits, or
other forms of privileges for the exploration,
development, exploitation, or utilization of natural
resources entered into, granted, issued or
acquired before the ratification of this
Constitution.
In the Plebiscite Cases (L-35925, L-35929, L-35940, L-35942, L-35948, L-

35953, L-35961, L-35965, & L-35979), Chief Justice Roberto Concepcion,
concurred in by Justices Fernando, Barredo, Antonio and the writer,
overruled this objection, thus:
... Regardless of the wisdom and

moral aspects of the contested
provisions of the proposed
Constitution, it is my considered
view that the Convention was
legally deemed fit to propose —
save perhaps what is or may be
insistent with what is now
known, particularly in
international law, as Jus
Cogens — not only because the
459
Convention exercised sovereign

powers delegated thereto by the
people — although insofar only
as the determination of the
proposals to be made and
formulated by said body is
concerned — but also, because
said proposals cannot be valid as
part of our Fundamental Law
unless and until "approved by the
election which" said proposals
"are submitted to the people for
their ratification," as provided in
Section 1 of Article XV of the
1935 Constitution. (Pp. 17-18,
Decision in L-35925, etc.).
This Court likewise enunciated in Del Rosario vs. Comelec (L-32476, Oct. 20,
1970, 35 SCRA 367) that the Constitutional Convention has the authority to
"entirely overhaul the present Constitution and propose an entirely new
Constitution based on an ideology foreign to the democratic system ...;
because the same will be submitted to the people for ratification. Once
ratified by the sovereign people, there can be no debate about the validity
of the new Constitution."
Mr. Justice Fernando, concurring in the same Plebiscite Cases, cited the
foregoing pronouncement in the Del Rosario case, supra, and added: "... it
seems to me a sufficient answer that once convened, the area open for
deliberation to a constitutional convention ..., is practically limitless" (citing
Cf. Koehler vs. Hill, 14 NW 738, 60 Iowa 543 [1883]; Hatch Stoneman, 6 P
734, 66 Cal. 632 [1885]; MacMillan v. Blattner, 25 NW 245, 67 Iowa 287
[1895]; State v. Powell, 27 SO 297, 77 Miss. 543 [1900]; Hammond v. Clark,
71 SE 479, 136 Ga. 313 [1911]; Hamilton v. Vaughan, 179 NW 533, 212
Mich. 31 [1920]; State v. Smith, 138 NE 881, 105 Ohio St. 570 [1922];
460
Looney vs. Leeper, 292 P 365, 145 Okl. 202 [1930]; School District vs. City of
Pontiac, 247 NW 474, 262 Mich. 338 [1933]).
Mr. Justice Barredo, in his concurring opinion in said Plebiscite Cases,

expressed the view "that when the people elected the delegates to the
Convention and when the delegates themselves were campaigning, such
limitation of the scope of their function and objective was not in their
minds."
1973 CONSTITUTION DULY ADOPTED AND

PROMULGATED.
Petitioners next claim that the 1971 Constitutional Convention adjourned

on November 30, 1972 without officially promulgating the said Constitution
in Filipino as required by Sections 3(1) of Article XV on General Provisions of
the 1973 Constitution. This claim is without merit because their Annex "M"
is the Filipino version of the 1973 Constitution, like the English version,
contains the certification by President Diosdado Macapagal of the
Constitutional Convention, duly attested by its Secretary, that the proposed
Constitution, approved on second reading on the 27th day of November,
1972 and on third reading in the Convention's 291st plenary session on
November 29, 1972 and accordingly signed on November 1972 by the
delegates whose signatures are thereunder affixed. It should be recalled
that Constitutional Convention President Diosdado Macapagal was, as
President of the Republic 1962 to 1965, then the titular head of the Liberal
Party to which four (4) of the petitioners in L-36165 including their counsel,
former Senator Jovito Salonga, belong. Are they repudiating and disowning
their former party leader and benefactor?
VI
ARTICLE XV OF 1935 CONSTITUTION DOES NOT

PRESCRIBE ANY PROCEDURE FOR RATIFICATION OF
1973 CONSTITUTION.
461
(1) Article XV of the 1935 Constitution simply provides that "such

majority of the votes cast at an election at which the amendments are
submitted to the people for ratification."
But petitioners construe the aforesaid provision to read: "Such

majority of the votes cast at an election called by Congress at which the
amendments are submitted for ratification by the qualified electors defined
in Article V hereof, supervised by the Commission on Elections in accordance
with the existing election law and after such amendments shall have been
published in all the newspapers of general circulation for at least four
months prior to such election."
This position certainly imposes limitation on the sovereign people, who

have the sole power of ratification, which imposition by the Court is never
justified (Wheeler vs. Board of Trustees, supra).
In effect, petitioners and their counsels are amending by a strained and

tortured construction Article XV of the 1935 Constitution. This is a clear
case of usurpation of sovereign power they do not possess — through
some kind of escamotage. This Court should not commit such a grave error
in the guise of judicial interpretation.
In all the cases where the court held that illegal or irregular submission, due
to absence of substantial compliance with the procedure prescribed by the
Constitution and/or the law, nullifies the proposed amendment or the new
Constitution, the procedure prescribed by the state Constitution is so
detailed that it specifies that the submission should be at a general or
special election, or at the election for members of the State legislature only
or of all state officials only or of local officials only, or of both state and
local officials; fixes the date of the election or plebiscite limits the
submission to only electors or qualified electors; prescribes the publication
of the proposed amendment or a new Constitution for a specific period
prior to the election or plebiscite; and designates the officer to conduct the
plebiscite, to canvass and to certify the results, including the form of the
462
ballot which should so state the substance of the proposed amendments to

enable the voter to vote on each amendment separately or authorizes
expressly the Constitutional Convention or the legislature to determine the
procedure or certain details thereof. See the State Constitutions of
Alabama [1901]; Arizona [1912]; Arkansas [1874]; Colorado [1976];
Connecticut [1818]; Florida [1887]; Georgia [1945]; Illinois [1970]; Indiana
[1851]; Iowa [1857]; Kansas [1861]; Kentucky [1891]; Louisiana [1921];
Maryland [1867]; Massachusetts [1790]; Michigan [1909]; Minnesota
[1857]; Mississippi [1890]; and Missouri [1945]).
As typical examples:
Constitution of Alabama (1901):
Article XVIII. Mode of Amending the Constitution
Sec. 284. Legislative Proposals. Amendments may

be proposed to this Constitution by the legislature
in the manner following: The proposed
amendments shall be read in the house in which
they originate on three several days, and, if upon
the third reading, three-fifths of all the members
elected to that house shall vote in favor thereof,
the proposed amendments shall be sent to the
other house, in which they shall likewise be read
on three several days, and if upon the third
reading, three-fifths of all the members elected
that house shall vote in favor of the proposed
amendments, the legislature shall order an
election by the qualified electors of the state upon
such proposed amendments, to be held either at
the general election next succeeding the session of
the legislature at which the amendments are
proposed or upon another day appointed by the
legislature, not less than three months after the
final adjournment of the session of the legislature
at which the amendments were proposed. Notice
463
of such election, together with the proposed

amendments, shall be given by proclamation of
the governor, which shall be published in every
county in such manner as the legislature shall
direct, for at least eight successive weeks next
preceding the day appointed for such election. On
the day so appointed an election shall be held for
the vote of the qualified electors of the state upon
the proposed amendments. If such election be
held on the day of the general election, the
officers of such general election shall open a poll
for the vote of the qualified electors upon the
proposed amendments; if it be held on a day
other than that of a general election, officers for
such election shall be appointed; and the election
shall be held in all things in accordance with the
law governing general elections. In all elections
upon such proposed amendments,the votes cast
thereat shall be canvassed, tabulated, and returns
thereof be made to the secretary of state, and
counted, in the same manner as in elections for
representatives to the legislature; and if it shall
thereupon appear that a majority of the qualified
electors who voted at such election upon the
proposed amendments voted in favor of the
same, such amendments shall be valid to all
intents and purposes as parts of this Constitution.
The result of such election shall be made known
by proclamation of the governor. Representation
in the legislature shall be based upon population,
and such basis of representation shall not be
changed by constitutional amendments.
Sec. 285. Form of ballot for amendment. Upon the

ballots used at all elections provided for in section
284 of this Constitution, the substance or subject
matter of each proposed amendment shall be so
464
printed that the nature thereof shall be clearly

indicated. Following each proposed amendment
on the ballot shall be printed the word "Yes" and
immediately under that shall be printed the word
"No". The choice of the elector shall be indicated
by a cross mark made by him or under his
direction, opposite the word expressing his desire,
and no amendment shall be adopted unless it
receives the affirmative vote of a majority of all
the qualified electors who vote at such election.
Constitution of Arkansas (1874):
Article XIX. Miscellaneous Provisions.
Sec. 22. Constitutional amendments. Either

branch of the General Assembly at a regular
session thereof may propose amendments to this
Constitution, and, if the same be agreed to by a
majority of all the members, elected to each
house, such proposed amendments shall be
entered on the journal with the yeas and nays,
and published in at least one newspaper in each
county, where a newspaper is published, for six
months immediately preceding the next general
election for Senators and Representatives, at
which time the same shall be submitted to the
electors of the State for approval or rejection, and
if a majority of the electors voting at such election
adopt such amendments, the same shall become
a part of this Constitution; but no more than three
amendments shall be proposed or submitted at
the same time. They shall be so submitted as to
enable the electors to vote on each amendment
separately.
465
Constitution of Kansas (1861):
Article XIV. Amendments.
Sec. 1. Proposal of amendments; publications;

elections. Propositions for the amendment of this
constitution may be made by either branch of the
legislature; and if two thirds of all the members
elected to each house shall concur therein, such
proposed amendments, together with the yeas
and nays, shall be entered on the journal; and the
secretary of state shall cause the same to be
published in at least one newspaper in each
county of the state where a newspaper is
published, for three months preceding the next
election for representatives, at which time, the
same shall be submitted to the electors, for their
approval or rejection; and if a majority of the
electors voting on said amendments, at said
election, shall adopt the amendments, the same
shall become a part of the constitution. When
more than one amendment shall be submitted at
the same time, they shall be so submitted as to
enable the electors to vote on each amendments
separately; and not more than three propositions
to amend shall be submitted at the same election.
Constitution of Maryland (1867):
Article XIV. Amendments to the Constitution.
Sec. 1. Proposal in general assembly; publication;

submission to voters; governor's proclamation.
The General Assembly may propose Amendments
to this Constitution; provided that each
Amendment shall be embraced in a separate bill,
466
embodying the Article or Section, as the same will

stand when amended and passed by three fifths
of all the members elected to each of the two
Houses, by yeas and nays, to be entered on the
Journals with the proposed Amendment. The bill
or bills proposing amendment or amendments
shall be published by order of the Governor, in at
least two newspapers, in each County, where so
many may be published, and where not more
than one may be published, then in the
newspaper, and in three newspapers published in
the City of Baltimore, once a week for four weeks
immediately preceding the next ensuing general
election, at which the proposed amendment or
amendments shall be submitted, in a form to be
prescribed by the General Assembly, to the
qualified voters of the State for adoption or
rejection. The votes cast for and against said
proposed amendment or amendments, severally,
shall be returned to the Governor, in the manner
prescribed in other cases, and if it shall appear to
the Governor that a majority of the votes cast at
said election on said amendment or amendments,
severally, were cast in favor thereof, the Governor
shall, by his proclamation, declare the said
amendment or amendments having received said
majority of votes, to have been adopted by the
people of Maryland as part of the Constitution
thereof, and henceforth said amendment or
amendments shall be part of the said
Constitution. When two or more amendments
shall be submitted in the manner aforesaid, to the
voters of this State at the same election, they shall
be so submitted as that each amendment shall be
voted on separately.
Constitution of Missouri (1945):

467
Article XII. Amending the Constitution.
Sec. 2(b). Submission of amendments proposed by

general assembly or by the initiative. All
amendments proposed by the general assembly
or by the initiative shall be submitted to the
electors for their approval or rejection by official
ballot title as may be provided by law, on a
separate ballot without party designation, at the
next general election, or at a special election
called by the governor prior thereto, at which he
may submit any of the amendments. No such
proposed amendment shall contain more than
one amended and revised article of this
constitution, or one new article which shall not
contain more than one subject and matters
properly connected therewith. If possible, each
proposed amendment shall be published once a
week for two consecutive weeks in two
newspapers of different political faith in each
county, the last publication to be not more than
thirty nor less than fifteen days next preceding the
election. If there be but one newspaper in any
county, publication of four consecutive weeks
shall be made. If a majority of the votes cast
thereon is in favor of any amendment, the same
shall take effect at the end of thirty days after the
election. More than one amendment at the same
election shall be so submitted as to enable the
electors to vote on each amendment separately.
Article XV of the 1935 Constitution does not require a specific procedure,

much less a detailed procedure for submission or ratification. As heretofore
stated, it does not specify what kind of election at which the new
Constitution shall be submitted; nor does it designate the Commission on
Elections to supervise the plebiscite. Neither does it limit the ratification to
468
the qualified electors as defined in Article V of the 1935 Constitution. Much

less does it require the publication of the proposed Constitution for any
specific period before the plebiscite nor does it even insinuate that the
plebiscite should be supervised in accordance with the existing election
law.
(2) As aforequoted, Article XV does not indicate the procedure for

submission of the proposed Constitution to the people for ratification. It
does not make any reference to the Commission on Elections as the body
that shall supervise the plebiscite. And Article XV could not make any
reference to the Commission on Elections because the original 1935
Constitution as ratified on May 14, 1935 by the people did not contain
Article X on the Commission on Elections, which article was included
therein pursuant to an amendment by that National Assembly proposed
only about five (5) years later — on April 11, 1940, ratified by the people on
June 18, 1940 as approved by the President of the United States on
December 1940 (see Sumulong vs. Commission, 70 Phil. 703, 713, 715;
Gonzales, Phil. Const. Law, 1966 ed., p. 13). So it cannot be said that the
original framers of the 1935 Constitution as ratified May 14, 1935 intended
that a body known as the Commission on Elections should be the one to
supervise the plebiscite, because the Commission on Elections was not in
existence then as was created only by Commonwealth Act No. 607
approved on August 22, 1940 and amended by Commonwealth Act No. 657
approved on June 21, 1941 (see Tañada & Carreon, Political Law of the
Philippines, Vol. I, 1961 ed., pp. 475-476; Sumulong vs. Commission, 170
Phil. 703, 708-715; 73 Phil. 288, 290-300; Tañada & Fernando, Constitution
of the Philippines, 1953 ed., Vol. I, p. 5, Vol. II,
pp. 11-19).
Because before August, 1940 the Commission on Election was not yet in
existence, the former Department of Interior (now Department of Local
Governments and Community Development) supervised the plebiscites on
the 1937 amendment on woman's suffrage, the 1939 amendment to the
Ordinance appended to the 1935 Constitution (Tydings-Kocialkowski Act of
the U.S. Congress) and the three 1940 amendments on the establishment
of a bicameral Congress, the re-election of the President and the Vice-
469
President, and the creation of the Commission on Elections (ratified on June

18, 1940). The supervision of said plebiscites by the then Department of
Interior was not automatic, but by virtue of an express authorization in
Commonwealth Act Nos. 34, 49 and 517.
If the National Assembly then intended that the Commission on Elections

should also supervise the plebiscite for ratification of constitutional
amendments or revision, it should have likewise proposed the
corresponding amendment to Article XV by providing therein that the
plebiscite on amendments shall be supervised by the Commission on
Elections.
3) If the framers of the 1935 Constitution and the people in ratifying the
same on May 14, 1935 wanted that only the qualified voters under Article V
of the 1935 Constitution should participate in the referendum on any
amendment or revision thereof, they could have provided the same in 1935
or in the 1940 amendment by just adding a few words to Article XV by
changing the last phrase to "submitted for ratification to the qualified
electors as defined in Article V hereof," or some such similar phrases.
Then again, the term "people" in Article XV cannot be understood to

exclusively refer to the qualified electors under Article V of the 1935
Constitution because the said term "people" as used in several provisions of
the 1935 Constitution, does not have a uniform meaning. Thus in the
preamble, the term "Filipino people" refer, to all Filipino citizens of all ages
of both sexes. In Section 1 of Article II on the Declaration of Principles, the
term "people" in whom sovereignty resides and from whom all government
authority emanates, can only refer also to Filipino citizens of all ages and of
both sexes. But in Section 5 of the same Article II on social justice, the term
"people" comprehends not only Filipino citizens but also all aliens residing
in the country of all ages and of both sexes. Likewise, that is the same
connotation of the term "people" employed in Section 1(3) of Article III on
the Bill of Rights concerning searches and seizures.
When the 1935 Constitution wants to limit action or the exercise of a right
to the electorate, it does so expressly as the case of the election of senators
470
and congressmen. Section 2 Article VI expressly provides that the senators

"shall be chosen at large by the qualified electors of the Philippines as may
provided by law." Section 5 of the same Article VI specifically provides that
congressmen shall "be elected by the qualified electors." The only provision
that seems to sustain the theory of petitioners that the term "people" in
Article XV should refer to the qualified electors as defined in Article V of the
1935 Constitution is the provision that the President and Vice-President
shall be elected "by direct vote of the people." (Sec. 2 of Art. VII of the 1935
Constitution). But this alone cannot be conclusive as to such construction,
because of explicit provisions of Sections 2 and 5 of Article VI, which
specifically prescribes that the senators and congressmen shall be elected
by the qualified electors.
As aforesaid, most of the constitutions of the various states of the United

States, specifically delineate in detail procedure of ratification of
amendments to or revision of said Constitutions and expressly require
ratification by qualified electors, not by the generic term "people".
The proposal submitted to the Ozamis Committee on the Amending Process

of the 1934-35 Constitutional Conventionsatisfied that the amendment
shall be submitted to qualified election for ratification. This proposal was
not accepted indicating that the 1934-35 Constitutional Convention did
intend to limit the term "people" in Article XV of the 1935 Constitution to
qualified electors only. As above demonstrated, the 1934-35 Constitutional
Convention limits the use of the term "qualified electors" to elections of
public officials. It did not want to tie the hands of succeeding future
constitutional conventions as to who should ratify the proposed
amendment or revision.
(4) It is not exactly correct to opine that Article XV of 1935 Constitution on

constitutional amendment contemplates the automatic applicability of
election laws to plebiscites on proposed constitutional amendments or
revision.
The very phraseology of the specific laws enacted by the National Assembly
and later by Congress, indicates that there is need of a statute expressly
471
authorizing the application of the election laws to plebiscites of this nature.

Thus, Com. Act No. 34 on the woman's suffrage amendment enacted on
September 30, 1936, consists of 12 sections and, aside from providing that
"there shall be held a plebiscite on Friday, April 30, 1937, on the question of
woman's suffrage ... and that said amendment shall be published in the
Official Gazette in English and Spanish for three consecutive issues at least
fifteen (15) days prior to said election, ... and shall be posted in a
conspicuous place in its municipal and provincial office building and in its
polling place not later than April 22, 1937" (Sec. 12, Com. Act No. 34),
specifies that the provisions of the Election Law regarding, the holding of
a special election, insofar as said provisions are not in conflict with it,
should apply to the said plebiscite (Sec. 3, Com. Act No. 34)1; and, that the
votes cast according to the returns of the board of inspectors shall be
counted by the National Assembly (Sec. 10, Com. Act No. 34).
The election laws then in force before 1938 were found in Sections 392-483
of the Revised Administrative Code.
Sec. 1 of Com. Act No. 357, the previous Election Code enacted on August
22, 1938, makes it expressly applicable to plebiscites. Yet the subsequent
laws, namely, Com. Act Nos. 492 and 517 and Rep. Act No. 73 calling for the
plebiscite on the constitutional amendments in 1939, 1940 and 1946,
including the amendment creating the Commission on Elections, specifically
provided that the provisions of the existing election law shall apply to such
plebiscites insofar as they are not inconsistent with the aforesaid Com. Act
Nos. 492 and 517, as well as Rep. Act No. 73. Thus —
Commonwealth Act No. 492, enacted on September 19, 1939, calling for a
plebiscite on the proposed amendments to the Constitution adopted by the
National Assembly on September 15, 1939, consists of 8 sections and
provides that the proposed amendments to the Constitution adopted in
Resolution No. 39 on September 15, 1939 "shall be submitted to the
Filipino people for approval or disapproval at a general election to be held
throughout the Philippines on Tuesday, October 24, 1939"; that the
amendments to said Constitution proposed in "Res. No. 38, adopted on the
same date, shall be submitted at following election of local officials," (Sec.
472
1, Com. Act No. 492) that the said amendments shall be published in
English and Spanish in three consecutive issues of the Official Gazette at
least ten (10) days prior to the elections; that copies thereof shall be posted
not later than October 20, 1939 (Sec. 2, Com. Act 492); that the election
shall be conducted according to provisions of the Election Code insofar as
the same may be applicable; that within thirty (30) days after the
election, Speaker of the National Assembly shall request the President to
call a special session of the Assembly for the purpose of canvassing the
returns and certify the results thereof (Sec. 6, Com. Act No. 492).
Commonwealth Act No. 517, consisting of 11 sections, was approved on

April 25, 1940 and provided, among others: that the plebiscite on the
constitutional amendments providing bicameral Congress, re-election of
the President and Vice-President, and the creation of a Commission on
Elections shall be held at a general election on June 18, 1940 (Sec. 1); that
said amendments shall be published in three consecutive issues of the
Official Gazette in English and Spanish at least 20 days prior to the election
and posted in every local government office building and polling place not
later than May 18, 1940 (Sec. 2); that the election shall be conducted in
conformity with the Election Code insofar as the same may be applicable
(Sec. 3) that copies of the returns shall be forwarded to the Secretary of
National Assembly and the Secretary of Interior (Sec. 7); that the National
Assembly shall canvass the returns to certify the results at a special session
to be called by President (Sec. 8).
Republic Act No. 73 approved on October 21, 1946 calling for a plebiscite
on the parity amendment consists of 8 sections provides that the
Amendment "shall be submitted to the people, for approval or
disapproval, at a general election which shall be held on March 11, 1947, in
accordance with the provisions of this Act" (Sec. 1, R.A. No. 73); that the
said amendment shall be published in English and Spanish in three
consecutive issues of the Official Gazetteat least 20 days prior to the
election; that copies of the same shall be posted in a conspicuous place and
in every polling place not later than February 11, 1947 (Section 2, R.A. No.
73); that the provisions of Com. Act No. 357 (Election Code) and Com. Act
No. 657 creating the Commission on Elections, shall apply to the election
473
insofar as they are not inconsistent with this Act (Sec. 3, R.A. No. 73); and
that within 30 days after the election, the Senate and House of
Representatives shall hold a joint session to canvass the returns and certify
the results thereof (Section 6, R.A. No. 73).
From the foregoing provisions, it is patent that Article XV of the 1935

Constitution does not contemplate nor envision the automatic application
of the election law; and even at that, not all the provisions of the election
law were made applicable because the various laws aforecited contain
several provisions which are inconsistent with the provisions of the Revised
Election Code (Com. Act No. 357). Moreover, it should be noted that the
period for the publication of the copies of the proposed amendments was
about 10 days, 15 days or 20 days, and for posting at least 4 days, 8 days or
30 days.
Republic Acts Nos. 180 and 6388 likewise expressly provide that the
Election Code shall apply to plebiscites (See. 2, R.A. No. 180, as amended,
and Section 2, Rep. Act No. 6388).
If the Election Code ipso facto applies to plebiscites under Article XV of the

1935 Constitution, there would be no need for Congress to expressly
provide therefor in the election laws enacted after the inauguration of the
Commonwealth government under the 1935 Constitution.
(5) Article XV of the 1935 Constitution does not specify who can vote and
how they shall vote. Unlike the various State Constitutions of the American
Union (with few exceptions), Article XV does not state that only qualified
electors can vote in the plebiscite. As above-intimated, most of the
Constitutions of the various states of the United States provide for very
detailed amending process and specify that only qualified electors can vote
at such plebiscite or election.
Congress itself, in enacting Republic Act No. 3590, otherwise known as the
Barrio Charter, which was approved on June 17, 1967 and superseded
Republic Act No. 2370, expanded the membership of the barrio assembly to
include citizens who are at least 18 years of age, whether literate or not,
474
provided they are also residents of the barrio for at least 6 months (Sec. 4,
R.A. No. 3590).
Sec. 4. The barrio assembly. — The barrio

assembly shall consist of all persons who are
residents of the barrio for at least six
months, eighteen years of age or over, citizens of
the Republic of the Philippines and who are duly
registered in the list of barrio assembly
members kept by the Barrio Secretary.
The barrio assembly shall meet at least once a

year to hear the annual report of the barrio
council concerning the activities and finances of
the barrio.
It shall meet also at the case of the barrio council

or upon written petition of at least One-Tenth of
the members of the barrio assembly.
No meeting of the barrio assembly shall take place

unless notice is given one week prior to the
meeting except in matters involving public safety
or security in which case notice within a
reasonable time shall be sufficient. The barrio
captain, or in his absence, the councilman acting
as barrio captain, or any assembly member
selected during the meeting, shall act as presiding
officer at all meetings of the barrio assembly. The
barrio secretary or in his absence, any member
designated by the presiding officer to act as
secretary shall discharge the duties of secretary of
the barrio assembly.
For the purpose of conducting business and taking

any official action in the barrio assembly, it is
475
necessary that at least one-fifth of the members

of the barrio assembly be present to constitute a
quorum. All actions shall require a majority vote
of these present at the meeting there being a
quorum.
Sec. 5. Powers of the barrio assembly. — The

powers of the barrio assembly shall be as follows:
a. To recommend to the barrio

council the adoption of measures
for the welfare of the barrio;
b. To decide on the holding of a

plebiscite as provided for in
Section 6 of this Act;
c. To act on budgetary and

supplemental appropriations and
special tax ordinances submitted
for its approval by the barrio
council; and
d. To hear the annual report

council concerning the activities
and finances of the assembly.
Sec. 6. Plebiscite. — A plebiscite may be held in

the barrio when authorized by a majority vote of
the members present in the barrio assembly,
there being a quorum, or when called by at least
four members of the barrio council; Provided,
however, That no plebiscite shall be held until
after thirty days from its approval by either body,
and such plebiscite has been given the widest
publicity in the barrio, stating the date, time, and
476
place thereof, the questions or issues to be

decided, action to be taken by the voters, and
such other information relevant to the holding of
the plebiscite.
All duly registered barrio assembly members

qualified to vote may vote in the plebiscite. Voting
procedures may be made either in writing as in
regular election, and/or declaration by the
voters to the board of election tellers. The board
of election tellers shall be the same board
envisioned by section 8, paragraph 2 of this Act, in
case of vacancies in this body, the barrio council
may fill the same.
A plebiscite may be called to decide on the recall

of any member of the barrio council. A plebiscite
shall be called to approve any budgetary,
supplemental appropriations or special tax
ordinances.
For taking action on any of the above enumerated

measures, majority vote of all the barrio assembly
members registered in the list of barrio secretary
is necessary.
xxx xxx xxx
Sec 10. Qualifications of voters and candidates. —

Every citizen of the Philippines, twenty-one years
of age or over, able to read and write, who has
been a resident of the barrio during the six
months immediately preceding the election, duly
registered in the list of voters kept by the barrio
secretary, who is not otherwise disqualified, may
vote or be a candidate in the barrio elections.
477
The following persons shall not be qualified to

vote:
a. Any person who has been

sentenced by final judgment to
suffer one year or more of
imprisonment, within two years
after service of his sentence;
b. Any person who has violated

his allegiance to the Republic of
the Philippines; and
c. Insane or feeble-minded
persons.
All these barrio assembly members, who are at least 18 years of age,
although illiterate, may vote at the plebiscite on the recall of any member
of the barrio council or on a budgetary, supplemental appropriation, or
special ordinances, a valid action on which requires "a majority vote of all
of the barrio assembly members registered in the list of the barrio
secretary" (par. 5, Sec. 6, R.A. No. 3590). Such plebiscite may be authorized
by a majority vote of the members present in the barrio assembly, there
being a quorum (par. 1, Sec. 6).
However, in the case of election of barrio officials, only Filipino citizens,

who are at least 21 years of age, able to read and write, residents of the
barrio during the 6 months immediately preceding the election and duly
registered in the list of voters kept by the barrio secretary, not otherwise
disqualified, may vote (Sec. 10, R.A. No. 3590).
Paragraph 2 of Section 6 likewise authorizes open voting as it provides that

"voting procedures may be made ... either in writing as in regular elections,
and/or declaration by the voters to the board of election tellers."
478
That said paragraph 2 of Section 6 provides that "all duly registered barrio
assembly members qualified to vote may vote in the plebiscite," cannot
sustain the position of petitioners in G.R. No. L-36165 that only those who
are 21 years of age and above and who possess all other qualifications of a
voter under Section 10 of R.A. No. 3590, can vote on the plebiscites
referred to in Section 6; because paragraph 3 of Section 6 does not
expressly limit the voting to those with the qualifications under Section 10
as said Section 6 does not distinguish between those who are 21 or above
on the one hand and those 18 or above but below 21 on the other, and
whether literate or not, to constitute a quorum of the barrio assembly.
Consequently, on questions submitted for plebiscite, all the registered

members of the barrio assembly can vote as long as they are 18 years of
age or above; and that only those who are 21 years of age or over and can
read and write, can vote in the elections of barrio officials.
Otherwise there was no sense in extending membership in the barrio

assembly to those who are at least 18 years of age, whether literate or not.
Republic Act No. 3590 could simply have restated Section 4 of Republic Act
No. 2370, the old Barrio Charter, which provided that only those who are
21 and above can be members of the barrio assembly.
Counsels Salonga and Tañada as well as all the petitioners in L-36165 and
two of the petitioners in L-36164 participated in the enactment of Republic
Act No. 3590 and should have known the intendment of Congress in
expanding the membership of the barrio assembly to include all those 18
years of age and above, whether literate or not.
If Congress in the exercise of its ordinary legislative power, not as a

constituent assembly, can include 18-year olds as qualified electors for
barrio plebiscites, this prerogative can also be exercised by the Chief
Executive as delegate of the Constitutional Convention in regard to the
plebiscite on the 1973 Constitution.
As heretofore stated, the statement by the President in Presidential

Proclamation No. 1102 that the 1973 Constitution was overwhelmingly
479
ratified by the people through the Citizens' Assemblies in a referendum

conducted from January 10 to 15, 1973, should be accorded the
presumption of correctness; because the same was based on the
certification by the Secretary of the Department of Local Government and
Community Development who tabulated the results of the referendum all
over the country. The accuracy of such tabulation and certification by the
said Department Secretary should likewise be presumed; because it was
done in the regular performance of his official functions aside from the fact
that the act of the Department Secretary, as an alter ego of the President,
is presumptively the act of the President himself unless the latter
disapproves or reprobates the same (Villena vs. Secretary of Interior, 67
Phil. 451 ). The truth of the certification by the Department Secretary and
the Chief Executive on the results of the referendum, is further
strengthened by the affidavits and certifications of Governor Isidro
Rodriguez of Rizal, Mayor Norberto S. Amoranto of Quezon City and
Councilor Eduardo T. Parades of Quezon City.
The procedure for the ratification of the 1937 amendment on woman

suffrage, the 1939 amendment to the ordinance appended to the 1935
Constitution, the 1940 amendments establishing the bicameral Congress,
creating the Commission on Elections and providing for two consecutive
terms for the President, and the 1947 parity amendment, cannot be
invoked; because those amendments were proposed by the National
Assembly as expressly authorized by Article V of the 1935 Constitution
respecting woman suffrage and as a constituent assembly in all the other
amendments aforementioned and therefore as such, Congress had also the
authority to prescribe the procedure for the submission of the proposed
amendments to the 1935 Constitution.
In the cases at bar, the 1973 Constitution was proposed by an independent

Constitutional Convention, which as heretofore discussed, has the equal
power to prescribe the modality for the submission of the 1973
Constitution to the people for ratification or delegate the same to the
President of the Republic.
480
The certification of Governor Isidro Rodriguez of Rizal and Mayor Norberto

Amoranto could be utilized as the basis for the extrapolation of the Citizens'
Assemblies in all the other provinces, cities and municipalities in all the
other provinces, cities and municipalities, and the affirmative votes in the
Citizens' Assemblies resulting from such extrapolation would still constitute
a majority of the total votes cast in favor of the 1973 Constitution.
As claimed by petitioners in L-36165, against the certification of the

Department of Local Government and Community Development that in
Rizal there were 1,126,000 Yes votes and 100,310 No votes, the
certification of Governor Isidro Rodriguez of Rizal, shows only 614,157 Yes
votes against 292,530 No votes. In Cavite province, there were 249,882 Yes
votes against 12,269 No votes as disclosed in Annex 1-A of respondents'
Compliance (the certification by the Department of Local Government and
Community Development), while the alleged certification of Governor Lino
Bocalan of Cavite shows only 126,163 Yes votes and 5,577 No votes. If such
a ratio is extended by way of extrapolation to the other provinces, cities
and towns of the country, the result would still be an overwhelming vote in
favor of the 1973 Constitution.
The alleged certification by Governor Lino Bocalan of Cavite, is not true;

because in his duly acknowledged certification dated March 16, 1973, he
states that since the declaration of martial law and up to the present time,
he has been under house arrest in his residence in Urdaneta Village,
Makati, Rizal; that he never participated in the conduct of the Citizens'
Assemblies on January 10 15, 1973 in the province of Cavite; that the acting
chairman and coordinator of the Citizens' Assemblies at that time was Vice-
Governor Dominador Camerino; and that he was shown a letter for his
signature during the conduct of the Citizens' Assemblies, which he did not
sign but which he referred to Vice-Governor Camerino (Annex 1-Rejoinder
of the Sol. Gen. dated March 20, 1973).
Mayor Pablo Cuneta likewise executed an affidavit dated March 16, 1973
stating that on January 15, 1973, he caused the preparation of a letter
addressed to Secretary Jose Roño of the Department of Local Government
and Community Development showing the results of the referendum in
481
Pasay City; that on the same day, there were still in any Citizens' Assemblies
holding referendum in Pasay City, for which reason he did not send the
aforesaid letter pending submittal of the other results from the said
Citizens' Assemblies; and that in the afternoon of January 15, 1973, he
indorsed the complete certificate of results on the referendum in Pasay City
to the Office of the President (Annex 5-Rejoinder of Sol. Gen. dated March
20, 1973).
Pablo F. Samonte, Assistant City Treasurer and Officer in Charge of Pasay

City also issued an affidavit dated March 15, 1973 stating that a certain
Atty. Delia Sutton of the Salonga Law Office asked him for the results of the
referendum; that he informed her that he had in his possession unsigned
copies of such results which may not be considered official as they had then
no knowledge whether the original thereof had been signed by the mayor;
and that in spite of his advice that said unsigned copies were not official,
she requested him if she could give her the unofficial copies thereof, which
he gave in good faith (Annex C-Rejoinder to the Sol. Gen.).
There were 118,010 Yes votes as against 5,588 No votes in the Citizens'
Assemblies of Quezon city (Annex V to Petitioners' Notes in L-36165). The
fact that a certain Mrs. Remedio Gutierrez, wife of alleged barrio treasurer
Faustino Gutierrez, of barrio South Triangle, Quezon City, states that "as far
as we know, there has been no Citizens' Assembly meeting in our Area,
particularly in January of this year," does not necessarily mean that there
was no such meeting in said barrio; for she may not have been notified
thereof and as a result she was not able to attend said meeting. Much less
can it be a basis for the claim that there was no meeting at all in the other
barrios of Quezon City. The barrio captain or the secretary of the barrio
assembly could have been a credible witness.
Councilor Eduardo T. Paredes, chairman of the Secretariat of Quezon City

Ratification and Coordinating Council, certified on March 12, 1973 that as
such chairman he was in charge of the compilation and tabulation of the
results of the referendum among the Citizens' Assemblies in Quezon City
based on the results submitted to the Secretariat by the different Citizens'
Assemblies; but many results of the referendum were submitted direct to
482
the national agencies having to do with such activity and all of which he has
no knowledge, participation and control (Annex 4 Rejoinder of the Sol.
Gen.).
Governor Isidro Rodriguez of Rizal issued a certification dated March 16,

1973 that he prepared a letter to the President dated January 15, 1973
informing him of the results of the referendum in Rizal, in compliance with
the instruction of the National Secretariat to submit such letter 2 or 3 days
from January 10 to show the trend of voting in the Citizens' Assemblies;
that the figures 614,157 and 292,530 mentioned in said letter were based
on the certificates of results in his possession as of January 14, 1973, which
results were made the basis of the computation of thepercentage of voting
trend in the province; that his letter was never intended to show the final or
complete result in the referendum in the province as said referendum was
then still going on from January 14-17, 1973, for which reason the said
letter merely stated that it was only a "summary result"; and that after
January 15, 1973, he sent to the National Secretariat all the certificates of
results in 26 municipalities of Rizal for final tabulation (Annex 3-Rejoinder
of the Sol. Gen.; emphasis supplied).
Lydia M. Encarnacion, acting chief of the Records Section, Department of

Local Government and Community Development, issued a certificate dated
March 16, 1973 that she was shown xerox copies of unsigned letters
allegedly coming from Governor Lino Bocalan dated January 15, 1973 and
marked "Rejoinder Annex Cavite" addressed to the President of the
Philippines through the Secretary of the Department of Local Government
and Community Development and another unsigned letter reportedly from
Mayor Pablo Cuneta dated January 15, 1973 and marked "Rejoinder Annex
Pasay City" addressed to the Secretary of the Department of Local
Government and Community Development; that both xerox copies of the
unsigned letters contain figures showing the results of the referendum of
the Citizens' Assemblies in those areas; and that the said letters were not
received by her office and that her records do not show any such
documents received by her office (Annex 2-Rejoinder of the Sol. Gen.).
483
Thus it would seem that petitioners in L-36165 have attempted to deceive

this Court by representing said unsigned letters and/or certificates as duly
signed and/or containing the complete returns of the voting in the Citizens'
Assemblies.
The observation We made with respect to the discrepancy between the

number of Yes votes and No votes contained in the summary report of
Governor Rodriguez of Rizal as well as those contained in the alleged report
of Governor Lino Bocalan of Cavite who repudiated the same as not having
been signed by him for he was then under house arrest, on the one hand,
and the number of votes certified by the Department of Local Government
and Community Development, on the other, to the effect that even
assuming the correctness of the figures insisted on by counsel for
petitioners in L-36165, if they were extrapolated and applied to the other
provinces and cities of the country, the Yes votes would still be
overwhelmingly greater than the No votes, applies equally to the alleged
discrepancy between the figures contained in the certification of the
Secretary of the Department of Local Government and Community
Development and the figures furnished to counsel for petitioners in L-
36165 concerning the referendum in Camarines Sur, Bataan and Negros
Occidental.
The fact that the referendum in the municipality of Pasacao, Camarines Sur,
shows that there were more votes in favor of the plebiscite to be held
later than those against, only serve to emphasize that there was freedom
of voting among the members of the Citizens' Assemblies all over the
country during the referendum from January 10 to 15, 1973 (Annex-6
Camarines Sur to Rejoinder of Petitioners in L-36165). If there was no such
freedom of choice, those who wanted a plebiscite would not outnumber
those against holding such plebiscite.
The letter of Governor Felix O. Alfelor, Sr. dated January 1973 confirms the
"strong manifestation of approval of the new Constitution by almost 97%
by the members of the Citizens' Assemblies in Camarines Sur" (Annex-
Camarines Sur to Rejoinder of Petitioners in L-36165).
484
The report of Governor Efren B. Pascual of Bataan shows that the members
of the Citizens' Assemblies voted overwhelmingly in favor of the new
Constitution despite the fact that the second set of questions including the
question "Do you approve of the new Constitution?" was received only on
January 10. Provincial Governor Pascual stated that "orderly conduct and
favorable results of the referendum" were due not only to the coordinated
efforts and cooperation of all teachers and government employees in the
area but also to the enthusiastic participation by the people, showing "their
preference and readiness to accept this new method of government to
people consultation in shaping up government policies." (Annex-Bataan to
Rejoinder of Petitioners in L-36165).
As heretofore stated, it is not necessary that voters ratifying the new

Constitution are registered in the book of voters; it is enough that they are
electors voting on the new Constitution (Bott vs. Wurts, 40 A 740 [1898]; 43
A 744, 881 [1899]; 45 LRA 251). The fact that the number of actual voters in
the referendum in certain localities may exceed the number of voters
actually registered for the 1971 elections, can only mean that the excess
represents the qualified voters who are not yet registered including those
who are at least 15 years of age and the illiterates. Although ex-convicts
may have voted also in the referendum, some of them might have been
granted absolute pardon or were sentenced to less than one year
imprisonment to qualify them to vote (Sec. 201, 1971 Rev. Election Code).
At any rate, the ex-convicts constitute a negligible number, discounting
which would not tilt the scale in favor of the negative votes.
Similarly, the fact that Mayor Marcial F. Samson of Caloocan City, who
belongs to the Liberal Party, stated in his letter dated March 13, 1973 that
he does not "feel authorized by the proper authorities to confirm or deny
the data" concerning the number of participants, the Yes votes and No
votes in the referendum on the new Constitution among the members of
the Citizens' Assemblies in Caloocan City, does not necessarily give rise to
the inference that Mayor Samson of Caloocan City is being intimidated,
having been recently released from detention; because in the same letter
of Mayor Samson, he suggested to counsel for petitioners in L-36165 that
he can secure "the true and legitimate results of the referendum" from the
485
Office of the President (Annex Caloocan-B to Rejoinder of Petitioners in L-

36165). Why did not learned and eminent counsel heed such suggestion?
Counsel for petitioners in L-36165, to sustain their position, relies heavily

on the computation of the estimated turnover in the Citizens' Assemblies
referendum on January 10 to 15, 1973 by a certain Professor Benjamin R.
Salonga, of the Mapua Institute of Technology, ostensibly a close relative of
former Senator Jovito R. Salonga, eminent counsel for petitioners in L-
36165 (Annex M-as amended, to Consolidated Rejoinder of petitioners in L-
36165 to the Notes of Arguments and Memorandum of respondents).
Professor Salonga is not a qualified statistician, which all the more impairs
his credibility. Director Tito A. Mijares of the Bureau of Census and
Statistics, in his letter dated March 16, 1973 address to the Secretary of the
Department of Local Government and Community Development, refutes
the said computation of Professor Benjamin R. Salonga, thus:
1) I do not quite understand why (Problem 1) all

qualified registered voters and the 15-20-year-old
youths (1972) will have to be estimated in order
to give a 101.9% estimate of the percentage
participation of the "15-20 year old plus total
number of qualified voters" which does not deem
to answer the problem. This computation
apparently fails to account for some 5.6 million
persons "21 years old and over" who were not
registered voters (COMELEC), but who might be
qualified to participate at the Citizen's Assembly.
2) The official population projection of this office

(medium assumption) for "15 year olds and over"
as of January 1, 1973 is 22.506 million. If total
number of participants at the Citizens' Assembly
Referendum held on January 10-15, 1973 was
16.702 million, participation rate will therefore be
the ratio of the latter figure to the former which
gives 74.2%.
486
3) 1 cannot also understand c-2 "Solution to

Problem 11." The "difference or implied number
of 15-20 year olds" of 5,039,906 would represent
really not only all 15-year olds and over who
participated at the Citizens' Assembly but might
not have been registered voters at the time,
assuming that all the 11,661,909 registered voted
at Citizens' Assembly. Hence, the "estimate
percentage participation of 15-20 years olds" of
105.6% does not seem to provide any meaningful
information.
To obtain the participation rate of "15-20 years

old" one must divide the number in this age
group, which was estimated to be 4.721 million as
of January 1, 1973 by the population of "15 years
old and over" for the same period which was
estimated to be 22.506 million, giving 21.0%.
In Problem III, it should be observed that

registered voters also include names of voters
who are already dead. It cannot therefore be
assumed that all of them participated at the
Citizens' Assembly. It can therefore be inferred
that "a total number of persons 15 and over
unqualified/disqualified to vote" will be more than
10,548,197 and hence the "difference or implied
number of registered voters that participated" will
be less than 6,153,618.
I have reservations on whether an "appropriate

number of qualified voters that supposedly voted"
could be meaningfully estimated.
5) The last remark will therefore make the ratio

(a) [Solution to Problem] more than 1.71 and that
487
for (b), accordingly, will also be less than 36.8%."

(Annex F Rejoinder).
From the foregoing analysis of the Director of Census and Statistics as of

January 21, 1973, the official population projection for 15-year olds and
over is 22,506,000. If 16,702,000 voted in the referendum, the participation
ratio would be 74.2% of 22,506,000.
If the registered electors as of the election of November 8, 1971 numbered

11,661,909, the difference between 16,702,000 who participated in the
referendum and the registered electors of 11,661,909 for the November 8,
1971 elections, is 5,040,091, which may include not only the 15-year olds
and above but below 21 but also the qualified electors who were not
registered before the November 8, 1971 elections as well as illiterates who
are 15 years old and above but below 21.
Moreover, in the last Presidential election in November, 1969, We found

that the incumbent President obtained over 5,000,000 votes as against
about 3,000,000 votes for his rival LP Senator Sergio Osmeña, Jr., garnering
a majority of from about 896,498 to 1,436,118 (Osmeña, Jr. vs. Marcos,
Presidential Election Contest No. 3, Jan. 8, 1973).
The petitioners in all the cases at bar cannot state with justification that
those who voted for the incumbent President in 1969 did not vote in favor
of the 1973 Constitution during the referendum from January 10 to 15,
1973. It should also be stressed that many of the partisans of the President
in the 1969 Presidential elections, have several members in their families
and relatives who are qualified to participate in the referendum because
they are 15 years or above including illiterates, which fact should
necessarily augment the number of votes who voted for the 1973
Constitution.
(6) It is also urged that martial law being the rule of force, is necessarily
inconsistent with freedom of choice, because the people fear to disagree
with the President and Commander-in-Chief of the Armed Forces of the
Philippines and therefore cannot voice views opposite to or critical of the
488
position of the President on the 1973 Constitution and on the mode of its
ratification.
It is also claimed or urged that there can be no free choice during martial
law which inevitably generates fear in the individual. Even without martial
law, the penal, civil or administrative sanction provided for the violation of
ordinarily engenders fear in the individual which persuades the individual
to comply with or obey the law. But before martial law was proclaimed,
many individuals fear such sanctions of the law because of lack of effective
equal enforcement or implementation thereof — in brief,
compartmentalized justice and extraneous pressures and influences
frustrated the firm and just enforcement of the laws. The fear that is
generated by martial law is merely the fear of immediate execution and
swift enforcement of the law and therefore immediate infliction of the
punishment or sanction prescribed by the law whenever it is transgressed
during the period of martial law. This is not the fear that affects the voters'
freedom of choice or freedom to vote for or against the 1973 Constitution.
Those who cringe in fear are the criminals or the law violators. Surely,
petitioners do not come under such category.
(7) Petitioners likewise claim that open voting by viva voce or raising of
hands violates the secrecy of the ballot as by the election laws. But the
1935 Constitution does not require secret voting. We search in vain for
such guarantee or prescription in said organic law. The Commission on
Elections under the 1940 Amendment, embodied as Article X is merely
mandated to insure "free, orderly and honest election." Congress, under its
plenary law-making authority, could have validly prescribed in the election
law open voting in the election of public officers, without trenching upon
the Constitution. Any objection to such a statute concerns its wisdom or
propriety, not its legality or constitutionality. Secret balloting was
demanded by partisan strife in elections for elective officials. Partisanship
based on party or personal loyalties does not generally obtain in a
plebiscite on proposed constitutional amendments or on a new
Constitution. We have seen even before and during martial law that voting
in meetings of government agencies or private organizations is usually done
openly. This is specially true in sessions of Congress, provincial boards, city
489
councils, municipal boards and barrio councils when voting on national or

local issues, not on personalities.
Then again, open voting was not a universal phenomenon in the Citizens'
Assemblies. It might have been true in certain areas, but that does not
necessarily mean that it was done throughout the country.
The recent example of an open voting is the last election on March 3, 1973
of the National Press Club officers who were elected by acclamation
presided over by its former president, petitioner Eduardo Monteclaro in L-
36236 (see Bulletin Today, p. 8, March 3, 1973 issue). There can be no more
hardboiled group of persons than newspapermen, who cannot say that
voting among them by acclamation was characterized by fear among the
members of the National Press Club.
Moreover, petitioners would not be willing to affirm that all the members
of the citizenry of this country are against the new Constitution. They will
not deny that there are those who favor the same, even among the
400,000 teachers among whom officers of the Department of Education
campaigned for the ratification of the new Constitution.
Not one of the petitioners can say that the common man — farmer,
laborer, fisherman, lowly employee, jeepney driver, taxi driver, bus driver,
pedestrian, salesman, or salesgirl — does not want the new Constitution, or
the reforms provided for therein.
(8) Petitioners likewise claim that there was no sufficient publicity given to
the new Constitution. This is quite inaccurate; because even before the
election in November, 1970 of delegates to the Constitutional Convention,
the proposed reforms were already discussed in various forums and
through the press as well as other media of information. Then after the
Constitutional Convention convened in June, 1971, specific reforms
advanced by the delegates were discussed both in committee hearings as
well as in the tri-media — the press, radio and television. Printed materials
on the proposed reforms were circulated by their proponents. From June,
1971 to November 29, 1972, reforms were openly discussed and debated
490
except for a few days after the proclamation of martial law on September
21, 1972. From the time the Constitutional Convention reconvened in
October, 1972 until January 7, 1973, the provisions of the new Constitution
were debated and discussed in forums sponsored by private organizations
universities and debated over the radio and on television. The Philippines is
a literate country, second only to Japan in the Far East, and more literate
perhaps than many of mid-western and southern states of the American
Union and Spain. Many residents in about 1,500 towns and 33,000 barrios
of the country have radios. Even the illiterates listened to radio broadcasts
on and discussed the provisions of the 1973 Constitution.
As reported by the eminent and widely read columnist, Teodoro Valencia in

his column in Bulletin Today, March 4, 1973 issue, "Otto Lang, Hollywood
producer director (Tora, Tora, Tora) went around the country doing a 30-
minute documentary on the Philippines for American television stated that
what impressed him most in his travel throughout the country was the
general acceptance of the New Society by the people which he saw in his 6-
week travel from Aparri to Jolo."
The report of Frank Valeo (Bulletin Today, March 3 and 4, 1973 and Daily
Express, March 3, and Sunday Express, March 4), Secretary of the United
States Senate, who conducted a personal survey of the country as delegate
of Senator Mike Mansfield, Chairman, Committee on US-Philippine
relations, states:
Martial law has paved the way for a re-ordering of

the basic social structure of the Philippines.
President Marcos has been prompt and sure-
footed in using the power of presidential decree
under martial law for this purpose. He has zeroed
in on areas which have been widely recognized as
prime sources of the nation's difficulties — land
tenancy, official corruption, tax evasion and abuse
of oligarchic economic power. Clearly, he knows
the targets. What is not yet certain is how
accurate have been his shots. Nevertheless, there
491
is marked public support for his leadership and

tangible alternatives have not been forthcoming.
That would suggest that he may not be striking
too far from the mark.
The United States business community in Manila

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

LEGISLATIVE POWERS DURING MARTIAL LAW.
492
The position of the respondent public officers that undermartial law, the
President as Commander-in-Chief is vested with legislative powers, is
sustained by the ruling in the 1949 case of Kuroda vs. Jalandoni, et al. (83
Phil. 171, 177-178) which reiterates the 1945 case of Yamashita vs.
Styer (75 Phil. 563, 571-72). The trial of General Kuroda was after the
surrender of Japan on October 2, 1945 (23 Encyc. Brit. 1969 ed., p. 799) and
hence no more martial law in the Philippines.
... Consequently, in the promulgation and

enforcement of Executive Order No. 68, the
President of the Philippines has acted in
conformity with the generally accepted principles
and policies of international law which are part of
our Constitution.
The promulgation of said executive order is an

exercise by the President of his powers as
Commander in Chief of all our armed forces, as
upheld by this Court in the case of Yamashita vs.
Styver (L-129, 42 Off. Gaz., 664) when we said —
"War is not ended simply

because hostilities have ceased.
After cessation of armed
hostilities, incidents of war may
remain pending which should be
disposed of as in time of war.
"An important incident to a
conduct of war is the adoption
measures by the military
command not only to repel and
defeat the enemies but to seize
and subject to disciplinary
measures those enemies who in
their attempt to thwart or
impede our military effort have
493
violated the law of war." (Ex

parte Quirin, 317 U.S., 1; 63 Sup.
Ct., 2.) Indeed, the power to
create a military commission for
the trial and punishment of war
criminals is an aspect of waging
war. And, in the language of a
writer, a military commission
"has jurisdiction so long as the
technical state of war continues.
This includes the period of an
armistice, or military occupation,
up to the effective date of treaty
of peace, and may extend
beyond, by treaty agreement."
(Cowles, Trial of War Criminals by
Military Tribunals, American Bar
Association Journal, June, 1944).
Consequently, the President as Commander-in-

Chief is fully empowered to consummate this
unfinished aspect of war, namely the trial and
punishment of war criminals, through the
issuance and enforcement of Executive Order No.
68. (83 Phil. 177-178; emphasis supplied).
Chief Justice Stone of the United States Supreme Court likewise appears to
subscribe to this view, when, in his concurring opinion in Duncan vs.
Kahanamoku (327 U.S. 304 [1946]), he defined martial law as "the exercise
of the power which resides in the executive branch of the government to
preserve order and insure the public safety in times of emergency, when
other branches of the government are unable to function, or their
functioning would itself threaten the public safety." (Emphasis supplied).
There is an implied recognition in the aforesaid definition of martial law
that even in places where the courts can function, such operation of the
courts may be affected by martial lawshould their "functioning ... threaten
494
the public safety." It is possible that the courts, in asserting their authority
to pass upon questions which may adversely affect the conduct of the
punitive campaign against rebels, secessionists, dissidents as well as
subversives, martial law may restrict such judicial function until the danger
to the security of the state and of the people shall have been decimated.
The foregoing view appears to be shared by Rossiter when he stated:
Finally, this strong government, which in some

instances might become an outright dictatorship,
can have no other purposes than the preservation
of the independence of the state, the maintenance
of the existing constitutional order, and the
defense of the political and social liberties of the
people. It is important to recognize the true and
limited ends of any practical application of the
principle of constitutional dictatorship. Perhaps
the matter may be most clearly stated in this way:
the government of a free state is proceeding on its
way and meeting the usual problems of peace and
normal times within the limiting framework of its
established constitutional order. The functions of
government are parceled out among a number of
mutually independent offices and institutions; the
power to exercise those functions is circumscribed
by well-established laws, customs, and
constitutional prescriptions; and the people for
whom this government was instituted are in
possession of a lengthy catalogue of economic,
political, and social rights which their leaders
recognize as inherent and inalienable. A severe
crisis arises — the country is invaded by a hostile
power, or a dissident segment of the citizenry
revolts, or the impact of a world-wide depression
threatens to bring the nation's economy in ruins.
The government meets the crisis by assuming
495
more powers and respecting fewer rights. The

result is a regime which can act arbitrarily and
even dictatorially in the swift adaption of
measures designed to save the state and its
people from the destructive effects of the
particular crisis. And the narrow duty to be
pursued by this strong government, this
constitutional dictatorship? Simply this and
nothing more: to end the crisis and restore
normal times. The government assumes no power
and abridges no right unless plainly indispensable
to that end; it extends no further in time than the
attainment of that end; and it makes no alteration
in the political, social and economic structure of
the nation which cannot be eradicated with the
restoration of normal times. In short, the aim of
constitutional dictatorship is the complete
restoration of the status quo ante bellum. This
historical fact does not comport with
philosophical theory, that there never has been a
perfect constitutional dictatorship, is an assertion
that can be made without fear of contradiction.
But this is true of all institutions of government,
and the principle of constitutional dictatorship
remains eternally valid no matter how often and
seriously it may have been violated in practice.
(Constitutional Dictatorship, 1948 ed., by Clinton
L. Rossiter, p. 7; emphasis supplied.)
Finally, Rossiter expressly recognizes that during martial law, the Chief
Executive exercises legislative power, whether of temporary or permanent
character, thus:
The measures adopted in the prosecution of a

constitutional dictatorship should never be
permanent in character or effect. Emergency
496
powers are strictly conditioned by their purpose

and this purpose is the restoration of normal
conditions. The actions directed to this end should
therefore be provisional. For example, measures
of a legislative nature which work a lasting
change in the structure of the state or constitute
permanent derogations from existing law should
not be adopted under an emergency enabling
act, at least not without the positively registered
approval of the legislature. Permanent laws,
whether adopted in regular or irregular times, are
for parliaments to enact. By this same token, the
decisions and sentences of extraordinary courts
should be reviewed by the regular courts after the
termination of the crisis.
But what if a radical act of permanent character,

one working lasting changes in the political and
social fabric, is indispensable to the successful
prosecution of the particular constitutional
dictatorship? The only answer can be: it must be
resolutely taken and openly acknowledged.
President Lincoln found it necessary to proceed to
the revolutionary step of emancipation in aid of
his conservative purpose of preserving the Union;
as a constitutional dictator he had a moral right to
take this radical action.Nevertheless, it is
imperative that any action with such lasting
effects should eventually receive the positive
approval of the people or of their representatives
in the legislature. (P. 303, emphasis supplied).
From the foregoing citations, under martial law occasioned by severe crisis
generated by revolution, insurrection or economic depression or
dislocation, the government exercises more powers and respects fewer
rights in order "to end the crisis and restore normal times." The
497
government can assume additional powers indispensable to the attainment

of that end — the complete restoration of peace. In our particular case,
eradication of the causes that incited rebellion and subversion as secession,
is the sine qua non to the complete restoration of normalcy. Exercise of
legislative power by the President as Commander in Chief, upon his
proclamation of martial law, is justified because, as he professes, it is
directed towards the institution of radical reforms essential to the
elimination of the causes of rebellious, insurgent or subversive conspiracies
and the consequent dismantling of the rebellious, insurgent or subversive
apparatus.
Hence, the issuance of Presidential Decree Nos. 86 and 86-A as well as

Proclamation No. 1102 is indispensable to the effectuation of the reforms
within the shortest possible time to hasten the restoration of normalcy.
"Must the government be too strong for the liberties of the people; or must
it be too weak to maintain its existence?" That was the dilemma that vexed
President Lincoln during the American Civil War, when without express
authority in the Constitution and the laws of the United States, he
suspended one basic human freedom — the privilege of the writ of habeas
corpus — in order to preserve with permanence the American Union, the
Federal Constitution of the United States and all the civil liberties of the
American people. This is the same dilemma that presently confronts the
Chief Executive of the Republic of the Philippines, who, more than the
Courts and Congress, must, by express constitutional mandate, secure the
safety of our Republic and the rights as well as lives of the people against
open rebellion, insidious subversion secession. The Chief Executive
announced repeatedly that in choosing to proclaim martial law, the power
expressly vested in him by the 1935 Constitution (Sec. 10[2], Art. VII, 1935
Constitution) to insure our national and individual survival in peace and
freedom, he is in effect waging a peaceful, democratic revolution from the
center against the violent revolution and subversion being mounted by the
economic oligarchs of the extreme right, who resist reforms to maintain
their economic hegemony, and the communist rebels a Maoist oriented
secessionists of the extreme left who demand swift institution of reforms.
In the exercise of his constitutional and statutory powers, to save the state
498
and to protect the citizenry against actual and threatened assaults from
insurgents, secessionists and subversives, doctrinaire concepts and
principles, no matter how revered they may be by jurisprudence and time,
should not be regarded as peremptory commands; otherwise the dead
hand of the past will regulate and control the security and happiness of the
living present. A contrary view would be to deny the self-evident
proposition that constitutions and laws are mere instruments for the well-
being, peace, security and prosperity of the country and its citizenry. The
law as a means of social control is not static but dynamic. Paraphrasing Mr.
Justice Frankfurter, the Constitution is neither a printed finality nor the
imprisonment of the past, but the enfolding of the future. In the vein of Mr.
Justice Holmes, the meaning of the words of the Constitution is not to be
determined by merely opening a dictionary. Its terms must be construed in
the context of the realities in the life of a nation it is intended to serve.
Because experience may teach one generation to doubt the validity and
efficacy of the concepts embodied in the existing Constitution and persuade
another generation to abandon them entirely, heed should be paid to the
wise counsel of some learned jurists that in the resolution of constitutional
questions — like those posed before Us — the blending of idealism and
practical wisdom or progressive legal realism should be applied (see
Alexander M. Bickel, the Supreme Court and the Idea of Progress, 1970 ed.,
pp. 19-21). To Justice Frankfurter, law is "a vital agency for human
betterment" and constitutional law "is applied politics using the word in its
noble sense." (Frankfurter, Law and Politics, 1939 ed., pp. 3 & 6; emphasis
supplied). Justice Brandeis gave utterance to the truth that "Our
Constitution is not a straight jacket. It is a living organism. As such, it is
capable of growth — or expansion and adaptation to new conditions.
Growth implies changes, political, economic and social." (Brandeis Papers,
Harvard Law School; emphasis supplied). Harvard Professor Thomas Reed
Powell emphasizes "practical wisdom," for "the logic of constitutional law is
the common sense of the Supreme Court." (Powell, the Validity of State
Legislation, under the Webb-Kenyon Law, 2 Southern Law Quarterly, pp.
112, 138-139, cited in Bickel's Opus, supra; emphasis supplied).
The eternal paradox in this finite world of mortal and fallible men is that
nothing is permanent except change. Living organisms as well as man-made
institutions are not immutable. Civilized men organize themselves into a
499
State only for the purpose of serving their supreme interest — their
welfare. To achieve such end, they created an agency known as the
government. From the savage era thru ancient times, the Middle Ages, the
Dark Ages and the Renaissance to this era of sophisticated electronics and
nuclear weaponry, states and governments have mutated in their search
for the magic instrument for their well-being. It was trial and error then as
it is still now. Political philosophies and constitutional concepts, forms and
kinds of government, had been adopted, overturned, discarded, re-adopted
or modified to suit the needs of a given society at a particular given epoch.
This is true of constitutions and laws because they are not "the infallible
instruments of a manifest destiny." No matter how we want the law to be
stable, it cannot stand still. As Mr. Justice Holmes aptly observed, every
"constitution is an experiment as all life is an experiment," (Abrahms vs.
U.S., 250 US 616, 631) for "the life of the law is not logic, but experience."
In the pontifical tones of Mr. Justice Benjamin Nathan Cardozo, "so long as
society is inconstant, there can be no constancy in law," and "there will be
change whether we will it or not." As Justice Jose P. Laurel was wont to say,
"We cannot, Canute-like, command the waves of progress to halt."
Thus, political scientists and jurists no longer exalt with vehemence a

"government that governs least." Adherents there are to the poetic dictum
of Alexander Pope: "For forms of government let fools contest; whatever is
best administered is best." (Poems of Pope, 1931 Cambridge ed., p. 750). In
between, the shades vary from direct democracy, representative
democracy, welfare states, socialist democracy, mitigated socialism, to
outright communism which degenerated in some countries into
totalitarianism or authoritarianism.
Hence, even the scholar, who advances academic opinions unrelated to

factual situations in the seclusion of his ivory tower, must perforce submit
to the inexorable law of change in his views, concepts, methods and
techniques when brought into the actual arena of conflict as a public
functionary — face to face with the practical problems of state,
government and public administration. And so it is that some learned
jurists, in the resolution of constitutional issues that immediately affect the
lives, liberties and fortunes of the citizens and the nation, recommend the
500
blending of idealism with practical wisdom which legal thinkers prefer to

identify as progressive legal realism. The national leader, who wields the
powers of government, must and has to innovate if he must govern
effectively to serve the supreme interests of the people. This is especially
true in times of great crises where the need for a leader with vision,
imagination, capacity for decision and courageous action is greater, to
preserve the unity of people, to promote their well-being, and to insure the
safety and stability of the Republic. When the methods of rebellion and
subversion have become covert, subtle and insidious, there should be a
recognition of the corresponding authority on the part of the Commander-
in-Chief of the Armed Forces to utilize all the available techniques to
suppress the peril to the security of the government and the State.
Over a century and a half ago, Thomas Jefferson, one of the founding
fathers of the American Constitution and former President of the United
States, who personifies the progressive liberal, spoke the truth when he
said that some men "ascribe men of the preceding age a wisdom more than
human, and suppose what they did to be beyond amendment. ... But I
know also, that laws and institutions must go hand in hand with the
progress of the human mind. As that becomes more developed, more
enlightened, as new discoveries are made, new truths disclosed and
manners and opinions change, with the change of circumstances,
institutions must also advance, and keep pace with the times." (Vol. 12,
Encyclopedia Britanica, 1969 ed., p. 989).
The wisdom of the decision of the Chief Executive can only be judged in the
perspective of history. It cannot be adequately and fairly appraised within
the present ambience, charged as it is with so much tension and emotion, if
not partisan passion. The analytical, objective historians will write the final
verdict in the same way that they pronounced judgment on President
Abraham Lincoln who suspended the privilege of the writ of habeas
corpus without any constitutional or statutory authority therefor and of
President Franklin Delano Roosevelt who approved the proclamation of
martial law in 1941 by the governor of Hawaii throughout the Hawaiian
territory. President Lincoln not only emancipated the Negro slaves in
America, but also saved the Federal Republic of the United States from
501
disintegration by his suspension of the privilege of the writ of habeas

corpus, which power the American Constitution and Congress did not then
expressly vest in him. No one can deny that the successful defense and
preservation of the territorial integrity of the United States was due in part,
if not to a great extent, to the proclamation of martial law over the territory
of Hawaii — main bastion of the outer periphery or the outpost of the
American defense perimeter in the Pacific — which protected the United
States mainland not only from actual invasion but also from aerial or naval
bombardment by the enemy. Parenthetically, the impartial observer cannot
accurately conclude that the American Supreme Court acted with courage
in its decision in the cases of Ex parte Milligan and Duncan vs.
Kahanamoku (filed on May 10, 1865 argued on March 5 to 13, 1866,
decided on April 3, 1866, and opinion delivered on December 17, 1866)
after the lifting of the proclamation suspending the privilege of the writ
of habeas corpus, long after the Civil War and the Second World ended
respectively on April 9 or 26, 18-65 (Vol. 1, Encyclopedia Britannica, 1969
ed., pp. 730, 742) and on September 2, 1945 (Vol. 23, Encyclopedia
Britannica, 1969 ed., p. 799). Was the delay on the part of the American
Supreme Court in deciding these cases against the position of the United
States President — in suspending the privilege of the writ of habeas
corpus in one case and approving the proclamation of martial law in the
other — deliberate as an act of judicial statesmanship and recognition on
their part that an adverse court ruling during the period of such a grave
crisis might jeopardize the survival of the Federal Republic of the United
States in its life-and-death struggle against an organized and well armed
rebellion within its own borders and against a formidable enemy from
without its territorial confines during the last global armageddon?
VIII
DOCTRINE OF SEPARATION OF POWERS PRECLUDES

MANDAMUS AGAINST SENATORS.
In G.R. No. L-36165, mandamus will not lie to compel respondents Gil Puyat

and Jose Roy to convene the Senate of the Philippines even on the
assumption that the 1935 Constitution still subsists; because pursuant to
502
the doctrine of separation of powers under the 1935 Constitution, the

processes of this Court cannot legally reach a coordinate branch of the
government or its head. This is a problem that is addressed to the Senate
itself for resolution; for it is purely an internal problem of the Senate. If a
majority of the senators can convene, they can elect a new Senate
President and a new Senate President Pro Tempore. But if they have no
quorum, those present can order the arrest of the absent members (Sec.
10[2], Art. VI, 1935 Constitution). If this fails, then there is no remedy
except an appeal to the people. The dictum ubi jus, ubi remedium, is not
absolute and certainly does not justify the invocation of the power of this
Court to compel action on the part of a co-equal body or its leadership. This
was emphasized with sufficient clarity by this Court in the 1949 case of
Avelino vs. Cuenco (83 Phil. 17, 22,24), with which the distinguished
counsels for the petitioners in L-36164 and L-36165 are familiar. We stress
that the doctrine of separation of powers and the political nature of the
controversy such as this, preclude the interposition of the Judiciary to
nullify an act of a coordinate body or to command performance by the
head of such a co-ordinate body of his functions..
Mystifying is the posture taken by counsels for petitioners in referring to

the political question doctrine — almost in mockery — as a magic formula
which should be disregarded by this Court, forgetting that this magic
formula constitutes an essential skein in the constitutional fabric of our
government, which, together with other basic constitutional precepts,
conserves the unity of our people, strengthens the structure of the
government and assures the continued stability of the country against the
forces of division, if not of anarchy.
Moreover, if they have a quorum, the senators can meet anywhere. Validity
of the acts of the Senate does not depend on the place of session; for the
Constitution does not designate the place of such a meeting. Section 9 of
Article VI imposes upon Congress to convene in regular session every year
on the 4th Monday of January, unless a different date is fixed by law, or on
special session called by the President. As former Senator Arturo Tolentino,
counsel for respondents Puyat and Roy in L-36165, stated, the duty to
convene is addressed to all members of Congress, not merely to its
503
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.
504
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.
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
505
the powers of government. But when there is an inevitable clash between

an exertion of governmental authority and the assertion of individual
freedom, the exercise of which freedom imperils the State and the civilized
society to which the individual belongs, there can be no alternative but to
submit to the superior right of the government to defend and preserve the
State. In the language of Mr. Justice Holmes — often invoked by herein
petitioners — "when it comes to a decision involving its (state life, the
ordinary rights of individuals must yield to what he (the President) deems
the necessities of the moment. Public danger warrants the substitution of
executive process for judicial process. (See Keely vs. Sanders, 99 U.S. 441,
446, 25 L ed. 327, 328). This was admitted with regard to killing men in the
actual clash of arms. And we think it is obvious, although it was disputed,
that the same is true of temporary detention to prevent apprehended
harm." (Moyer vs. Peabody, 212 U.S. 77, 85, 53 L ed., 411, 417).
The rhetoric of freedom alone is not enough. It must be the rhetoric of

freedom with order and security for all, that should be the shibboleth; for
freedom cannot be enjoyed in an environment of disorder and anarchy.
The incumbent Chief Executive who was trying to gain the support for his
reform program long before September 21, 1972, realized almost too late
that he was being deceived by his partymates as well as by the opposition,
who promised him cooperation, which promises were either offered as a
bargaining leverage to secure concessions from him or to delay the
institution of the needed reforms. The people have been victimized by such
bargaining and dilly-dallying. To vert a terrifying blood bath and the
breakdown of the Republic, the incumbent President proclaimed martial
law to save the Republic from being overrun by communists, secessionists
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?
506
If the petitioners are sincere in their expression of concern for the greater
mass of the populace, more than for their own selves, they should be
willing to give the incumbent Chief Executive a chance to implement the
desired reforms. The incumbent President assured the nation that he will
govern within the framework of the Constitution and if at any time, before
normalcy is restored, the people thru their Citizens' Assemblies, cease to
believe in his leadership, he will step down voluntarily from the Presidency.
But if, as apprehended by the petitioners, he abuses and brutalizes the
people, then to the battlements we must go to man the ramparts against
tyranny. This, it is believed, he knows only too well; because he is aware
that he who rides the tiger will eventually end inside the tiger's stomach.
He who toys with revolution will be swallowed by that same revolution.
History is replete with examples of libertarians who turned tyrants and
were burned at stake or beheaded or hanged or guillotined by the very
people whom they at first championed and later deceived. The most bloody
of such mass executions by the wrath of a wronged people, was the
decapitation by guillotine of about 15,000 Frenchmen including the leaders
of the French revolution, like Robespierre, Danton, Desmoulins and Marat.
He is fully cognizant of the lessons of history.
HENCE, THE DISMISSAL OF THESE FIVE CASES IS JUSTIFIED.
ESGUERRA, J., concurring:
These petitions seek to stop and prohibit the respondents Executive

Officers from implementing the Constitution signed on November 30, 1972;
in L-36165, to compel respondents Gil Puyat and Jose J. Roy, President and
President Pro-Tempore, respectively, of the Senate under the 1935
Constitution, to convene the Senate in regular session which should have
started on January 22, 1973; to nullify Proclamation No. 1102 of the
President, issued on January 17, 1973, which declared the ratification of the
Constitution on November 30, 1972, by the Filipino people, through the
barangays or Citizens Assemblies established under Presidential Decree No.
86 issued on December 31, 1972, which were empowered under
Presidential Decree No. 86-A, issued on January 5, 1973, to act in
connection with the ratification of said Constitution.
507
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?
508
3. Has the new Constitution been accepted and acquiesced in by the

Filipino people?
4. Is the new Constitution actually in force and effect?
5. If the answers to questions Nos. 3 and 4 be in the affirmative, are

petitioners entitled to the reliefs prayed for?
II.
The pivotal question in these cases is whether the issue raised is highly
political and, therefore, not justiciable. I maintain that this Court should
abstain from assuming jurisdiction, but, instead, as an act of judicial
statesmanship, should dismiss the petitions. In resolving whether or not the
question presented is political, joint discussion of issues Nos. 1, 3 and 4 is
necessary so as to arrive at a logical conclusion. For after the acceptance of
a new Constitution and acquiescence therein by the people by putting it
into practical operation, any question regarding its validity should be
foreclosed and all debates on whether it was duly or lawfully ushered into
existence as the organic law of the state become political and not judicial in
character.
The undisputed facts that led to the issuance of Proclamation No. 1102 and
Presidential Decrees Nos. 86 and 86-A are fully set forth in the majority and
dissenting opinions in the Plebiscite cases decided on January 22, 1973, and
need not be repeated here.
Petitioners seek to set at naught Proclamation No. 1102 and Presidential

Decrees Nos. 86 and 86-A, claiming that the ratification of the new
Constitution pursuant to the said decrees is invalid and of no effect.
Presidential Decree No. 86 organized the barangays or Citizens Assemblies
composed of all citizens at least fifteen years of age, and through these
assemblies the proposed 1972 Constitution was submitted to the people
for ratification. Proclamation No. 1102 of the President announced or
declared the result of the referendum or plebiscite conducted through the
Citizens Assemblies, and that 14,976,561 members thereof voted for the
509
ratification of the new Constitution and 743,869 voted against it.

Petitioners assail these two acts of the President as unauthorized and
devoid of legal effect.
But looking through the veneer of judicial conformity with which the
petitions have been adroitly contrived, what is sought to be invalidated is
the new Constitution itself — the very framework of the present
Government since January 17, 1973. The reason is obvious. The Presidential
decrees set up the means for the ratification and acceptance of the new
Constitution and Proclamation No. 1102 simply announced the result of the
referendum or plebiscite by the people through the Citizens Assemblies.
The Government under the new Constitution has been running on its tracks
normally and apparently without obstruction in the form of organized
resistance capable of jeopardizing its existence and disrupting its operation.
Ultimately the issue is whether the new Constitution may be set aside by
this Court. But has it the power and authority to assume such a stupendous
task when the result of such invalidation would be to subject this nation to
divisive controversies that may totally destroy the social order which the
Government under the new Constitution has been admirably protecting
and promoting under Martial Law? That the new Constitution has taken
deep root and the people are happy and contended with it is a living reality
which the most articulate critics of the new order cannot deny. 95 out of
108 members of the House of Representatives have opted to serve in the
interim National Assembly provided for under the new Constitution. 15 out
of 24 Senators have done likewise. The members of the Congress did not
meet anymore last January 22, 1973, not because they were really
prevented from so doing but because of no serious effort on their parts to
assert their offices under the 1935 Constitution. In brief, the Legislative
Department under the 1935 Constitution is a thing of the past. The
Executive Department has been fully reorganized; the appointments of key
executive officers including those of the Armed Forces were extended and
they took an oath to support and defend the new Constitution. The courts,
except the Supreme Court by reason of these cases, have administered
justice under the new constitution. All government offices have dealt with
the public and performed their functions according to the new Constitution
and laws promulgated thereunder.
510
If the real purpose of the petitions is to set aside the new Constitution, how
can this Court justify its assumption of jurisdiction when no power has ...
conferred upon it the jurisdiction to declare the Constitution or any part
thereof null and void? It is the height of absurdity and impudence for a
court to wage open war against the organic act to which it owes its
existence. The situation in which this Court finds itself does not permit it to
pass upon the question whether or not the new Constitution has entered
into force and has superseded the 1935 Constitution. If it declares that the
present Constitution has not been validly ratified, it has to uphold the 1935
Constitution as still the prevailing organic law. The result would be too
anomalous to describe, for then this Court would have to declare that it is
governed by one Constitution or the 1935 Constitution, and the legislative
and executive branches by another or the 1972 Constitution.
If it declares that the 1972 Constitution is now operative, how can it

exercise judicial discretion in these cases when it would have no other
choice but to uphold the new Constitution as against any other one? In the
circumstances it would be bereft of judicial attributes as the matter would
then be not meet for judicial determination, but one addressed to the
sovereign power of the people who have already spoken and delivered
their mandate by accepting the fundamental law on which the government
of this Republic is now functioning. To deny that the new Constitution has
been accepted and actually is in operation would be flying in the face of
reason and pounding one's bare head against a veritable stone wall or a
heavily reinforced concrete, or simply "kicking the deadly pricks" with one's
bare foot in an effort to eliminate the lethal points.
When a Constitution has been in operation for sometime, even without

popular ratification at that, submission of the people thereto by the
organization of the government provided therein and observance of its
prescriptions by public officers chosen thereunder, is indicative of approval.
Courts should be slow in nullifying a Constitution claimed to have been
adopted not in accordance with constitutional or statutory directives
[Miller vs. Johnson, 92 Ky. 589; 189 S.W. 522; Taylor vs Commonwealth,
101; Va. 829; 44 S.E. 754; Smith vs. Good, 34 F 204, 207; Wiston vs. Ryan,
70 Neb. 211; 97 N.W. 347].
511
In Miller vs. Johnson, supra, the Court said:
... But it is a case where a new constitution has

persons have been convicted of the highest
crimes known to the law, according to its
provisions; the political power of the government
has in many ways recognized it; and, under such
our state. We need not consider the validity of the
of its power, yet as the entire instrument has been
recognized as valid in the manner suggested, it
would be equally an abuse of power by the
judiciary, and violative of the rights of the people,
the instrument or a portion invalid, and bring
confusion and anarchy upon the state. (Emphasis
supplied)
In Smith vs. Good, supra, the Court said:
It is said that a state court is forbidden from

entering upon such an inquiry when applied to a
new constitution, and not an amendment,
because the judicial power presupposes an
established government, and if the authority of
that government is annulled and overthrown, the
power of its courts is annulled with it; therefore, if
a state court should enter upon such an inquiry,
come to the conclusion that the government
512
under which it acted had been displaced by an

opposing government, it would cease to be a
court, and it would be incapable of pronouncing a
judicial decision upon the question before it; but,
if it decides at all, it must necessarily affirm the
existence of the government under which it
exercises its judicial powers. (Emphasis supplied)
These rules are all traceable to Luther vs. Borden, 48 U.S (7 How.), 12 L. Ed.
581, 598 (1849) where it was held:
Judicial power presupposes an established

government capable of enacting laws and
enforcing their execution, and appointing judges
to expound and administer them. The acceptance
of the judicial office is a recognition of the
authority of government from which it is derived.
And if the authority of the government is annulled
and overthrown, the power of its courts and other
officers is annulled with it. And if a State court
should enter upon the inquiry proposed in this
case, and should come to conclusion that the
government under which it acted had been put
aside and displaced by an opposing government it
would cease to be a court, and be incapable of
pronouncing a judicial decision upon the question
it undertook to try. If it decides at all as a court, it
necessarily affirms the existence and authority of
the government under which it is exercising
judicial power.
The foreign relations of the Republic of the Philippines have been normally
conducted on the basis of the new Constitution and no state with which we
maintain diplomatic relations has withdrawn its recognition of our
government. (For particulars about executive acts done under the new
513
Constitution, see pages 22-25 of the Comments of the Solicitor General,

dated February 3, 1973.)
Certainly the invalidation of Proclamation No. 1102 and Presidential

Decrees Nos. 86 and 86-A by this Court would smack of plain political
meddling which is described by the United States Supreme Court as
"entering a political thicket" in Colegrove vs. Green, 328 U.S. p. 549. At this
juncture it would be the part of wisdom for this Court to adopt the proper
attitude towards political upheavals and realize that the question before Us
is political and not fit for judicial determination. For a political question is
one entrusted to the people for judgment in their sovereign capacity
(Tañada vs. Cuenco, G.R. No. L-10520, Feb. 28,1967; 100 Phil. 1101), or to a
co-equal and coordinate branch of the Government (Vera vs. Arellano, 77
Phil. 192; Mabanag vs. Lopez Vito, 78 Phil. 1; Alejandrino vs. Quezon, 46
Phil. 35; Cabili vs. Francisco, G.R. No. 4638, May 8, 1931). A case involves a
political question when there would be "the impossibility of undertaking
independent resolutions without expressing a lack of respect due to
coordinate branches of government", or when there is "the potentiality of
embarrassment from multifarious pronouncements by various departments
on one question."
To preserve the prestige and eminence that this Court has long enjoyed as
the "ultimate organ of the "Supreme Law of the Land" in that vast range of
legal problems often strongly entangled in popular feeling on which this
Court must pronounce", let us harken to the following admonition of
Justice Frankfurter in his dissent in Baker vs. Carr, 369 U.S. 186; 82 S. Ct.
691; 7 L. Ed. 2d. 663:
The Court's authority — possessed neither of the

purse nor the sword — ultimately rests on
sustained public confidence in its moral sanction.
Such feeling must be nourished by the Court's
complete detachment, in fact and appearance,
from political entanglements and abstention from
injecting itself into the clash of political forces in
political settlement. ..." (Emphasis supplied)
514
The people have accepted and submitted to a Constitution to replace the

1935 Constitution. The new organic law is now in the plenitude of its
efficacy and vigor. We are now living under its aegis and protection and
only the cynics will deny this. This Court should not in the least attempt to
act as a super-legislature or a super-board of canvassers and sow confusion
and discord among our people by pontificating there was no valid
ratification of the new Constitution. The sober realization of its proper role
and delicate function and its consciousness of the limitations on its
competence, especially situations like this, are more in keeping with the
preservation of our democratic tradition than the blatant declamations of
those who wish the Court to engage in their brand of activism and would
not mind plunging it into the whirlpool of passion and emotion in an effort
to capture the intoxicating applause of the multitude.
For all the foregoing, I vote to dismiss all petitions.
ZALDIVAR, J., concurring and dissenting:
In these five cases, the main issue to be resolved by Court is whether or not
the Constitution proposed by the Constitutional Convention of 1971 had
been ratified in accordance with the provisions of Article XV of the 1935
Constitution. In the plebiscite cases, which were decided by this Court on
January 22, 1973 1, I held the view that this issue could be properly resolved
by this Court, and that it was in the public interest that this Court should
declare then whether or not the proposed Constitution had been validly
ratified. The majority of this Court, however, was of the view that the issue
was not squarely raised in those cases, and so the Court, as a body, did
make any categorical pronouncement on the question of whether or not
the Constitution proposed by the 1971 Convention was validly ratified. I
was the only one who expressed the opinion that the proposed
Constitution was not validly ratified and therefore "it should not be given
force and effect."
The Court is now called upon to declare, and to inform the people of this
country, whether or not that proposed Constitution had been validly
ratified and had come into effect.
515
The Solicitor General, however, contends that this Court has no jurisdiction
to resolve the issue that we have mentioned because that issue is a political
question that cannot be decided by this Court. This contention by the
Solicitor General is untenable. A political question relates to "those
questions which under the Constitution are to be decided by the people in
their sovereign capacity or in regard to which full discretionary authority
has been delegated to the legislative, or to the executive, branch of the
government. 2 The courts have the power to determine whether the acts of
the executive are authorized by the Constitution and the laws whenever
they are brought before the court in a judicial proceeding. The judicial
department of the government exercises a sort of controlling, or rather
restraining, power over the two other departments of the government.
Each of the three departments, within its proper constitutional sphere, acts
independently of the other, and restraint is only placed on one department
when that sphere is actually transcended. While a court may not restrain
the executive from committing an unlawful act, it may, when the legality of
such an act is brought before it in a judicial proceeding, declare it to be
void, the same as it may declare a law enacted by the legislature to be
unconstitutional. 3 It is a settled doctrine that every officer under a
constitutional government must act according to law and subject to its
restrictions, and every departure therefrom, or disregard thereof, must
subject him to the restraining and controlling power of the people, acting
through the agency of the judiciary. It must be remembered that the
people act through the courts, as well as through the executive or the
legislature. One department is just as representative as the other, and
judiciary is the department which is charged with the special duty of
determining the limitations which the law places upon all official actions 4.
In the case of Gonzales v. Commission on Elections 5, this Court ruled that
the issue as to whether or not a resolution of Congress acting as a
constituent assembly violates the Constitution is not a political question
and is therefore subject to judicial review. In the case ofAvelino v. Cuenco 6,
this Court held that the exception to the rule that courts will not interfere
with a political question affecting another department is when such
political question involves an issue as to the construction and interpretation
of the provision of the constitution. And so, it has been held that the
question of whether a constitution shall be amended or not is a political
516
question which is not in the power of the court to decide, but whether or
not the constitution has been legally amended is a justiciable question. 7
My study on the subject of whether a question before the court is political

or judicial, based on decisions of the courts in the United States — where,
after all, our constitutional system has been patterned to a large extent —
made me arrive at the considered view that it is in the power of this Court,
as the ultimate interpreter of the Constitution, to determine the validity of
the proposal, the submission, and the ratification of any change in the
Constitution. Ratification or non-ratification of a constitutional amendment
is a vital element in the procedure to amend the constitution, and I believe
that the Court can inquire into, and decide on, the question of whether or
not an amendment to the constitution, as in the present cases, has been
ratified in accordance with the requirements prescribed in the Constitution
that was amended. And so, in the cases now before Us, I believe that the
question of whether or not the Constitution proposed by the 1971
Constitutional Convention had been validly ratified or not is a justiciable
question.
The Chief Justice, in his opinion, has discussed lengthily the subject on
whether or not, the cases, before Us involve a political, or a judicial,
question. I fully concur with his conclusion that the question involved in
these cases is justiciable.
On the question now of whether or not the Constitution proposed by the

1971 Constitutional Convention has been validly ratified, I am reproducing
herein pertinent portions of my dissenting opinion in the plebiscite cases:
The ratification of the Constitution proposed by

the 1971 Constitutional Convention must be done
in accordance with the provisions of Section 1,
Article XV of the 1935 Constitution of the
Philippines, which reads:
"Section 1. The Congress in joint

session assembled by a vote of
517
three fourths of all the Members

of the Senate and of the House of
Representatives voting
separately, may propose
amendments to the Constitution
or call a convention for that
purpose. Such amendments shall
be valid as part of this
Constitution when approved by a
election at which the
amendments are submitted to
the people for their ratification."
It is in consonance with the abovequoted

provision of the 1935 Constitution that on March
16, 1967, the Congress of the Philippines
Resolution No. 2 calling a convention to propose
Philippines. Sec. 7 of said Resolution No. 2 reads
as follows:
"Section 7. The amendments

proposed by the Convention shall
be valid and considered part of
the Constitution when approved
by a majority of the votes cast in
an election at which they are
submitted to the people for their
ratification pursuant to Article XV
of the Constitution.
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
518
1971 Convention, in order to be valid and

considered part of the Constitution, must be
approved by majority of the votes cast in an
election at which they are submitted to the
people for the ratification as provided in the
Constitution.
This Court, in the case of Tolentino vs.

Commission Elections, L-35140, October 16, 1971
(41 SCRA 715), speaking through Mr. Justice
Barredo, said:
"The Constitutional Convention

of 1971, as any other convention
of the same nature, owes its
existence and all its authority
and power from the existing
This Convention has not been
called by the people directly as in
the case of a revolutionary
convention which drafts the first
Constitution of an entirely new
government born of either a war
of liberation from a mother
country or of revolution against
an existing government or of a
bloodless seizure of power a la
coup d'etat. As to such kind of
conventions, it is absolutely true
that the convention is completely
without restraint and
omnipotent all wise, and it as to
such conventions that the
remarks of Delegate Manuel
Roxas of the Constitutional
519
Convention of 1934 quoted by

Senator Pelaez refer. No amount
of rationalization can belie the
fact that the current convention
came into being only because it
was called by a resolution of a
joint session of Congress acting
as a constituent assembly by
authority of Section 1, Article XV
of the present Constitution ... ."
xxx xxx xxx
"As to matters not related to its

internal operation and the
performance of its assigned
mission to propose amendments
to the Constitution, the
Convention and its officers and
members are all subject to all the
provisions of the existing
Constitution. Now we hold that
even as to its latter task of
proposing amendments to the
Constitution, it is subject to the
provisions of Section 1 of Article
XV."
In Proclamation No. 1102, issued on January 17,

1973, the President of the Philippines certified
that as a result of the voting before the barangays
(Citizens Assemblies) 14,976,561 members of the
barangays voted for the adoption of the proposed
Constitution, as against 743,869 who voted for its
rejection, and on the basis of the overwhelming
majority of the votes cast by the members of all
520
the barangays throughout the Philippines, the

President proclaimed that the Constitution
proposed by the 1971 Convention has been
ratified and has thereby come into effect.
It is very plain from the very wordings of

Proclamation No. 1102 that the provisions of
Section 1 of Article XV of the Constitution of 1935
were not complied with. It is not necessary that
evidence be produced before this Court to show
that no elections were held in accordance with
the provisions of the Election Code. Proclamation
No. 1102 unequivocally states that the proposed
Constitution of 1972 was voted upon by the
barangays. It is very clear, therefore, that the
voting held in these barangays is not the election
contemplated in the provisions of Section 1,
Article XV, of the 1935 Constitution. The election
contemplated in said constitutional provision is an
election held in accordance with the provisions of
the election law, where only the qualified and
registered voters of the country would cast their
votes, where official ballots prepared for the
purpose are used, where the voters would
prepare their ballots in secret inside the voting
booths in the polling places established in the
different election precincts throughout the
country, where the election is conducted by
election inspectors duly appointed in accordance
with the election law, where the votes are
canvassed and reported in a manner provided for
in the election law. It was this kind of election that
was held on May 14, 1935, when the Constitution
of 1935 was ratified; on April 30, 1937, when the
amendment to the Constitution providing for
Women's Suffrage was ratified; on June 18, 1940,
when the 1940 Amendments to the Constitution
521
were ratified; on March 11, 1947 when the Parity

Amendment to the Constitution was ratified; and
on November 14, 1967 when the amendments to
the Constitution to increase the number of
Members of the House of Representatives and to
allow the Members of Congress to run in the
elections for Delegates to the Constitutional
Convention of 1971 were rejected.
I cannot see any valid reason why the practice or

procedure in the past, in implementing the
constitutional provision requiring the holding, of
an election to ratify or reject an amendment to
the Constitution, has not been followed in the
case of the Constitution proposed by the 1971
Constitutional Convention.
It is my view that the President of the Philippines

cannot by decree order the ratification of the
proposed 1972 Constitution thru a voting in the
barangays and make said result the basis for
proclaiming the ratification of the proposed
constitution. It is very clear, to me, that
Proclamation No. 1102 was issued in complete
disregard or in violation, of the provisions of
Section 1 of Article X of the 1935 Constitution.
Proclamation No. 1102 mentions, furthermore,

that on the question as to whether or not the
ratify the new Constitution, 14,298,814 members
of the barangays answered that there was no
need for a plebiscite but that the vote of the
barangays should be considered a vote in a
plebiscite. It would thus appear that the
barangays assumed the power to determine
522
whether a plebiscite as ordained in the

Constitution be held or not. Indeed, the provision
of Section 1, Article XV of the Constitution was
completely disregarded.
The affirmative votes cast in the barangays are not

the votes contemplated in Section 1 of Article XV
of the 1935 Constitution. The votes contemplated
in said constitutional provision are votes obtained
through the election processes as provided by
law.
"An election is the embodiment

of the popular will, the
expression of the sovereign
power of the people. In common
parlance, an election is the act of
casting and receiving the ballots,
counting them, and making the
return." (Hontiveros vs. Altavas,
24 Phil. 632, 637).
"Election" implies a choice by an

electoral body at the time and
substantially in the manner and
with the safeguards provided by
law with respect to some
question or issue. (Leffel v.
Brown, Com. P1., 159 N.E. 2d
807, 808 cited in 29 C.J.S. 13 at
footnote 6.5).
"... the statutory method

whereby qualified voters or
electors pass on various public
matters submitted to them — the
523
election of officers, national,

state, county, township — the
passing on various other
questions submitted for their
determination." (29 C.J.S. 13,
citing Iowa-Illinois Gas & Elec. Co.
v. City of Bettendorf, 41 N.W. 2d
1, 5, 241 Iowa 358).
"Election" is expression of choice

by voters of body politic.
(Ginsburg v. Giles, 72 S.W. 2d
438, 254 Ky. 720, in Words and
Phrases, Permanent Edition, p.
234).
"The right to vote may be

exercised only on compliance
with such statutory requirements
as have been set by the
legislature." (People ex rel. Rago
v. Lipsky, 63 N.E. 2d 642, 327 III.
App. 63; Rothfels v. Southworth,
356 P. 2d 612, 11 Utah 2d 169 in
29 C.J.S. 38). (Emphasis supplied).
In this connection I herein quote the pertinent

provisions of the Election Code of 1971:
"Sec. 2. Applicability of this Act. — All elections of

public officers except barrio officials and
plebiscites shall be conducted in the manner
provided by this Code."
"Sec 99. Necessity of registration to be entitled to

vote. — In order that a qualified voter may vote in
524
any regular or special election or in any plebiscite,

he must be registered in the permanent list of
voters for the city, municipality or municipal
district in which he resides: Provided, that no
person shall register more than once without first
applying for cancellation of his previous
registration." (Emphasis supplied). (Please see also
Sections 100-102, Election Code of 1971, R.A. No.
6388)
It is stated in Proclamation No. 1102 that the

voting was done by the members of citizens
assemblies who are 15 years of age or over. Under
the provision of Section I of Article V of the 1935
Constitution, the age requirement to be a
qualified voter is 21 years or over.
But what is more noteworthy is the fact that the

voting in the barangays, except in very few
instances, was done by the raising of hands by the
persons indiscriminately gathered to participate in
the voting, where even children below 15 years of
age were included. This is a matter of common
observation, or of common knowledge, which the
Court may take judicial notice of. To consider the
votes in the barangays as expressive of the
popular will and use them as the basis in declaring
whether a Constitution is ratified or rejected is to
resort to a voting by demonstrations, which is
would mean the rule of the crowd, which is only
one degree higher than the rule by the mob.
Certainly, so important a question as to whether
the Constitution, which is the supreme law of the
land, should be ratified or not, must not be
decided by simply gathering people and asking
them to raise their hands in answer to the
525
question of whether the vote for or against a

proposed Constitution. The election as provided
by law should be strictly observed in determining
the will of the sovereign people in a democracy. In
our Republic, the will of the people must be
expressed through the ballot in a manner that is
provided by law.
It is said that in a democracy, the will of the

people is the supreme law. Indeed, the people are
sovereign, but the will of the people must be
expressed in a manner as the law and the
demands a well-ordered society require. The rule
of law must prevail even over the apparent will of
the majority of the people, if that will had not
been expressed, or obtained, in accordance with
the law. Under the rule of law, public questions
must be decided in accordance with the
Constitution and the law. This is specially true in
the case of adoption of a constitution or in the
ratification of an amendment to the Constitution.
The following citations are, to me, very relevant in

the effort to determine whether the proposed
Constitution of 1972 had been validly ratified, or
not:
"When it is said that "the people"

have the right to alter or amend
the constitution, it must not be
understood that term necessarily
includes all the inhabitants of the
state. Since the question of the
adoption or rejection of a
proposed new constitution or
constitutional amendment must
526
be answered a vote, the

determination of it rests with
those who, by existing
constitution, are accorded the
right of suffrage. But the
qualified electors must be
understood in this, as in many
other cases, as representing
those who have not the right to
participate in the ballot. If a
constitution should be abrogated
and a new one adopted, by the
whole mass of people in a state
acting through representatives
not chosen by the "people" in
political sense of the term, but by
the general body of the
populace, the movement would
be extra-legal." (BIack's
Constitutional Law, Second
Edition, pp. 47-48).
"The theory of our political

system is that the ultimate
sovereignty is in the people, from
whom springs all legitimate
authority. The people of the
Union created a national
constitution, and conferred upon
it powers of sovereignty on
certain subjects, and the people
of each State created a State
government, to exercise the
remaining powers of sovereignty
so far as they were disposed to
allow them to be exercised at all.
By the constitution which they
527
establish, they not only tie up the

hands of their official agencies,
but their own hands as well; and
neither the officers of the State,
nor the whole people as an
aggregate body, are at liberty to
take action in opposition to this
fundamental law." (Cooley's
Constitutional Limitations, 8th
Edition, Vol. I, p. 81 cited in
Graham v. Jones, 3 So. 2d. 761,
782).
"The theory that a favorable vote

by the electorate, however
unanimous, on a proposal to
amend a constitution, may cure,
render innocuous, all or any
antecedent failures to observe
commands of that Constitution in
respect of the formulation or
submission of proposed
amendments thereto, does not
prevail in Alabama, where the
doctrine of the stated theory was
denied, in obvious effect, by the
pronouncement 60 years ago of
broad, wholesome constitutional
principles in Collier v.
Frierson, supra, as quoted in the
original opinion, ante. The people
themselves are bound by the
Constitution; and, being so
bound, are powerless, whatever
their numbers, to change or
thwart its mandates, except
through the peaceful means of a
528
constitutional convention, or of
an amendment according to the
mode therein prescribed, or
through the exertion of the
original right of revolution. "The
Constitution may be set aside by
revolution, but it can only be
amended in the way it provides,"
said Hobson, C.J., in McCreary v.
Speer, 156 Ky. 783, 791, 162 S.W.
99, 103. (Johnson vs. Craft, et al.,
87 So. 375, 385, 387, On
Rehearing).
"The fact that a majority voted

for the amendment, unless the
vote was taken as provided by
the Constitution, is not sufficient
to make a change in that
instrument. Whether a proposed
amendment has been legally
adopted is a judicial question, for
the court must uphold and
enforce the Constitution as
written until it is amended in the
way which it provides for."Wood
v. Tooker, 15 Mont. 8, 37 Pac
840, 25 L.R.A. 560; McConaughty
v. State, 106 Minn. 409, 119 N.W.
408; Oakland Paving Company v.
Hilton, 69 Cal. 499, 11 Pac.
3; Utter v. Mosely, 16 Idaho 274,
100 Pac. 1958, 133 Am. St. Rep.
94, 18 Ann. Cas. 723. (McCreary
v. Speer, 162 S.W. 99, 104).
529
"Provisions of a constitution
regulating its own
amendment, ... are not merely
directory, but are mandatory;
and a strict observance of every
substantial mandatory; and a
strict observance of every
substantial requirement is
essential to the validity of the
proposed amendment. These
provisions are as binding on the
people as on the legislature, and
the former are powerless by vote
of acceptance to give legal
sanction to an amendment the
submission of which was made in
disregard of the limitations
contained in the constitution."
(16 C.J.S. 35-36. cited in Graham
v. Jones, 3 So. 2d 761, 782).
"It is said that chaos and

confusion in the government
affairs of the State will result
from the Court's action in
declaring the proposed
constitutional amendment void.
This statement is grossly and
manifestly inaccurate. If
confusion and chaos should
ensue, it will not be due to the
action of the Court but will be
the result of the failure of the
drafters joint resolution to
observe, follow and obey the
plain essential provisions of the
Constitution. Furthermore, to say
530
that, the Court disregards its

sworn duty to enforce the
Constitution, chaos and
confusion will result, is an
inherently weak argument in
favor of the alleged
constitutionality of the proposed
amendment. It is obvious that, if
the Court were to countenance
the violations of the sacramental
provisions Constitution, those
who would thereafter desire to
violate it disregard its clear
mandatory provisions would
resort to the scheme of involving
and confusing the affairs of the
State then simply tell the Court
that it was powerless to exercise
one of its primary functions by
rendering the proper decree to
make the Constitution effective."
(Graham v. Jones, 3 So. 2d. 761,
793-794).
In our jurisprudence I find an instance where this

Court did not allow the will of the majority to
prevail, because the requirements of the law were
not complied with. In the case of Monsale v. Nico,
83 Phil. 758, Monsale and Nico were both
candidates for the office of Municipal Mayor of
Miagao, Iloilo, in the elections of November 11,
1947. Monsale had duly filed his certificate of
candidacy before the expiration of the period for
the filing of the same. However, on October 10,
1947, after the period for the filing of the
certificate of candidacy, Monsale withdrew his
certificate of candidacy. But on November 7, 1947
531
Monsale attempted to revive his certificate of

candidacy by withdrawing the withdrawal of
certificate of candidacy. The Commission on
Elections, November 8, 1947, ruled that Monsale
could no longer be a candidate. Monsale
nevertheless proceeded with his candidacy. The
boards of inspectors in Miagao, however, did not
count the votes cast for Monsale upon the ground
that the votes cast for him were stray votes,
because he was considered as having no
certificate of candidacy. On the other hand, the
boards of inspectors credited Nico with 2,291
votes, and Nico was proclaimed elected. Monsale
filed a protest against the election of Nico in the
Court of First Instance of Iloilo. In the count of the
ballots during the proceedings in the trial court, it
appeared that Monsale had obtained 2,877 votes
while Nico obtained 2,276 votes, or a margin of
601 votes in favor of Monsale. The Court of First
Instance of Iloilo decided the election protest in
favor of Monsale. Upon appeal by Nico, this Court
reversed the decision of the lower court. This
Court declared that because Monsale withdrew
his certificate of candidacy, his attempt to revive it
by withdrawing his withdrawal of his certificate of
candidacy did not restore the effectiveness of his
certificate of candidacy, and this Court declared
Nico the winner in spite of the fact that Monsale
had obtained more votes than he.
We have cited this Monsale case to show that the

will of the majority of the voters would not be
given effect, as declared by this Court, if certain
legal requirements have not been complied with
in order to render the votes valid and effective to
decide the result of an election.
532
And so, in the cases now before this Court, the

fact that the voting in the citizens assemblies
(barangays) is not the election that is provided for
in the 1935 Constitution for the ratification of the
amendment to the Constitution, the affirmative
votes cast in those assemblies can not be made
the basis for declaring the ratification of the
proposed 1972 Constitution, in spite of the fact
that it was reported that 14,976,561 members of
the citizens assemblies voted for the adoption as
against 743,869 for the rejection, because the
votes thus obtained were not in accordance with
1935 Constitution of the Philippines. The rule of
law mast be upheld.
My last observation: One of the valid grounds

against the holding of the plebiscite on January
15, 1973, as provided in Presidential Decree No.
73, is that there is no freedom on the part of the
people to exercise their right of choice because of
the existence of martial law in our country. The
same ground holds true as regards to the voting of
the barangays on January 10 to 15, 1973. More so,
because by General Order No. 20, issued on
January 7, 1973, the President of the Philippines
ordered "that the provisions of Section 3 of
Presidential Decree No. 73 in so far as they allow
free public discussion of the proposed
constitution, as well as my order of December 17,
1972 temporarily suspending the effects of
Proclamation No. 1081 for the purpose of free and
open debate on the proposed constitution, be
suspended in the meantime." It is, therefore, my
view that voting in the barangays on January 10,
1973 was not free, and so this is one added
reason why the results of the voting in the
533
barangays should not be made the basis for

proclamation of the ratification of the proposed
Constitution.
It is my view, therefore, that Proclamation No.

1102 repugnant to the 1935 Constitution, and so
it is invalid, and should not be given effect. The
Constitution of 1972 proposed by the 1971
Constitutional Convention should be considered
as not yet ratified by the people of this Republic,
and so it should not be given force and effect.
It is urged by the Solicitor General, however, that the voting in the citizens
assemblies was a substantial compliance with the provisions of Article XV of
the 1935 Constitution. The Solicitor General maintains that the primary
thrust of the provision of Article XV of the 1935 Constitution is that "to be
valid, amendments must gain the approval of the majority recognition of
the democratic postulate that sovereign resides in the people." It is not
disputed that in a democratic sovereignty resides in the people. But the
term "people" must be understood in its constitutional meaning, and they
are "those persons who are permitted by the Constitution to exercise the
elective franchise." 8 Thus, in Section 2 of Article VII of the 1935
Constitution, it is provided that "the President shall hold his office during a
term of four years and, together with the Vice-President chosen for the
same term, shall be elected by direct vote of the people..." Certainly under
that constitutional provision, the "people" who elect directly the President
and the Vice-President are no other than the persons who, under the
provisions of the same Constitution, are granted the right to vote. In like
manner the provision in Section 1 of Article II of the 1935 Constitution
which says "Sovereignty resides in the people and all government authority
emanates from them", the "people" who exercise the sovereign power are
no other than the persons who have the right to vote under the
Constitution. In the case of Garchitorena vs. Crescini 9, this Court, speaking
through Mr. Justice Johnson, said, "In democracies, the people, combined,
represent the sovereign power of the State. Their sovereign authority is
expressed through the ballot, of the qualified voters, in duly appointed
534
elections held from time to time, by means of which they choose their
officials for definite fixed periods, and to whom they entrust, for the time
being, as their representatives, the exercise of the powers of government."
In the case of Moya v. Del Fierro, 10 this Court, speaking through Mr. Justice
Laurel, said, "As long as popular government is an end to be achieved and
safeguarded, suffrage, whatever may be the modality and form devised,
must continue to be the means by which the great reservoir of power must
be emptied into the receptacular agencies wrought by the people through
their Constitution in the interest of good government and the common
weal. Republicanism, in so far as it implies the adoption of a representative
type of government, necessarily points to the enfranchised citizen as a
particle of popular sovereignty and as the ultimate source of the
established authority." And in the case of Abanil v. Justice of the Peace of
Bacolod, 11 this Court said: "In the scheme of our present republican
government, the people are allowed to have a voice therein through the
instrumentality of suffrage to be availed of by those possessing certain
prescribed qualifications. The people, in clothing a citizen with the elective
franchise for the purpose of securing a consistent and perpetual
administration of the government they ordain, charge him with the
performance of a duty in the nature of a public trust, and in that
respect constitute him a representative of the whole people. This duty
requires that the privilege thus bestowed exclusively for the benefit of the
citizen or class of citizens professing it, but in good faith and with an
intelligent zeal for the general benefit and welfare of the state. (U.S. v.
Cruikshauk, 92 U.S. 588)..." There is no question, therefore, that when we
talk of sovereign people, what is meant are the people who act through the
duly qualified and registered voters who vote during an election that is held
as provided in the Constitution or in the law.
The term "election" as used in Section 1 of Article XV of the 1935

Constitution should be construed along with the term "election" as used in
the Provisions of Section 4 of the Philippine Independence Act of the
Congress of the United States, popularly known as the Tydings-McDuffie
Law (Public Act No. 127). Said Section 4 of the Tydings-McDuffie Law
provides as follows:
535
Section 4. After the President of the United States

certified that the constitution conforms with the
provisions of this act, it shall be submitted to the
people of the Philippine Islands for their
ratification or rejection at an election to he held
within months after the date of such certification,
on a date to be fixed by the Philippine
Legislature at which election, the qualified voters
of the Philippine Islands shall have an opportunity
to vote directly or against the proposed
constitution and ordinances append thereto. Such
election shall be held in such manner as may
prescribed by the Philippine Legislature to which
the return of the election shall be made. The
Philippine Legislature shall certify the result to the
Governor-General of the Philippine Islands,
together with a statement of the votes cast, and a
copy of said constitution ordinances. If a majority
of the votes cast shall be for the constitution, such
vote shall be deemed an expression of the will of
the people of the Philippine Independence, and
the Governor-General shall, within thirty days
after receipt of the certification from the
Philippine Legislature, issue a proclamation for
the election of officers of the government of the
Commonwealth of the Philippine Islands provided
for in the Constitution...
It can safely be said, therefore, that when the framers of the 1935
Constitution used, the word "election" in Section I Article XV of the 1935
Constitution they had no other idea in mind except the elections that were
periodically held in the Philippines for the choice of public officials prior to
the drafting of the 1935 Constitution, and also the "election" mentioned in
the Independence Act at which "the qualified voters of the Philippine
Islands shall have an opportunity to vote directly for or against the
proposed constitution..." It is but logical to expect that the framers of the
536
1935 Constitution would provide a mode of ratifying an amendment to that

Constitution similar to the mode of ratifying the original Constitution itself.
It is clear therefore, that the ratification or any amendment to the 1935

Constitution could only be done by holding an election, as the term
"election" was understood, and practiced, when the 1935 Constitution as
drafted. The alleged referendum in the citizens assemblies — participated
in by persons aged 15 years or more, regardless of whether they were
qualified voters or not, voting by raising their hands, and the results of the
voting reported by the barrio or ward captain, to the municipal mayor, who
in turn submitted the report to the provincial Governor, and the latter
forwarding the reports to the Department of Local Governments, all
without the intervention of the Commission on Elections which is the
constitutional body which has exclusive charge of the enforcement and
administration of all laws, relative to the conduct of elections — was not
only a non-substantial compliance with the provisions of Section 1 of Article
XV of the 1935 Constitution but a downright violation of said constitutional
provision. It would be indulging in sophistry to maintain that the voting in
the citizens assemblies amounted to a substantial compliance with the
requirements prescribed in Section 1 of Article XV of the 1935 Constitution.
It is further contended by the Solicitor General, that even if the Constitution

proposed by the 1971 Constitutional Convention was not ratified in
accordance with the provisions of Section 1 of Article XV of the 1935
Constitution, the fact is that after the President of the Philippines had
issued Proclamation No. 1102 declaring that the said proposed Constitution
"has been ratified by overwhelming majority of all the votes cast by the
members of all the barangays (citizens assemblies) throughout the
Philippines and had thereby come into effect" the people have accepted
the new Constitution. What appears to me, however, is that practically it is
only the officials and employees under the executive department of the
Government who have been performing their duties apparently in
observance of the provisions of the new Constitution. It could not be
otherwise, because the President of the Philippines, who is the head of the
executive department, had proclaimed that the new Constitution had come
into effect, and his office had taken the steps to implement the provisions
537
of the new Constitution. True it is, that some 92 members of the House of
Representatives and 15 members of the Senate, of the Congress of the
Philippines had expressed their option to serve in the interim National
Assembly that is provided for in Section 2 of Article XVII of the proposed
Constitution. It must be noted, however, that of the 15 senators who
expressed their option to serve in the interim National Assembly only one
them took his oath of office; and of the 92 members of the House of
Representatives who opted to serve in the interim National Assembly, only
22 took their oath of office. The fact that only one Senator out of 24, and
only 22 Representative out of 110, took their oath of office, is an indication
that only a small portion of the members of Congress had manifested the
acceptance of the new Constitution. It is in the taking of the oath of office
where the affiant says that he swears to "support and defend the
Constitution" that the acceptance of the Constitution is made manifest. I
agree with counsel petitioners in L-36165 (Gerardo Roxas, et al. v.
Alejandro Melchor, et al.) when he said that the members of Congress who
opted to serve in the interim National Assembly did only ex abundante
cautela, or by way of a precaution, making sure, that in the event the new
Constitution becomes definitely effective and the interim National
Assembly convened, they can participate in legislative work in the capacity
as duly elected representatives of the people, which otherwise they could
not do if they did not manifest their option to serve, and that option had to
be made within 30 day from January 17, 1973, the date when Proclamation
No. 110 was issued. Of course, if the proposed Constitution does not
become effective, they continue to be members of Congress under the
1935 Constitution. Let it be considered that the members of the House of
Representatives were elected in 1969 to serve a term which will yet expire
on December 31, 1973. Whereas, of the Senators who opted to serve in the
interim National Assembly, the term of some of them will yet expire on
December 31, 1973, some on December 31, 1975, and the rest on
December 31, 1977. Let if be noted that 9 Senators did not opt to serve in
the interim National Assembly, and 18 members of the House of
Representatives also did not opt to serve in the interim National Assembly.
Neither can it be said that the people have accepted the new Constitution. I
cannot, in conscience, accept the reported affirmative votes in the citizens
assemblies as a true and correct expression by the people of their approval,
538
or acceptance, of the proposed Constitution. I have my serious doubts

regarding the freedom of the people to express their views regarding the
proposed Constitution during the voting in the citizens assemblies, and I
have also my serious doubts regarding the truthfulness and accuracy of the
reports of the voting in the citizens assemblies. This doubt has been
engendered in my mind after a careful examination and study of the
records of these cases, particularly with respect to the reports of the voting
in the citizens assemblies. Perhaps, it may be said that the people, or the
inhabitants of this country, have acquiesced to the new Constitution, in the
sense that they have continued to live peacefully and orderly under the
government that has been existing since January 17, 1973 when it was
proclaimed that the new Constitution came into effect. But what could the
people do? In the same way that the people have lived under martial law
since September 23, 1972, they also have to live under the government as
it now exists, and as it has existed since the declaration of martial law on
September 21, 1972, regardless of what Constitution is operative —
whether it is the 1935 Constitution or the new Constitution. Indeed, there
is nothing that the people can do under the circumstances actually
prevailing in our country today — circumstances, known to all, and which I
do not consider necessary to state in this opinion. I cannot agree, therefore,
with my worthy colleagues in the Court who hold the view that the people
have accepted the new Constitution, and that because the people have
accepted it, the new Constitution should be considered as in force,
regardless of the fact that it was not ratified in accordance with the
provisions of Section 1 of Article XV of the 1935 Constitution.
It is my honest view that the Constitution proposed by the 1971

Constitutional Convention has not come into effect. I do not say, however,
that the proposed Constitution is invalid. To me, the validity of the
proposed Constitution is not in issue in the cases before Us. What the
petitioners assail is not the validity of the proposed Constitution but the
validity of Presidential Proclamation No. 1102 which declares the proposed
Constitution as having been ratified and has come into effect. It being my
considered view that the ratification of the proposed Constitution, as
proclaimed in Proclamation No. 1102, is not in accordance with the
provisions of Section 1 of Article XV, of the 1935 Constitution, I hold that
Proclamation No. 1102 is invalid and should not be given force and effect.
539
Their proposed Constitution, therefore, should be considered as not yet

validly ratified, and so it is not in force. The proposed Constitution may still
be submitted to a plebiscite in conformity with Section 1 of Article XV of the
1935 Constitution. Incidentally, I must state that the Constitution is still in
force, and this Court is still functioning under the 1935 Constitution.
I sincerely believe that the proposed Constitution may still be submitted to

the people in an election or plebiscite held in accordance with the
provisions of Section 1 of Article XV of the 1935 Constitution. In fact, as we
have adverted to in this opinion, this was the mandate of Congress when,
on March 16, 1967, it passed Resolution No. 2 calling a convention to
propose amendments to the 1935 Constitution. The Court may take judicial
notice of the fact that the President of the Philippines has reassured the
nation that the government of our Republic since the declaration of martial
law is not a revolutionary government, and that he has been acting all the
way in consonance with his powers under the Constitution. The people of
this Republic has reason to be happy because, according to the President,
we still have a constitutional government. It being my view that the 1935
Constitution is still in force, I believe Congress may still convene and pass a
law calling for an election at which the Constitution proposed by the 1971
Constitutional Convention will be submitted to the people their ratification
or rejection. A plebiscite called pursuant to Section 1 of Article XV of the
1935 Constitution is an assurance to our people that we still have in our
country the Rule of Law and that the democratic system of government
that has been implanted in our country by the Americans, and which has
become part of our social and political fabric, is still a reality.
The views that I have expressed in this opinion are inspired by a desire on
my part to bring about stability in democratic and constitutional system in
our country. I feel that if this Court would give its imprimatur to the
ratification of the proposed Constitution, as announced in Proclamation No.
1102, it being very clear that the provisions of Section 1 of Article XV of the
1935 Constitution had not been complied with, We will be opening the
gates for a similar disregard of the Constitution in the future. What I mean
is that if this Court now declares that a new Constitution is now in force
because the members of the citizens assemblies had approved the said new
540
Constitution, although that approval was not in accordance with the

procedure and the requirements prescribed in the 1935 Constitution, it can
happen again in some future time that some amendments to the
Constitution may be adopted, even in a manner contrary to the existing
Constitution and the law, and then said proposed amendment is submitted
to the people in any manner and what will matter is that a basis is claimed
that there was approval by the people. There will not be stability in our
constitutional system, and necessarily no stability in our government. As a
member of this Court I only wish to contribute my humble efforts to
prevent the happening of such a situation in the future.
It appearing to me that the announced ratification of the proposed

Constitution through the voting in the citizens assemblies is a clear violation
of the 1935 Constitution, what I say in this opinion is simply an endeavor on
my part to be true to my oath of office to defend and support the 1935
Constitution. I am inspired by what the great jurist and statesman, Jose P.
Laurel, said:
Let our judges be as it were the vestal keepers of

the purity and sanctity of our Constitution, and
the protection and vindication of popular rights
will be safe and secure in their reverential
guardianship.
I only wish to help prevent, if I can, democracy and the liberties of our
people from vanishing in our land, because, as Justice George Sutherland of
the U. S. Supreme Court said:
(t)he saddest epitaph which can be carved in

memory of a vanished liberty is that it was lost
because its possessors failed to stretch forth a
saving hand while yet there was time.
I concur fully with the personal views expressed by the Chief Justice in the
opinion that he has written in these cases. Along with him, I vote to deny
the motion to dismiss and give due course to the petitions in these cases.
541
No question more momentous, none impressed with such transcendental

significance is likely to confront this Court in the near or distant future as
that posed by these petitions. For while the specific substantive issue is the
validity of Presidential Proclamation No. 1102, an adverse judgment may be
fraught with consequences that, to say the least, are far-reaching in its
implications. As stressed by respondents, "what petitioners really seek to
invalidate is the new Constitution." 1 Strict accuracy would of course qualify
such statement that what is in dispute, as noted in the opinion of the Chief
Justice, goes only as far as the validity of its ratification. It could very well
be though that the ultimate outcome is not confined within such limit, and
this is not to deny that under its aegis, there have been marked gains in the
social and economic sphere, but given the premise of continuity in a regime
under a fundamental law, which itself explicitly recognizes the need for
change and the process for bringing it about, 2 it seems to me that the more
appropriate course is this Court to give heed to the plea of petitioners that
the most serious attention be paid to their submission that the challenged
executive act fails to meet the test of constitutionality. Under the
circumstances, with regret and with due respect for the opinion of my
brethren, I must perforce dissent. It would follow therefore that the legal
position taken by the Chief Justice as set forth with his usual lucidity and
thoroughness has, on the whole, my concurrence, subject, of course, to
reservations insofar as it contains views and nuances to which I have in the
past expressed doubts. Nonetheless, I feel that a brief expression of the
reasons for the stand I take would not be amiss.
In coping with its responsibility arising from the function of judicial review,
this Court is not expected to be an oracle given to utterances of eternal
verities, but certainly it is more than just a keen but passive observer of the
contemporary scene. It is, by virtue of its role under the separation of
powers concept, involved not necessarily as a participant in the formation
of government policy, but as an arbiter of its legality. Even then, there is
realism in what Lerner did say about the American Supreme Court as "the
focal point of a set of dynamic forces which [could play] havoc with the
landmarks of the American state and determine the power configuration of
542
the day." 3 That is why there is this caveat. In the United States as here, the
exercise of the power of judicial review is conditioned on the necessity that
the decision of a case or controversy before it so requires. To repeat, the
Justices of the highest tribunal are not, as Justice Frankfurter made clear,
"architects of policy. They can nullify the policy of others, they are
incapable of fashioning their own solutions for social
problems." 4 Nonetheless, as was stressed by Professors Black 5 and
Murphy,6 a Supreme Court by the conclusion it reaches and the decision it
renders does not merely check the coordinate branches, but also by its
approval stamps with legitimacy the action taken. Thus in affirming
constitutional supremacy, the political departments could seek the aid of
the judiciary. For the assent it gives to what has been done conduces to its
support in a regime where the rule of law holds sway. In discharging such a
role, this Court must necessarily take in account not only what the exigent
needs of the present demand but what may lie ahead in the unexplored
and unknown vistas of the future. It must guard against the pitfall of lack of
understanding of the dominant forces at work to seek a better life for all,
especially those suffering from the pangs of poverty and disease, by a blind
determination to adhere to the status quo. It would be tragic, and a clear
case of its being recreant to its trust, if the suspicion can with reason be
entertained that its approach amounts merely to a militant vigilantism that
is violently opposed to any form of social change. It follows then that it
does not suffice that recourse be had only to what passes for scholarship in
the law that could be marred by inapplicable erudition and narrow
legalism. Even with due recognition, such factors, however, I cannot, for
reasons to be set more lengthily and in the light of the opinion of the Chief
Justice, reach the same result as the majority of my brethren. For, in the
last analysis, it is my firm conviction that the institution of judicial review
speaks too clearly for the point to be missed that official action, even with
due allowance made for the good faith that invariably inspires the step
taken, has to face the gauntlet of a court suit whenever there is a proper
case with the appropriate parties.
1. Respondents are acting in the soundest constitutional tradition when, at

the outset, they would seek a dismissal of these petitions. For them, the
question raised is political and thus beyond the jurisdiction of this Court.
Such an approach cannot be indicted for unorthodoxy. It is implicit in the
543
concept of the rule of law that rights belong to the people and the
government possesses powers only. Essentially then, unless such an
authority may either be predicated on express or implied grant in the
Constitution or the statutes, an exercise thereof cannot survive an inquiry
as to its validity. Respondents through Solicitor-General Mendoza would
deny our competence to proceed further. It is their view, vigorously
pressed and plausibly asserted, that since what is involved is not merely the
effectivity of an amendment but the actual coming into effect of a new
constitution, the matter is not justiciable. The immediate reaction is that
such a contention is to be tested in the light of the fundamental doctrine of
separation of powers that it is not only the function but the solemn duty of
the judiciary to determine what the law is and to apply it in cases and
controversies that call for decision. 7 Since the Constitution pre-eminently
occupies the highest rung in the hierarchy of legal norms, it is in the
judiciary, ultimately this Tribunal, that such a responsibility is vested. With
the 1935 Constitution containing, as above noted, an explicit article on the
subject of amendments, it would follow that the presumption to be
indulged in is that the question of whether there has been deference to its
terms is for this Court to pass upon. What is more, the
Gonzales, 8 Tolentino 9 and Planas 10 cases speak unequivocally to that effect.
Nor is it a valid objection to this conclusion that what was involved in those
cases was the legality of the submission and not ratification, for from the
very language of the controlling article, the two vital steps are proposal and
ratification, which as pointed out in Dillon v. Gloss, 11 "cannot be treated as
unrelated acts, but as succeeding steps in a single endeavor." 12 Once an
aspect thereof is viewed as judicial, there would be no justification for
considering the rest as devoid of that character. It would be for me then an
indefensible retreat, deriving no justification from circumstances of weight
and gravity, if this Court were to accede to what is sought by respondents
and rule that the question before us is political.
On this point, it may not be inappropriate to refer to a separate opinion of

mine in Lansang v. Garcia. 13 Thus: "The term has been made applicable to
controversies clearly non-judicial and therefore beyond its jurisdiction or to
an issue involved in a case appropriately subject to its cognizance, as to
which there has been a prior legislative or executive determination to
which deference must be paid. It has likewise been employed loosely to
544
characterize a suit where the party proceeded against is the President or

Congress, or any branch thereof. If to be delimited with accuracy, "political
questions" should refer to such as would under the Constitution be decided
by the people in their sovereign capacity or in regard to full discretionary
authority is vested either in the President or Congress. It is thus beyond the
competence of the judiciary to pass upon. Unless clearly falling within the
formulation, the decision reached by the political branches whether in the
form of a congressional act or an executive order could be tested in court.
Where private rights are affected, the judiciary has no choice but to look
into its validity. It is not to be lost sight of that such a power comes into
play if there be an appropriate proceeding that may be filed only after each
coordinate branch has acted. Even when the Presidency or Congress
possesses plenary powers, its improvident exercise or the abuse thereof, if
shown, may give rise to a justiciable controversy. For the constitutional
grant of authority is usually unrestricted. There are limits to what may be
done and how it is to be accomplished. Necessarily then, the courts in the
proper exercise of judicial review could inquire into the question of
whether or not either of the two coordinate branches has adhered to what
is laid down by the Constitution. The question thus posed is judicial rather
than political."14 The view entertained by Professor Dodd is not too
dissimilar. For him such a term "is employed to designate certain types of
functions committed to the political organs of government (the legislative
and executive departments, or either of them) and not subject to judicial
investigation." 15 After a thorough study of American judicial decisions, both
federal and state, he could conclude: "The field of judicial nonenforceability
is important, but is not large when contrasted with the whole body of
written constitutional texts. The exceptions from judicial enforceability fall
primarily within the field of public or governmental interests." 16 Nor was
Professor Weston's formulation any different. As was expressed by him:
"Judicial questions, in what may be thought the more useful sense, are
those which the sovereign has set to be decided in the courts. Political
questions, similarly, are those which the sovereign has entrusted to the so-
its own extra-governmental action." 17 What appears undeniable then both
from the standpoint of Philippine as well as American decisions is the care
and circumspection required before the conclusion is warranted that the
545
matter at issue is beyond judicial cognizance, a political question being

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

admittedly one of complexity and importance, deserves to be pursued
further. They would derive much aid and comfort from the writings of both
Professor Bickel 18of Yale and Professor Freund 19 of Harvard, both of whom
in turn are unabashed admirers of Justice Brandeis. Whatever be the merit
inherent in their lack of enthusiasm for a more active and positive role that
must be played by the United States Supreme Court in constitutional
litigation, it must be judged in the light of our own history. It cannot be
denied that from the well nigh four decades of constitutionalism in the
Philippines, even discounting an almost similar period of time dating from
the inception of American sovereignty, there has sprung a tradition of what
has been aptly termed as judicial activism. Such an approach could be
traced to the valedictory address before the 1935 Constitutional
Convention of Claro M. Recto. He spoke of the trust reposed in the judiciary
in these words: "It is one of the paradoxes of democracy that the people at
times place more confidence in instrumentalities of the State other than
those directly chosen by them for the exercise of their sovereignty." 20 It
would thus appear that even then this Court was expected not to assume
an attitude of timidity and hesitancy when a constitutional question is
posed. There was the assumption of course that it would face up to such a
task, without regard to political considerations and with no thought except
that of discharging its trust. Witness these words Justice Laurel in an early
landmark case, People v. Vera, 21 decided in 1937: "If it is ever necessary for
us to make vehement affirmance during this formative period of political
history, it is that we are independent of the Executive no less than of the
Legislative department of our government — independent in the
performance of our functions, undeterred by any consideration, free from
politics, indifferent to popularity, and unafraid of criticism in the
accomplishment of our sworn duty as we see it and as we understand
it." 22 The hope of course was that such assertion of independence
impartiality was not mere rhetoric. That is a matter more appropriately left
to others to determine. It suffices to stake that what elicits approval on the
part of our people of a judiciary ever alert to inquire into alleged breaches
of the fundamental law is the realization that to do so is merely to do what
546
is expected of it and that thereby there is no invasion of spheres

appropriately belonging to the political branches. For it needs to be kept in
kind always that it can act only when there is a suit with proper parties
before it, wherein rights appropriate for judicial enforcement are sought to
be vindicated. Then, too, it does not approach constitutional questions with
dogmatism or apodictic certainty nor view them from the shining cliffs of
perfection. This is not to say though that it is satisfied with an empiricism
untroubled by the search for jural consistency and rational coherence. A
balance has to be struck. So juridical realism requires. Once allowance
made that for all its care and circumspection this Court manned by human
beings fettered by fallibility, nonetheless earnestly and sincerely striving to
do right, the public acceptance of its vigorous pursuit of the task of assuring
that the Constitution be obeyed is easy to understand. It has not in the past
shirked its responsibility to ascertain whether there has been compliance
with and fidelity to constitutional requirements. Such is the teaching of a
host of cases from Angara v. Electoral
Commission 23 to Planas v. Commission on Elections. 24 It should continue to
exercise its jurisdiction, even in the face of a plausible but not sufficiently
persuasive insistence that the matter before it is political.
Nor am I persuaded that the reading of the current drift in American legal
scholarship by the Solicitor-General and his equally able associates presents
the whole picture. On the question of judicial review, it is not a case of
black and white; there are shaded areas. It goes too far, in my view, if the
perspective is one of dissatisfaction, with its overtones of distrust. This
expression of disapproval has not escaped Dean Rostow of Yale, who began
one of his most celebrated legal essays. The Democratic Character of
Judicial Review, thus: "A theme of uneasiness, and even of guilt, colors the
literature about judicial review. Many of those who have talked, lectured,
and written about the Constitution have been troubled by a sense that
judicial review is undemocratic." 25 He went on to state: "Judicial review,
they have urged, is an undemocratic shoot on an otherwise respectable
tree. It should be cut off, or at least kept pruned and
inconspicuous." 26 His view was precisely the opposite. Thus: "The power of
constitutional review, to be exercised by some part of the government, is
implicit in the conception of a written constitution delegating limited
powers. A written constitution would promote discord rather than order in
547
society if there were no accepted authority to construe it, at the least in

case of conflicting action by different branches of government or of
constitutionally unauthorized governmental action against individuals. The
limitation and separation of powers, if they are to survive, require a
procedure for independent mediation and construction to reconcile the
inevitable disputes over the boundaries of constitutional power which arise
in the process of government." 27 More than that, he took pains to
emphasize: "Whether another method of enforcing the Constitution could
have been devised, the short answer is that no such method developed.
The argument over the constitutionality of judicial review has long since
been settled by history. The power and duty of the Supreme Court to
declare statutes or executive action unconstitutional in appropriate cases is
part of the living Constitution. 'The course of constitutional history,' Mr.
Justice Frankfurter recently remarked, 'has cast responsibilities upon the
Supreme Court which it would be "stultification" for it to evade.' " 28 Nor is it
only Dean Rostow who could point Frankfurter, reputed to belong to the
same school of thought opposed to judicial activism, if not its leading
advocate during his long stay in the United States Supreme Court, as one
fully cognizant of the stigma that attaches to a tribunal which neglects to
meet the demands of judicial review. There is a statement of similar
importance from Professor Mason: "In Stein v. New
York Frankfurter remarked, somewhat self-consciously perhaps, that the
'duty of deference cannot be allowed imperceptibly to slide into
abdication.' " 29 Professor Konefsky, like Dean Rostow, could not accept
characterization of judicial review as undemocratic. Thus his study of
Holmes and Brandeis, the following appears: "When it is said that judicial
review is an undemocratic feature of our political system, it ought also to
be remembered that architects of that system did not equate constitutional
government with unbridled majority rule. Out of their concern for political
stability and security for private rights, ..., they designed a structure whose
keystone was to consist of barriers to the untrammeled exercise of power
by any group. They perceived no contradiction between effective
government and constitutional checks. To James Madison, who may
legitimately be regarded as the philosopher of the Constitution, the scheme
of mutual restraints was the best answer to what he viewed as the chief
problem in erecting a system of free representative government: 'In
framing a government which is to be administered by men over men, the
548
great difficulty lies in this: you must first enable the government to control
the governed; and in the next place oblige it to control itself.' " 30
There is thus an inevitability to the flowering of judicial review. Could it be

that the tone of discontent apparent in the writings of eminent authorities
on the subject evince at the most fears that the American Supreme Court
might overstep the bounds allotted to the judiciary? It cannot be a denial of
the fitness of such competence being vested in judges and of their being
called upon to fulfill such a trust whenever appropriate to the decision of a
case before them. That is why it has been correctly maintained that
notwithstanding the absence of any explicit provision in the fundamental
law of the United States Constitution, that distinguished American
constitutional historian, Professor Corwin, could rightfully state that judicial
review "is simply incidental to the power of courts to interpret the law, of
which the Constitution is part, in connection with the decision of
cases." 31 This is not to deny that there are those who would place the
blame or the credit, depending upon one's predilection, on Marshall's
epochal opinion in Marbury v. Madison. 32 Curtis belonged to that
persuasion. As he put it: "The problem was given no answer by the
Constitution. A hole was left where the Court might drive in the peg of
judicial supremacy, if it could. And that is what John Marshall did." 33 At any
rate there was something in the soil of American juristic thought resulting
in this tree of judicial power so precariously planted by Marshall striking
deep roots and showing wonderful vitality and hardiness. It now dominates
the American legal scene. Through it, Chief Justice Hughes, before
occupying that exalted position, could state in a lecture: "We are under a
Constitution, but the Constitution is what the judges say it is ... ." 34 The
above statement is more than just an aphorism that lends itself to inclusion
in judicial anthologies or bar association speeches. It could and did provoke
from Justice Jackson, an exponent of the judicial restraint school of
thought, this meaningful query: "The Constitution nowhere provides that it
shall be what the judges say it is. How, did it come about that the
statement not only could be but could become current as the most
understandable comprehensive summary of American Constitutional
law?" 35 It is no wonder that Professor Haines could pithily and succinctly
sum up the place of the highest American tribunal in the scheme of things
in this wise: "The Supreme Court of the United States has come to be
549
regarded as the unique feature of the American governmental

system." 36 Let me not be misunderstood. There is here no attempt to close
one's eyes to a discernible tendency on the part of some distinguished
faculty minds to look askance at what for them may be inadvisable
extension of judicial authority. For such indeed is the case as reflected in
two leading cases of recent vintage, Baker v. Carr, 37 decided in 1962
and Powell v. MacCormack, 38 in 1969, both noted in the opinion of the
Chief Justice. The former disregarded the warning of Justice Frankfurter in
Colegrove v. Green 39 about the American Supreme Court declining
jurisdiction on the question of apportionment as to do so would cut very
deep into the very being of Congress." 40 For him, the judiciary "ought not to
enter this political thicket." Baker has since then been followed; it has
spawned a host of cases. 41 Powell, on the question of the power of a
legislative body to exclude from its ranks a person whose qualifications are
uncontested, for many the very staple of what is essentially political,
certainly goes even further than the authoritative Philippine decision
of Vera v. Avelino, 42 It does look then that even in the United States, the
plea for judicial self-restraint, even if given voice by those competent in the
field of constitutional law, has fallen on deaf ears. There is in the comments
of respondents an excerpt from Professor Freund quoting from one of his
essays appearing in a volume published in 1968. It is not without interest to
note that in another paper, also included therein, he was less than assertive
about the necessity for self-restraint and apparently mindful of the claims
of judicial activism. Thus: "First of all, the Court has a responsibility to
maintain the constitutional order, the distribution of public power, and the
limitations on that power." 43 As for Professor Bickel, it has been said that as
counsel for the New York Times in the famous Vietnam papers case, 44 he
was less than insistent on the American Supreme Court exercising judicial
self-restraint. There are signs that the contending forces on such question,
for some an unequal contest, are now quiescent. The fervor that
characterized the expression of their respective points of view appears to
have been minimized. Not that it is to be expected that it will entirely
disappear, considering how dearly cherished are, for each group, the
convictions, prejudices one might even say, entertained. At least what once
was fitly characterized as the booming guns of rhetoric, coming from both
directions, have been muted. Of late, scholarly disputations have been
centered on the standards that should govern the exercise of the power of
550
judicial review. In his celebrated Holmes lecture in 1959 at the Harvard Law
School, Professor Wechsler advocated as basis for decision what he termed
neutral principles of constitutional law. 45 It has brought forth a plethora of
law review articles, the reaction ranging from guarded conformity to caustic
criticism. 46 There was, to be sure, no clear call to a court in effect
abandoning the responsibility incumbent on it to keep governmental
agencies within constitutional channels. The matter has been put in
temperate terms by Professor Frank thus: "When allowance has been made
for all factors, it nevertheless seems to me that the doctrine of political
questions ought to be very sharply confined to where the functional
reasons justify it and that in a give involving its expansion there should be
careful consideration also of the social considerations which may militate
against it. The doctrine has a certain specious charm because of its nice
intellectualism and because of the fine deference it permits to expertise, to
secret knowledge, and to the prerogatives of others. It should not be
allowed to grow as a merely intellectual plant." 47
It is difficult for me at least, not to be swayed by appraisal, coming from

such impeccable sources of the worth and significance of judicial review in
the United States. I cannot resist the conclusion then that the views
advanced on this subject by distinguished counsel for petitioners, with
Senators Lorenzo M. Tañada and Jovito Salonga at the van, rather than the
advocacy of the Solicitor-General, possess the greater weight and carry
persuasion. So much then for the invocation of the political question
principle as a bar to the exercise of our jurisdiction.
3. That brings me to the issue of the validity of the ratification. The crucial
point that had to be met is whether Proclamation No. 1102 manifests
fidelity to the explicit terms of Article XV. There is, of course, the view not
offensive to reason that a sense of the realities should temper the rigidity
of devotion to the strict letter of the text to allow deference to its spirit to
control. With due recognition of its force in constitutional litigation, 48 if my
reading of the events and the process that led to such proclamation, so
clearly set forth in the opinion of the Chief Justice, is not inaccurate, then it
cannot be confidently asserted that there was such compliance. It would be
to rely on conjectural assumptions that did founder on the rock of the
551
undisputed facts. Any other conclusion would, for me, require an

interpretation that borders on the strained. So it has to be if one does not
lose sight of how the article on amendments is phrased. A word, to
paraphrase Justice Holmes may not be a crystal, transparent and
unchanged, but it is not, to borrow from Learned Hand, that eminent jurist,
a rubber band either. It would be unwarranted in my view then to assert
that the requirements of the 1935 Constitution have been met. There are
American decisions, 49 and they are not few in number, which require that
there be obedience to the literal terms of the applicable provision. It is
understandable why it should be thus. If the Constitution is the supreme
law, then its mandate must be fulfilled. No evasion is tolerated. Submission
to its commands can be shown only if each and every word is given
meaning rather than ignored or disregarded. This is not to deny that a
recognition conclusive effect attached to the electorate manifesting its will
to vote affirmatively on the amendments proposed poses an obstacle to
the judiciary being insistent on the utmost regularity. Briefly stated,
substantial compliance is enough. A great many American State decisions
may be cited in support of such a doctrine.50
Even if the assumption be indulged in that Article XV is not phrased in

terms too clear to be misread, so that this Court is called upon to give
meaning and perspective to what could be considered words of vague
generality, pregnant with uncertainty, still whatever obscurity it possesses
is illumined when the light of the previous legislation is thrown on it. In the
first Commonwealth Act, 51 submitting to the Filipino people for approval or
disapproval certain amendments to the original ordinance appended to the
1935 Constitution, it was made that the election for such purpose was to
"be conducted in conformity with the provisions of the Election Code
insofar as the same may be applicable." 52 Then came the statute, 53 calling
for the plebiscite on the three 1940 amendments providing for the
plebiscite on the three 1930 amendments providing for a bicameral
Congress or a Senate and a House of Representatives to take the place of a
unicameral National Assembly, 54 reducing the term of the President to four
years but allowing his re-election with the limitation that he cannot serve
more than eight consecutive years, 55 and creating an independent
Commission on Elections. 56 Again, it was expressly provided that the
election "shall be conducted in conformity with the provisions of the
552
Election Code in so far as the same may be applicable." 57 The approval of

the present parity amendment was by virtue of a Republic Act 58 which
specifically made applicable the then Election Code. 59 There is a similar
provision in the
legislation, 60 which in cotemplation of the 1971 Constitutional Convention,
saw to it that there be an increase in the membership of the House of
Representatives a maximum of one hundred eighty and assured the
eligibility of senators and representatives to become members of such
constituent body without forfeiting their seats, as proposed amendments
to be voted on in the 1967 elections. 61 That is the consistent course of
interpretation followed by the legislative branch. It is most persuasive, if
not controlling. The restraints thus imposed would set limits to the
Presidential action taken, even on the assumption that either as an agent of
the Constitutional Convention or under his martial law prerogatives, he was
not devoid of power to specify the mode of ratification. On two vital points,
who can vote and how they register their will, Article XV had been given a
definitive construction. That is why I fail to see sufficient justification for
this Court affixing the imprimatur of its approval on the mode employed for
the ratification of the revised Constitution as reflected in Proclamation No.
1102.
4. Nor is the matter before us solely to be determined by the failure to

comply with the requirements of Article XV. Independently of the lack of
validity of the ratification of the new Constitution, if it be accepted by the
people, in whom sovereignty resides according to the Constitution, 62 then
this Court cannot refuse to yield assent to such a political decision of the
utmost gravity, conclusive in its effect. Such a fundamental principle is
meaningless if it does not imply, to follow Laski, that the nation as a whole
constitutes the "single center of ultimate reference," necessarily the
possessor of that "power that is able to resolve disputes by saying the last
word." 63 If the origins of the democratic polity enshrined in the 1935
Constitution with the declaration that the Philippines is a republican state
could be traced back to Athens and to Rome, it is no doubt true, as McIver
pointed out, that only with the recognition of the nation as the separate
political unit in public law is there the juridical recognition of the people
composing it "as the source of political authority." 64 From them, as Corwin
did stress, emanate "the highest possible embodiment of human
553
will," 65which is supreme and must be obeyed. To avoid any confusion and

in the interest of clarity, it should be expressed in the manner ordained by
law. Even if such is not the case, however, once it is manifested, it is to be
accepted as final and authoritative. The government which is merely an
agency to register its commands has no choice but to submit. Its officials
must act accordingly. No agency is exempt such a duty, not even this Court.
In that sense, the lack of regularity in the method employed to register its
wishes is fatal in its consequences. Once the fact of acceptance by people
of a new fundamental law is made evident, the judiciary is left with no
choice but to accord it recognition. The obligation to render it obeisance
falls on the courts as well.
There are American State decisions that enunciate such a doctrine. While
certainly not controlling, they are not entirely bereft of persuasive
significance. In Miller v. Johnson, 66 decided in 1892, it was set forth in the
opinion of Chief Justice Holt that on May 3, 1890, an act was passed in
Kentucky, providing for the calling of a convention for the purpose of
framing a new constitution and the election of delegates. It provided that
before any form of constitution made by them should become operative, it
should be submitted to the vote of the state and ratified by a majority of
those voting. The constitution then in force authorized the legislature, the
preliminary steps having been taken, to call a convention "for the purpose
of readopting, amending, or changing" it contained no provision giving the
legislature the power to require a submission of its work to a vote of the
people. The convention met in September, 1890. By April, 1891, it
completed a draft of a constitution, submitted it to a popular vote, and
then adjourned until September following. When the convention
reassembled, the delegates made numerous changes in instrument. As thus
amended, it was promulgated by the convention of September 28, 1891, as
the new constitution. An action was brought to challenge its validity. It
failed in the lower court. In affirming such judgment dismissing the action,
Chief Justice Holt stated: "If a set of men, not selected by the people
according to the forms of law, were to formulate an instrument and declare
it the constitution, it would undoubtedly be the duty of the courts to
declare its work a nullity. This would be revolution, and this the courts of
the existing government must resist until they are overturned by power,
and a new government established. The convention, however, was the
554
offspring of law. The instrument which we are asked to declare invalid as a

constitution has been made and promulgated according to the forms of
law. It is a matter of current history that both the executive and legislative
branches of the government have recognized its validity as a constitution,
and are now daily doing so. ... While the judiciary should protect the rights
of the people with great care and jealousy, because this is its duty, and also
because; in times of great popular excitement, it is usually their last resort,
yet it should at the same time be careful not to overstep the proper bounds
of its power, as being perhaps equally dangerous; and especially where
such momentous results might follow as would be likely in this instance, if
the power of the judiciary permitted, and its duty requires, the overthrow
of the work of the convention." 67 In Taylor v. Commonwealth, 68 a 1903
decision, it was contended that the Virginia Constitution reclaimed in 1902
is invalid as it was ordained and promulgated by the convention without
being submitted for ratification or rejection by the people. The Court
rejected such a view. As stated in the opinion of Justice Harrison: "The
Constitution of 1902 was ordained and proclaimed by a convention duly
called by direct vote of the people of the state to revise and amend the
Constitution of 1869. The result of the work of the convention has been
recognized, accepted, and acted upon as the only valid Constitution of the
state by the Governor in swearing fidelity to it and proclaiming it, as
directed thereby; by the Legislature in its formal official act adopting a joint
resolution, July 15, 1902, recognizing the Constitution ordained by the
convention which assembled in the city of Richmond on the 12th day of
June, 1901, as the Constitution of Virginia; by the individual oaths of
members to support it, and by enforcing its provisions; and the people in
their primary capacity by peacefully accepting it and acquiescing in it, by
registering as voters under it to the extent of thousands throughout the
state, and by voting, under its provisions, at a general election for their
representatives in the Congress of the United States. The Constitution
having been thus acknowledged and accepted by the office administering
the government and by the people of the state, and there being no
government in existence under the Constitution of 1869 opposing or
denying its validity, we have no difficulty in holding that the Constitution in
question, which went into effect at noon on the 10th day of July, 1902, is
the only rightful, valid, and existing Constitution of this state, and that to it
all the citizens of Virginia owe their obedience and loyal allegiance." 69
555
It cannot be plausibly asserted then that premises valid in law are lacking
for the claim that the revised Constitution has been accepted by the Filipino
people. What is more, so it has been argued, it is not merely a case of its
being implied. Through the Citizens Assemblies, there was a plebiscite with
the result as indicated in Proclamation No. 1102. From the standpoint of
respondents then, they could allege that there was more than just mere
acquiescence by the sovereign people. Its will was thus expressed formally
and unmistakably. It may be added that there was nothing inherently
objectionable in the informal method followed in ascertaining its
preference. Nor is the fact that Filipinos of both sexes above the age of
fifteen were given the opportunity to vote to be deplored. The greater the
base of mass participation, the more there is fealty to the democratic
concept. It does logically follow likewise that such circumstances being
conceded, then no justifiable question may be raised. This Court is to
respect what had thus received the people's sanction. That is not for me
though whole of it. Further scrutiny even then is not entirely foreclosed.
There is still an aspect that is judicial, an inquiry may be had as to whether
such indeed was the result. This is no more than what the courts do in
election cases. There are other factors to bear in mind. The fact that the
President so certified is well-nigh conclusive. There is in addition the
evidence flowing from the conditions of peace and stability. There thus
appears to be conformity to the existing order of things. The daily course of
events yields such a conclusion. What is more, the officials under the 1935
Constitution, including practically all Representatives and a majority of the
Senators, have signified their assent to it. The thought persists, however,
that as yet sufficient time has not elapsed to be really certain.
Nor is this all. There is for me an obstacle to the petitions being dismissed
for such ascertainment of popular will did take place during a period of
martial law. It would have been different had there been that freedom of
debate with the least interference, thus allowing a free market of ideas. If it
were thus, it could be truly said that there was no barrier to liberty of
choice. It would be a clear-cut decision either way. One could be certain as
to the fact of the acceptance of the new or of adherence to the old. This is
not to deny that votes are cast by individuals with their personal concerns
uppermost in mind, worried about their immediate needs and captive to
their existing moods. That is inherent in any human institution, much more
556
so in a democratic polity. Nor is it open to any valid objection because in

the final analysis the state exists for the individuals who in their collectivity
compose it. Whatever be their views, they are entitled to respect. It is
difficult for me, however, at this stage to feel secure in the conviction that
they did utilize the occasion afforded to give expression to what was really
in their hearts. This is not to imply that such doubt could not be dispelled
by evidence to the contrary. If the petitions be dismissed however, then
such opportunity is forever lost.
5. With the foregoing legal principles in mind, I find myself unable to join
the ranks of my esteemed brethren who vote for the dismissal of these
petitions. I cannot yield an affirmative response to the plea of respondents
to consider the matter closed, the proceedings terminated once and for all.
It is not an easy decision to reach. It has occasioned deep thought and
considerable soul-searching. For there are countervailing considerations
that exert a compulsion not easy to resist. It can be asserted with truth,
especially in the field of social and economic rights, that with the revised
Constitution, there is an auspicious beginning for further progress. Then too
it could resolve what appeared to be the deepening contradictions of
political life, reducing at times governmental authority to near impotence
and imparting a sense of disillusionment in democratic processes. It is not
too much to say therefore that there had indeed been the revision of a
fundamental law to vitalize the very values out of which democracy grows.
It is one which has all the earmarks of being responsive to the dominant
needs of the times. It represents an outlook cognizant of the tensions of a
turbulent era that is the present. That is why for some what was done
represented an act of courage and faith, coupled with the hope that the
solution arrived at is a harbinger of a bright and rosy future.
It is such a comfort then that even if my appraisal of the situation had

commanded a majority, there is not, while these lawsuits are being further
considered, the least interference, with the executive department. The
President in the discharge of all his functions is entitled to obedience. He
remains commander-in-chief with all the constitutional powers it implies.
Public officials can go about their accustomed tasks in accordance with the
revised Constitution. They can pursue even the tenor of their ways. They
557
are free to act according to its tenets. That was so these past few weeks,
even petitions were filed. There was not at any time any thought of any
restraining order. So it was before. That is how things are expected to
remain even if the motions to dismiss were not granted. It might be asked
though, suppose the petitions should prevail? What then? Even so, the
decision of this Court need not be executory right away. Such a disposition
of a case before this Court is not novel. That was how it was done in the
Emergency Powers Act controversy. 70 Once compliance is had with the
requirements of Article XV of the 1935 Constitution, to assure that the
coming force of the revised charter is free from any taint of infirmity, then
all doubts are set at rest.
For some, to so view the question before us is to be caught in a web of

unreality, to cherish illusions that cannot stand the test of actuality. What is
more, it may give the impression of reliance on what may, for the practical
man of affairs, be no more than gossamer distinctions and sterile
refinements unrelated to events. That may be so, but I find it impossible to
transcend what for me are the implications of traditional constitutionalism.
This is not to assert that an occupant of the bench is bound to apply with
undeviating rigidity doctrines which may have served their day. He could at
times even look upon them as mere scribblings in the sands to be washed
away by the advancing tides of the present. The introduction of novel
concepts may be carried only so far though. As Cardozo put the matter:
"The judge, even when he is free, is still not wholly free. He is not to
innovate at pleasure. He is not a knight-errant, roaming at will in pursuit of
his own ideal of beauty or of goodness. He is to draw his inspiration from
consecrated principles. He is not to yield to spasmodic sentiment, to vague
and unregulated benevolence. He is to exercise a discretion informed by
tradition, methodized by analogy, disciplined by system, and subordinated
to "the primordial necessity of order in the social life." Wide enough in all
conscience is the field of discretion that remains." 71 Moreover what made it
difficult for this Court to apply settled principles, which for me have not lost
their validity, is traceable to the fact that the revised Constitution was
made to take effect immediately upon ratification. If a period of time were
allowed to elapse precisely to enable the judicial power to be exercised, no
complication would have arisen. Likewise, had there been only one or two
amendments, no such problem would be before us. That is why I do not see
558
sufficient justification for the orthodoxies of constitutional law not to

operate.
Even with full realization then that the approach pursued is not all that it
ought to have been and the process of reasoning not without its
shortcomings, the basic premises of a constitutional democracy, as I
understand them and as set forth in the preceding pages, compel me to
vote the way I did.
The masterly opinion of the Chief Justice wherein he painstakingly deals

with the momentous issues of the cases at bar in all their complexity
commands my concurrence.
I would herein make an exposition of the fundamental reasons and

considerations for my stand.
The unprecedented and precedent-setting issue submitted by petitioners

for the Court's resolution is the validity and constitutionality of Presidential
Proclamation No. 1102 issued on January 17, 1973, certifying and
proclaiming that the Constitution proposed by the 1971 Constitutional
Convention "has been ratified by an overwhelming majority of all the votes
cast by the members of all the Barangays (Citizens Assemblies) throughout
the Philippines, and has thereby come into effect."
More specifically, the issue submitted is whether the purported ratification

of the proposed Constitution by means of the Citizens Assemblies has
substantially complied with the mandate of Article XV of the existing
Constitution of 1935 that duly proposed amendments thereto, in toto or
parts thereof, "shall be valid as part of this Constitution when approved by
a majority of the votes cast at an election at which the amendments
are submitted to the people for theirratification." 1
A necessary corollary issue is whether the purported ratification of the

proposed Constitution as signed on November 30, 1972 by the 1971
559
Constitutional Convention may be said also to have substantially complied

with its own mandate that "(T)his Constitution shall take immediately upon
its ratification by a majority of the votes cast in a plebiscite called for the
purpose and except as herein provided, shall supersede the Constitution of
Nineteen hundred and thirty-five and all amendments thereto." 2
Respondents contend that "(A)lthough apparently

what is sought to be annulled is Proclamation No.
1102, what petitioners really seek to invalidate is
the new Constitution", and their actions must be
dismissed,because:
— "the Court may not inquire into the validity of

the procedure for ratification" which
is "political in character" and that "what is sought
to be invalidated is not an act of the President but
of the people;
— "(T)he fact of approval of the new Constitution

by an overwhelming majority of the votes cast
asdeclared and certified in Proclamation No. 1102
is conclusive on the courts;
— "Proclamation No. 1102 was issued by the

President in the exercise of legislative power
under martial law. ... Alternatively, or
contemporaneously, he did so as "agent" of the
Constitutional Convention;"
— "alleged defects, such as absence of secret

voting, enfranchisement of persons less than 21
years,non supervision (by) the Comelec are
matters not required by Article XV of the 1935
Constitution"; (sic)
560
— "after ratification, whatever defects there

might have been in the procedure are overcome
and mooted(and muted) by the fact of
ratification"; and
— "(A)ssuming finally that Article XV of the 1935

Constitution was not strictly followed, the
ratification of the new Constitution must
nonetheless be respected. For the procedure
outlined in Article XV was not intended to be
exclusive of other procedures, especially one which
contemplates popular and direct participation of the
citizenry ... ." 3
To test the validity of respondents' submittal that the Court, in annulling

Proclamation No. 1102 would really be "invalidating the new Constitution",
the terms and premises of the issues have to be defined.
— Respondents themselves assert that

"Proclamation No. 1102 ... is plainly
merely declaratory of the fact that the 1973
Constitution has been ratified and has come into
force. 4
— The measure of the fact of ratification is Article XV

of the 1935 Constitution. This has been consistently
held by the Court in
the Gonzales: 5 and Tolentino 6 cases.
— In the Tolentino case, this Court emphasized "that

Constitution, dealing with the procedure or manner
of amending the fundamental law are binding upon
the Convention and the other departments of the
government. It must be added that ... they are no
less binding upon the people." 7
561
— In the same Tolentino case, this Court further

proclaimed that "as long as any amendment is
formulated and submitted under the aegis of the
present Charter, any proposal for such amendment
which is not in conformity with
the letter, spirit and intent of the Charter for
effecting amendments, cannot receive the sanction
of this Court." 8
— As continues to be held by a majority of this

Court, proposed amendments to the Constitution
"should be ratified in only one way, that is, in an
election or plebiscite held in accordance with law
and participated in only by qualified and duly
registered voters" 9 and under the supervision of the
Commission on Elections. 10
— Hence, if the Court declares Proclamation 1102

null and void because on its face, the purported
ratification of the proposed Constitution has not
faithfully nor substantially observed nor complied
with the mandatory requirements of Article XV of
the (1935) Constitution, it would not be
"invalidating" the proposed new Constitution but
would be simply declaring that the announced
fact of ratification thereof by means of the
Citizens Assemblies referendums does not pass
the constitutional test and that the proposed new
Constitution has not constitutionally come into
existence.
— Since Proclamation 1102 is acknowledged by

respondent to be "plainly merely declaratory" of
the disputed fact of ratification, they cannot
assume the very fact to be established and beg
the issue by citing the self-same declaration as
562
proof of the purported ratification therein

declared.
What complicates the cases at bar is the fact that the proposed 1972
Constitution was enforced as having immediately taken effect upon the
issuance on January 17, 1973 of Proclamation 1102 and the question of
whether "confusion and disorder in government affairs would (not) result"
from a judicial declaration of nullity of the purported ratification is raised by
the Solicitor-General on behalf of respondents.
A comparable precedent of great crisis proportions is found in the

Emergency Powers cases, 11 wherein the Court in its Resolution of
September 16, 1949 after judgment was initially not obtained on August
26, 1949 for lack of the required six (6) votes, finally declared in effect that
the pre-war emergency powers delegated by Congress to the President,
under Commonwealth Act 671 in pursuance of Article VI, section 26 of the
Constitution, had ceased and became inoperative at the latest in May, 1946
when Congress met in its first regular session on May 25, 1946.
Then Chief Justice Manuel V. Moran recited the great interests and
important rights that had arisen under executive orders "issued in good
faith and with the best of intentions by three successive Presidents, and
some of them may have already produced extensive effects on the life of
the nation" — in the same manner as may have arisen under the bona fide
acts of the President now in the honest belief that the 1972 Constitution
had been validly ratified by means of the Citizens Assemblies referendums
— and indicated the proper course and solution therefor, which were duly
abided by and confusion and disorder as well as harm to public interest and
innocent parties thereby avoided as follows:
Upon the other hand, while I believe that the

emergency powers had ceased in June 1945, I am
not prepared to hold that all executive orders issued
thereafter under Commonwealth Act No. 671,
are per se null and void. It must be borne in mind
that these executive orders had been issued in good
faith and with the best of intentions by three
563
successive Presidents, and some of them may have

already produced extensive effects in the life of the
nation. We have, for instance, Executive Order No.
73, issued on November 12, 1945, appropriating the
sum of P6,750,000 for public works; Executive Order
No. 86, issued on January 7, 1946, amending a
previous order regarding the organization of the
Supreme Court; Executive Order No. 89, issued on
January 1, 1946, reorganizing Courts of First
Instance; Executive Order No. 184, issued on
November 19, 1948, controlling rice and palay to
combat hunger; and other executive orders
appropriating funds for other purposes. The
consequences of a blanket nullification of all these
executive orders will be unquestionably serious and
harmful. And I hold that before nullifying
them, other important circumstances should
be inquired into, as for instance, whether or not they
have been ratified by Congress expressly or
impliedly, whether their purposes have already been
accomplished entirely or partially, and in the last
instance, to what extent; acquiescence of
litigants; de facto officers; acts and contracts of
parties acting in good faith; etc. It is my opinion that
each executive order must be viewed in the light of
its peculiar circumstances, and, if necessary and
possible, nullifying it, precautionary measures should
be taken to avoid harm to public interest and
innocent parties. 12
Initially, then Chief Justice Moran voted with a majority of the Court to
grant the Araneta and Guerrero petitions holding null and void the
executive orders on rentals and export control but to defer judgment on
the Rodriguez and Barredo petitions for judicial declarations of nullity of
the executive orders appropriating the 1949-1950 fiscal year budget for the
government and P6 million for the holding of the 1949 national elections.
After rehearsing, he further voted to also declare null and void the last two
executive orders appropriating funds for the 1949 budget and elections,
564
completing the "sufficient majority" of six against four dissenting justices

"to pronounce a valid judgment on that matter." 13
Then Chief Justice Moran, who penned the Court's majority resolution,
explained his vote for annulment despite the great difficulties and possible
"harmful consequences" in the following passage, which bears re-reading:
However, now that the holding of a special

session of Congress for the purpose of remedying
the nullity of the executive orders in question
appears remote and uncertain, I am compelled to,
and do hereby, give my unqualified concurrence
in the decision penned by Mr. Justice Tuason
declaring that these two executive orders were
issued without authority of law.
While in voting for a temporary deferment of the

judgment I was moved by the belief that positive
compliance with the Constitution by the other
branches of the Government, which is our prime
concern in all these cases, would be effected, and
indefinite deferment will produce the opposite
result because it would legitimize a prolonged or
permanent evasion of our organic law. Executive
orders which are, in our opinion, repugnant to the
Constitution, would be given permanent life,
opening the way or practices which may
undermine our constitutional structure.
The harmful consequences which, as I envisioned

in my concurring opinion, would come to pass
should the said executive orders be immediately
declared null and void are still real. They have not
disappeared by reason of the fact that a special
session of Congress is not now forthcoming.
However, the remedy now lies in the hands of the
565
Chief Executive and of Congress, for the

Constitution vests in the former the power to call
a special session should the need for one arise,
and in the latter, the power to pass a valid
appropriations act.
That Congress may again fail to pass a valid

appropriations act is a remote possibility, for
under the circumstances it fully realizes its great
responsibility of saving the nation from breaking
down; and furthermore, the President in the
exercise of his constitutional powers may, if he so
desires, compel Congress to remain in special
session till it approves the legislative measures
most needed by the country.
Democracy is on trial in the Philippines, and surely

it will emerge victorious as a permanent way of
life in this country, if each of the great branches of
the Government, within its own allocated sphere,
complies with its own constitutional duty,
uncompromisingly and regardless of difficulties.
Our Republic is still young, and the vital principles

underlying its organic structure should be
maintained firm and strong, hard as the best of steel,
so as to insure its growth and development along
solid lines of a stable and vigorous democracy. 14
The late Justice Pedro Tuason who penned the initial majority judgment
(declaring null and void the rental and export control executive orders)
likewise observed that "(T)he truth is that under our concept of
constitutional government, in times of extreme perils more than in normal
circumstances 'the various branches, executive, legislative, and judicial,'
given the ability to act, are called upon 'to perform the duties discharge the
responsibilities committed to respectively.' "15
566
It should be duly acknowledged that the Court's task of discharging its duty
and responsibility has been considerably lightened by the President's public
manifestation of adherence to constitutional processes and of working
within the proper constitutional framework as per his press conference of
January 20,1973, wherein he stated that "(T)he Supreme Court is the final
arbiter of the Constitution. It can and will probably determine the validity
of this Constitution. I did not want to talk about this because actually there
is a case pending before the Supreme Court. But suffice it to say that I
recognize the power of the Supreme Court. With respect to appointments,
the matter falls under a general provision which authorizes the Prime
Minister to appoint additional members to the Supreme Court. Until the
matter of the new Constitution is decided, I have no intention of utilizing
that power." 16
Thus, it is that as in an analogous situation wherein the state Supreme

Court of Mississippi held that the questions of whether the submission of
the proposed constitutional amendment of the State Constitution providing
for an elective, instead of an appointive, judiciary and whether the
proposition was in fact adopted, were justifiable and not political questions,
we may echo the words therein of Chief Justice Whitfield that "(W)e do not
seek a jurisdiction not imposed upon us by the Constitution. We could not,
if we would, escape the exercise of that jurisdiction which the Constitution
has imposed upon us. In the particular instance in which we are now acting,
our duty to know what the Constitution of the state is, and in accordance
with our oaths to support and maintain it in its integrity, imposed on us a
most difficult and embarrassing duty, one which we have not sought, but
one which, like all others, must be discharged." 17
In confronting the issues at bar, then, with due regard for my colleagues'
contrary views, we are faced with the hard choice of maintaining a firm and
strict — perhaps, even rigid — stand that the Constitution is a "superior
paramount law, unchangeable by ordinary means" save in the particular
mode and manner prescribed therein by the people, who, in Cooley's
words, so "tied up (not only) the hands of their official agencies, but their
own hands as well" 18 in the exercise of their sovereign will or a liberal and
567
flexible stand that would consider compliance with the constitutional article
on the amending process as merely directory rather than mandatory.
The first choice of a strict stand, as applied to the cases at bar, signifies that
the Constitution may be amended in totoor otherwise exclusively "by
approval by a majority of the votes cast an election at which the
ratification", 19 participated in only by qualified and
duly registered voters twenty-one years of age or over 20 and
duly supervised by the Commission on Elections, 21 in accordance with the
cited mandatory constitutional requirements.
The alternative choice of a liberal stand would permit a disregard of said

requirements on the theory urged by respondents that "the procedure
outlined in Article XV was not intended to be exclusive of other procedures
especially one which contemplates popular and direct participation of the
citizenry", 22 that the constitutional age and literacy requirements and other
statutory safeguards for ascertaining the will of the majority of the people
may likewise be changed as "suggested, if not prescribed, by the people
(through the Citizens Assemblies) themselves", 23 and that the Comelec is
constitutionally "mandated to oversee ... elections (of public officers)
and not plebiscites." 24
To paraphrase U.S. Chief Justice John Marshall who first declared in the
historic 1803 case of Marbury vs. Madison25 the U.S. Supreme Court's
power of judicial review and to declare void laws repugnant to the
Constitution, there is no middle ground between these two alternatives. As
Marshall expounded it: "(T)he Constitution is either a superior paramount
law, unchangeable by ordinary means, or it is on a level with ordinary
legislative acts, and, like other acts, alterable when the legislature shall
please to alter it. If the former part of the alternative be true, then a
legislative act, contrary to the Constitution, is not law; if the latter part be
true, then written constitutions are absurd attempts on the part of a
people, to limit a power, in its own nature, illimitable."
568
As was to be restated by Justice Jose P. Laurel a century and a third later in

the 1936 landmark case of Angara vs. Electoral Commission, 26 "(T)he
Constitution sets forth in no uncertain language the restrictions and
limitations upon governmental powers and agencies. If these restrictions
and limitations are transcended it would be inconceivable if the
Constitution had not provided for a mechanism by which to direct the
course of government along constitutional channels, for then the
distribution of powers would be mere verbiage, the bill of rights mere
expressions of sentiment, and the principles of good government mere
political apothegms. Certainly, the limitations of good government and
restrictions embodied in our Constitution are real as they should be in any
living Constitution."
Justice Laurel pointed out that in contrast to the United States Constitution,
the Philippine Constitution as "a definition of the powers of government"
placed upon the judiciary the great burden of "determining the nature,
scope and extent of such powers" and stressed that "when the judiciary
mediates to allocate constitutional boundaries, it does not assert any
superiority over the other departments ... but only asserts the solemn and
sacred obligation entrusted to it by the Constitution to determine
conflicting claims of authority under the Constitution and to establish for
the parties in an actual controversy the rights which the instrument secures
and guarantees to them."
II
Marshall was to utter much later in the equally historic 1819 case
of McCulloch vs. Maryland 27 the "climactic phrase,"28 "we must never forget
that it is a constitution we are expounding," — termed by Justice
Frankfurter as "the single most important utterance in the literature of
constitutional law — most important because most comprehensive and
comprehending." 29 This enduring concept to my mind permeated to this
Court's exposition and rationale in the hallmark case of Tolentino, wherein
we rejected the contentions on the Convention's behalf "that the issue ... is
a political question and that the Convention being a legislative body of the
569
highest order is sovereign, and as such, its acts impugned by petitioner are
beyond the control of Congress and the Courts." 30
This Court therein made its unequivocal choice of strictly

requiring faithful (which really includes substantial) compliance with
the mandatory requirements of the amending process.
1. In denying reconsideration of our judgment of October 16, 1971

prohibiting the submittal in an advance election of 1971 Constitutional
Convention's Organic Resolution No. 1 proposing to amend Article V,
section 1 of the Constitution by lowering the voting age to 18 years (vice 21
years) 30a "without prejudice to other amendments that will be proposed
in the future ... on other portions of the amended section", this Court
stated that "the constitutional provision in question (as proposed) presents
no doubt which may be resolved in favor of respondents and intervenors.
We do not believe such doubt can exist only because it is urged that
the end sought to be achieved is to be desired. Paraphrasing no less than
the President of Constitutional Convention of 1934, Claro M. Recto, let
those who would put aside, invoking grounds at best controversial, any
mandate of the fundamental law purportedly in order to attain some
laudable objective bear in mind that someday somehow others with
purportedly more laudable objectives may take advantage of the precedent
and continue the destruction of the Constitution, making those who laid
down the precedent of justifying deviations from the requirements of the
Constitution the victims of their own folly." 31
2. This Court held in Tolentino that:
... as to matters not related to its internal operation

and the performance of its assigned mission to
propose amendments to the Constitution, the
Convention and its officers and members
are all subject to all the provisions of the existing
Constitution. Now We hold that even as to its latter
task of proposing amendments to the Constitution, it
is subject to the provisions of Section 1 of Article XV.
This must be so, because it is plain to Us that the
570
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
peoplewithin the country and those subject to its
sovereignty, every degree of care is taken in
preparing and drafting it. A constitution worthy of
the people for deliberation and study. It is obvious
that correspondingly, any amendment of the
Constitution is of no less importance than the whole
Constitution itself, and perforce must be conceived
and prepared with as much care and deliberation.
From the very nature of things, the drafters of an
original constitution, as already observed earlier,
operate without any limitations, restraints or
inhibitions save those that they may impose upon
themselves. This is not necessarily true of
subsequent conventions called to amend the original
constitution. Generally, the framers of the latter see
to it that their handiwork is not lightly treated and as
easily mutilated or changed, not only for reasons
purely personal but more importantly, because
written constitutions are supposed to be designed so
as to last for some time, if not for ages, or for, at
least, as long as they can be adopted to the needs
and exigencies of the people, hence, they must
be insulated against precipitate and hasty actions
motivated by more or less passing political moods or
fancies. Thus, as a rule, the original constitutions
carry with them limitations and conditions, more or
less stringent, made so by the people themselves, in
571
regard to the process of their amendment. And

when such limitations or conditions are so
incorporated in the original constitution, it does not
lie in the delegates of any subsequent convention to
claim that they may ignore and disregard such
conditions because they are powerful and
omnipotent as their original counterparts. 32
3. This Court in Tolentino likewise formally adopted the doctrine of proper

submission first advanced in Gonzales vs. 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
anintelligent appraisal of the nature of
amendment per se as well as its relation to the other
parts of the Constitution with which it has to form a
harmonious whole. In the context of the present
state of things, where the Convention hardly started
considering the merits of hundreds, if not thousands,
proposals to amend the existing Constitution, to
present to people any single proposal or a few of
them cannot comply with this requirement. We are
of the opinion that the present Constitution does not
contemplate in Section 1 of Article XV a plebiscite or
"election" wherein the people are in the dark as to
frame of reference they can base their judgment on.
We reject the rationalization that the present
Constitution is a possible frame of reference, for the
simple reason that intervenors themselves are
stating the sole purpose of the proposed
amendment is to enable the eighteen year olds to
take part in the election for the ratification of the
Constitution to be drafted by the Convention. In
brief, under the proposed plebiscite, there can be, in
the language of Justice Sanchez, speaking for the six
572
members of the Court in Gonzales, supra, 'no proper

submission.' " 34
4. Four other members of the Court 35 in a separate concurrence

in Tolentino, expressed their "essential agreement" with Justice Sanchez'
separate opinion in Gonzales on the need for "fair
submission (and) intelligent rejection" as "minimum requirements that must
be met in order that there can be a proper submission to the people of a
proposed constitutional amendment" thus:
... amendments must be fairly laid before the people

for their blessing or spurning. The people are not to
be mere rubber stamps. They are not to vote blindly.
They must be afforded ample opportunity to mull
over the original provisions, compare them with the
proposed amendments, and try to reach a
conclusion as the dictates of their conscience
suggest, free from the incubus of extraneous or
possibly insidious influences. We believe the word
"submitted" can only mean that the government,
within its maximum capabilities, should strain every
effort to inform every citizen of the provisions to be
amended, and the proposed amendments and the
meaning, nature and effects thereof. By this, we are
not to be understood as saying that, if one citizen or
100 citizens or 1,000 citizens cannot be reached,
then there is no submission within the meaning of
the word as intended by the framers of the
Constitution. What the Constitution in effect directs
is that the government, in submitting an amendment
for ratification, should put every instrumentality or
agency within its structural framework to enlighten
the people, educate them with respect to their act of
ratification or rejection. For as we have earlier
stated, one thing is submission and another is
ratification. There must be fair submission,
intelligent consent or rejection.36
573
They stressed further the need for undivided attention, sufficient

information and full debate, conformably to the intendment of Article XV,
section 1 of the Constitution, in this wise:
A number of doubts or misgivings could

conceivably and logically assail the average voter.
Why should the voting age be lowered at all, in
the first place? Why should the new voting age be
precisely 18 years, and not 19 or 20? And why not
17? Or even 16 or 15? Is the 18-year old as mature
as the 21-year old, so that there is no need of an
educational qualification to entitle him to vote? In
this age of permissiveness and dissent, can the 18-
year old be relied upon to vote with judiciousness
when the 21-year old, in the past elections, has
not performed so well? If the proposed
amendment is voted down by the people, will the
Constitutional Convention insist on the said
amendment? Why is there an unseemly haste on
the part of the Constitutional Convention in
having this particular proposed amendment
ratified at this particular time? Do some of the
members of the Convention have future political
plans which they want to begin to subserve by the
approval this year of this amendment? If this
amendment is approved, does it thereby mean
that the 18-year old should not also shoulder the
moral and legal responsibilities of the 21-year old?
Will he be required to compulsory military service
under the colors? Will the contractual consent be
reduced to 18 years? If I vote against the
amendment, will I not be unfair to my own child
who will be 18 years old, come 1973?
The above are just samplings from here, there and

everywhere — from a domain (of searching
574
questions) the bounds of which are not

immediately ascertainable. Surely, many more
questions can be added to the already long litany.
And the answers cannot except as the questions
are debated fully, pondered upon purposefully,
and accorded undivided attention.
Scanning the contemporary scene, we say that the

people are not, and by election time will not
be, sufficiently informed of the meaning, nature and
effects of the proposed constitutional amendment.
They have not been afforded ample time to
deliberate thereon conscientiously. They have been
and are effectively distracted from afull and
dispassionate consideration of the merits and
demerits of the proposed amendment by their
traditional pervasive involvement in local elections
and politics. They cannot thus weigh in tranquility
the need for and the wisdom proposed
amendment. 37
5. This Court therein dismissed the plea of disregarding mandatory

requirements of the amending process "in favor of allowing the sovereign
people to express their decision on the proposed amendments" as
"anachronistic in the real constitutionalism and repugnant to the essence of
the rule of law," in the following terms:
... The preamble of the Constitution says that the

Constitution has been ordained by the 'Filipino
people, imploring the aid of Divine Providence.'
Section 1 of Article XV is nothing than a part of the
Constitution thusordained 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.' ...
575
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
ofdeparting 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
themanner of its submission to the people for
ratification or rejection conform with the mandate
of the peoplethemselves 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
576
make a reasonably intelligent appraisal of the

issue submitted for their ratification or
rejection. ... Then, too, the submission to a
plebiscite of a partial amendment, without
a definite frame of reference, is fraught with
possibilities which may jeopardize the social
fabric. For one thing, it opens the door to wild
speculations. It offers ample opportunities for
overzealous leaders and members of opposing
political camps to unduly exaggerate the pros and
cons of the partial amendment proposed. In short,
it is apt to breed false hopes and create wrong
impressions. As a consequence, it is bound to
unduly strain the people's faith in the soundness
and validity of democratic processes and
institutions.
— On the plea to allow submission to the

sovereign people of the "fragmentary and
incomplete" proposal, although inconsistent with
the letter and spirit of the Constitution: "The view,
has, also, advanced that the foregoing
considerations are not decisive on the issue
before Us, inasmuch as the people are sovereign,
and the partial amendment involved in this case is
being submitted to them. The issue before Us is
whether or not said partial
amendment may be validly submitted to the
people for ratification "in a plebiscite coincide
with the local elections in November 1971,"
and this particular issue will not be submitted to
the people. What is more, the Constitution
does not permit its submission to the people. The
question sought to be settled in the scheduled
plebiscite is whether or not the people are in
favor of the reduction of the voting age.
577
— On a "political" rather than "legalistic"

approach: "Is this approach to the problem too
"legalistic?" This term has possible connotations.
It may mean strict adherence to the law, which in
the case at bar is theSupreme Law of the land. On
point, suffice it to say that, in compliance with the
specific man of such Supreme Law, the members
of the Supreme Court taken the requisite "oath to
support and defend the Constitution." ... Then,
again, the term "legalistic" may be used to
suggest inversely that the somewhat strained
interpretation of the Constitution being urged
upon this Court be tolerated or, at least,
overlooked, upon the theory that the partial
amendment on voting age is badly needed and
reflects the will of the people, specially the youth.
This course of action favors, in effect, adoption of
a political approach, inasmuch as the advisability
of the amendment and an appraisal of the
people's feeling thereon political matters. In fact,
apart from the obvious message of the mass
media, and, at times, of the pulpit, the Court has
been literally bombarded with scores of
handwritten letters, almost all of which bear the
penmanship and the signature of girls, as well as
letterhead of some sectarian educational
institutions, generally stating that the writer is 18
years of age and urging that she or he be allowed
to vote. Thus, the pressure of public opinion has
brought to bear heavily upon the Court for a
reconsideration of its decision in the case at bar.
As above stated, however, the wisdom of the

amendment and the popularity thereof are
political questions beyond our province. In fact,
respondents and the intervenors originally
maintained that We have no jurisdiction to
578
entertain the petition herein, upon the ground

that the issue therein raised is a political one.
Aside from the absence of authority to pass upon
political question, it is obviously improper and
unwise for the bench to develop into such
questions owing to the danger of getting
involved in politics, more likely of a partisan
nature, and, hence, of impairing the image and
the usefulness of courts of justice as objective and
impartial arbiters of justiciable controversies.
Then, too, the suggested course of action, if

adopted, would constitute a grievous disservice to
the people and the very Convention itself. Indeed,
the latter and the Constitution it is in the process
of drafting stand essentially for the Rule of Law.
However, as the Supreme Law of the land, a
Constitution would not be worthy of its name, and
the Convention called upon to draft it would be
engaged in a futile undertaking, if we did not
exact faithful adherence to the fundamental
tenets set forth in the Constitution and
compliance with its provisions were not
obligatory. If we, in effect, approved, consented to
or even overlooked a circumvention of said tenets
and provisions, because of the good intention
with which Resolution No. 1 is animated, the
Court would thereby become the Judge of
the good or bad intentions of the Convention and
thus be involved in a question essentially political
in nature.
This is confirmed by the plea made in the motions

for reconsideration in favor of the exercise of judicial
statesmanship in deciding the present case. Indeed,
"politics" is the word commonly used to epitomize
compromise, even with principles, for the sake of
579
political expediency or the advancement of the bid

for power of a given political party. Upon the other
hand, statesmanship is the expression usually
availed of to refer to high politics or politics on the
highest level. In any event, politics, political
approach, political expediency and statesmanship
are generally associated, and often identified, with
the dictum that "the end justifies the means." I
earnestly hope that the administration of justice in
this country and the Supreme Court, in particular,
will adhere to or approve or indorse such dictum." 40
Tolentino, he pointed out that although "(M)ovants' submittal that "(T)he

primary purpose for the submission of the proposed amendment lowering
the voting age to the plebiscite on November 8, 1971 is to enable the youth
18 to 20 years who comprise more than three (3) million of our population
to participate in the ratification of the new Constitution in so far as "to
allow young people who would be governed by the Constitution to be given
a say on what kind of Constitution they will have" is a laudable end, ...
those urging the vitality and importance of the proposed constitutional
amendment and its approval ahead of the complete and final draft of the
Constitution must seek a valid solution to achieve it in a manner sanctioned
by the amendatory process ordained by our people in the present
Constitution" 41 — so that there may be "submitted, not piece-meal, but by
way of complete and final amendments as an integrated whole (integrated
either with the subsisting Constitution or with the new proposed
Constitution)..."
9. The universal validity of the vital constitutional precepts and principles

above-enunciated can hardly be gainsaid. I fail to see the attempted
distinction of restricting their application to proposals for amendments of
particular provisions of the Constitution and not to so-called entirely new
Constitutions. Amendments to an existing Constitution presumably may be
only of certain parts or in toto, and in the latter case would rise to an
entirely new Constitution. Where this Court held in Tolentino that
"any amendment of the Constitution is of no less importance than the
whole Constitution itself and perforce must be conceived and prepared
580
with as much care and deliberation", it would appeal that the reverse
would equally be true; which is to say, that the adoption of a whole new
Constitution would be of no less importance than any particular
amendment and therefore the necessary care and deliberation as well as
the mandatory restrictions and safeguards in the amending process
ordained by the people themselves so that "they (may) be insulated against
precipitate and hasty actions motivated by more or less passing political
moods or fancies" must necessarily equally apply thereto.
III
1. To restate the basic premises, the people provided in Article XV of the

Constitution for the amending process only"by approval by a majority of
the votes cast at an election at which the (duly proposed) amendments are
submitted to the people for their ratification."
The people ordained in Article V, section 1 that only those thereby

enfranchised and granted the right of suffrage may speak the "will of the
body politic", viz, qualified literate voters twenty one years of age or over
with one year's residence in the municipality where they have registered.
The people, not as yet satisfied, further provided by amendment duly

approved in 1940 in accordance with Article XV, for the creation of
an independent Commission on Elections with "exclusive charge" for the
purpose of "insuring free, orderly and honest elections" and ascertaining
the true will of the electorate — and more, as ruled by this Court
inTolentino, in the case of proposed constitutional amendments,
insuring proper submission to the electorate of such proposals. 42
2. A Massachussets case 43 with a constitutional system and provisions

analogous to ours, best defined the uses of the term "people" as a body
politic and "people" in the political sense who are synonymous with the
qualified voters granted the right to vote by the existing Constitution and
who therefore are "the sole organs through which the will of the body
politic can be expressed."
581
It was pointed out therein that "(T)he word 'people' may have somewhat
varying significations dependent upon the connection in which it is used. In
some connections in the Constitution it is confined to citizens and means
the same as citizens. It excludes aliens. It includes men, women and
children. It comprehends not only the sane, competent, law-abiding and
educated, but also those who are wholly or in part dependents and charges
upon society by reason of immaturity, mental or moral deficiency or lack of
the common essentials of education. All these persons are secured
fundamental guarantees of the Constitution in life, liberty and property and
the pursuit of happiness, except as these may be limited for the protection
of society."
In the sense of "body politic (as) formed by voluntary association of

individuals" governed by a constitution and common laws in a "social
compact ... for the common good" and in another sense of "people" in a
"practical sense" for "political purposes" it was therein fittingly stated that
in this sense, "people" comprises many who, by reason of want of years, of
capacity or of the educational requirements of Article 20 of the
amendments of the Constitution, can have no voice in any government and
who yet are entitled to all the immunities and protection established by the
Constitution. 'People' in this aspect is coextensive with the body politic. But
it is obvious that 'people' cannot be used with this broad meaning of
political signification. The 'people' in this connection means that part of the
entire body of inhabitants who under the Constitution are intrusted with
the exercise of the sovereign power and the conduct of government.
The'people' in the Constitution in a practical sense means those who under
the existing Constitution possess the right to exercise the elective franchise
and who, while that instrument remains in force unchanged, will be
the sole organsthrough which the will of the body politic can be expressed.
'People' for political purposes must be
consideredsynonymous with qualified voters.' "
As was also ruled by the U.S. Supreme Court, "... While the people are thus
the source of political power, their governments, national and state, have
been limited by constitutions, and they have themselves thereby set
582
bounds to their own power, as against the sudden impulse of mere

majorities." 44
From the text of Article XV of our Constitution, requiring approval of

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

safeguards as ordained by the Constitution and implementing statutes to
ascertain and record the will of the people in free, orderly and honest
elections supervised by the Comelec make it imperative that there be strict
adherence to the constitutional requirements laid down for the process of
amending in toto or in part the supreme law of the land.
Even at barrio level 45 the Revised Barrio Charter fixes certain safeguards
for the holding of barrio plebiscites thus: "SEC. 6. Plebiscite. — A plebiscite
may be held in the barrio when authorized by a majority vote of the
members present in the barrio assembly, there being a quorum, or when
called by at least four members of the barrio council:Provided, however,
That no plebiscite shall be held until after thirty days from its approval by
either body, and such plebiscite has been given the widest publicity in the
barrio, stating the date, time and place thereof, the questions or issues to
be decided, action to be taken by the voters, and such other information
relevant to the holding of the plebiscite." 46
As to voting at such barrio plebiscites, the Charter further requires that

"(A)ll duly registered barrio assembly membersqualified to vote may vote in
the plebiscite. Voting procedures may be made either in writing as in
regular elections, and/or declaration by the voters to the board of election
tellers." 47
583
The subjects of the barrio plebiscites are likewise delimited thus: "A
plebiscite may be called to decide on the recall of any member of the barrio
council. A plebiscite shall be called to approve any budgetary, supplemental
appropriations or special tax ordinances" and the required majority vote is
specified: "(F)or taking action on any of the above enumerated measures,
majority vote of all the barrio assembly members registered in the list of
the barrio secretary is necessary." 48
The qualifications for voters in such barrio plebiscites and elections of

barrio officials 49 comply with the suffrage qualifications of Article V, section
1 of the Constitution and provide that "(S)EC. 10. Qualifications of Voters
and Candidates. — Every citizen of the Philippines, twenty one years of age
or over, able to read and write, who has been a resident of the barrio
during the six months immediately preceding the election, duly registered
in the list of voters by the barrio secretary, who is not otherwise
disqualified, may vote or be a candidate in the barrio elections."50
IV
1. Since it appears on the face of Proclamation 1102 that the mandatory

requirements under the above-cited constitutional articles have not been
complied with and that no election or plebiscite for ratification as therein
provided as well as in section 16 of Article XVII of the proposed Constitution
itself 51 has been called or held, there cannot be said to have been a valid
ratification.
2. Petitioners raised serious questions as to the veracity and genuineness of

the reports or certificates of results purportedly showing unaccountable
discrepancies in seven figures in just five provinces 52 between the reports
as certified by the Department of Local Governments and the reports as
directly submitted by the provincial and city executives, which latter reports
respondents disclaimed inter alia as not final and complete or as not
signed; 53 whether the reported votes of approval of the proposed
Constitution conditioned upon the non-convening of the interim National
Assembly provided in Article XVII, section 1 thereof, 54 may be considered as
valid; the allegedly huge and uniform votes reported; and many others.
584
3. These questions only serve to justify and show the basic validity of the
universal principle governing written constitutions that proposed
amendments thereto or in replacement thereof may be ratified only in the
particular mode or manner prescribed therein by the people. Under Article
XV, section 1 of our Constitution, amendments thereto may be ratified only
in the one way therein provided, i.e. in an election or plebiscite held in
accordance with law and duly supervised by the Commission on Elections,
and which is participated in only by qualified and duly registered voters. In
this manner, the safeguards provided by the election code generally assure
the true ascertainment of the results of the vote and interested parties
would have an opportunity to thresh out properly before the Comelec all
such questions in pre-proclamation proceedings.
4. At any rate, unless respondents seriously intend to question the very

statements and pronouncements in Proclamation 1102 itself which shows
on its face, as already stated, that the mandatory amending process
required by the (1935) Constitution was not observed, the cases at bar
need not reach the stage of answering the host of questions, raised by
petitioners against the procedure observed by the Citizens Assemblies and
the reported referendum results — since the purported ratification is
rendered nugatory by virtue of such non-observance.
5. Finally, as to respondents' argument that the President issued

Proclamation 1102 "as "agent" of the Constitutional Convention" 55 under
Resolution No. 5844 approved on November 22, 1973, and "as agent of the
Convention the President could devise other forms of plebiscite to
determine the will of the majority vis-a-vis the ratification of the proposed
Constitution." 56
The minutes of November 22, 1972, of the Convention, however, do not at

all support this contention. On the contrary, the said minutes fully show
that the Convention's proposal and "agency" was that the President issue a
decree precisely calling a plebiscite for the ratification of the proposed new
Constitution on an appropriate date, under the charge of the Comelec, and
with a reasonable period for an information campaign, as follows:
585
12. Upon recognition by the Chair, Delegate

Duavit moved for the approval of the resolution,
the resolution portion of which read as follows:
"RESOLVED, AS IT IS HEREBY
RESOLVED, that the 1971
Constitutional Convention
propose to President Ferdinand
E. Marcos that a decree be issued
calling a plebiscite for the
ratification of the proposed New
Constitution on such appropriate
date as he shall determine and
providing for the necessary funds
therefor, and that copies of this
resolution as approved in plenary
session be transmitted to the
President of the Philippines and
the Commission on Elections for
implementation."
He suggested that in view of the expected

approval of the final draft of the new Constitution
by the end of November 1972 according to the
Convention's timetable, it would be necessary to
lay the groundwork for the appropriate agencies
of the government to undertake the necessary
preparation for the plebiscite.
xxx xxx xxx
12.2 Interpellating, Delegate Pimentel (V.)

contended that the resolution was unnecessary
because section 15, Article XVII on the Transitory
Provision, which had already been approved on
second and third readings, provided that the new
586
constitution should be ratified in a plebiscite

called for the purpose by the incumbent
President. Delegate Duavit replied that the
provision referred to did not include
theappropriation of funds for the plebiscite and
that, moreover, the resolution was intended to
serve formal notice to the President and the
Commission on Elections to initiate the necessary
preparations.
xxx xxx xxx
12.4 Interpellating, Delegate Madarang suggested

that a reasonable period for an information
campaignwas necessary in order to properly
apprise the people of the implications and
significance of the new charter. Delegate Duavit
agreed, adding that this was precisely why the
resolution was modified to give the President the
discretion to choose the most appropriate date
for the plebiscite.
12.5 Delegate Laggui asked whether a formal

communication to the President informing him of
the adoption of the new Constitution would not
suffice considering that under Section 15 of the
Transitory Provisions, the President would be
duty-bound to call a plebiscite for its ratification.
Delegate Duavit replied in the negative, adding
that the resolution was necessary to serve notice
to the proper authorities to prepare everything
necessary for the plebiscite.
12.6 In reply to Delegate Britanico, Delegate

Duavit stated that the mechanics for the holding
of theplebiscite would be laid down by the
587
Commission on Elections in coordination with the

President.
12.7 Delegate Catan inquired if such mechanics

for the plebiscite could include a partial lifting of
martial law in order to allow the people to
assemble peaceably to discuss the new
Constitution. Delegate Duavit suggested that the
Committee on Plebiscite and Ratification could
coordinate with the COMELEC on the matter.
12.8 Delegate Guzman moved for the previous

question. The Chair declared that there was one
more interpellant and that a prior reservation had
been made for the presentation of such a motion.
1.8a Delegate Guzman withdrew his motion.
12.9 Delegate Astilla suggested in his

interpellation that there was actually no need for
such a resolution in view of the provision of
section 15, Article XVII on the Transitory
Provisions. Delegate Duavit disagreed, pointing
out that the said provision did not provide for the
funds necessary for the purpose.
13. Delegate Ozamiz then moved to close the

debate and proceed to the period of amendment.
13.1 Floor Leader Montejo stated that there were

no reservations to amend the resolution.
13.2 Delegate Ozamiz then moved for the

previous question. Submitted to a vote, the
motion was approved.
588
Upon request of the Chair, Delegate Duavit

restated the resolution for voting.
14.1. Delegate Ordoñez moved for nominal voting.

Submitted to a vote, the motion was lost.
14.2. Thereupon, the Chair submitted the resolution

to a vote. It was approved by a show of hands. 57
I, therefore, vote to deny respondents' motion to dismiss and to give due

course to the petitions.
Promulga
ANTONIO, J., concurring:
In conformity with my reservation, I shall discuss the grounds for my

concurrence.
It is my view that to preserve the independence of the State, the

maintenance of the existing constitutional order and the defense of the
political and social liberties of the people, in times of a grave emergency,
when the legislative branch of the government is unable to function or its
functioning would itself threaten the public safety, the Chief Executive may
promulgate measures legislative in character, for the successful
prosecution of such objectives. For the "President's power as Commander-
in-chief has been transformed from a simple power of military command to
a vast reservoir of indeterminate powers in time of emergency. ... In other
words, the principal canons of constitutional interpretation are ... set aside
so far as concerns both the scope of the national power and the capacity of
the President to gather unto himself all constitutionally available powers in
589
order the more effectively to focus them upon the task of the hour."
(Corwin, The President: Office & Powers, pp. 317, 318, [1948]).
1. The proclamation of martial rule, ushered the commencement of a crisis

government in this country. In terms of power, crisis government in a
constitutional democracy entails the concentration of governmental power.
"The more complete the separation of powers in a constitutional system,
the more difficult, and yet the more necessary" according to Rossiter, "will
be their fusion in time of crisis... The power of the state in crisis must not
only be concentrated and expanded, it must be freed from the normal
system of constitutional and legal limitations. One of the basic features of
emergency powers is the release of the government from the paralysis of
constitutional restraints" (Rossiter, Constitutional Dictatorship, p. 290).
It is clearly recognized that in moments of peril the effective action of the

government is channeled through the person of the Chief Executive.
"Energy in the executive," according to Hamilton, "is essential to the
protection of the community against foreign attacks ... to the protection of
property against those irregular and high-handed combinations which
sometimes interrupt the ordinary course of justice; to the security of liberty
against the enterprises and assaults of ambition, of faction, and of
anarchy." (The Federalist, Number 70). "The entire strength of the nation",
said Justice Brewer in the Debs case (158 U.S. 564; 39 L. ed. 1092), "may be
used to enforce in any part of the land the full and free exercise of all
national powers and the security of all rights entrusted by the constitution
to its care." The marshalling and employment of the "strength of the
nation" are matters for the discretion of the Chief Executive. The
President's powers in time of emergency defy precise definition since their
extent and limitations are largely dependent upon conditions and
circumstances.
2. The power of the President to act decisively in a crisis has been grounded
on the broad conferment upon the Presidency of the Executive power, with
the added specific grant of power under the "Commander-in-Chief" clause
of the constitution. The contours of such powers have been shaped more
by a long line of historical precedents of Presidential action in times of
590
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
591
of the United States (Article IV, Section 3) and to repeal at least two
statutes." (Corwin & Koenig, The Presidency Today, New York University
Press, 1956; sf Corwin, The President: Office and Powers, 1948.)
The creation of public offices is a power confided by the constitution to

Congress. And yet President Wilson, during World War I on the basis of his
powers under the "Commander-in-Chief" clause created "offices" which
were copied in lavish scale by President Roosevelt in World War II. In April
1942, thirty-five "executive agencies" were purely of Presidential creation.
On June 7, 1941 on the basis of his powers as "Commander-in-Chief", he
issued an executive order seizing the North American Aviation plant of
Inglewood, California, where production stopped as a consequence of a
strike. This was justified by the government as the exercise of presidential
power growing out of the "duty constitutionally and inherently resting upon
the President to exert his civil and military as well as his moral authority to
keep the defense efforts of the United States a going concern" as well as
"to obtain supplies for which Congress has appropriated money, and which
it has directed the President to obtain." On a similar justification, other
plants and industries were taken over by the government. It is true that in
Youngstown Sheet & Tube vs. Sawyer (343 U.S. 579; 72 S. Ct. 863; 96 L. Ed.
1153, [1952]), the Supreme Court of the United States did not sustain the
claims that the President could, as the Nation's Chief Executive and
Commander-in-Chief of the armed forces, validly order the seizure of most
of the country's steel mills. The Court however did not face the naked
question of the President's power to seize steel plants in the absence of any
congressional enactment or expressions of policy. The majority of the Court
found that this legislative occupation of the field made untenable the
President's claim of authority to seize the plants as an exercise of inherent
executive power or as Commander-in-Chief. Justice Clark, in his
concurrence to the main opinion of the Court, explicitly asserted that the
President does possess, in the absence of restrictive legislation, a residual
or resultant power above or in consequence of his granted powers, to deal
with emergencies that he regards as threatening the national security. The
same view was shared with vague qualification by Justices Frankfurter and
Jackson, two of the concurring Justices. The three dissenting Justices,
speaking through Chief Justice Vinson, apparently went further by quoting
with approval a passage extracted from the brief of the government in the
592
case ofUnited States vs. Midwest Oil Co., (236 U.S. 459 59 L. Ed. 673, 35 S.
Ct. 309) where the court sustained the power of the President to order
withdrawals from the public domain not only without Congressional
sanction but even contrary to Congressional statutes.
It is evident therefore that the Steel Seizure Case, cannot be invoked as an

authority to support the view that the President in times of a grave crisis
does not possess a residual power above or in consequence of his granted
powers, to deal with emergencies that he regards as threatening the
national security. The lesson of the Steel Seizure case, according to Corwin
and Koenig, "Unquestionably ... tends to supplement presidential
emergency power to adopt temporary remedial legislation when Congress
has been, in the judgment of the President, unduly remiss in taking
cognizance of and acting on a given situation." (Corwin and Koenig, The
Presidency Today, New York University Press, 1956).
The accumulation of precedents has thus built up the presidential power

under emergency conditions to "dimensions of executive prerogative as
described by John Locke, of a power to wit, to fill needed gaps in the law, or
even to supersede it so far as may be requisite to realize the fundamental
law of nature and government, namely, that as much as may be all the
members of society are to be preserved." (Corwin and Koenig, The
Presidency Today).
In the light of the accumulated precedents, how could it be reasonably

argued therefore, that the President had no power to issue Presidential
Decree Nos. 86 and 86-A as well as Proclamation No. 1102, since these
measures were considered indispensable to effect the desired reforms at
the shortest time possible and hasten the restoration of normalcy? It is
unavailing for petitioners to contend that we are not faced by an actual
"shooting war" for today's concept of the emergency which justified the
exercise of those powers has of necessity been expanded to meet the
exigencies of new dangers and crisis that directly threaten the nation's
continued and constitutional existence. For as Corwin observed: "... today
the concept of 'war' as a special type of emergency warranting the
realization of constitutional limitations tends to spread, as it were, in both
593
directions, so that there is not only "the war before the war," but the 'war
after the war.' Indeed, in the economic crisis from which the New Deal may
be said to have issued, the nation was confronted in the opinion of the late
President with an 'emergency greater than war'; and in sustaining certain of
the New Deal measures the Court invoked the justification of 'emergency.'
In the final result constitutional practices of wartime have moulded the
Constitution to greater or less extent for peacetime as well, seem likely to
do so still more pronouncedly under fresh conditions of crisis."
(Corwin, Ibid. p. 318.)
The same view was expressed by Rossiter thus:
The second crisis is rebellion, when the authority

of a constitutional government is resisted openly
by large numbers of citizens who are engaged in
violent insurrection against enforcement of its
laws or are bent on capturing it illegally or
destroying it altogether. The third crisis, one
recognized particularly in modern times as
sanctioning emergency action by constitutional
governments, is economic depression. The
economic troubles which plagued all the countries
of the world in the early thirties involved
governmental methods of an unquestionably
dictatorial character in many democracies. It was
thereby acknowledged that an economic
existence as a war or a rebellion. And these are
not the only cases which have justified
extraordinary governmental action in nations like
the United States. Fire, flood, drought,
earthquake, riots, great strikes have all been dealt
with by unusual and of dictatorial methods. Wars
are not won by debating societies, rebellions are
not suppressed by judicial injunctions,
reemployment of twelve million jobless citizens
will not be effected through a scrupulous regard
594
for the tenets of free enterprise, hardships caused

by the eruptions of nature cannot be mitigated
letting nature take its course. The Civil War, the
depression of 1933 and the recent global conflict
were not and could not have been successfully
resolved by governments similar to those of James
Buchanan, William Howard Taft, or Calvin
Coolidge. (Rossiter, Constitutional
Dictatorship — Crisis of Government in the
Modern Democracies, p. 6 [1948).
II
We are next confronted with the insistence of Petitioners that the

referendum in question not having been done inaccordance with the
provisions of existing election laws, which only qualified voters who are
allowed to participate, under the supervision of the Commission on
Elections, the new Constitution, should therefore be a nullity. Such an
argument is predicated upon an assumption, that Article XV of the 1935
Constitution provides the method for therevision of the constitution, and
automatically apply in the final approval of such proposed new Constitution
the provisions of the election law and those of Article V and X of the old
Constitution. We search in vain for any provision in the old charter
specifically providing for such procedure in the case of a total revision or a
rewriting of the wholeconstitution.
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
theimprovement of specific parts of the existing constitution of the addition
of provisions deemed essential as a consequence of new constitutions or
the elimination of parts already considered obsolete or unresponsive to the
needs of the times. 1 The 1973 Constitution is not a mere amendment to the
595
1935 Constitution. It is a completely new fundamental charter embodying

new political, social and economic concepts.
According to an eminent authority on Political Law, "The Constitution of the

Philippines and that of the United States expressly provide merely for
methods of amendment. They are silent on the subject of revision. But this
is not a fatal omission. There is nothing that can legally prevent a
convention from actually revising the Constitution of the Philippines or of
the United States even were such conventions called merely for the
purpose of proposing and submitting amendments to the people. For in the
final analysis, it is the approval of the people that gives validity to any
proposal of amendment or revision." (Sinco, Philippine Political Law, p. 49).
Since the 1935 Constitution does not specifically provide for the method or
procedure for the revision or for the approval of a new constitution, should
it now be held, that the people have placed such restrictions on themselves
that they are not disabled from exercising their right as the ultimate source
of political power from changing the old constitution which, in their view,
was not responsive to their needs and in adopting a new charter of
government to enable them to rid themselves from the shackles of
traditional norms and to pursue with new dynamism the realization of their
true longings and aspirations, except in the manner and form provided by
Congress for previous plebiscites? Was not the expansion of the base of
political participation, by the inclusion of the youth in the process of
ratification who after all constitute the preponderant majority more in
accord with the spirit and philosophy of the constitution that political
power is inherent in the people collectively? As clearly expounded by
Justice Makasiar, in his opinion, in all the cases cited where the Courts held
that the submission of the proposed amendment was illegal due to the
absence of substantial compliance with the procedure prescribed by the
constitution, the procedure prescribed by the state Constitution, is so
detailed, that specified the manner in which such submission shall be
made, the persons qualified to vote for the same, the date of election and
other definite standards, from which the court could safely ascertain
whether or not the submission was in accordance with the Constitution.
Thus the case of In re McConaughy (119 N.E. 408) relied upon in one of the
596
dissenting opinions involved in the application of the provisions of the state

Constitution of Minnesota which clearly prescribed in detail the procedure
under which the Constitution may be amended or revised. 2 This is not true
with our Constitution. In the case of revision there are no "standards meet
for judicial judgment." 3
The framers of our Constitution were free to provide in the Constitution the
method or procedure for the revision or rewriting of the entire constitution,
and if such was their intention, they could and should have so provided.
Precedents were not wanting. The constitutions of the various states of the
American Union did provide for procedures for theiramendment and
methods for their revision. 4
Certainly We cannot, under the guise of interpretation, modify, revise,

amend, remodel or rewrite the 1935 Charter. To declare what the law is, or
has been, is a judicial power, but to declare what the law shall be is not
within Our judicial competence and authority.
Upon the other hand, since our fundamental charter has not provided the
method or procedure for the revision or complete change of the
Constitution, it is evident that the people have reserved such power in
themselves. They decided to exercise it not through their legislature, but
through a Convention expressly chosen for that purpose. The Convention as
an independent and sovereign body has drafted not an amendment but a
completely new Constitution, which decided to submit to the people for
approval, not through an act of Congress, but by means of decrees to be
promulgated by the President. In view of the inability of Congress to act, it
was within the constitutional powers of the President, either as agent of
the Constitutional Convention, or under his authority under martial law, to
promulgate the necessary measures for the ratification of the proposed
new Constitution. The adoption the new Charter was considered as a
necessary basis for all the reforms set in motion under the new society, to
root out the causes of unrest. The imperatives of the emergency
underscored the urgency of its adoption. The people in accepting such
procedure and in voting overwhelmingly for the approval of the new
Constitution have, in effect, ratified the method and procedure taken.
597
"When the people adopt completely revised or new constitution," said the
Court in Wheeler v. Board of Trustees (37 SE 2nd 322, 326-330), "the
framing or submission of the instrument is not what gives it binding force
and effect. The fiat of the people, and only the fiat of the people, can
breathe life into a constitution."
This has to be so because, in our political system, all political power is

inherent in the people and free governments are founded on their
authority and instituted for their benefit. Thus Section 1 of Article II of the
1935 Constitution declares that: "Sovereignty resides in the people and all
government authority emanate from them." Evidently the
term peoplerefers to the entire citizenry and not merely to the electorate,
for the latter is only a fraction of the people and is only an organ of
government for the election of government officials.
III
The more compelling question, however is: Has this Court the authority to
nullify an entire Constitution that is alreadyeffective as it has been accepted
and acquiesced in by the people as shown by their compliance with the
decree promulgated thereunder, their cooperation in its implementation,
and is now maintained by the Government that is in undisputed authority
and dominance?
Of course it is argued that acquiescence by the people can be deduced from

their acts of conformity, because under a regime of martial law the people
are bound to obey and act in conformity with the orders of the President,
and has absolutely no other choice. The flaw of this argument lies in its
application of a mere theoretical assumption based on the experiences of
other nations on an entirely different factual setting. Such an assumption
flounders on the rock of reality. It is true that as a general rule martial law is
the use of military forces to perform the functions of civil government.
Some courts have viewed it as a military regime which can be imposed in
emergency situations. In other words, martial rule exists when the military
rises superior to the civil power in the exercise of some or all the functions
of government. Such is not the case in this country. The government
598
functions thru its civilian officials. The supremacy of the civil over the
military authority is manifest. Except for the imposition of curfew hours and
other restrictions required for the security of the State, the people are free
to pursue their ordinary concerns.
In short, the existing regime in this Country, does not contain the
oppressive features, generally associated with a regime of Martial law in
other countries. "Upon the other hand the masses of our people have
accepted it, because of its manifold blessings. The once downtrodden rice
tenant has at long last been emancipated — a consummation devoutly
wished by every Philippine President since the 1930's. The laborer now
holds his head high because his rights are amply protected and
respected." * A new sense of discipline has swiftly spread beyond the
corridors of government into the social order. Responding to the challenges
of the New Society, the people have turned in half a million loose firearms,
paid their taxes on undeclared goods and income in unprecedented
numbers and amount, lent their labors in massive cooperation — in land
reform, in the repair of dikes, irrigation ditches, roads and bridges, in
reforestation, in the physical transformation of the environment to make
ours a cleaner and greener land. "The entire country is turning into one vast
garden growing food for the body, for thought and for the soul." * More
important the common man has at long last been freed from the incubus of
fear.
"Martial law has paved the way for a re-ordering of the basic social
structure of the Philippines" reported Frank Valeo to the United States
Senate. "President Marcos has been prompt and sure-footed in using the
power of presidential decree under martial law for this purpose. He has
zeroed in on areas which have been widely recognized as prime sources of
the nation's difficulties — land tenancy, official corruption, tax evasion and
abuse of oligarchic economic power. Clearly he knows his targets ... there is
marked public support for his leadership..." (Bulletin Today, March 3 and 4,
1973)..
In a similar vein, C.L. Sulzberger, a foreign affairs columnist wrote, in the

April 11 issue of The New York Times:
599
During his first Presidential term (1965-1969), Mr.

Marcos was discouraged by the failure of
legislators to approve urgently needed reforms.
He found his second term further frustrated by
spread riots, a Maoist uprising in Luzon and a
much more serious Moslem insurrection in the
southern islands from Mindanao across the Sulu
archipelago to the frontier regions of Malaysia
and Indonesia. Manila claims this war is Maoist-
coordinated.
Mr. Marcos has now in effect taken all the reins of

power and makes no promise as to when he will
relinquish them. But, while fettering a free press,
terminating Congress and locking up some
opponents (many of whom were later
amnestied), he has hauled the Philippines out of
stagnation.
Sharecropping is being ended as more than three

million acres of arable land are redistributed with
state funds. New roads have been started. The
educational system is undergoing revision, a
corruption is diminished. In non-communist Asia it
is virtually impossible to wholly end it and this
disagreeable phenomenon still reaches very high.
Mr. Marcos, an imaginative, gifted man, hopes to

reshape society by creating an agrarian middle-
class to replace the archaic sharecropper-
absentee landlord relationship. He is even pushing
for a birth control program with the tacit
acceptance of the Catholic Church. He has started
labor reforms and increased wages. (Daily Express,
April 15, 1973)
600
As explained in this writer's opinion of April 24, 1973 on the "Constancia"

and "Manifestation" of counsel for petitioners:
The new Constitution is considered effective "if the norms created in

conformity with it are by and large applied and obeyed. As soon as the old
Constitution loses its effectiveness and the new Constitution has become
effective, the acts that appear with the subjective meaning of creating or
applying legal norms are no longer interpreted by presupposing the old
basic norm, but by presupposing the new one. The statutes issued under
the old Constitution and not taken over are no longer regarded as valid, and
the organs authorized by the old Constitution no longer competent."
(Kelsen, Pure Theory of Law, [1967].)
The essentially political nature of the question is at once made manifest by

understanding that in the final analysis, what is assailed is not merely the
validity of Proclamation No. 1102 of the President, which is merely
declaratory of the fact of approval or ratification, but the legitimacy of the
government. It is addressed more to the framework and political character
of this Government which now functions under the new Charter. It seeks to
nullify a Constitution that is already effective.
In such a situation, We do not see how the question posed by petitioners

could be judicially decided. "Judicial power presupposes an established
government capable of enacting laws and enforcing their execution, and of
appointing judges to expound and administer them. If it decides at all as a
court, it necessarily affirms the existence and authority of the government
under which it is exercising judicial power." (Luther v. Borden, 48 U.S. [7
How.] 1, 12 L. Ed. 598.)
In other words, where a complete change in the fundamental law has been
effected through political action, the Court whose existence is affected by
such change is, in the words of Mr. Melville Fuller Weston, "precluded from
passing upon the fact of change by a logical difficulty which is not to be
surmounted." 5 Such change in the organic law relates to the existence of a
prior point in the Court's "chain of title" to its authority and "does not
relate merely to a question of the horizontal distribution of powers." 6 It
601
involves in essence a matter which "the sovereign has entrusted to the so-
its own extra governmental action." 7
The non-judicial character of such a question has been recognized in

American law. "From its earliest opinions this Court has consistently
recognized," said Justice Frankfurter, in his illuminating dissent in Baker v.
Carr, 369 U.S. 186, 7 L. Ed. 2d. 633, 722, 726, 727), "a class of controversies
which do not lend themselves to judicial standards and judicial remedies.
To classify the various instances as "political questions" is rather a form of
stating this conclusion than revealing of analysis ... The crux of the matter is
that courts are not fit instruments of decision where what is essentially at
stake is the composition of those large contests of policy traditionally
fought out in non-judicial forums, by which governments and the actions of
governments are made and unmade."
The diversity of views contained in the opinions of the members of this

Court, in the cases at bar, cannot be a case on "right" or "wrong" views of
the Constitution. It is one of attitudes and values. For there is scarcely any
principle, authority or interpretation which has not been countered by the
opposite. At bottom, it is the degree of one's faith — in the nation's
leadership and in the maturity of judgment of our people.
IN VIEW OF THE FOREGOING, the dismissal of

these five cases, and the conclusion of this Court
in its judgment of March question becomes wholly
moot except for this consideration, that, when the
judges as individuals or as a body of individuals
come to decide which king or which constitution
they will support and assert to represent, it may
often be good judgment for them to follow the
lead of the men who as a practical matter are
likely to be looked to by the people as more
representative of themselves and conversely are
likely to be more directly in touch with popular
sentiment. If, however, the judges hold too strong
602
views of their own to be able to take this course,

they may follow their own leads at their own
hazard. No question of law is involved. (Political
Questions, 38 Harvard Law Review [1924-25], pp.
305-309.)
31, 1973 are fully justified.
Barredo, Makasiar and Esguerra, JJ., concur.
APPENDIX TO OPINION
(G.R. Nos. L-36142, 36164, 36165, 36236 & 36283)
PROVISIONS OF STATE CONSTITUTIONS SPECIFICALLY

PROVIDING FOR AMENDMENT AND REVISION @
1. Alaska (1959) — Art. XIII. Amendment and Revision.
Sec. 1. Amendments. Amendments to this constitution may be proposed by

a two-thirds vote of each house of the legislature. The secretary of state
shall prepare a ballot title and proposition summarizing each proposed
amendment, and shall place them on the ballot for the next statewide
election. If a majority of the votes cast on the proposition favor
the amendment, it becomes effective thirty days after the certification of
the election returns by the secretary of state.
Sec. 2. Convention. The legislature may call constitutional conventions at

any time.
Sec. 3. Call by referendum. If during any ten-year period a constitutional

convention has not been held, the secretary of state shall place on the
ballot for the next general election the question: "Shall there be a
Constitutional Convention?" If a majority of the votes cast on the question
are in the negative, the question need not be placed on the ballot until the
end of the next ten-year period. If a majority of the votes cast on the
603
question are in the affirmative, delegates to the convention shall be chosen

at the next regular statewide election, unless the legislature provides for
the election of the election delegates at a special election. The secretary of
state shall issue the call for the convention. Unless other provisions have
been made by law, the call shall conform as nearly as possible to the act
calling the Alaska Constitutional Convention of 1955, including, but not
limited to, number of members, districts, election and certification of
delegates, and submission and ratification of revisions and ordinances. ... .
Sec. 4. Powers. Constitutional conventions shall have plenary power to

amend or revise the constitution, subject only to ratification by the people.
No call for a constitutional convention shall limit these powers of the
convention.
2. California (1879) — Art. XVIII. Amending and Revising the Constitution.
Sec. 1. Constitutional amendments. Any amendment or amendments to this

Constitution may be proposed in the Senate or Assembly, and if two-thirds
of all the members elected to each of the houses shall vote in favor thereof,
such proposed amendment or amendments shall be entered in their
Journals, with the yeas and nays taken thereon; and it shall be the duty of
the Legislature to submit such proposed amendment or amendments to
the people in such manner, and at such time, and after such publication as
may be deemed expedient. Should more amendments than one be
submitted at the same election they shall be so prepared and distinguished,
by numbers or otherwise, that each can be voted on separately. If the
people shall approve and ratify such amendment or amendments, or any of
them, by a majority of the qualified electors voting thereon such
amendment or amendments shall become a part of this constitution.
Sec. 2. Constitutional convention. Whenever two-thirds of the members

elected to each branch of the Legislature shall deem it necessary to revise
this Constitution, they shall recommend to the electors to vote at the next
general for or against a Convention for that purpose, and if a majority of
the electors voting at such election on the proposition for a Convention
shall vote in favor thereof, the Legislature shall, at its next session, provide
604
by law for calling the same. The Convention shall consist of a number of
delegates not to exceed that of both branches of the Legislature, who shall
be chosen in the same manner, and have the same qualifications, as
Members of the Legislature. The delegates so elected shall meet within
three months after their election at such place as the Legislature may
direct. At a special election to be provided for by law, the Constitution that
may be agreed upon by such Convention shall be submitted to the people
for their ratification or rejection, in such manner as the Convention may
determine. The returns of such election shall, in such manner as the
Convention shall direct, be certified to the Executive of the State, who shall
call to his assistance the Controller, Treasurer, and Secretary of State, and
compare the returns so certified to him; and it shall be the duty of the
Executive to declare, by his proclamation, such Constitution, as may have
been ratified by a majority of all the votes cast at such special election, to
be the Constitution of the State of California.
3. Colorado (1876) — Art. XIX. Amendments.
Sec. 1. Constitutional convention; how called. The general assembly may at

any time be a vote of two-thirds of the members elected to each house,
recommend to the electors of the state, to vote at the next general election
for or against a convention to revise, alter and amend this constitution; and
if a majority of those voting on the question shall declare in favor of such
convention, the general assembly shall, at the next session, provide for the
calling thereof. The number of members of the convention shall be twice
that of the senate and they shall be elected in the same manner, at the
same places, and in the same districts. The general assembly shall, in the
act calling the convention, designate the day, hour and place of its meeting;
fix the pay of its members and officers, and provide for the payment of the
same, together with the necessary expenses of the convention. Before
proceeding, the members shall take an oath to support the constitution of
the United States, and of the state of Colorado, and to faithfully discharge
their duties as members of the convention. The qualifications of members
shall be the same as of members of the senate; and vacancies occurring
shall be filled in the manner provided for filling vacancies in the general
assembly. Said convention shall meet within three months after such
605
election and prepare such revisions, alterations or amendments to the

constitution as may be deemed necessary; which shall be submitted to
the electors for their ratification or rejection at an election appointed by the
convention for that purpose, not less than two nor more than six months
after adjournment thereof; and unless so submitted and approved by a
majority of the electors voting at the election, no such revision, alteration
or amendment shall take effect.
Sec. 2. Amendments to constitution; how adopted. Any amendment or

amendments to this constitution may be proposed in either house of the
general assembly, and if the same shall be voted for by two-thirds of all the
members elected to each house, such proposed amendment or
amendments, together with the ayes and noes of each house hereon, shall
be entered in full on their respective journals; the proposed amendment or
amendments shall be published with the laws of that session of the general
assembly, and the secretary of state shall also cause the said amendment
or amendments to be published in full in not more than one newspaper of
general circulation in each county, for four successive weeks previous to
the next general election for members of the general assembly; and at said
election the said amendment or amendments shall be submitted to
the qualified electors of the state for their approval or rejection, and such
as are approved by a majority of those voting thereon shall become part of
this constitution.
Provided, that if more than one amendment be submitted at any general

election, each of said amendments shall be voted upon separately and
votes thereon cast shall be separately counted the same as though but one
amendment was submitted. But the general assembly shall have no power
to propose amendments to more than six articles of this constitution at the
same session.
4. Delaware (1897) — Art. XVI. Amendments and Conventions.
Sec. 1. Proposal of constitutional amendments in general assembly;

procedure. Any amendment or amendments to this Constitution may be
proposed in the Senate or House of Representatives; and if the same shall
606
be agreed to by two-thirds of all the members elected to each House, such

proposed amendment or amendments shall be entered on their journals,
with the yeas and nays taken thereon, and the Secretary of State shall
cause such proposed amendment or amendments to be published three
months before the next general election in at least three newspapers in
each County in which such newspaper shall be published; and if in the
General Assembly next after the said election such proposed amendment
or amendments shall upon yea and nay vote be agreed to by two-thirds of
all the members elected to each House, the same shall thereupon become
part of the Constitution.
Sec. 2. Constitutional conventions; procedure; compensation of delegates;

quorum; powers and duties; vacancies. The General Assembly by a two-
thirds vote of all the members elected to each House may from time to
time provide for the submission to the qualified electors of the State at the
general election next thereafter the question, "Shall there be a Convention
to revise the Constitution and amend the same?;" and upon such
submission, if a majority of those voting on said question shall decide in
favor of a Convention for such purpose, the General Assembly at its next
session shall provide for the election of delegates to such convention at the
next general election. Such Convention shall be composed of forty-one
delegates, one of whom shall be chosen from each Representative District
by the qualified electors thereof, and two of whom shall be chosen from
New Castle County, two from Kent County and two from Sussex County by
the qualified electors thereof respectively. The delegates so chosen shall
convene at the Capital of the State on the first Tuesday in September next
after their election. Every delegate shall receive for his services such
compensation as shall be provided by law. A majority of the Convention
shall constitute a quorum for the transaction of business. The Convention
shall have the power to appoint such officers, employees and assistants as
it may be deem necessary, and fix their compensation, and provide for the
printing of its documents, journals, debates and proceedings. The
Convention shall determine the rules of its proceedings, and be the judge of
the elections, returns and qualifications of its members. Whenever there
shall be a vacancy in the office of delegate from any district or county by
reason of failure to elect, ineligibility, death, resignation or otherwise, a
writ of election to fill such vacancy shall be issued by the Governor, and
607
such vacancy shall be filled by the qualified electors of such district or

county.
5. Florida (1887) — Art. XVII. Amendments.
Sec. 1. Method of amending constitution. Either branch of the Legislature,

at any regular session, or at any special or extra-ordinary session thereof
called for such purpose either in the governor's original call or any
amendment thereof, may propose the revision or amendment of any
portion or portions of this Constitution. Any such revision or amendment
may relate to one subject or any number of subjects, but no amendment
shall consist of more than one revised article of the Constitution.
If the proposed revision or amendment is agreed to by three-fifths of the

members elected to each house, it shall be entered upon their respective
journals with the yeas and nays and published in one newspaper in each
county where a newspaper is published for two times, one publication to
be made not earlier than ten weeks and the other not later than six weeks,
immediately preceding the election at which the same is to be voted upon,
and thereupon submitted to the electors of the State for approval or
rejection at the next general election, provided, however, that
such revision oramendment may be submitted for approval or rejection in a
special election under the conditions described in and in the manner
provided by Section 3 of Article XVII of the Constitution. If a majority of the
electors voting upon the amendment adopt such amendment the same
shall become a part of this Constitution.
Sec. 2. Method of revising constitution. If at any time the Legislature, by a

vote of two-thirds of all the members of both Houses, shall determine that
a revision of this Constitution is necessary, such determination shall be
entered upon their respective Journals, with yea's and nay's thereon.
Notice of said action shall be published weekly in one newspaper in every
county in which a newspaper is published, for three months preceding the
next general election of Representatives, and in those countries where no
newspaper is published, notice shall be given by posting at the several
polling precincts in such counties for six weeks next preceding said election.
608
The electors at said election may vote for or against the revision in
question. If a majority of the electors so voting be in favor of revision, the
Legislature chosen at such election shall provide by law for a Convention to
revise the Constitution, said Convention to be held within six months after
the passage of such law. The Convention shall consist of a number equal to
the membership of the House of Representatives, and shall be apportioned
among the several counties in the same manner as members of said House.
6. Idaho (1890) — Art. XIX. Amendments.
Sec. 1. How amendments may be proposed. Any amendment or

amendments to this Constitution may be proposed in either branch of the
legislature, and if the same shall be agreed to by two-thirds of all the
members of each of the two houses, voting separately, such proposed
amendment or amendments shall, with the yeas and nays thereon, be
entered on their journals, and it shall be the duty of the legislature to
submit such amendment or amendments to the electors of the state at the
next general election, and cause the same to be published without delay for
at least six consecutive weeks, prior to said election, in not less than one
newspaper of the general circulation published in each county; and if a
majority of the electors shall ratify the same, such amendment or
amendments shall become a part of this Constitution.
Sec. 3. Revision or amendments by convention. Whenever two-thirds of the

to call a convention to revise or amend this Constitution, they shall
recommend to the electors to vote at the next general election, for or
against a convention, and if a majority of all the electors voting at said
session provide by law for calling the same; and such convention shall
consist of a number of members, not less than double the number of the
most numerous branch of the legislature.
7. Iowa (1857) — Art. X. Amendments to the Constitution.
609
Sec. 3. Convention. At the general election to be held in the year one

thousand eight hundred and seventy, and in each tenth year thereafter,
and also at such times as the General Assembly may, by law, provide, the
question, "Shall there be a Convention to revise the Constitution,
and amend the same?" shall be decided by the electors qualified to vote for
members of the General Assembly; and in case a majority of the electors so
qualified, voting at such election, for and against such proposition, shall
decide in favor of a Convention for such purpose, the General Assembly, at
its next session, shall provide by law for the election of delegates to such
Convention.
8. Michigan (1909) — Art. XVII. Amendments and Revision.
Sec. 1. Amendments to constitution; proposal by legislature; submission to

electors. Any amendment or amendments to this constitution may be
proposed in the senate or house of representatives. If the same shall be
agreed to by 2/3 of the members elected to each house,
such amendment or amendments shall be entered on the journals,
respectively, with the yeas and nays taken thereon; and the same shall be
submitted to the electors at the next spring or autumn election thereafter,
as the legislature shall direct; and, if a majority of the electors qualified to
vote for members of the legislature voting thereon shall ratify and approve
such amendment or amendments, the same shall become part of the
constitution.
Sec. 4. General revision; convention; procedure. At the Biennial Spring

Election to be held in the year 1961, in each sixteenth year thereafter and
at such times as may be provided by law, the question of a General
Revision of the Constitution shall be submitted to the Electors qualified to
vote for members of the Legislature. In case a majority of the Electors
voting on the question shall decide in favor of a Convention for such
purpose, at an Election to be held not later than four months after the
Proposal shall have been certified as approved, the Electors of each House
of Representatives District as then organized shall Elect One Delegate for
each Electors of each Senatorial District as then organized shall Elect One
Delegate for each State Senator to which the District is entitled. The
610
Delegates so elected shall convene at the Capital City on the First Tuesday
in October next succeeding such election, and shall continue their sessions
until the business of the convention shall be completed. A majority of the
delegates elected shall constitute a quorum for the transaction of
business. ... No proposed constitution or amendment adopted by such
convention shall be submitted to the electors for approval as hereinafter
provided unless by the assent of a majority of all the delegates elected to
the convention, the yeas and nays being entered on the journal. Any
proposed constitution or amendments adopted by such convention shall be
submitted to the qualified electors in the manner provided by such
convention on the first Monday in April following the final adjournment of
the convention; but, in case an interval of at least 90 days shall not
intervene between such final adjournment and the date of such election.
Upon the approval of such constitution or amendments by a majority of the
qualified electors voting thereon such constitution or amendments shall
take effect on the first day of January following the approval thereof.
9. Minnesota (1857) — Art. XIV. Amendments to the Constitution.
Sec. 1. Amendments to constitution; majority vote of electors voting makes

amendment valid. Whenever a majority of both houses of the legislature
shall deem it necessary to alter or amend this Constitution, they may
proposed such alterations or amendments, which proposed amendments
shall be published with the laws which have been passed at the same
session, and said amendments shall be submitted to the people for their
approval or rejection at any general election, and if it shall appear, in a
manner to be provided by law, that a majority of all the electors voting at
said election shall have voted for and ratified such alterations or
amendments, the same shall be valid to all intents and purposes as a part
of this Constitution. If two or more alterations or amendments shall be
submitted at the same time, it shall be so regulated that the voters shall
vote for or against each separately.
Sec. 2. Revision of constitution. Whenever two-thirds of the members

elected to each branch of the legislature shall think it necessary to call a
convention to revise this Constitution, they shall recommend to the
611
electors to vote at the next general election for members of the legislature,
for or against a convention; and if a majority of all the electors voting at
said election shall have voted for a convention, the legislature shall, at their
next session, provide by law for calling the same. The convention shall
consist of as many members as the House of Representatives, who shall be
chosen in the same manner, and shall meet within three months after their
election for the purpose aforesaid.
Sec. 3. Submission to people of revised constitution drafted at convention.

Any convention called to revise this constitution shall submit any revision
thereof by said convention to the people of the State of Minnesota for their
approval or rejection at the next general election held not less than 90 days
after the adoption of such revision, and, if it shall appear in the
manner provided by law that three-fifths of all the electors voting on the
question shall have voted for and ratified such revision, the same shall
constitute a new constitution of the State of Minnesota. Without such
submission and ratification, said revision shall be of no force or effect.
Section 9 of Article IV of the Constitution shall not apply to election to the
convention.
10. Nevada (1864) — Art. 16. Amendments.
Sec. 1. Constitutional amendments; procedure. Any amendment or

amendments to this Constitution may be proposed in the Senate or
Assembly; and if the same shall be agreed to by a Majority of all the
amendments shall be entered on their respective journals, with the Yeas
and Nays taken thereon, and referred to the Legislature then next to be
chosen, and shall be published for three months next preceding the time of
making such choice. And if in the Legislature next chosen as aforesaid, such
proposed amendment or amendments shall be agreed to by a majority of
all the members elected to each house, then it shall be the duty of the
Legislature to submit such proposed amendment or amendments to the
people, in such manner and at such time as the Legislature shall prescribe;
and if the people shall approve and ratify such amendment or amendments
by a majority of the electors qualified to vote for members of the
612
Legislature voting thereon, such amendment or amendments shall become

a part of the Constitution.
Sec. 2. Convention for revision of constitution; procedure. If at any time the

Legislature by a vote of two-thirds of the Members elected to each house,
shall determine that it is necessary to cause a revision of this entire
Constitution they shall recommend to the electors at the next election for
Members of the Legislature, to vote for or against a convention, and if it
shall appear that a majority of the electors voting at such election, shall
have voted in favor of calling a Convention, the Legislature shall, at its next
session provide by law for calling a Convention to be holden within six
months after the passage of such law, and such Convention shall consist of
a number of Members not less that of both branches of the legislature. In
determining what is a majority of the electors voting such election,
reference shall be had to the highest number of vote cast at such election
for the candidates of any office or on any question.
11. New Hamspire (1784) —
Art. 99. Revision of constitution provided for. It shall be the duty of the
selectmen, and assessors, of the several towns and places in this state, in
warning the first annual meetings for the choice of senators, after the
expiration of seven years from the adoption of this constitution, as
amended, to insert expressly in the warrant this purpose, among the others
for the meeting, to wit, to take the sense of the qualified voters on the
subject of a revision of the constitution; and, the meeting being warned
accordingly, and not otherwise, the moderator shall take the sense of the
qualified voters present as to the necessity of a revision; and a return of the
number of votes for and against such necessity, shall be made by the clerk
sealed up, and directed to the general court at their then next session; and
if, it shall appear to the general court by such return, that the sense of the
people of the state has taken, and that, in the opinion of the majority of the
qualified voters in the state, present and voting at said meetings, there is a
necessity for a revision of the constitution, it shall be the duty of the
general court to call a convention for that purpose, otherwise the general
court shall direct the sense of the people to be taken, and then proceed in
613
the manner before mentioned. The delegates to be chosen in the same

manner, and proportioned, as the representatives to the general court;
provided that no alterations shall be made in this constitution, before the
same shall be laid before the towns and unincorporated places, and
approved by two thirds of the qualified voters present and voting on the
subject.
12. Oklahoma (1907) — Art. XXIV. Constitutional Amendments.
Sec. 1. Amendments proposed by legislature; a submission to vote.

Any amendment or amendments to this Constitution may be proposed in
either branch of the Legislature, and if the same shall be agreed to by a
majority of all the members elected to each of the two houses, such
proposed amendment or amendments shall, with yeas and nays thereon,
be entered in their journals and referred by the Secretary of State to the
people for their approval or rejection, at the next regular general election,
except when the Legislature, by a two-thirds vote of each house, shall order
a special election for that purpose. If a majority of all the electors voting at
such election shall vote in favor of any amendment thereto, it shall thereby
become a part of this Constitution.
If two or more amendments are proposed they shall be submitted in such

manner that electors may vote for or against them separately.
No proposal for the amendment or alteration of this Constitution which is

submitted to the voters shall embrace more than one general subject and
the voters shall vote separately for or against each proposal submitted;
provided, however, that in the submission of proposals for
the amendment of this Constitution by articles, which embrace one general
subject, each proposed article shall be deemed a single proposals or
proposition
Sec. 2. Constitutional convention to propose amendments or new

constitution. No convention shall be called by the Legislature to
propose alterations, revisions, or amendments to this Constitution, or
to propose a new Constitution, unless the law providing for such
614
convention shall first be approved by the people on a referendum vote at a

regular or special election, and any amendments, alterations, revisions, or
new Constitution, proposed by such convention, shall be submitted to the
electors of the State at a general or special election and be approved by a
majority of the electors voting thereon, before the same shall become
effective Provided, That the question of such proposed convention shall be
submitted to the people at least once in every twenty years.
13. Oregon (1859) — Art. XVII. Amendments and Revisions.
Sec. 1. Method of amending constitution. Any amendment or amendments

to this Constitution may be proposed in either branch of the legislative
assembly, and if the same shall be agreed to by a majority of all the
amendments shall, with the yeas and nays thereon, be entered in their
journals and referred by the secretary of state to the people for their
approval or rejection, at the next regular election, except when the
legislative assembly shall order a special election for that purpose. If a
majority of the electors voting on any such amendment shall vote in favor
thereof, it shall thereby become a part of this Constitution. The votes for
and against such amendment, or amendments, severally, whether
proposed by the legislative assembly or by initiative petition, shall be
canvassed by the secretary of state in the presence of the governor, and if
it shall appear to the governor that the majority of the votes cast at said
election on said amendment, or amendments, severally, are cast in favor
thereof, it shall be his duty forthwith after such canvass, by his
proclamation, to declare the said amendment, or amendments, severally,
having received said majority of votes to have been adopted by the people
of Oregon as part of the Constitution thereof, and the same shall be in
effect as a part of the Constitution from the date of such proclamation.
When two or more amendments shall be submitted in the manner
aforesaid to the voters of this state at the same election, they shall be so
submitted that each amendment shall be voted on separately. No
convention shall be called to amend or propose amendments to this
Constitution, or to propose a new Constitution, unless the law providing for
such convention shall first be approved by the people on a referendum vote
615
at a regular general election. This article shall not be construed to impair

the right of the people to amend this Constitution by vote upon an initiative
petition therefor.
Sec. 2. Method of revising constitution. (1) In addition to the power to

amend this Constitution granted by section 1, Article IV, and section 1 of
this Article, a revision of all or part of this Constitution may be proposed in
either house of the Legislative Assembly and, if the proposed revision is
agreed to by at least two-thirds of all the members of each house, the
proposed revision shall, with the yeas and nays thereon, be entered in their
journals and referred by the Secretary of State to the people for their
approval or rejection, notwithstanding section 1, Article IV of this
Constitution, at the next regular state-wide primary election, except when
the Legislative Assembly orders a special election for that purpose. A
proposed revision may deal with more than one subject and shall be voted
upon as one question. The votes for and against the proposed revision shall
be canvassed by the Secretary of State in the presence of the Governor
and, if it appears to the Governor that the majority of the votes cast in the
election on the proposed revision are in favor of the proposed revision, he
shall, promptly following the canvass, declare, by his proclamation, that the
proposed revision has received a majority of votes and has been adopted
by the people as the Constitution of the State of Oregon, as the case may
be. The revision shall be in effect as the Constitution or as a part of this
Constitution from the date of such proclamation.
14. Utah (1896) — Art. 23. Amendments.
Sec. 1. Amendments; method of proposal and approval. Any amendments

to his Constitution may be proposed in either house of the Legislature, and
if two-thirds of all the members elected of the two houses, shall vote in
favor thereof, such proposed amendment or amendments shall be entered
on their respective journals with the yeas and nays taken thereon; and the
Legislature shall cause the same to be published in at least one newspaper
in every county of the State, where a newspaper is published, for two
months immediately preceding the next general election, at which time the
said amendment or amendments shall be submitted to the electors of the
616
State, for their approval or rejection, and if a majority of the electors voting
thereon shall approve the same, such amendment or amendments shall
become part of this Constitution. If two or more amendments are
proposed, they shall be so submitted as to enable the electors to vote on
each of them separately.
Sec. 2. Revision of the Constitution by convention. Whenever two-thirds of

the members, elected to each branch of the Legislature, shall deem it
necessary to call a convention to revise or amend this Constitution, they
shall recommend to the electors to vote at the next general election, for or
against a convention, and, if a majority of all the electors, voting at such
election, shall vote for a convention. The Legislature, at its next session,
shall provide by law for calling the same. The convention shall consist of not
less than the number of members in both branches of the Legislature.
15. Wyoming (1890) — Art. XX. Amendments.
Sec. 1. Procedure for amendments. Any amendment or amendments to this

Constitution may be proposed in either branch of the legislature, and, if the
same shall be agreed to by two-thirds of all the members of the two
houses, voting separately, such proposed amendment or amendments
shall, with the yeas and nays thereon, be entered on their journals, and it
shall be the duty of the legislature to submit such amendment or
amendments to the electors of the state at the next general election, in at
least one newspaper of general circulation, published in each county, and if
a majority of the electors shall ratify the same, such amendment or
amendments shall become a part of this constitution.
Sec. 2. How voted for. If two or more amendments are proposed, they shall
be submitted in such manner that the electors shall vote for or against each
of them separately.
Sec. 3. Constitutional convention; provision for. Whenever two-thirds of the

to call a convention to revise or amend this constitution, they shall
recommend to the electors to vote at the next general election for or
617
against a convention, and if a majority of all the electors voting at such

session provide by a law for calling the same; and such convention shall
consist of a number of members, not less than double that of the most
numerous branch of the legislature.
Sec. 4. New constitution. Any constitution adopted by such convention shall

have no validity until it has been submitted to and adopted by the people.
Footnotes
1 Justices Makalintal, Castro, Barredo, Makasiar,

Antonio and Esguerra.
2 Chief Justice Concepcion and Justices Fernando

and Teehankee.
3 Justice Zaldivar.
4 Case G.R. No. L-36164.
5 Case G.R. No. L-36236.
6 Case G.R. No. L-36293.
7 Who withdrew as petitioner on January 25,

1973.
8 Originally, Gerardo Roxas, Ambrosio Padilla and

Salvador H. Laurel. Now, after the withdrawal of
the latter, the first two (2) only.
9 Namely, Jovito R. Salonga, Ramon V. Mitra, Jr.

and Eva Estrada-Kalaw.
618
10 Napoleon V. Dilag, et al. v. Executive Secretary,

et al.
11 Araneta v. Dinglasan, 84 Phil. 431, 437-438.

See, also, Gonzales v. Commission on Elections,
L-28196 & L-28224, Nov. 9, 1967. Emphasis ours.
12 Art. VI, sec. 20(1), Constitution.
13 Art. VII, sec. 10(7), Constitution.
14 Emphasis ours.
15 See page 4, last paragraph, of his Comment

dated Feb. 6, 1973.
16 In re Opinion of Justices, 107 Atl. 673, 5 A.L.R.

1412; Crawford v. Gilchrist, 59 So. Rep. 963;
McAdams v. Henley, 273 S.W. 355; Egbert v. City
of Dunseith, 74 N.D. 1, 168 A.L.R. 621, 24 N.W. 2d.
907; State ex rel. Landis, Atty. Gen. v. Thompson,
163 So. Rep. 270; St. Louis Brewing Association v.
Moore, 64 L. ed. 947; Ellingham v. Dye, 99 N.E.
Rep. 1, 18; Johnson v. Craft, 87 So. Rep. 375.
17 Mun. of Malabang v. Benito, L-28113, Mar. 28,

1969; NAWASA v. Piguing, et al., L-35573, Oct. 11,
1968; Fernandez v. P. Cuerva & Co., L-21114, Nov.
25, 1967; Gonzales v. Commission on Elections, L-
28224, Nov. 29, 1967; Bara Lidasan v. COMELEC,
L-28089, Oct. 25, 1967; Mun. of San Juan v.
NAWASA, L-22047, Aug. 31, 1967; Mun. of San
Joaquin v. Siva, L-19870, Mar. 18, 1967; Pelayo v.
Auditor General, L-23825, Dec. 24, 1965;
Philippine Constitution Association v. Gimenez, L-
23326, Dec. 18, 1965; Mun. of La Carlota v.
619
NAWASA, L-20232, Sept. 30, 1964; Guevara v.

Inocentes, L-25577, Mar. 15, 1966; Gillera v.
Fernandez, L-20741, Jan. 31, 1964; Siguiente v.
Secretary of Justice, L-20370, Nov. 29, 1963; Mun.
of Naguilian v. NAWASA, L-18540, Nov. 29, 1963;
Herrera v. Liwag, L-20079, Sept. 30, 1963; Aytona
v. Castillo, L-19313, Jan. 19, 1962; La Mallorca,
etc. v. Ramos, et al., L-15476, Sept. 19, 1961; Tan
v. De Leon, et al., L-15254, Sept. 16, 1961; Macias
v. Commission on Elections, L-18684, Sept. 14,
1961; Philippine Tobacco Flue-Curing & Redrying
Corp. v. Sabugo, et al., L-16017, Aug. 31, 1961;
Miller v. Mardo, L-15138, July 31, 1961; Cu Bu
Liong v. Estrella, et al., L-14212, July 31, 1961;
Pampanga Sugar Development Co., Inc. v.
Fuentes, et al., L-14738, July 31, 1961; Earnshaw
Docks & Honolulu Iron Works v. Mardo, et al., L-
14759, July 31, 1961; Liwanag v. Central Azucarera
Don Pedro, L-15372, July 31, 1961; Lecura v.
Regional Office No. 3, etc., L-15582, July 31, 1961;
Pitogo v. Sen Bee Trading Co., et al., L-15693, July
31, 1961; Pascual v. Sec. of Public Works and
Communications, L-10405, Dec. 29, 1960;
Corominas, Jr. v. Labor Standards Commission, L-
14837, June 30, 1961; City of Baguio v. NAWASA,
L-12032, Aug. 31, 1959; City of Cebu v. NAWASA,
L-12892, April 20,1960; Montes v. Civil Service
Board of Appeals, 101 Phil. 490, Rutter v. Esteban,
93 Phil. 68; Araneta v. Dinglasan, 84 Phil. 368;
Borromeo v. Mariano, 41 Phil. 322.
18 G.R. Nos. L-35925, L-35929, L-35940, L-35941,

L-35942, L-35948, L-35953, L-35961,
L-35965 and L-35979, decided on January 22,
1973..
620
19 L-33964, Teodosio Lansang, et al. v. Brigadier-

General Eduardo M. Garcia; L-33965, Rogelio V.
Arienda v. Secretary of National Defense, et al.; L-
33973, Luzvimindo David v. Gen. Eduardo Garcia,
et al.; L-33962, Felicidad G. Prudente v. General
Manuel Yan, et al.; L-34004, Domingo E. de Lara v.
Brigadier-General Eduardo M. Garcia; L-34013,
Reynaldo Rimando v. Brig. Gen. Eduardo M.
Garcia; L-34039, Carlos C. Rabago v. Brig. Gen.
Eduardo Garcia, et al.; L-34265, Antolin Oreta, Jr.
v. Gen. Eduardo Garcia, et al.; and L-34339, Gary
B. Olivar, et al. v. Gen. Eduardo Garcia, et al.
20 5 Phil. 87.
21 91 Phil. 882.
22 G.R. Nos. L-28196 and L-28224, Nov. 9, 1967.
23 78 Phil. 1.
24 Supra.
25 In re McConaughy, 119 N.W. 408, 417.
26 103 Phil. 1051, 1067.
27 119 N.W. 408, 411, 417.
28 92 Ky. 589,18 S.W. 522, 523.
29 Citing Koehler v. Hill, 60 Iowa 543, 14 N.W.

Rep. 738, and 15 N.W. Rep. 609; State v. Tufly, 19
Nev. 391, 12 Pac. Rep. 835.
621
30 Angara v. Electoral Commission, 63 Phil. 139,

157. Emphasis ours.
31 12 L. ed. 581 (1849).
32 Luther v. Borden, supra, p. 598. Emphasis ours.
33 In re McConaughy, supra, p. 416. Emphasis

ours.
34 369 U.S. 186, 7 L. ed. 2d. 663, 82 S. Ct. 691

(March 26, 1962).
35 395 U.S. 486, 23 L. ed. 2d. 491, 89 S. Ct. 1944

(1969).
36 In re McConaughy, 119 N.W. 408, 415.

Emphasis ours. The observation as to the
uniformity of authorities on the matter has been
reiterated in Winget v. Holm, 244 N.W. 329, 332.
37 Baker v. Carr, 369 U.S. 186, 7 L. ed. 2d 663,

686, 82 S. Ct. 691.
38 See p. 5 of the Petition.
39 Emphasis ours.
40 The Framing of the Philippine Constitution, by

Aruego, Vol. I p. 215.
41 The Framing of the Philippine Constitution, by

Aruego, Vol. I pp. 215, 221, 227-228.
42 Ibid., pp. 222-224.
622
43 Id., pp. 224-227.
44 SEC. 431. Qualifications prescribed for

voters. — Every male person who is not a citizen
or subject of a foreign power, twenty-one years of
age or over, who shall have been a resident of the
Philippines for one year and of the municipality in
which he shall offer to vote for six months next
preceding the day of voting is entitled to vote in
all elections if comprised within either of the
following three classes:
"(a) Those who, under the laws in force in the

Philippine Islands upon the twenty-eighth day of
August, nineteen hundred and sixteen, were legal
voters and had exercised the right of suffrage.
"(b) Those who own real property to the value of

five hundred pesos, declared in their name for
taxation purposes for a period not less than one
year prior to the date of the election, or who
annually pay thirty pesos or more of the
established taxes.
"(c) Those who are able to read and write either

Spanish, English, or a native language.
"SEC. 432. Disqualifications. — The following

persons shall be disqualified from voting:
"(a) Any person who, since the thirteenth day of

August, eighteen hundred and ninety-eight, has
been sentenced by final judgment to suffer not
less than eighteen months of imprisonment, such
disability not having been removed by plenary
pardon.
623
"(b) Any person who has violated an oath of

allegiance taken by him to the United States.
"(c) Insane or feeble-minded persons.
"(d) Deaf-mutes who cannot read and write.
"(e) Electors registered under subsection (c) of the

next preceding section who, after failing to make a
sworn statement to the satisfaction of the board
of inspectors at any of its two meetings for
registration and revision, that they are
incapacitated preparing their ballots due to
permanent physical disability, present themselves
at the hour of voting as incapacitated, irrespective
whether such incapacity be real or feigned."
45 L-34150, October 16 and November 4, 1971.
46 "For taking action on any of the above

enumerated measures, majority vote of all the
barrio assemblymembers registered in the list of
the barrio secretary is necessary."
47 "All duly registered barrio assembly

members qualified to vote may vote in the
plebiscite. Voting procedures may be made either
in writing as in regular elections, and/or
declaration by the voters to the board of election
tellers. The board of election tellers shall be the
same board envisioned by section 8, paragraph 2
of this Act, in case of vacancies in this body, the
barrio council may fill the same."
48 Edwards v. Lesueur, 33 S.W. 1130; Johnson v.

Grand Forks County, 113 N.W. 1071; Ellingham v.
624
Dye (1912), 178 Ind. 336, 99 N.E. 1; State v.

Marcus, 160 Wis. 354, 152 N.W. 419.
49 In Alcantara v. Secretary of the Interior, 61 Phil.

459, this Court held that "when a state
constitution enumerates and fixes the
qualifications of those who may exercise the right
of suffrage, the legislaturecannot take from nor
add to said qualifications unless the power to do
so is conferred upon it by the constitution itself."
Since suffrage, according to Webster, is a voice

given not only in the choice of a man for an office
or trust, but, also, in deciding a controverted
question, it follows, considering the said ruling in
Alcantara, that the constitutional qualifications for
voters apply equally to voters in elections to
public office and to voters in a plebiscite.
Similarly, the Revised Election Code provides in its

section 2 that all elections of public officers by the
people and all votings in connection with
plebiscites shall be conducted in conformity with
the provisions of said Code.
50 Republic Act No. 6388, section 101 of which, in

part, provides:
"SEC. 101. Qualifications prescribed for a

voter. — Every citizen of the Philippines, not
otherwise disqualified by law, twenty-one years of
age or over, able to read and write, who shall
have resided in the Philippines for one year and in
the city, municipality or municipal district wherein
he proposes to vote for at least six months
625
immediately preceding the election, may vote at

any election.
xxx xxx xxx
51 "SEC. 102. Disqualifications. — The following

persons shall not be qualified to vote:
"(a) Any person who has been sentenced by final

judgment to suffer an imprisonment of not less
than one year, such disability not having been
removed by plenary pardon: Provided, however,
That any person disqualified to vote under this
paragraph shall automatically reacquire the right
to vote upon expiration of ten years after service
of sentence unless during such period, he shall
have been sentenced by final judgment to suffer
an imprisonment of not less than one year.
"(b) Any person who has been adjudged by final

judgment by competent court of having violated
his allegiance to the Republic of the Philippines.
"(c) Insane or feeble-minded persons.
"(d) Persons who cannot prepare their ballots

themselves."
52 "SEC. 10. ...
"The following persons shall not be qualified to

vote:
"a. Any person who has been sentenced by final

judgment to suffer one year or more of
626
imprisonment, within two years after service of

his sentence;
"b. Any person who has violated his allegiance to

the Republic of the Philippines; and
"c. Insane or feeble-minded persons."
53 20 C.J., 179-181, quoted in Demetrio v. Lopez,

50 Phil. 45, 60. See, also, Garchitorena v. Crescini,
39 Phil. 258.
54 Baldauf v. Gunson, 8 P. 2d. 265. See, also,

Martin v. McGarr, 117 P. 323, Glenn v. Gnau, 64
S.W. 2d. 168. Emphasis ours.
55 L-33325 and L-34043, December 29, 1971.
56 Hopkins v. City of Duluth, 83 N.W. 536, 538.

Emphasis ours.
57 Maddox v. Board of State Canvassers, 149 P.

2d. 112, 115. Emphasis ours.
58 Port of Palm Beach District v. State, 22 So. 2d.

581, 582-583. Emphasis ours.
59 Art. X, section 1 of the 1935 Constitution.
60 Ten (10) years.
62 Ibid.
627
64 "SEC. 5. Organization of the Commission on

Elections. — The Commission shall adopt its own
rules of procedure. Two members of the
Commission shall constitute a quorum. The
concurrence of two members shall be necessary
for the pronouncement or issuance of a decision,
order or ruling.
"The Commission shall have an executive and such

other subordinate officers and employees as may
be necessary for the efficient performance of its
functions and duties, all of whom shall be
appointed by the Commission in accordance with
the Civil Service Law and rules.
"The executive officer of the Commission, under

the direction of the Chairman, shall, have charge
of the administrative business of the Commission,
shall have the power to administer oaths in
connection with all matters involving the business
of the Commission, and shall perform such, other
duties as may he required of him by the
Commission.
"SEC. 6. Power of the Commission to Investigate

and to Hear Controversy and Issue Subpoena. —
The Commission or any of the members thereof
shall, in compliance with the requirement of due
process, have the power to summon the parties to
a controversy pending before it,
issue subpoenae andsubpoenae duces tecum and
otherwise take testimony in any investigation or
hearing pending before it, and delegate such
power to any officer of the Commission who shall
628
be a member of the Philippine Bar. In case of

failure of a witness to attend, the Commission,
upon proof of service of the subpoenae to said
witness, may issue a warrant to arrest the witness
land bring him before the Commission or officer
before whom his attendance is required. The
Commission shall have the power to punish
contempts provided for in the Rules of Court
under the controversy submitted to the
Commission shall after complaince with the
requirements of due process be heard and
decided by it within thirty days after submission of
the case.
"The Commission may, when it so requires,

deputized any member of any national or local
law enforcement agency and/or instrumentality of
the government to execute under its direct and
immediate supervision any of its final decisions,
orders, instructions or rulings.
"Any decision, order or ruling of the Commission

on election controversies may be reviewed by the
Supreme Court by writ of a certiorari in
accordance with the Rules of Court or such
applicable laws as may enacted.
"Any violation of any final executory decision,

order or ruling of the Commission shall constitute
contempt thereof."
65 64 S.W. 2d. 168.
66 L-35538, Roses, et al. v. Secretary of National

Defense, et al.; L-35539, Diokno v. Hon. Enrile, et
al.; L-35540, Soliven, et al. v. Secretary of National
629
Defense, et al.; L-35546, Aquino, Jr., et al. v. Hon.

Enrile, et al.; L-35547, Garcia II v. Hon. Enrile, et
al.; L-35567 Doronila, et al. v. Secretary of
National Defense, et al.; L-35573, Randon v. Hon.
Enrile, et al.
67 "PRESIDENTIAL DECREE NO. 86-A
"STRENGTHENING AND DEFINING THE ROLE OF

BARANGAYS (CITIZENS ASSEMBLIES).
"WHEREAS, on the basis of preliminary and initial

(citizens assemblies) have so far been established,
the people would like to decide themselves
questions or issues, both local and national,
affecting their day to day lives and their future.
"WHEREAS, the barangays (citizens assemblies)

national issues;
"WHEREAS, such barangays (citizens assemblies)

"WHEREAS, the people would like the citizens

630
"NOW, THEREFORE, I, FERDINAND E. MARCOS,

of the land the following.
"1. The present barangays (citizens assemblies)

are created under Presidential Decree No. 86
dated December 31, 1972, shall constitute the
base for citizen participation in governmental
affairs and their collective views shall be
considered in the formulation of national policies
or programs and, wherever practicable, shall be
translated into concrete and specific decision;
"2. Such barangays (citizens assemblies) shall

"3. The barangays (citizens assemblies) shall

and submit the results thereof to the Department
of Local Governments and Community
Development immediately thereafter, pursuant to
the express will of the people as reflected in the
reports gathered from the many thousands of
631
barangays (citizens assemblies) throughout the

country.
"4. This Decree shall take effect immediately.
"Done in the City of Manila, this 5th day of

hundred and seventy-three." (Emphasis ours.).
68 McKinney v. Baker, 180 Ky. 526 203 S.W. 303,

304. Emphasis ours.
69 Art. VII, section 2, 1935 Constitution.
70 Michael W. Roche v. Lamb, 306 N.Y.S. 2d. 515

(Dec. 17, 1969); State ex rel. Sathre v. Bryne, 258
N.W. 121; State ex rel. Shriver v. Hayes, 76 N.E.
2d. 869; Smith v. Bangham, 76 p 2d. 1022. McKim
v. Brast, 117 S.E. 875; Head v. Wood, 107 So. 854;
State ex rel. Watson v. Pigg, 46 N.E. 2d. 232.
71 See cases cited in the preceding footnote. See,

also, Tiegs v. Patterson, 318 P. 2d. 588; State ex
rel. Brown v. St. Joseph Circuit Court, 95 N.E. 2d.
632; Williamson v. State Election Board, 431 P. 2d.
352, Baker v. Conway, 108 So. 18; Cohoon v.
Swain, 5 S.E. 2d. 1; State ex rel. Mitchell v.
Walcott, 83 A. 2d. 762; Doyle v. Ries, 285 N.W.
480; Grossglaus v. Board of Elections of Stark
County, 88 N.E. 2d. 245; Walker v. Hughes, 36 A.
2d. 47; Reese v. Dempsey, 152 P. 2d. 157; Dodd v.
Gower, 62 S.W. 2d. 1; Galloway v. Bradburn, 82
S.W. 1013; Hagan v. Henry, 76 S.W. 2d. 994.
72 106 Minn 392, 119 N.W. 408, 409.
632
73 63 N.J. Law, 289, cited in In re

McConaughy, supra.
74 78 Ark. 439, 96 S.W. 396, cited in In re

McConaughy, supra.
75 See cases listed on pages 105-106, footnotes

56, 57 and 58.
76 On December 19, 1972.
77 24 Kansas 700, 714. See, also, State ex rel.

Williams v. Robb, 183 P. 2d. 223, 228; Harris v.
Shanahan, 387 P. 2d. 771, 784, 785.
78 369 U.S. 186, 7 L.ed. 2d. 663, 684, citing

Chaselton Corp. v. Sinclair, 264 U.S. 543, 547, 548,
68 L. ed. 841, 843, 44 S. Ct. 405.
79 Art. VII, section 10, paragraph (1).
80 101 Va. 529, 44 S.E. 754.
81 Marifosque, et al. v. Luna, 101 Phil. 1223

(unreported); 37 Am. Jur. 669; 62 C.J.S. 749-750;
Guevara v. Inocentes, L-25577, March 15, 1966.
82 Which, in some respects, is regarded as an

organ of the Administration, and the news items
published therein are indisputably censored by
the Department of Public Information.
83 Daily Express, November 29, 1972, p. 4.

Emphasis ours.
84 231 U.S. 28, 58 L. ed. 107, 114, 34 S. Ct. 1.

633
85 Baker v. Carr, 369 U.S. 186, 7 L. ed. 2d. 663, 82

S.Ct. 691.
86 Justice Barredo's opinion in the plebiscite

cases.
87 Joint Opinion of Justices Makalintal and Castro,

p. 153.
88 Justice Barredo's language.
89 At p. 153, joint opinion of Justices Makalintal

and Castro.
90 Joint Opinion of Justices Makalintal and Castro,

p. 153.
91 At p. 8, Idem.
ANNEX B
* The undersigned (Justice Querube C. Makalintal)

who had reserved his right to do so, filed a
separate dissenting opinion when the Court
denied a motion for reconsideration, and voted in
favor of the validity of the questioned Resolution.
Mr. Justice Enrique M. Fernando joined in the
dissent.
* Thus by Presidential Decree No. 86 what the

Constitutional Convention itself had proposed
unsuccessfully as an amendment to the 1935
Constitution, reducing the voting age from 21 to
18, but the submission of which to a plebiscite
was declared invalid by this Court in Tolentino vs.
COMELEC, became a reality of an even more far-
634
reaching import — since fifteen-year olds were

included in the Citizens Assemblies.
* According to the Solicitor General 92

Congressmen and 15 Senators (both numbers
constituting majorities) have expressed their
option.
* Luther v. Borden, 48 U.S. (7 Haw.) 1, 12 L. Ed.

581 (1849).
BARREDO, J., CONCURRING:
1 Charito Planas vs. Comelec, et al., L-35925,

January 22, 1973; Pablo C. Sanidad vs. Comelec,
L-35929, January 22, 1973; Gerardo Roxas, etc., et
al. vs. Comelec, et al., L-35940, January 22, 1973;
Eddie B. Monteclaro vs. Comelec, et al., L-35941,
January 22, 1973; Sedfrey A. Ordoñez, et al., vs.
The National Treasurer of the Philippines, et al., L-
35942, January 22, 1973; Vidal Tan, et al., vs.
Comelec, et al., L-35948, January 22, 1973; Jose
W. Diokno, et al., vs. Comelec,
L-35953, January 22, 1973; Jacinto Jimenez vs.
Comelec, et al., L-35961, January 22, 1973; Raul
M. Gonzales vs. Comelec, et al., L-35965, January
22, 1973 and Ernesto Hidalgo vs. Comelec, et al.,
L-35979, January 22, 1973.
2 Executive Agreements are not included in the

corresponding provision of the 1935 Constitution.
3 It Must be recalled that in the Tolentino case,

the Constitutional Convention intended to submit
one amendment which was to form part of the
Constitution still being prepared by it separately
635
from the rest of the other parts of such

constitution still unfinished, and We held that a
piece-meal submission was improper. We had no
occasion to express any view as to how a whole
new Constitution may be ratified.
* In 1880, he also wrote his "Constitutional Law."

Judge Cooley, who was born in Attica, New York in
1824, died in 1898. Judge Cooley was also
professor and later dean of the Law Department
of the University of Michigan and Justice of the
State Supreme Court of Michigan from 1864 to
1885, when he failed to win re-election to the
court.
ESGUERRA, J., CONCURRING:
1 Charito Planas v. Commission on Elections, et al.,

L-35925; Pablo C. Sanidad v. Commission on
Elections, L-35929; Gerardo Roxas, etc., et al. v.
Commission on Elections, et al., L-35940; Eddie B.
Monteclaro v. The Commission on Elections, et al.,
Sedfrey A. Ordoñez, et al. v. The National
Treasurer of Philippines, et al., L-35942; Vidal Tan,
et al. v. Commission on Elections, et al., L-35948;
Jose W. Diokno, et al. v. The Commission on
Elections, L-35953; Jacinto Jimenez v. Commission
on Elections, et al., L-35961; Raul M. Gonzales v.
The Honorable Commission on Elections, et al., L-
35965; Ernesto Hidalgo v. Commission Elections,
et al.,
L-35979.
2 See Tañada, et al. v. Cuenco, L-10520, Feb. 28,

1957; Baker v. Carr, 369 U.S. 186 (1962).
636
3 See 16 Am. Jur. 2d. p. 468, Note 14, and cases

cited therein.
4 Cooke v. Iverson, 108 Minn. 388, 122 NW 251.
5 L-38196, November 9, 1967, 21 SCRA 774.
6 83 Phil. 1957.
7 McConaughy v. Secretary of State, 119 N.W.

408, 413; 32A Words and Phrases p. 516. See also
the plebiscite cases, mentioned in footnote
1, ante.
8 Cooley, Constitutional Limitation, 8th Ed., Vol. I,

p. 82.
9 39 Phil. 258, 268.
10 69 Phil. 199, 204.
11 70 Phil. 28, 31.
1 Memorandum for Respondents, 2.
2 According to the 1935 Constitution: "The

Congress in joint session assembled, by a vote of
three-fourths of all the members of the Senate
and of the House of Representatives voting
separately may propose amendments to this
Constitution or call a convention for that purpose.
Such amendments shall be valid as part of this
Constitution when approved by a majority of the
votes cast at an election at which the
637

ratification." Art. XV, Section 1.
3 Lerner, Ideas are Weapons, 426 (1939). Earlier,

in this collection of essays, Lerner made this not-
entirely-inaccurate observation: "No
governmental institution that consists of a group
of legal technicians appointed for life can ever
hope to cope with, much less solve, the exigent
problems of our polity." Ibid, 231. He was
referring of course to the Supreme Court of the
United States.
4 Frankfurter, Mr. Justice Holmes and the

Supreme Court, 25-26 (1938).
5 Black, The People and the Court (1960).
6 Murphy, Elements of Judicial Strategy (1964).
7 Cf. Angara v. Electoral Commission, 63 Phil. 139

(1936); Tañada v. Cuenco, 103 Phil. 1051 (1957);
Vera v. Arca, L-25721, May 26, 1969, 28 SCRA 351.
8 Gonzales v. Commission on Elections, L-28196,

Nov. 9, 1967, 21 SCRA 774.
9 Tolentino v. Commission on Elections, L-24150,

Oct. 16, 1971, 41 SCRA 702.
10 Planas v. Commission on Elections, L-35925,

Jan. 25, 1973.
11 256 US 368 (1921).
12 Ibid, 374-375.
638
13 L-33964, Dec. 11, 1971, 42 SCRA 448.
14 Ibid, 504-505.
15 Dodd, Judicially Nonenforceable Provisions of

Constitutions, in I Selected Essays on
Constitutional Law 355, 387 (1938).
16 Ibid, 395.
I7 Weston, Political Questions, I Selected Essays

an Constitutional Law 418, 422 (1938)..
18 Cf. Bickel, The Least Dangerous Branch (1962).
19 Cf. Freund, On Understanding the Supreme

Court (1950). Also his The Supreme Court of the
United States (1962).
20 Laurel, S., VII Proceedings of the Philippine

Constitutional Convention (1934-1935), Appendix
L, 800.
21 65 Phil. 56 (1937).
22 Ibid, 96.
23 63 Phil. 139 (1936).
24 L-35925, January 22, 1973.
25 Rostow, The Democratic Character of Judicial

Review in Selected Essays on Constitutional Law
1938 1962, 1, 2 (1963).
639
26 Ibid.
27 Ibid, 3.
28 Ibid, 3-4. The decision of Justice Frankfurter

referred to is that of Rochin v. People of
California, 342 US 165 (1952).
29 Mason, The Supreme Court from Taft to

Warren, 154 (1967). The words of Justice
Frankfurter found in his opinion in Stein v. New
York, 346 US 156 (1953).
30 Konefsky, The Legacy of Holmes and Brandeis,

293 (1956).
31 Corwin, Judicial Review in I Selected Essays on

Constitutional Law, 449, 450 (1938).
32 1 Cranch 137 (1803).
33 Curtis, Lions Under the Throne, 12 (1947).
34 Addresses and Papers of Charles Evans Hughes,

139-140 (1908).
35 Jackson, Robert H. The Struggle for Judicial

Supremacy, 3 (1949).
36 Haines, Charles Grove, The Role of the

Supreme Court in American Government and
Politics, 1789-1835, 3 (1960).
37 369 US 186.
640
38 395 US 486.
39 328 US 549 (1946).
40 Ibid, 556.
41 Cf. Wesberry v. Sanders, 376 US 1, 11 L ed 2d

481, 84 S Ct. (1964); Wright v. Rockefeller, 376 US
52, 11 L ed 2d 512, 84 S Ct (1964); Reynolds v.
Sims, 377 US 533, 12 L ed 2d 506, 84 S Ct 1362
(1964); WMCA v. Lomenzo, 377 US 633, 12 L ed 2d
568, 84 S Ct. (1964); Maryland Committee v.
Tauses, 377 US 656, 12 L ed 2d 595, 84 S Ct. 1442
(1964); Davis v. Mann, 377 US 678, 12 L ed 2d 609,
84 S Ct. 1453 (1964); Roman v. Sincock, 377 US
695, 12 L ed 2d 620, 84 S.Ct. 1462 (1964); Lucas v.
Colorado General Assembly, 377 US 713, L ed 2d
632, 84 S Ct. 1472 (1964); Fortson v. Dorsey, 379
us 433, 13 L ed 2d 401, 85 S Ct. 498 (1965); Burns
v. Richardson, 384 US 73, 16 L ed 2d 376, 86 S Ct.
1286 (1966); Sailors v. Kent Board of Education,
387 US 105, 18 L ed 2d 650, 87 S Ct. 1549 (1967);
Dusch v. Davis, 387 US 112, 18 L ed 2d 656, 87 S
Ct. 1554 (1967).
42 77 Phil. 192 (1946).
43 Ibid, 56.
44 New York Times Company v. United States, 29

L ed. 822 (1971).
45 Wechsler, Toward Neutral Principles of

Constitutional Law, 72 Harv. Law Review 77
(1959). It is the first essay in his Principles, Politics
and Fundamental Law.
641
46 The principal articles are: Pollak, Constitutional

Adjudication: Relative or Absolute Neutrality, 11 J.
Pub. L. 48 (1962); Rostow, American Legal Realism
and the Sense of Profession, 34 Rocky Mt. L. Rev.
123, 136-46 (1962); Henkin, Some Reflections on
Current Constitutional Controversy, 109 U. Pa. L.
Rev. 637 (1961); Henson, A Criticism of Criticism:
In re Meaning, 29 Fordham L. Rev. 553 (1961);
Miller, A Note on the Criticism of Supreme Court
Decisions, 10 J. Pub. L. 139 (1961), Wright, The
Supreme Court Cannot be Neutral, 40 Texas L.
Rev. 599 (1961); Arnold, Professor Hart's
Theology, 73 Harv. L. Rev. 1298 (1960); Black, The
Lawfulness of the Segration Decisions, 69 Yale L. J.
421 (1960); Griswold, Of Time and Attitudes:
Professor art and Judge Arnold, 74 Harv. L. Rev. 81
(1960); Karst, Legislative Facts in Constitutional
Litigation, 1960 Supreme Court Rev. 75; Miller and
Howell The Myth of Neutrality in Constitutional
Adjudication, 27U. Chi. L. Rev. 661 (1960); Mueller
& Schwartz, The Principle of Neutral Principles, 7
U.C.L.A.L. Rev. 571 (1960); Hart, Forward, The
Time Chart of the Justices, 73 Harv. L. Rev. 84
(1959); Pollak, Racial Domination and Judicial
Integrity: A Reply to Professor Wechsler, 108 U.
Pa. L. Rev. 1 (1959).
47 Cahn, Supreme Court and Supreme Law, 40

(1954).
46 Cf. Tañada v. Cuenco, 103 Phil. 1051, 1089

(1957).
49 Collier v. Frierson, 124 Ala. 100 (1854); Green

v. Weller, 32 Miss. 650 (1856); Penn v. Tollison, 26
Ark. 545 (1871); Koehler v. Hill, 60 Iowa 543, 14
642
NW 738 (1883); McMillan v. Blattner, 67 Iowa 287,

25 NW 245 (1885); State v. Davis, 2D Neb. 220, 19
Pac. 894 (1888); State v. Tooker, 15 Mont. 8, 37
Pac. 840 (1894); Russie v. Brazzell, 128 Mo. 93, 30
SW 526 (1895); State v. Powell, 77 Miss. 543, 27
So. 927 (1900); State v. Brookhart, 113 Iowa 250,
84 NW 1064 (1901); In re Denny, 156 Ind. 104, 59
NE 359 (1901); Utter v. Moseley, 16 Idaho 274,
100 P. 1058 (1909); Willis v. Kalbach, 109 Va. 475,
64 SE 342 (1909); People ex rel. Swift v. Luce, 74
Misc. Rep. 551, 133 US 9 (1912); McCreary v.
Speer, 156 Ky. 783, 162 SW 99 (1914); State v.
Donald, 160 Wis. 21, 151 NW 331 (1915); State v.
Marcus, 160 Wis. 354, 152 NW 419 (1915); State
v. Campbell, 94 Ohio St. 403, 115 NE 29 (1916); In
re Opinion of Justices, 226 Mars. 607, 115 NE 921
(1917); Scott v. Vouchan, 202 Mich. 692, 168 NW
709 (1918); Hooper v. State, 89 So. 593, 206 Ala.
371 (1921); Switzer v. State, 103 Ohio St. 306, 133
NE 552 (1921); Johnson v. Craft, 87 So. 375, 205
Ala. 386 (1921); In re Opinion of the Justices, 237
Mars. 589, 130 NE 202 (1921); Power v.
Robertson, 130 Miss. 188, 93 So. 769 (1922);
Hamilton v. Deland, 191 NW 829, 221 Mich. 541
(1923); In re Initiative Petition, 89 Okl. 124, 214 P.
186 (1923); Armstrong v. King, 281 Pa. 207, 126 A.
263 (1924); McAdams v. Henley, 169 Ark. 97, 273
SW 355 (1925); Heinitsh v. Floyd, 130 SC 434, 126
SE 336 (1925); State v. Zimmerman, 187 Wis. 180,
204 NW 803 (1925); Brown v. City of New York,
125 Misc. Rep. 1, 210 NYS 786 (1926); State ex rel.
Bahns v. City of New Orleans, 163 La. 777 So. 718
(1927); Duncan v. Record Pub. Co., 145 SC 196,
143 SE 31 (1928); Lane v. Lukens, 48 Idaho 517,
283 P. 532 (1929); School Dist. of City of Pontiac v.
City of Pontiac, 262 Mich. 338, 247 NW 474
(1933); Collier v. Gray, 116 Fla. 845, 157 So. 40
643
(1934); In re Opinion to Governor, 55 R.I. 56, 178

A. 433 (1935); State ex rel Landis v. Thompson,
120 Fla. 860,163 So. 270 (1935); Tausig v.
Lawrence, 328 Pa. 408, 197 A. 235 (1938); Downs
v. City of Bromingham, 240 Ala. 177, 198 So. 231
(1940); Graham v. Jones, 198 La. 507, 3 So. 2d 761
(1941); Pearson v. Taylor, 159 Fla. 775, 32 So. 2d
826 (1947); Palmer v. Dunn, 216 SC 558, 59 SE 158
(1950).
50 Cf. Wells v. Bain, 75 Pa. St. 39, 15 Am. Rep. 563

(1874); Senate File No. 31, 25 Neb. 864, 41 NW
981 (1889); State v. Grey, 21 Nev. 378, 32 Pac. 190
(1893); Nesbit v. People, 19 Colo. 441, 36 Pac. 221
(1894); Hays v. Hays, 5 Idaho 154, 47 P. 732
(1897); Lovett v. Ferguson, 10 SD 44, 71 NW 756
(1897); Russell v. Grey, 164 Mo. 69, 63 SW 849
(1901); Gabbert v. Chicago, R.I. Ry. Co. 171 Mo.
84, 70 SW (1902); People v. Sours, 31 Colo. 369,
102 74 P. 167 (1903); People v. Loomis, 135 Mich.
556, 98 NW 262 (1904); West v. State, 50 Fla. 154,
39 So. 412 (1905); State v. Winnett, 78 Neb. 379,
110 NW 113 (1907); Farrell v. Port of Columbia, 50
Or. 169, 93 P. 254 (1908); In re Mcconaughy, 106
Minn. 392, 119 NW 408 (1909); Fletcher v. Gifford,
20 Idaho 18, 115 P. 824 (1911); Hammond v.
Clark, 136 Ga. 313, 71 SE 479 (1911), Crawford v.
Gilchrist, 64 Fla. 41, 59 So. 963 (1912); Cudihee v.
Phelps, 76 Wash. 314, 136 P. 367 (1913); State v.
Fairley, 76 Wash. 332, 136 P. 374 (1913); Tabor v.
City of Walla Walla, 77 Wash. 579, 137 P. 1040
(1914); State v. Alderson, 49 Mont. 387, 142 P.
210 (1914); Ramsey v. Persinger, 43 Okl. 41,141 P.
13 (1914); Cress v. Estes, 43 Okl. 213 P. 411
(1914); Cooney v. Foote, 142 Ga. 647, 83 SE 537
(1914); Hildreth v. Taylor, 117 Ark. 465, 175 SW 40
(1915); Jones v. McDade, 200 Ala. 230, 75 So. 988
644
(1917); State v. Wetz, 40 N.D. 299, 168 NW 835

(1918); Ex Parte Ming, 42 Nev. 472, 181 P. 319
(1919); Lee V. Price, 54 Utah, 474, 181 P. 948
(1919), Erwin v. Nolan, 280 Mo. 401, 217 SW 752
(1922); Boyd v. Olcott, 102 Or. 327, 202 P. 431
(1921); Thompson v. Livingston, 116 S.C. 412, 107
SE 581 (1921); Thrailkill v. Smith, 106 Ohio St. 1,
138 NE 532 (1922); Brawner v. Curran, 141 Ind.
586, 119 A. 250 (1922); Fahey v. Hackmann, 291
Mo. 351 SW 752 (1922); Goolsby v. Stephens, 155
Ga. 529, 117 SE 439 (1923); Manos v. State, 98
Tax. Cr. 87, 263 SW 310 (1924); State v.
Zimmermann, 187 Wis. 180, 208 NW 803 (1925);
Taylor v. King, 284 Pa. 235, 130 A. 407 (1925);
Board of Liquidation of State Debt of Louisiana v.
Whitney-Central Trust and Savings Bank, 168 La.
560, 122 So. 850 (1929); State v. Cline, 118 Neb.
150, 224 NW 6 (1929); California Teacher's Ass'n.
v. Collins, 1 Cal. 2d 202, 34 P. 2d 134 (1934);
Collier v. Gray, 116 Fla. 845, 157 So. 40 (1934);
State ex rel. v. State Bldg. Commission v. Smith,
335 Mo. 840, 74 SW 2d 27 (1934); Mayer v.
Adams, 182 Ga. 524, 186 SE 420 (1936); Doody v.
State ex rel. Mobile County, 233 Ala. 287, 171 So.
504 (1937); Swanson v. State, 132 Neb. 82, 271
NW 264 (1937); Stonns v. Heck, 238 Ala. 196, 190
So. 78 (1939); Graham v. Jones, 198 La. 507, 3 So.
2d 761 (1941); In re Initiative Petition No. 224, 197
Okl. 432, 172 P. 2d 324 (1946); City of Jackson v.
Nims, 316 Mich. 694, 26 NW 2d 569 (1947);
Keenan v. Price, 68 Idaho 423, 195 P. 2d 662
(1948).
51 Commonwealth Act No. 492 (1939).
52 Ibid, Section 3.
645
53 Commonwealth Act No. 517 (1940).
54 Article VI of the 1935 Constitution.
55 Article VII of the 1935 Constitution.
56 It is to be noted that under Commonwealth Act

No. 607 (1940), subsequently amended by
Commonwealth Act No. 657 (1940), there was a
statutory creation of an independent Commission
on Elections.
57 Section 3, Commonwealth Act No. 517.
58 Republic Act No. 73 (1946).
59 Section 3 of Republic Act 73 reads as follows:

"The provisions of Commonwealth Act Numbered
Three Hundred and fifty-seven, otherwise known
as the Election Code, and Commonwealth
Numbered Six hundred and fifty-seven, entitled
"An Act to Reorganize the Commission on
Elections," is so far as they are not inconsistent
herewith, are hereby made applicable to the
election provided for in this Act."
60 Republic Act 4913 (1967).
61 Section 3 of Republic Act 4913 reads thus: "The

provisions of Republic Act Numbered One
hundred eighty, as amended, insofar as they are
not inconsistent herewith, are made applicable to
the election provided for in this Act." It is to be
remembered that in the plebiscite held, the two
proposals last. Cf. on this point, Gonzales v.
646
Commission on Elections, L-28196, Nov. 9, 1967,

21 SCRA 774.
62 The 1935 Constitution provides: "The

Philippines is a republican state. Sovereignty
resides in the people and all government
authority emanates from them." Article II, Section
1.
63 Laski, Grammar of Politics, 4th ed., 34 (1937).
64 Mclver, The Web of Government, 84 (1947).
65 Corwin, The Higher Law Background of

American Constitutional Law, in 1 Selected Essays
on Constitutional Law 3 (1938).
66 92 Ky. 589, 18 SW 522.
67 Ibid, 523.
68 101 Va. 829, 44 SE 754.
69 Ibid, 755. A similar approach may be noted in

Arie v. State, 23 Okl. 166, 100 P. 23 (1909) and
Hammond v. Clark, 136 Ga. 313, 71 SE 479 (1911).
70 Araneta v. Dinglasan. 84 Phil. 368 (1949).
71 Cardozo, The Nature of the Judicial Process,

141 (1921).
647
1 Section 1, which is the lone section of Art. XV;

emphasis supplied.
2 Article XVII, section 16, proposed Constitution of

Nov. 30,1972; emphasis supplied.
3 All quotations from respondents' memo of

arguments dated March 2, 1973, pp. 2-5;
emphasis supplied.
4 Respondents' memo dated March 2, 1973, p. 8;

emphasis supplied.
5 Gonzales vs. Comelec, 21 SCRA 774 (No. 9,

1967).
6 Tolentino vs. Comelec, 41 SCRA 702 (Oct. 16,

1971).
7 Resolution on motion for reconsideration in

Tolentino Comelec, L-34150; dated Nov. 4, 1971,
at page 3, per Barredo, J. with seven Justices
concurring; emphasis supplied.
8 Idem, at page 4, emphasis supplied.
9 Joint opinion of JJ. Makalintal and Castro, p. 153.
10 Article X, sec. 1 of the Constitution entrusts

"exclusive charge" of the conduct of elections to
the Comelec. See also the Election Code of 1971.
11 Araneta vs. Dinglasan (L-2044); Araneta vs.

Angeles (L-2756); Rodriguez vs. Treasurer
(L-3054); Guerrero vs. Commissioner of Customs;
648
and Barredo vs. Comelec (L-3056), jointly decided

and reported in 84 Phil. 368.
12 Idem, at pp. 384-385; emphasis supplied.
13 Idem, at p. 437.
14 Idem, at pp. 435-437.
15 Idem, at p. 383. Justice Tuason further duly

noted that "These observations, though beyond
the issue as formulated in this decision, may, we
trust, also serve to answer the vehement plea that
for good of the Nation, the President should
retain his extraordinary powers as long as turmoil
and other ills directly or indirectly traceable to the
late war harass the Philippines."
16 Petitioner Monteclaro's notes of oral argument

dated February 23, 1973, p. 2, and Annex A
thereof.
17 State vs. Powell, 77 Miss. 543, 27 south 927.
18 Cooley's Constitutional Limitations, 8th Ed.,

Vol. I, p. 81.
19 Article XV, sec. 1, Constitution.
20 Article V, sec. 1, Constitution.
21 Article X, sec. 2, Constitution.
22 Respondents' memo dated March 2, 1973, p. 5.
649
23 Respondents' Comment dated Feb. 3, 1973, p.

67.
24 Idem, at p. 46; note in parentheses supplied.
25 1 Cranch 137 (1803).
26 63 Phil. 134 (1936).
27 4 Wheaton 316 (1819).
28 Dean Pollak's "The Constitution and the

Supreme Court", Vol. 1, p. 221.
29 Justice Felix Frankfurter, Of Law and Men

(1956), p. 5.
30 Tolentino vs. Comelec L-34150; decision of

October 16, 1971, per Barredo, J. at p. 8.
30a Con-Con Res. No. 1 proposing the urgent

lowering of the voting age to enfranchise the 18-
year olds retained the "permissive" language of
section 1, Art. V. Thus, the proposed amendment
read "Section 1. Suffrage may be exercised by
(male) citizens of the Philippines not otherwise
disqualified by law, who are (twenty one)
EIGHTEEN years of age or over and are able to
read and write ..."
31 Resolution of Nov. 4, 1971, per Barredo, J. at p.

15.
32 Decision of Oct. 16, 1971, at p. 21.
33 21 SCRA 774 (Nov. 9, 1967).

650
34 Decision of Oct. 16, 1971, at p. 24.
35 Reyes, J.B.L. (now retired), Zaldivar, Castro and

Makasiar, JJ.
36 Idem at pp. 1-2.
37 Idem at p. 3.
38 Resolution of Nov. 4, 1971 in Tolentino, per

Barredo, J.; pp. 3-4.
39 Decision of Oct. 16, 1971 in Tolentino, per

Barredo, J. at p. 19.
40 All quotations are from the Chief Justice's

concurring opinion in Tolentino, pp. 4-7.
41 Separate op. of J. Teehankee concurring in Res.

of No. 4, 1971 in Tolentino, pp. 8, 9, 10.
42 This Court thus declared in Tolentino the Con-

Con voting age reduction resolution as null and
void and prohibited its submittal at the 1971
elections for lack of proper submission since it did
not "provide the voter ... ample basis for an
intelligent appraisal of the amendment. "Dec. of
October 16, 1971, per Barredo, J.
43 In re-Opinion of Justices, 115 N.E. Rep. 922-

923.
44 Duncan vs. McCall, 139 U.S. 449, 35 L. Ed. 219.
651
45 "Barrios are units of municipalities or municipal

districts in which they are situated ... ." Rep. Act
3590, sec. 2.
46 Rep. Act 3590, sec. 6, par. 1.
47 Idem, par. 2.
48 Idem, par. 3 and 4, emphasis supplied.
49 One barrio lieutenant and six barrio

councilmen; "Voting shall be by secret
ballot. ... ." Idem,
sec. 8.
50 Idem, sec. 10, italics supplied. The same section

further disqualifies persons convicted by final
judgment to suffer one year or more of
imprisonment "within two years after service" or
who have violated their allegiance to the Republic
and insane or feeble-minded persons.
51 Supra, p. 2.
52 Rizal, Cavite, Bataan, Camarines Sur and

Negros Occidental, petitioners' manifestation and
supplemental rejoinder dated March 21, 1973 in
L-36165.
53 Respondents' rejoinder dated March 20, 1973

and sur-rejoinder dated March 29, 1973.
54 Under Proclamation No. 1103 dated Jan. 17,

1973, it is recited that "fourteen million nine
hundred seventy six thousand five hundred sixty
one (14,976,561) members of all the Barangays
652
voted for the adoption of the proposed

Constitution, as against seven hundred forty-three
thousand eight hundred sixty nine (743,869) who
voted for its rejection; but a majority of those who
approved the new Constitution conditioned their
votes on the demand that the interim National
Assembly provided in its Transitory Provisions
should not be convened."
55 Respondents' memo dated March 2,

1973, supra, p. 2.
56 As restated by Barredo, J. in his separate op. in

the plebiscite cases, who, however, did not look
on the same with favor, since the constitutional
point (that the Comelec has exclusive charge of
the conduct of elections and plebiscites) seems to
have been overlooked in the Assemblies."
57 Convention Minutes of Nov. 22, 1972

submitted as Annex A of petitioner-delegate
Sedfrey A. Ordoñez et. al. in the plebiscite case L-
359042, par. 12 of petition and admitted in par. 4
of answer of therein respondents dated Dec. 15,
1972.
ANTONIO, J., CONCURRING:
* First decision promulgated by First Division of

the Supreme Court.
1 "When a house is completely demolished and

another is erected on the same location, do you
have a changed, repaired and altered house, or do
you have a new house? Some of the material
contained in the old house may be used again,
653
some of the rooms may be constructed the same,

but this does not alter the fact that you have
altogether another or a new house. We conclude
that the instrument as contained in Ga. L. 1945,
pp. 8 to 89, inclusive, is not an amendment to the
constitution of 1877; but on the contrary it is a
completely revised or new Constitution."
(Wheeler v. Board of Trustees, 37 S.E. 2d 322,
327).
"Every proposal which affects a change in a

Constitution or adds or takes away from it is an
"amendment', while a "revision" implies a re-
examination and statement of the Constitution, or
some part of it, in a corrected or improved form."
(Const. Secs. 196, 197, Staples v. Gilmer, 33 S.E.
2d 49, 53 183 Va. 613).
"Amendment" and "revision" of constitution are

separate procedures each having a substantial
field of application not mere alternative
procedures in the same field." (McFadden v.
Jordan, 196 P. 2d 787, 797 32 Cal. 2d 330).
2 Cf. Sections 1 and 2 of Article XIV, Constitution

of Minnesota in Appendix.
3 Baker v. Carr, 369 U.S. 186; 7 L. ed. 663.
4 Cf. State Constitutions of Alaska, California,

Delaware, Florida, Michigan, Minnesota, Nevada,
New Hampshire, Oklahoma, Oregon, Utah and
Wyoming in Appendix to this opinion.
* Leon O. Ty, Seven Months of Martial Law, Daily

Express.
654
* Panorama, May 6, 1973.
5 "A written constitution is susceptible of change

in two ways: by revolution, which implies action
not pursuant to any provision of the constitution
itself; and by revision, which implies action
pursuant to some procedural provision in the
constitution. This distinction is concerned with
the quare and not with thequantum of change. It
may be significant, however, that the alleged
alteration does or does not purport to affect the
existence of the court itself. In the nature of
things, a revolutionary charge does not admit
judicial power as such to determine the fact of its
occurrence. If revolutionary constitution sets up a
court differently constituted from the pre-
revolutionary court, neither tribunal is confronted
with a substantial problem, for neither can deny
the act by which it was created without denying
the fact of its creation. Thus the Supreme Court
in Luther v. Borden (supra) uses language
substantially parallel with what has been indicated
above as logical explanation of the Duke of
York's case. For the court to give serious judicial
consideration to such a question would present
"the singular spectacle of a court sitting as a court
to declare that we are not a court." (Brittle v.
People, 2 Neb. 198, 214 [1873].) And even the
alleged new constitution purports to leave intact
the former court and to permit its work to go on
without hiatus, the decision which the judges
must make is still an individual choice to be made
by them as a matter of practical politics. Two
commissions are being held out to them, and if
they will act as a court they must assess under
which commission they are acting. To put the
matter another way, it must be true that in the
655
first case above — of two constitutions

purporting to establish two different
courts, — the men who were judges under the
old regime and the men who are called to be
judges under the new have each to decide as
individuals what they are to do; and it may be that
they choose at grave peril with the factional
outcome still uncertain. And, although it is equally
obvious, the situation is logically identical where
the same men are nominated to constitute the
court under both the old and new constitution, at
a time when the alleged change is occurring — if
it is — peaceably and against a placid popular
background. Men under such circumstances may
write most praiseworthily principles of
statesmanship, upon sovereignty and, its nature
modes of action, and upon the bases of
government, to justify the choice between the
two commissions. They can assert their choice in
the course of purported judicial action. But they
cannot decide as a court, for the decision, once
made, by a retroactive hypothesis excludes any
assumption of controversiality in the premises..
"Where the alleged change occurs not through

revolutionary measures but through what has
been called revision, these logical difficulties
disappear in one aspect, but become far more
embarrassing in another. Where the alteration
purports to be made along the lines of a
procedural method laid down in the constitution,
there is a standard which the court can apply and,
by so doing, it can perceive judicially whether or
not the change has followed the prescribed lines.
If it has, there is no difficulty in pronouncing as a
matter of law its accomplishment. Only one
exception is possible, namely, the ease where the
656
alteration purports at once to abolish the court or

to depose its personnel. Then, although there
would be a question of law to be decided, it may
be wondered who there is to decide it. Suppose,
however, the mode of change has failed in some
way to conform to a directory provision of the
amending clause of the constitution; is the court
to declare the attempt at alteration unsuccessful?
It would seem as a matter of law that it must do
so; and yet what is the situation if the proponents
of the change say, "It is true that this measure
failed under the amending clause, but as a
revolutionary measure it was a success and we
insist upon its recognition." Clearly the members
of the court are now more badly than ever
entangled in the logical difficulties which attend a
purported judicial pronouncement upon the
achievement or non-achievement of revolutionary
change. For the temptation will be great to treat
the matter as a legal question. The times are
peaceful. The changes probably do no affect the
tenure of many offices of any branch of the
government. The popular inertia is likely to allow
the court successfully to assume the question to
be one of law. The path of fallacy is not too
strikingly fallacious to the uncritical observer. It
may lead to just results. The judges' personal
inclinations will be to show deference to the
expression of popular sentiment which has been
given. And yet, if they declare the change in force,
they are truly making a personal declaration that
they believe the change to be the directly
expressed will of the sovereign, which will they
assert to be law, but the fact of existence of which
will — and this is the real decision — is not
ascertainable in the given case by any legal
means. It is submitted that this is true, and that
657
the conclusions offered in the discussion of

revolutionary change are true, also, whether
the quantumof change involved be vast or almost
negligible.
"The net result of the preceding discussion is this:

that in almost the whole field of problems which
theDuke of York's case and the American
constitutional amendment cases present, the
court as a court is precluded from passing upon
the fact of change by a logical difficulty which is
not to be surmounted. It follows that there is no
room for considering whether the court ought
graciously and deferentially to look to the
executive or legislative for a decision that a
change has or has not taken place.
6 & 7 Ibid. pp. 301, 305.
APPENDIX TO OPINION.
@ The inclusion in the Appendix of provisions for

Amendment and Revision in State Constitutions,
adopted after 1935, is only to stress the fact that
the distinction between Amendment and Revision
of Constitution, which existed at the time of the
adoption of the 1935 Constitution, has continued
up to the present.
658

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Constitutional Law I L-36142

Republic of the Philippines

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

G.R. No. L-36164 March 31, 1973

VIDAL TAN, J. ANTONIO ARANETA, ALEJANDRO ROCES, MANUEL CRUDO,

G.R. No. L-36165 March 31, 1973.

GERARDO ROXAS, AMBROSIO PADILLA, JOVITO R. SALONGA, SALVADOR

ROMEO ESPINO, in his capacity as Chief of Staff of the Armed Forces of

G.R. No. L-36236 March 31, 1973

EDDIE B. MONTECLARO, [personally and in his capacity as President of the

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

NAPOLEON V. DILAG, ALFREDO SALAPANTAN, JR., LEONARDO ASODISEN,

Ramon A. Gonzales for petitioner Josue Javellana.

Lorenzo M. Tañada and Associates for petitioners Vidal Tan, et al.

Tañada, Salonga, Ordoñez, Rodrigo, Sanidad, Roxas. Gonzales and Arroyo

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

Raul M. Gonzales and Associates for petitioners Napoleon V. Dilag, et al.

Arturo M. Tolentino for respondents Gil J. Puyat and Jose Roy.

Office of the Solicitor General Estelito P. Mendoza, Solicitor Vicente V.

Background of the Plebiscite Cases.

On March 16, 1967, Congress of the Philippines

its Proposed Constitution of the Republic of the

Soon after, or on December 7, 1972, Charito

Substantially identical actions were filed, on

35929) on December 11, 1972, by Gerardo Roxas,

In all these cases, except the last (G.R. No. L-

jointly with the others, on December 19, 1972. At

Meanwhile, or on December 17, 1972, the

In view of these events relative to the

and since the main objection to Presidential

"In the afternoon of January 12, 1973, the

"6. That the President subsequently announced

"7. That thereafter it was later announced that

[1] The New Society;

[2] Reforms instituted under

[3] The holding of a plebiscite on

and when (the tentative new

[4] The opening of the regular

"8. That it was later reported that the following

[1] Do you approve of the New

[2] Do you approve of the reform

[3] Do you think that Congress

[4] How soon would you like the

"9. That the voting by the so-called Citizens

"10. That on January 10, 1973, it was reported

[1] Do you like the New Society?

[2] Do you like the reforms under

[3] Do you like Congress again to

[4] Do you like the plebiscite to

[5] Do you like the way President

"11. That on January 11, 1973, it was reported

[1] Do you approve of the citizens

[2] Do you approve of the new

[3] Do you want a plebiscite to be

[4] Do you want the elections to

[5] If the elections would not be

[6] Do you want martial law to

"12. That according to reports, the returns with

"13. That attached to page 1 of Annex "A" is

But we do not want the Ad

The vote of the Citizens

If the Citizens Assemblies

We are sick and tired of too