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CONSTITIONAL LAW 1 CASES

[G.R. No. 122156. February 3, 1997]


MANILA PRINCE HOTEL, petitioner, vs. GOVERNMENT SERVICE INSURANCE SYSTEM, MANILA
HOTEL CORPORATION, COMMITTEE ON PRIVATIZATION and OFFICE OF THE
GOVERNMENT CORPORATE COUNSEL, respondents.
DECISION
BELLOSILLO, J.:
The Filipino First Policy enshrined in the 1987 Constitution, i.e., in the grant of rights, privileges, and
concessions covering the national economy and patrimony, the State shall give preference to qualified
Filipinos,[1] is invoked by petitioner in its bid to acquire 51% of the shares of the Manila Hotel Corporation
(MHC) which owns the historic Manila Hotel. Opposing, respondents maintain that the provision is not
self-executing but requires an implementing legislation for its enforcement. Corollarily, they ask whether
the 51% shares form part of the national economy and patrimony covered by the protective mantle of the
Constitution.
The controversy arose when respondent Government Service Insurance System (GSIS), pursuant to
the privatization program of the Philippine Government under Proclamation No. 50 dated 8 December
1986, decided to sell through public bidding 30% to 51% of the issued and outstanding shares of
respondent MHC. The winning bidder, or the eventual strategic partner, is to provide management
expertise and/or an international marketing/reservation system, and financial support to strengthen the
profitability and performance of the Manila Hotel.[2] In a close bidding held on 18 September 1995 only two
(2) bidders participated: petitioner Manila Prince Hotel Corporation, a Filipino corporation, which offered to
buy 51% of the MHC or 15,300,000 shares at P41.58 per share, and Renong Berhad, a Malaysian firm,
with ITT-Sheraton as its hotel operator, which bid for the same number of shares at P44.00 per share,
or P2.42 more than the bid of petitioner.
Pertinent provisions of the bidding rules prepared by respondent GSIS state I. EXECUTION OF THE NECESSARY CONTRACTS WITH GSIS/MHC 1. The Highest Bidder must comply with the conditions set forth below by October 23, 1995 (reset to
November 3, 1995) or the Highest Bidder will lose the right to purchase the Block of Shares and GSIS will
instead offer the Block of Shares to the other Qualified Bidders:
a. The Highest Bidder must negotiate and execute with the GSIS/MHC the Management Contract,
International Marketing/Reservation System Contract or other type of contract specified by the Highest
Bidder in its strategic plan for the Manila Hotel x x x x
b. The Highest Bidder must execute the Stock Purchase and Sale Agreement with GSIS x x x x
K. DECLARATION OF THE WINNING BIDDER/STRATEGIC PARTNER The Highest Bidder will be declared the Winning Bidder/Strategic Partner after the following conditions
are met:
a. Execution of the necessary contracts with GSIS/MHC not later than October 23, 1995 (reset to
November 3, 1995); and

b. Requisite approvals from the GSIS/MHC and COP (Committee on Privatization)/ OGCC (Office of the
Government Corporate Counsel) are obtained.[3]
Pending the declaration of Renong Berhard as the winning bidder/strategic partner and the execution
of the necessary contracts, petitioner in a letter to respondent GSIS dated 28 September 1995 matched
the bid price of P44.00 per share tendered by Renong Berhad.[4] In a subsequent letter dated 10 October
1995 petitioner sent a managers check issued by Philtrust Bank for Thirty-three Million Pesos
(P33,000,000.00) as Bid Security to match the bid of the Malaysian Group, Messrs. Renong Berhad x x x
x[5] which respondent GSIS refused to accept.
On 17 October 1995, perhaps apprehensive that respondent GSIS has disregarded the tender of the
matching bid and that the sale of 51% of the MHC may be hastened by respondent GSIS and
consummated with Renong Berhad, petitioner came to this Court on prohibition and mandamus. On 18
October 1995 the Court issued a temporary restraining order enjoining respondents from perfecting and
consummating the sale to the Malaysian firm.
On 10 September 1996 the instant case was accepted by the Court En Banc after it was referred to it
by the First Division. The case was then set for oral arguments with former Chief Justice Enrique M.
Fernando and Fr. Joaquin G. Bernas, S.J., as amici curiae.
In the main, petitioner invokes Sec. 10, second par., Art. XII, of the 1987 Constitution and submits
that the Manila Hotel has been identified with the Filipino nation and has practically become a historical
monument which reflects the vibrancy of Philippine heritage and culture. It is a proud legacy of an earlier
generation of Filipinos who believed in the nobility and sacredness of independence and its power and
capacity to release the full potential of the Filipino people. To all intents and purposes, it has become
a part of the national patrimony.[6] Petitioner also argues that since 51% of the shares of the MHC carries
with it the ownership of the business of the hotel which is owned by respondent GSIS, a governmentowned and controlled corporation, the hotel business of respondent GSIS being a part of the tourism
industry is unquestionably a part of the national economy. Thus, any transaction involving 51% of the
shares of stock of the MHC is clearly covered by the term national economy, to which Sec. 10, second
par., Art. XII, 1987 Constitution, applies.[7]
It is also the thesis of petitioner that since Manila Hotel is part of the national patrimony and its
business also unquestionably part of the national economy petitioner should be preferred after it has
matched the bid offer of the Malaysian firm. For the bidding rules mandate that if for any reason, the
Highest Bidder cannot be awarded the Block of Shares, GSIS may offer this to the other Qualified
Bidders that have validly submitted bids provided that these Qualified Bidders are willing to match the
highest bid in terms of price per share.[8]
Respondents except. They maintain that: First, Sec. 10, second par., Art. XII, of the 1987
Constitution is merely a statement of principle and policy since it is not a self-executing provision and
requires implementing legislation(s) x x x x Thus, for the said provision to operate, there must be existing
laws to lay down conditions under which business may be done. [9]
Second, granting that this provision is self-executing, Manila Hotel does not fall under the
term national patrimony which only refers to lands of the public domain, waters, minerals, coal, petroleum
and other mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna
and all marine wealth in its territorial sea, and exclusive marine zone as cited in the first and second
paragraphs of Sec. 2, Art. XII, 1987 Constitution. According to respondents, while petitioner speaks of the
guests who have slept in the hotel and the events that have transpired therein which make the hotel
historic, these alone do not make the hotel fall under the patrimony of the nation. What is more, the
mandate of the Constitution is addressed to the State, not to respondent GSIS which possesses a
personality of its own separate and distinct from the Philippines as a State.
Third, granting that the Manila Hotel forms part of the national patrimony, the constitutional provision
invoked is still inapplicable since what is being sold is only 51% of the outstanding shares of the
corporation, not the hotel building nor the land upon which the building stands. Certainly, 51% of the
equity of the MHC cannot be considered part of the national patrimony. Moreover, if the disposition of the

shares of the MHC is really contrary to the Constitution, petitioner should have questioned it right from the
beginning and not after it had lost in the bidding.
Fourth, the reliance by petitioner on par. V., subpar. J. 1., of the bidding rules which provides that if
for any reason, the Highest Bidder cannot be awarded the Block of Shares, GSIS may offer this to the
other Qualified Bidders that have validly submitted bids provided that these Qualified Bidders are willing
to match the highest bid in terms of price per share, is misplaced. Respondents postulate that the
privilege of submitting a matching bid has not yet arisen since it only takes place if for any reason, the
Highest Bidder cannot be awarded the Block of Shares. Thus the submission by petitioner of a matching
bid is premature since Renong Berhad could still very well be awarded the block of shares and the
condition giving rise to the exercise of the privilege to submit a matching bid had not yet taken place.
Finally, the prayer for prohibition grounded on grave abuse of discretion should fail since respondent
GSIS did not exercise its discretion in a capricious, whimsical manner, and if ever it did abuse its
discretion it was not so patent and gross as to amount to an evasion of a positive duty or a virtual refusal
to perform a duty enjoined by law. Similarly, the petition for mandamus should fail as petitioner has no
clear legal right to what it demands and respondents do not have an imperative duty to perform the act
required of them by petitioner.
We now resolve. A constitution is a system of fundamental laws for the governance and
administration of a nation. It is supreme, imperious, absolute and unalterable except by the authority from
which it emanates. It has been defined as the fundamental and paramount law of the nation. [10] It
prescribes the permanent framework of a system of government, assigns to the different departments
their respective powers and duties, and establishes certain fixed principles on which government is
founded. The fundamental conception in other words is that it is a supreme law to which all other laws
must conform and in accordance with which all private rights must be determined and all public authority
administered.[11] Under the doctrine of constitutional supremacy, if a law or contract violates any norm of
the constitution that law or contract whether promulgated by the legislative or by the executive branch or
entered into by private persons for private purposes is null and void and without any force and
effect. Thus, since the Constitution is the fundamental, paramount and supreme law of the nation, it is
deemed written in every statute and contract.
Admittedly, some constitutions are merely declarations of policies and principles. Their provisions
command the legislature to enact laws and carry out the purposes of the framers who merely establish an
outline of government providing for the different departments of the governmental machinery and securing
certain fundamental and inalienable rights of citizens. [12] A provision which lays down a general principle,
such as those found in Art. II of the 1987 Constitution, is usually not self-executing. But a provision which
is complete in itself and becomes operative without the aid of supplementary or enabling legislation, or
that which supplies sufficient rule by means of which the right it grants may be enjoyed or protected, is
self-executing. Thus a constitutional provision is self-executing if the nature and extent of the right
conferred and the liability imposed are fixed by the constitution itself, so that they can be determined by
an examination and construction of its terms, and there is no language indicating that the subject is
referred to the legislature for action.[13]
As against constitutions of the past, modern constitutions have been generally drafted upon a
different principle and have often become in effect extensive codes of laws intended to operate directly
upon the people in a manner similar to that of statutory enactments, and the function of constitutional
conventions has evolved into one more like that of a legislative body. Hence, unless it is expressly
provided that a legislative act is necessary to enforce a constitutional mandate, the presumption now is
that all provisions of the constitution are self-executing. If the constitutional provisions are treated as
requiring legislation instead of self-executing, the legislature would have the power to ignore and
practically nullify the mandate of the fundamental law.[14] This can be cataclysmic. That is why the
prevailing view is, as it has always been, that x x x x in case of doubt, the Constitution should be considered self-executing rather than non-selfexecuting x x x x Unless the contrary is clearly intended, the provisions of the Constitution should be
considered self-executing, as a contrary rule would give the legislature discretion to determine when, or
whether, they shall be effective. These provisions would be subordinated to the will of the lawmaking

body, which could make them entirely meaningless by simply refusing to pass the needed implementing
statute.[15]
Respondents argue that Sec. 10, second par., Art. XII, of the 1987 Constitution is clearly not selfexecuting, as they quote from discussions on the floor of the 1986 Constitutional Commission MR. RODRIGO. Madam President, I am asking this question as the Chairman of the Committee
on Style. If the wording of PREFERENCE is given to QUALIFIED FILIPINOS, can it be
understood as a preference to qualified Filipinos vis-a-vis Filipinos who are not
qualified. So, why do we not make it clear? To qualified Filipinos as against aliens?
THE PRESIDENT. What is the question of Commissioner Rodrigo? Is it to remove the word
QUALIFIED?
MR. RODRIGO. No, no, but say definitely TO QUALIFIED FILIPINOS as against whom? As
against aliens or over aliens ?
MR. NOLLEDO. Madam President, I think that is understood. We use the word QUALIFIED
because the existing laws or prospective laws will always lay down conditions under which
business may be done. For example, qualifications on capital, qualifications on the setting
up of other financial structures, et cetera (underscoring supplied by respondents).
MR. RODRIGO. It is just a matter of style.
MR. NOLLEDO. Yes.[16]
Quite apparently, Sec. 10, second par., of Art XII is couched in such a way as not to make it appear
that it is non-self-executing but simply for purposes of style. But, certainly, the legislature is not precluded
from enacting further laws to enforce the constitutional provision so long as the contemplated statute
squares with the Constitution. Minor details may be left to the legislature without impairing the selfexecuting nature of constitutional provisions.
In self-executing constitutional provisions, the legislature may still enact legislation to facilitate the
exercise of powers directly granted by the constitution, further the operation of such a provision, prescribe
a practice to be used for its enforcement, provide a convenient remedy for the protection of the rights
secured or the determination thereof, or place reasonable safeguards around the exercise of the
right. The mere fact that legislation may supplement and add to or prescribe a penalty for the violation of
a self-executing constitutional provision does not render such a provision ineffective in the absence of
such legislation. The omission from a constitution of any express provision for a remedy for enforcing a
right or liability is not necessarily an indication that it was not intended to be self-executing. The rule is
that a self-executing provision of the constitution does not necessarily exhaust legislative power on the
subject, but any legislation must be in harmony with the constitution, further the exercise of constitutional
right and make it more available.[17] Subsequent legislation however does not necessarily mean that the
subject constitutional provision is not, by itself, fully enforceable.
Respondents also argue that the non-self-executing nature of Sec. 10, second par., of Art. XII is
implied from the tenor of the first and third paragraphs of the same section which undoubtedly are not
self-executing.[18] The argument is flawed. If the first and third paragraphs are not self-executing because
Congress is still to enact measures to encourage the formation and operation of enterprises fully owned
by Filipinos, as in the first paragraph, and the State still needs legislation to regulate and exercise
authority over foreign investments within its national jurisdiction, as in the third paragraph, then a fortiori,
by the same logic, the second paragraph can only be self-executing as it does not by its language require
any legislation in order to give preference to qualified Filipinos in the grant of rights, privileges and
concessions covering the national economy and patrimony. A constitutional provision may be selfexecuting in one part and non-self-executing in another.[19]
Even the cases cited by respondents holding that certain constitutional provisions are merely
statements of principles and policies, which are basically not self-executing and only placed in the
Constitution as moral incentives to legislation, not as judicially enforceable rights - are simply not in

point. Basco v. Philippine Amusements and Gaming Corporation [20] speaks of constitutional provisions on
personal dignity,[21] the sanctity of family life,[22] the vital role of the youth in nation-building,[23] the
promotion of social justice,[24] and the values of education.[25] Tolentino v. Secretary of Finance[26] refers to
constitutional provisions on social justice and human rights[27] and on education.[28] Lastly, Kilosbayan, Inc.
v. Morato[29] cites provisions on the promotion of general welfare, [30] the sanctity of family life,[31] the vital
role of the youth in nation-building[32] and the promotion of total human liberation and development. [33] A
reading of these provisions indeed clearly shows that they are not judicially enforceable constitutional
rights but merely guidelines for legislation. The very terms of the provisions manifest that they are only
principles upon which legislations must be based. Res ipsa loquitur.
On the other hand, Sec. 10, second par., Art. XII of the 1987 Constitution is a mandatory, positive
command which is complete in itself and which needs no further guidelines or implementing laws or rules
for its enforcement. From its very words the provision does not require any legislation to put it in
operation. It is per se judicially enforceable. When our Constitution mandates that [i]n the grant of rights,
privileges, and concessions covering national economy and patrimony, the State shall give preference to
qualified Filipinos, it means just that - qualified Filipinos shall be preferred. And when our Constitution
declares that a right exists in certain specified circumstances an action may be maintained to enforce
such right notwithstanding the absence of any legislation on the subject; consequently, if there is no
statute especially enacted to enforce such constitutional right, such right enforces itself by its own
inherent potency and puissance, and from which all legislations must take their bearings. Where there is a
right there is a remedy. Ubi jus ibi remedium.
As regards our national patrimony, a member of the 1986 Constitutional Commission[34] explains The patrimony of the Nation that should be conserved and developed refers not only to our
rich natural resources but also to the cultural heritage of our race. It also refers to our
intelligence in arts, sciences and letters. Therefore, we should develop not only our lands,
forests, mines and other natural resources but also the mental ability or faculty of our people.
We agree. In its plain and ordinary meaning, the term patrimony pertains to heritage.[35] When the
Constitution speaks of national patrimony, it refers not only to the natural resources of the Philippines, as
the Constitution could have very well used the term natural resources, but also to the cultural heritage of
the Filipinos.
Manila Hotel has become a landmark - a living testimonial of Philippine heritage. While it was
restrictively an American hotel when it first opened in 1912, it immediately evolved to be truly
Filipino.Formerly a concourse for the elite, it has since then become the venue of various significant
events which have shaped Philippine history. It was called the Cultural Center of the 1930s. It was the site
of the festivities during the inauguration of the Philippine Commonwealth. Dubbed as the Official Guest
House of the Philippine Government it plays host to dignitaries and official visitors who are accorded the
traditional Philippine hospitality.[36]
The history of the hotel has been chronicled in the book The Manila Hotel: The Heart and Memory of
a City.[37] During World War II the hotel was converted by the Japanese Military Administration into a
military headquarters. When the American forces returned to recapture Manila the hotel was selected by
the Japanese together with Intramuros as the two (2) places for their final stand.Thereafter, in the 1950s
and 1960s, the hotel became the center of political activities, playing host to almost every political
convention. In 1970 the hotel reopened after a renovation and reaped numerous international
recognitions, an acknowledgment of the Filipino talent and ingenuity. In 1986 the hotel was the site of a
failed coup d etat where an aspirant for vice-president was proclaimed President of the Philippine
Republic.
For more than eight (8) decades Manila Hotel has bore mute witness to the triumphs and failures,
loves and frustrations of the Filipinos; its existence is impressed with public interest; its own historicity
associated with our struggle for sovereignty, independence and nationhood. Verily, Manila Hotel has
become part of our national economy and patrimony. For sure, 51% of the equity of the MHC comes
within the purview of the constitutional shelter for it comprises the majority and controlling stock, so that

anyone who acquires or owns the 51% will have actual control and management of the hotel. In this
instance, 51% of the MHC cannot be disassociated from the hotel and the land on which the hotel edifice
stands. Consequently, we cannot sustain respondents claim that theFilipino First Policy provision is not
applicable since what is being sold is only 51% of the outstanding shares of the corporation, not the Hotel
building nor the land upon which the building stands. [38]
The argument is pure sophistry. The term qualified Filipinos as used in our Constitution also includes
corporations at least 60% of which is owned by Filipinos. This is very clear from the proceedings of the
1986 Constitutional Commission THE PRESIDENT. Commissioner Davide is recognized.
MR. DAVIDE. I would like to introduce an amendment to the Nolledo amendment. And the
amendment would consist in substituting the words QUALIFIED FILIPINOS with the
following: CITIZENS OF THE PHILIPPINES OR CORPORATIONS OR ASSOCIATIONS
WHOSE CAPITAL OR CONTROLLING STOCK IS WHOLLY OWNED BY SUCH
CITIZENS.
xxxx
MR. MONSOD. Madam President, apparently the proponent is agreeable, but we have to raise
a question. Suppose it is a corporation that is 80-percent Filipino, do we not give it
preference?
MR. DAVIDE. The Nolledo amendment would refer to an individual Filipino. What about a
corporation wholly owned by Filipino citizens?
MR. MONSOD. At least 60 percent, Madam President.
MR. DAVIDE. Is that the intention?
MR. MONSOD. Yes, because, in fact, we would be limiting it if we say that the preference
should only be 100-percent Filipino.
MR. DAVIDE. I want to get that meaning clear because QUALIFIED FILIPINOS may refer only
to individuals and not to juridical personalities or entities.
MR. MONSOD. We agree, Madam President.[39]
xxxx
MR. RODRIGO. Before we vote, may I request that the amendment be read again.
MR. NOLLEDO. The amendment will read: IN THE GRANT OF RIGHTS, PRIVILEGES AND
CONCESSIONS COVERING THE NATIONAL ECONOMY AND PATRIMONY, THE STATE
SHALL GIVE PREFERENCE TO QUALIFIED FILIPINOS. And the word Filipinos here, as
intended by the proponents, will include not only individual Filipinos but also Filipinocontrolled entities or entities fully-controlled by Filipinos. [40]
The phrase preference to qualified Filipinos was explained thus MR. FOZ. Madam President, I would like to request Commissioner Nolledo to please restate his
amendment so that I can ask a question.
MR. NOLLEDO. IN THE GRANT OF RIGHTS, PRIVILEGES AND CONCESSIONS COVERING
THE NATIONAL ECONOMY AND PATRIMONY, THE STATE SHALL GIVE PREFERENCE
TO QUALIFIED FILIPINOS.
MR. FOZ. In connection with that amendment, if a foreign enterprise is qualified and a Filipino
enterprise is also qualified, will the Filipino enterprise still be given a preference?
MR. NOLLEDO. Obviously.

MR. FOZ. If the foreigner is more qualified in some aspects than the Filipino enterprise, will the
Filipino still be preferred?
MR. NOLLEDO. The answer is yes.
MR. FOZ. Thank you.[41]
Expounding further on the Filipino First Policy provision Commissioner Nolledo continues
MR. NOLLEDO. Yes, Madam President. Instead of MUST, it will be SHALL - THE STATE
SHALL GIVE PREFERENCE TO QUALIFIED FILIPINOS. This embodies the so-called
Filipino First policy. That means that Filipinos should be given preference in the grant of
concessions, privileges and rights covering the national patrimony.[42]
The exchange of views in the sessions of the Constitutional Commission regarding the subject
provision was still further clarified by Commissioner Nolledo [43] Paragraph 2 of Section 10 explicitly mandates the Pro-Filipino bias in all economic concerns. It is better
known as the FILIPINO FIRST Policy x x x x This provision was never found in previous Constitutions x x
xx
The term qualified Filipinos simply means that preference shall be given to those citizens who can make a
viable contribution to the common good, because of credible competence and efficiency. It certainly does
NOT mandate the pampering and preferential treatment to Filipino citizens or organizations that are
incompetent or inefficient, since such an indiscriminate preference would be counterproductive and
inimical to the common good.
In the granting of economic rights, privileges, and concessions, when a choice has to be made between a
qualified foreigner and a qualified Filipino, the latter shall be chosen over the former.
Lastly, the word qualified is also determinable. Petitioner was so considered by respondent GSIS
and selected as one of the qualified bidders. It was pre-qualified by respondent GSIS in accordance with
its own guidelines so that the sole inference here is that petitioner has been found to be possessed of
proven management expertise in the hotel industry, or it has significant equity ownership in another hotel
company, or it has an overall management and marketing proficiency to successfully operate the Manila
Hotel.[44]
The penchant to try to whittle away the mandate of the Constitution by arguing that the subject
provision is not self-executory and requires implementing legislation is quite disturbing. The attempt to
violate a clear constitutional provision - by the government itself - is only too distressing. To adopt such a
line of reasoning is to renounce the duty to ensure faithfulness to the Constitution. For, even some of the
provisions of the Constitution which evidently need implementing legislation have juridical life of their own
and can be the source of a judicial remedy. We cannot simply afford the government a defense that arises
out of the failure to enact further enabling, implementing or guiding legislation. In fine, the discourse of Fr.
Joaquin G. Bernas, S.J., on constitutional government is apt The executive department has a constitutional duty to implement laws, including the Constitution, even
before Congress acts - provided that there are discoverable legal standards for executive action. When
the executive acts, it must be guided by its own understanding of the constitutional command and of
applicable laws. The responsibility for reading and understanding the Constitution and the laws is not the
sole prerogative of Congress. If it were, the executive would have to ask Congress, or perhaps the Court,
for an interpretation every time the executive is confronted by a constitutional command. That is not how
constitutional government operates.[45]
Respondents further argue that the constitutional provision is addressed to the State, not to
respondent GSIS which by itself possesses a separate and distinct personality. This argument again is at
best specious. It is undisputed that the sale of 51% of the MHC could only be carried out with the prior

approval of the State acting through respondent Committee on Privatization. As correctly pointed out by
Fr. Joaquin G. Bernas, S.J., this fact alone makes the sale of the assets of respondents GSIS and MHC
a state action. In constitutional jurisprudence, the acts of persons distinct from the government are
considered state action covered by the Constitution (1) when the activity it engages in is a public
function; (2) when the government is so significantly involved with the private actor as to make the
government responsible for his action; and, (3) when the government has approved or authorized the
action. It is evident that the act of respondent GSIS in selling 51% of its share in respondent MHC comes
under the second and third categories of state action. Without doubt therefore the transaction, although
entered into by respondent GSIS, is in fact a transaction of the State and therefore subject to the
constitutional command.[46]
When the Constitution addresses the State it refers not only to the people but also to the government
as elements of the State. After all, government is composed of three (3) divisions of power - legislative,
executive and judicial. Accordingly, a constitutional mandate directed to the State is correspondingly
directed to the three (3) branches of government. It is undeniable that in this case the subject
constitutional injunction is addressed among others to the Executive Department and respondent GSIS, a
government instrumentality deriving its authority from the State.
It should be stressed that while the Malaysian firm offered the higher bid it is not yet the winning
bidder. The bidding rules expressly provide that the highest bidder shall only be declared the winning
bidder after it has negotiated and executed the necessary contracts, and secured the requisite
approvals. Since the Filipino First Policy provision of the Constitution bestows preference
onqualified Filipinos the mere tending of the highest bid is not an assurance that the highest bidder will be
declared the winning bidder. Resultantly, respondents are not bound to make the award yet, nor are they
under obligation to enter into one with the highest bidder. For in choosing the awardee respondents are
mandated to abide by the dictates of the 1987 Constitution the provisions of which are presumed to be
known to all the bidders and other interested parties.
Adhering to the doctrine of constitutional supremacy, the subject constitutional provision is, as it
should be, impliedly written in the bidding rules issued by respondent GSIS, lest the bidding rules be
nullified for being violative of the Constitution. It is a basic principle in constitutional law that all laws and
contracts must conform with the fundamental law of the land. Those which violate the Constitution lose
their reason for being.
Paragraph V. J. 1 of the bidding rules provides that [i]f for any reason the Highest Bidder cannot be
awarded the Block of Shares, GSIS may offer this to other Qualified Bidders that have validly submitted
bids provided that these Qualified Bidders are willing to match the highest bid in terms of price per share.
[47]
Certainly, the constitutional mandate itself is reason enough not to award the block of shares
immediately to the foreign bidder notwithstanding its submission of a higher, or even the highest, bid. In
fact, we cannot conceive of a stronger reason than the constitutional injunction itself.
In the instant case, where a foreign firm submits the highest bid in a public bidding concerning the
grant of rights, privileges and concessions covering the national economy and patrimony, thereby
exceeding the bid of a Filipino, there is no question that the Filipino will have to be allowed to match the
bid of the foreign entity. And if the Filipino matches the bid of a foreign firm the award should go to the
Filipino. It must be so if we are to give life and meaning to the Filipino First Policy provision of the 1987
Constitution. For, while this may neither be expressly stated nor contemplated in the bidding rules, the
constitutional fiat is omnipresent to be simply disregarded. To ignore it would be to sanction a perilous
skirting of the basic law.
This Court does not discount the apprehension that this policy may discourage foreign investors. But
the Constitution and laws of the Philippines are understood to be always open to public scrutiny. These
are given factors which investors must consider when venturing into business in a foreign jurisdiction. Any
person therefore desiring to do business in the Philippines or with any of its agencies or instrumentalities
is presumed to know his rights and obligations under the Constitution and the laws of the forum.
The argument of respondents that petitioner is now estopped from questioning the sale to Renong
Berhad since petitioner was well aware from the beginning that a foreigner could participate in the bidding

is meritless. Undoubtedly, Filipinos and foreigners alike were invited to the bidding. But foreigners may be
awarded the sale only if no Filipino qualifies, or if the qualified Filipino fails to match the highest bid
tendered by the foreign entity. In the case before us, while petitioner was already preferred at the
inception of the bidding because of the constitutional mandate, petitioner had not yet matched the bid
offered by Renong Berhad. Thus it did not have the right or personality then to compel respondent GSIS
to accept its earlier bid. Rightly, only after it had matched the bid of the foreign firm and the apparent
disregard by respondent GSIS of petitioners matching bid did the latter have a cause of action.
Besides, there is no time frame for invoking the constitutional safeguard unless perhaps the award
has been finally made. To insist on selling the Manila Hotel to foreigners when there is a Filipino group
willing to match the bid of the foreign group is to insist that government be treated as any other ordinary
market player, and bound by its mistakes or gross errors of judgment, regardless of the consequences to
the Filipino people. The miscomprehension of the Constitution is regrettable. Thus we would rather
remedy the indiscretion while there is still an opportunity to do so than let the government develop the
habit of forgetting that the Constitution lays down the basic conditions and parameters for its actions.
Since petitioner has already matched the bid price tendered by Renong Berhad pursuant to the
bidding rules, respondent GSIS is left with no alternative but to award to petitioner the block of shares of
MHC and to execute the necessary agreements and documents to effect the sale in accordance not only
with the bidding guidelines and procedures but with the Constitution as well. The refusal of respondent
GSIS to execute the corresponding documents with petitioner as provided in the bidding rules after the
latter has matched the bid of the Malaysian firm clearly constitutes grave abuse of discretion.
The Filipino First Policy is a product of Philippine nationalism. It is embodied in the 1987 Constitution
not merely to be used as a guideline for future legislation but primarily to be enforced; so must it be
enforced. This Court as the ultimate guardian of the Constitution will never shun, under any reasonable
circumstance, the duty of upholding the majesty of the Constitution which it is tasked to defend. It is worth
emphasizing that it is not the intention of this Court to impede and diminish, much less undermine, the
influx of foreign investments. Far from it, the Court encourages and welcomes more business
opportunities but avowedly sanctions the preference for Filipinos whenever such preference is ordained
by the Constitution. The position of the Court on this matter could have not been more appropriately
articulated by Chief Justice Narvasa As scrupulously as it has tried to observe that it is not its function to substitute its judgment for that of the
legislature or the executive about the wisdom and feasibility of legislation economic in nature, the
Supreme Court has not been spared criticism for decisions perceived as obstacles to economic progress
and development x x x x in connection with a temporary injunction issued by the Courts First Division
against the sale of the Manila Hotel to a Malaysian Firm and its partner, certain statements were
published in a major daily to the effect that that injunction again demonstrates that the Philippine legal
system can be a major obstacle to doing business here.
Let it be stated for the record once again that while it is no business of the Court to intervene in contracts
of the kind referred to or set itself up as the judge of whether they are viable or attainable, it is its bounden
duty to make sure that they do not violate the Constitution or the laws, or are not adopted or implemented
with grave abuse of discretion amounting to lack or excess of jurisdiction. It will never shirk that duty, no
matter how buffeted by winds of unfair and ill-informed criticism. [48]
Privatization of a business asset for purposes of enhancing its business viability and preventing
further losses, regardless of the character of the asset, should not take precedence over non-material
values. A commercial, nay even a budgetary, objective should not be pursued at the expense of national
pride and dignity. For the Constitution enshrines higher and nobler non-material values. Indeed, the Court
will always defer to the Constitution in the proper governance of a free society; after all, there is nothing
so sacrosanct in any economic policy as to draw itself beyond judicial review when the Constitution is
involved.[49]
Nationalism is inherent in the very concept of the Philippines being a democratic and republican
state, with sovereignty residing in the Filipino people and from whom all government authority

emanates. In nationalism, the happiness and welfare of the people must be the goal. The nation-state can
have no higher purpose. Any interpretation of any constitutional provision must adhere to such basic
concept. Protection of foreign investments, while laudible, is merely a policy. It cannot override the
demands of nationalism.[50]
The Manila Hotel or, for that matter, 51% of the MHC, is not just any commodity to be sold to the
highest bidder solely for the sake of privatization. We are not talking about an ordinary piece of property in
a commercial district. We are talking about a historic relic that has hosted many of the most important
events in the short history of the Philippines as a nation. We are talking about a hotel where heads of
states would prefer to be housed as a strong manifestation of their desire to cloak the dignity of the
highest state function to their official visits to the Philippines. Thus the Manila Hotel has played and
continues to play a significant role as an authentic repository of twentieth century Philippine history and
culture. In this sense, it has become truly a reflection of the Filipino soul - a place with a history of
grandeur; a most historical setting that has played a part in the shaping of a country.[51]
This Court cannot extract rhyme nor reason from the determined efforts of respondents to sell the
historical landmark - this Grand Old Dame of hotels in Asia - to a total stranger. For, indeed, the
conveyance of this epic exponent of the Filipino psyche to alien hands cannot be less than
mephistophelian for it is, in whatever manner viewed, a veritable alienation of a nations soul for some
pieces of foreign silver. And so we ask: What advantage, which cannot be equally drawn from a qualified
Filipino, can be gained by the Filipinos if Manila Hotel - and all that it stands for - is sold to a nonFilipino? How much of national pride will vanish if the nations cultural heritage is entrusted to a foreign
entity? On the other hand, how much dignity will be preserved and realized if the national patrimony is
safekept in the hands of a qualified, zealous and well-meaning Filipino? This is the plain and simple
meaning of the Filipino First Policy provision of the Philippine Constitution. And this Court, heeding the
clarion call of the Constitution and accepting the duty of being the elderly watchman of the nation, will
continue to respect and protect the sanctity of the Constitution.
WHEREFORE, respondents GOVERNMENT SERVICE INSURANCE SYSTEM, MANILA HOTEL
CORPORATION, COMMITTEE ON PRIVATIZATION and OFFICE OF THE GOVERNMENT
CORPORATE COUNSEL are directed to CEASE and DESIST from selling 51% of the shares of the
Manila Hotel Corporation to RENONG BERHAD, and to ACCEPT the matching bid of petitioner MANILA
PRINCE HOTEL CORPORATION to purchase the subject 51% of the shares of the Manila Hotel
Corporation at P44.00 per share and thereafter to execute the necessary agreements and documents to
effect the sale, to issue the necessary clearances and to do such other acts and deeds as may be
necessary for the purpose.
SO ORDERED.
Regalado, Davide, Jr., Romero, Kapunan, Francisco, and Hermosisima, Jr., JJ, concur.
Narvasa, C.J., (Chairman), and Melo, J., joins J. Puno in his dissent.
Padilla, J., see concurring opinion.
Vitug, J., see separate concurring opinion
Mendoza, J., see concurring opinion
Torres, J., with separate opinion
Puno, J., see dissent.
Panganiban J., with separate dissenting opinion.

[1]

See Sec. 10, par. 2, Art. XII, 1987 Constitution.

[2]

Par. I. Introduction and Highlights, Guidelines and Procedures: Second Prequalifications and Public
Bidding of the MHC Privatization; Annex A, Consolidated Reply to Comments of
Respondents; Rollo, p.142.

[3]

Par. V. Guidelines for the Public Bidding, Id., pp. 153-154.

[4]

Annex A, Petition for Prohibition and Mandamus with Temporary Restraining Order; Rollo, pp.13-14.

[5]

Annex B, Petition for Prohibition and Mandamus with Temporary Restraining Order; Id., p.15.

[6]

Petition for Prohibition and Mandamus with Temporary Restraining Order, pp. 5-6; Id., pp.6-7.

[7]

Consolidated Reply to Comments of Respondents, p. 17; Id., p.133.

[8]

Par. V. J. 1,Guidelines for Public Bidding, Guidelines and Procedures: Second Prequalifications and
Public Bidding of the MHC Privatization, Annex A, Consolidated Reply to Comments of
Respondents; Id., p. 154.

[9]

Respondents Joint Comment with Urgent Motion to Lift Temporary Restraining Order, p.9; Rollo, p. 44.

[10]

Marbury v. Madison, 5 U.S. 138 (1803).

[11]

11 Am Jur. 606.

[12]

16 Am Jur. 2d 281.

[13]

Id., p. 282.

[14]

See Note 12.

[15]

Cruz, Isagani A., Constitutional Law, 1993 ed., pp. 8-10.

[16]

Record of the Constitutional Commission, Vol. 3, 22 August 1986, p. 608.

[17]

16 Am Jur 2d 283-284.

[18]

Sec. 10, first par., reads: The Congress shall, upon recommendation of the economic and planning
agency, when the national interest dictates, reserve to citizens of the Philippines or to corporations or
associations at least sixty per centum of whose capital is owned by such citizens, or such higher
percentage as Congress may prescribe, certain areas of investments. The Congress shall enact
measures that will encourage the formation and operation of enterprises whose capital is wholly owned by
Filipinos.
Sec. 10, third par., reads: The State shall regulate and exercise authority over foreign investments within
its national jurisdiction and in accordance with its national goals and priorities.
[19]

State ex rel. Miller v. OMalley, 342 Mo 641, 117 SW2d 319.

[20]

G.R. No. 91649, 14 May 1991, 197 SCRA 52.

[21]

Sec. 11, Art. II (Declaration of Principles and State Policies), provides that [t]he State values the dignity
of every human person and guarantees full respect for human rights.

[22]

Sec. 12, Art. II, provides that [t]he State recognizes the sanctity of family life and shall protect and
strengthen the family as a basic autonomous social institution. It shall equally protect the life of
the mother and the life of the unborn from conception. The natural and primary right and duty of
parents in the rearing of the youth for civic efficiency and the development of moral character
shall receive the support of the government.

[23]

Sec. 13, Art. II, provides that [t]he State recognizes the vital role of the youth in nation-building and
shall promote and protect their physical, moral, spiritual, intellectual, and social well-being. It shall
inculcate in the youth patriotism and nationalism, and encourage their involvement in public and
civic affairs.

[24]

Sec. 1, Art. XIII (Social Justice and Human Rights), provides that [t]he Congress shall give highest
priority to the enactment of measures that protect and enhance the right of all the people to human
dignity, reduce social, economic and political inequalities, and remove cultural inequities by equitably
diffusing wealth and political power for the common good.

To this end, the State shall regulate the acquisition, ownership, use, and disposition of property and its
increments.
Sec. 2, Art. XIII, provides that [t]he promotion of social justice shall include the commitment to create
economic opportunities based on freedom of initiative and self-reliance.
[25]

Sec. 2, Art. XIV (Education, Science and Technology, Arts, Culture, and Sports), provides that [t]he
State shall:
(1) Establish, maintain, and support a complete, adequate, and integrated system of education relevant to
the needs of the people and society;
(2) Establish and maintain a system of free public education in the elementary and high school
levels. Without limiting the natural right of parents to rear their children, elementary education is
compulsory for all children of school age;
(3) Establish and maintain a system of scholarship grants, student loan programs, subsidies, and other
incentives which shall be available to deserving students in both public and private schools, especially to
the underprivileged;
(4) Encourage non-formal, informal, and indigenous learning, independent, and out-of-school study
programs particularly those that respond to community needs; and
(5) Provide adult citizens, the disabled, and out-of-school youth with training in civics, vocational
efficiency, and other skills.
[26]

G.R. No. 115455, 25 August 1994, 235 SCRA 630.

[27]

See Note 25.

[28]

Sec. 1, Art. XIV, provides that [t]he State shall protect and promote the right of all citizens to quality
education at all levels of education and shall take appropriate steps to make such education
accessible to all.

[29]

G.R. No. 118910, 17 July 1995.

[30]

Sec. 5, Art. II (Declaration of Principles and State Policies), provides that [t]he maintenance of peace
and order, the protection of life, liberty, and property, and the promotion of the general welfare are
essential for the enjoyment by all the people of the blessings of democracy.

[31]

See Note 23.

[32]

See Note 24.

[33]

Sec. 17, Art. II, provides that [t]he State shall give priority to education, science and technology, arts,
culture, and sports to foster patriotism and nationalism, accelerate social progress, and promote
total human liberation and development.

[34]

Nolledo, Jose N., The New Constitution of the Philippines Annotated, 1990 ed., p. 72.

[35]

Websters Third New International Dictionary, 1986 ed., p. 1656.

[36]

The guest list of the Manila Hotel includes Gen. Douglas MacArthur, the Duke of Windsor, President
Richard Nixon of U.S.A., Emperor Akihito of Japan, President Dwight Eisenhower of U.S.A,
President Nguyen Van Thieu of Vietnam, President Park Chung Hee of Korea, Prime Minister
Richard Holt of Australia, Prime Minister Keith Holyoake of New Zealand, President Lyndon
Johnson of U.S.A., President Jose Lopez Portillo of Mexico, Princess Margaret of England, Prime
Minister Malcolm Fraser of Australia, Prime Minister Yasuhiro Nakasone of Japan, Prime Minister
Pierre Elliot Trudeau of Canada, President Raul Alfonsin of Argentina, President Felipe Gonzalez
of Spain, Prime Minister Noboru Takeshita of Japan, Prime Minister Hussain Muhammad Ershad
of Bangladesh, Prime Minister Bob Hawke of Australia, Prime Minister Yasuhiro Nakasone of
Japan, Premier Li Peng of China, Sultan Hassanal Bolkiah of Brunei, President Ramaswami
Venkataraman of India, Prime Minister Go Chok Tong of Singapore, Prime Minister Enrique Silva
Cimma of Chile, Princess Chulaborn and Mahacharri Sirindhorn of Thailand, Prime Minister

Tomiichi Murayama of Japan, Sultan Azlan Shah and Raja Permaisuri Agong of Malaysia,
President Kim Young Sam of Korea, Princess Infanta Elena of Spain, President William Clinton of
U.S.A., Prime Minister Mahathir Mohamad of Malaysia, King Juan Carlos I and Queen Sofia of
Spain, President Carlos Saul Menem of Argentina, Prime Ministers Chatichai Choonhavan and
Prem Tinsulanonda of Thailand, Prime Minister Benazir Bhutto of Pakistan, President Vaclav
Havel of Czech Republic, Gen. Norman Schwarzkopf of U.S.A., President Ernesto Perez
Balladares of Panama, Prime Minister Adolfas Slezevicius of Lithuania, President Akbar Hashemi
Rafsanjani of Iran, President Askar Akayev of Kyrgyztan, President Ong Teng Cheong of
Singapore, President Frei Ruiz Tagle of Chile, President Le Duc Anh of Vietnam, and Prime
Minister Julius Chan of Papua New Guinea, see Memorandum for Petitioner, pp. 16-19.
[37]

Authored by Beth Day Romulo.

[38]

See Note 9, pp.15-16; Rollo, pp. 50-51.

[39]

Record of the Constitutional Commission, Vol. 3, 22 August 1986, p. 607.

[40]

Id., p. 612.

[41]

Id., p. 616.

[42]

Id., p. 606.

[43]

Nolledo, J.N., The New Constitution of the Philippines Annotated, 1990 ed., pp.930-931.

[44]

Bidders were required to have at least one of the these qualifications to be able to participate in the
bidding process; see Note 2.

[45]

Memorandum of Fr. Joaquin G. Bernas, S.J., p.6.

[46]

Id., pp. 3-4.

[47]

See Note 8.

[48]

Keynote Address at the ASEAN Regional Symposium on Enforcement of Industrial Property Rights
held 23 October 1995 at New World Hotel, Makati City.

[49]

Speech of Senior Associate Justice Teodoro R. Padilla at the Induction of Officers and Directors of the
PHILCONSA for 1996 held 16 January 1996 at the Sky-Top, Hotel Intercontinental, Makati City.

[50]

Memorandum of Authorities submitted by former Chief Justice Enrique M. Fernando, p.5.

[51]

8 March 1996 issue of Philippine Daily Inquirer, p. B13.

G.R. No. 101083 July 30, 1993


JUAN ANTONIO, ANNA ROSARIO and JOSE ALFONSO, all surnamed OPOSA, minors, and
represented by their parents ANTONIO and RIZALINA OPOSA, ROBERTA NICOLE SADIUA, minor,
represented by her parents CALVIN and ROBERTA SADIUA, CARLO, AMANDA SALUD and
PATRISHA, all surnamed FLORES, minors and represented by their parents ENRICO and NIDA
FLORES, GIANINA DITA R. FORTUN, minor, represented by her parents SIGRID and DOLORES
FORTUN, GEORGE II and MA. CONCEPCION, all surnamed MISA, minors and represented by their
parents GEORGE and MYRA MISA, BENJAMIN ALAN V. PESIGAN, minor, represented by his
parents ANTONIO and ALICE PESIGAN, JOVIE MARIE ALFARO, minor, represented by her parents
JOSE and MARIA VIOLETA ALFARO, MARIA CONCEPCION T. CASTRO, minor, represented by her
parents FREDENIL and JANE CASTRO, JOHANNA DESAMPARADO,
minor, represented by her parents JOSE and ANGELA DESAMPRADO, CARLO JOAQUIN T.
NARVASA, minor, represented by his parents GREGORIO II and CRISTINE CHARITY NARVASA,
MA. MARGARITA, JESUS IGNACIO, MA. ANGELA and MARIE GABRIELLE, all surnamed SAENZ,
minors, represented by their parents ROBERTO and AURORA SAENZ, KRISTINE, MARY ELLEN,
MAY, GOLDA MARTHE and DAVID IAN, all surnamed KING, minors, represented by their parents
MARIO and HAYDEE KING, DAVID, FRANCISCO and THERESE VICTORIA, all surnamed ENDRIGA,
minors, represented by their parents BALTAZAR and TERESITA ENDRIGA, JOSE MA. and REGINA
MA., all surnamed ABAYA, minors, represented by their parents ANTONIO and MARICA ABAYA,
MARILIN, MARIO, JR. and MARIETTE, all surnamed CARDAMA, minors, represented by their
parents MARIO and LINA CARDAMA, CLARISSA, ANN MARIE, NAGEL, and IMEE LYN, all
surnamed OPOSA, minors and represented by their parents RICARDO and MARISSA OPOSA,
PHILIP JOSEPH, STEPHEN JOHN and ISAIAH JAMES, all surnamed QUIPIT, minors, represented
by their parents JOSE MAX and VILMI QUIPIT, BUGHAW CIELO, CRISANTO, ANNA, DANIEL and
FRANCISCO, all surnamed BIBAL, minors, represented by their parents FRANCISCO, JR. and
MILAGROS BIBAL, and THE PHILIPPINE ECOLOGICAL NETWORK, INC., petitioners,
vs.
THE HONORABLE FULGENCIO S. FACTORAN, JR., in his capacity as the Secretary of the
Department of Environment and Natural Resources, and THE HONORABLE ERIBERTO U.
ROSARIO, Presiding Judge of the RTC, Makati, Branch 66, respondents.
Oposa Law Office for petitioners.
The Solicitor General for respondents.

DAVIDE, JR., J.:


In a broader sense, this petition bears upon the right of Filipinos to a balanced and healthful ecology
which the petitioners dramatically associate with the twin concepts of "inter-generational responsibility"
and "inter-generational justice." Specifically, it touches on the issue of whether the said petitioners have a

cause of action to "prevent the misappropriation or impairment" of Philippine rainforests and "arrest the
unabated hemorrhage of the country's vital life support systems and continued rape of Mother Earth."
The controversy has its genesis in Civil Case No. 90-77 which was filed before Branch 66 (Makati, Metro
Manila) of the Regional Trial Court (RTC), National Capital Judicial Region. The principal plaintiffs therein,
now the principal petitioners, are all minors duly represented and joined by their respective parents.
Impleaded as an additional plaintiff is the Philippine Ecological Network, Inc. (PENI), a domestic, nonstock and non-profit corporation organized for the purpose of, inter alia, engaging in concerted action
geared for the protection of our environment and natural resources. The original defendant was the
Honorable Fulgencio S. Factoran, Jr., then Secretary of the Department of Environment and Natural
Resources (DENR). His substitution in this petition by the new Secretary, the Honorable Angel C. Alcala,
was subsequently ordered upon proper motion by the petitioners. 1 The complaint 2 was instituted as a
taxpayers' class suit 3 and alleges that the plaintiffs "are all citizens of the Republic of the Philippines,
taxpayers, and entitled to the full benefit, use and enjoyment of the natural resource treasure that is the
country's virgin tropical forests." The same was filed for themselves and others who are equally
concerned about the preservation of said resource but are "so numerous that it is impracticable to bring
them all before the Court." The minors further asseverate that they "represent their generation as well as
generations yet unborn." 4 Consequently, it is prayed for that judgment be rendered:
. . . ordering defendant, his agents, representatives and other persons acting in his behalf
to
(1) Cancel all existing timber license agreements in the country;
(2) Cease and desist from receiving, accepting, processing, renewing or approving new
timber license agreements.
and granting the plaintiffs ". . . such other reliefs just and equitable under the premises." 5
The complaint starts off with the general averments that the Philippine archipelago of 7,100 islands has a
land area of thirty million (30,000,000) hectares and is endowed with rich, lush and verdant rainforests in
which varied, rare and unique species of flora and fauna may be found; these rainforests contain a
genetic, biological and chemical pool which is irreplaceable; they are also the habitat of indigenous
Philippine cultures which have existed, endured and flourished since time immemorial; scientific evidence
reveals that in order to maintain a balanced and healthful ecology, the country's land area should be
utilized on the basis of a ratio of fifty-four per cent (54%) for forest cover and forty-six per cent (46%) for
agricultural, residential, industrial, commercial and other uses; the distortion and disturbance of this
balance as a consequence of deforestation have resulted in a host of environmental tragedies, such as
(a) water shortages resulting from drying up of the water table, otherwise known as the "aquifer," as well
as of rivers, brooks and streams, (b) salinization of the water table as a result of the intrusion therein of
salt water, incontrovertible examples of which may be found in the island of Cebu and the Municipality of
Bacoor, Cavite, (c) massive erosion and the consequential loss of soil fertility and agricultural productivity,
with the volume of soil eroded estimated at one billion (1,000,000,000) cubic meters per annum
approximately the size of the entire island of Catanduanes, (d) the endangering and extinction of the
country's unique, rare and varied flora and fauna, (e) the disturbance and dislocation of cultural
communities, including the disappearance of the Filipino's indigenous cultures, (f) the siltation of rivers
and seabeds and consequential destruction of corals and other aquatic life leading to a critical reduction
in marine resource productivity, (g) recurrent spells of drought as is presently experienced by the entire
country, (h) increasing velocity of typhoon winds which result from the absence of windbreakers, (i) the
floodings of lowlands and agricultural plains arising from the absence of the absorbent mechanism of
forests, (j) the siltation and shortening of the lifespan of multi-billion peso dams constructed and operated

for the purpose of supplying water for domestic uses, irrigation and the generation of electric power, and
(k) the reduction of the earth's capacity to process carbon dioxide gases which has led to perplexing and
catastrophic climatic changes such as the phenomenon of global warming, otherwise known as the
"greenhouse effect."
Plaintiffs further assert that the adverse and detrimental consequences of continued and deforestation are
so capable of unquestionable demonstration that the same may be submitted as a matter of judicial
notice. This notwithstanding, they expressed their intention to present expert witnesses as well as
documentary, photographic and film evidence in the course of the trial.
As their cause of action, they specifically allege that:
CAUSE OF ACTION
7. Plaintiffs replead by reference the foregoing allegations.
8. Twenty-five (25) years ago, the Philippines had some sixteen (16) million hectares of
rainforests constituting roughly 53% of the country's land mass.
9. Satellite images taken in 1987 reveal that there remained no more than 1.2 million
hectares of said rainforests or four per cent (4.0%) of the country's land area.
10. More recent surveys reveal that a mere 850,000 hectares of virgin old-growth
rainforests are left, barely 2.8% of the entire land mass of the Philippine archipelago and
about 3.0 million hectares of immature and uneconomical secondary growth forests.
11. Public records reveal that the defendant's, predecessors have granted timber license
agreements ('TLA's') to various corporations to cut the aggregate area of 3.89 million
hectares for commercial logging purposes.
A copy of the TLA holders and the corresponding areas covered is hereto attached as
Annex "A".
12. At the present rate of deforestation, i.e. about 200,000 hectares per annum or 25
hectares per hour nighttime, Saturdays, Sundays and holidays included the
Philippines will be bereft of forest resources after the end of this ensuing decade, if not
earlier.
13. The adverse effects, disastrous consequences, serious injury and irreparable damage
of this continued trend of deforestation to the plaintiff minor's generation and to
generations yet unborn are evident and incontrovertible. As a matter of fact, the
environmental damages enumerated in paragraph 6 hereof are already being felt,
experienced and suffered by the generation of plaintiff adults.
14. The continued allowance by defendant of TLA holders to cut and deforest the
remaining forest stands will work great damage and irreparable injury to plaintiffs
especially plaintiff minors and their successors who may never see, use, benefit from
and enjoy this rare and unique natural resource treasure.

This act of defendant constitutes a misappropriation and/or impairment of the natural


resource property he holds in trust for the benefit of plaintiff minors and succeeding
generations.
15. Plaintiffs have a clear and constitutional right to a balanced and healthful ecology and
are entitled to protection by the State in its capacity as the parens patriae.
16. Plaintiff have exhausted all administrative remedies with the defendant's office. On
March 2, 1990, plaintiffs served upon defendant a final demand to cancel all logging
permits in the country.
A copy of the plaintiffs' letter dated March 1, 1990 is hereto attached as Annex "B".
17. Defendant, however, fails and refuses to cancel the existing TLA's to the continuing
serious damage and extreme prejudice of plaintiffs.
18. The continued failure and refusal by defendant to cancel the TLA's is an act violative
of the rights of plaintiffs, especially plaintiff minors who may be left with a country that is
desertified (sic), bare, barren and devoid of the wonderful flora, fauna and indigenous
cultures which the Philippines had been abundantly blessed with.
19. Defendant's refusal to cancel the aforementioned TLA's is manifestly contrary to the
public policy enunciated in the Philippine Environmental Policy which, in pertinent part,
states that it is the policy of the State
(a) to create, develop, maintain and improve conditions under which man and nature can
thrive in productive and enjoyable harmony with each other;
(b) to fulfill the social, economic and other requirements of present and future generations
of Filipinos and;
(c) to ensure the attainment of an environmental quality that is conductive to a life of
dignity and well-being. (P.D. 1151, 6 June 1977)
20. Furthermore, defendant's continued refusal to cancel the aforementioned TLA's is
contradictory to the Constitutional policy of the State to
a. effect "a more equitable distribution of opportunities, income and wealth" and "make
full and efficient use of natural resources (sic)." (Section 1, Article XII of the Constitution);
b. "protect the nation's marine wealth." (Section 2, ibid);
c. "conserve and promote the nation's cultural heritage and resources (sic)" (Section 14,
Article XIV,id.);
d. "protect and advance the right of the people to a balanced and healthful ecology in
accord with the rhythm and harmony of nature." (Section 16, Article II, id.)
21. Finally, defendant's act is contrary to the highest law of humankind the natural law
and violative of plaintiffs' right to self-preservation and perpetuation.

22. There is no other plain, speedy and adequate remedy in law other than the instant
action to arrest the unabated hemorrhage of the country's vital life support systems and
continued rape of Mother Earth. 6
On 22 June 1990, the original defendant, Secretary Factoran, Jr., filed a Motion to Dismiss the complaint
based on two (2) grounds, namely: (1) the plaintiffs have no cause of action against him and (2) the issue
raised by the plaintiffs is a political question which properly pertains to the legislative or executive
branches of Government. In their 12 July 1990 Opposition to the Motion, the petitioners maintain that (1)
the complaint shows a clear and unmistakable cause of action, (2) the motion is dilatory and (3) the action
presents a justiciable question as it involves the defendant's abuse of discretion.
On 18 July 1991, respondent Judge issued an order granting the aforementioned motion to dismiss. 7 In
the said order, not only was the defendant's claim that the complaint states no cause of action against
him and that it raises a political question sustained, the respondent Judge further ruled that the
granting of the relief prayed for would result in the impairment of contracts which is prohibited by the
fundamental law of the land.
Plaintiffs thus filed the instant special civil action for certiorari under Rule 65 of the Revised Rules of Court
and ask this Court to rescind and set aside the dismissal order on the ground that the respondent Judge
gravely abused his discretion in dismissing the action. Again, the parents of the plaintiffs-minors not only
represent their children, but have also joined the latter in this case. 8
On 14 May 1992, We resolved to give due course to the petition and required the parties to submit their
respective Memoranda after the Office of the Solicitor General (OSG) filed a Comment in behalf of the
respondents and the petitioners filed a reply thereto.
Petitioners contend that the complaint clearly and unmistakably states a cause of action as it contains
sufficient allegations concerning their right to a sound environment based on Articles 19, 20 and 21 of the
Civil Code (Human Relations), Section 4 of Executive Order (E.O.) No. 192 creating the DENR, Section 3
of Presidential Decree (P.D.) No. 1151 (Philippine Environmental Policy), Section 16, Article II of the 1987
Constitution recognizing the right of the people to a balanced and healthful ecology, the concept of
generational genocide in Criminal Law and the concept of man's inalienable right to self-preservation and
self-perpetuation embodied in natural law. Petitioners likewise rely on the respondent's correlative
obligation per Section 4 of E.O. No. 192, to safeguard the people's right to a healthful environment.
It is further claimed that the issue of the respondent Secretary's alleged grave abuse of discretion in
granting Timber License Agreements (TLAs) to cover more areas for logging than what is available
involves a judicial question.
Anent the invocation by the respondent Judge of the Constitution's non-impairment clause, petitioners
maintain that the same does not apply in this case because TLAs are not contracts. They likewise submit
that even if TLAs may be considered protected by the said clause, it is well settled that they may still be
revoked by the State when the public interest so requires.
On the other hand, the respondents aver that the petitioners failed to allege in their complaint a specific
legal right violated by the respondent Secretary for which any relief is provided by law. They see nothing
in the complaint but vague and nebulous allegations concerning an "environmental right" which
supposedly entitles the petitioners to the "protection by the state in its capacity as parens patriae." Such
allegations, according to them, do not reveal a valid cause of action. They then reiterate the theory that
the question of whether logging should be permitted in the country is a political question which should be
properly addressed to the executive or legislative branches of Government. They therefore assert that the

petitioners' resources is not to file an action to court, but to lobby before Congress for the passage of a bill
that would ban logging totally.
As to the matter of the cancellation of the TLAs, respondents submit that the same cannot be done by the
State without due process of law. Once issued, a TLA remains effective for a certain period of time
usually for twenty-five (25) years. During its effectivity, the same can neither be revised nor cancelled
unless the holder has been found, after due notice and hearing, to have violated the terms of the
agreement or other forestry laws and regulations. Petitioners' proposition to have all the TLAs
indiscriminately cancelled without the requisite hearing would be violative of the requirements of due
process.
Before going any further, We must first focus on some procedural matters. Petitioners instituted Civil Case
No. 90-777 as a class suit. The original defendant and the present respondents did not take issue with
this matter. Nevertheless, We hereby rule that the said civil case is indeed a class suit. The subject matter
of the complaint is of common and general interest not just to several, but to all citizens of the Philippines.
Consequently, since the parties are so numerous, it, becomes impracticable, if not totally impossible, to
bring all of them before the court. We likewise declare that the plaintiffs therein are numerous and
representative enough to ensure the full protection of all concerned interests. Hence, all the requisites for
the filing of a valid class suit under Section 12, Rule 3 of the Revised Rules of Court are present both in
the said civil case and in the instant petition, the latter being but an incident to the former.
This case, however, has a special and novel element. Petitioners minors assert that they represent their
generation as well as generations yet unborn. We find no difficulty in ruling that they can, for themselves,
for others of their generation and for the succeeding generations, file a class suit. Their personality to sue
in behalf of the succeeding generations can only be based on the concept of intergenerational
responsibility insofar as the right to a balanced and healthful ecology is concerned. Such a right, as
hereinafter expounded, considers
the "rhythm and harmony of nature." Nature means the created world in its entirety. 9 Such rhythm and
harmony indispensably include, inter alia, the judicious disposition, utilization, management, renewal and
conservation of the country's forest, mineral, land, waters, fisheries, wildlife, off-shore areas and other
natural resources to the end that their exploration, development and utilization be equitably accessible to
the present as well as future generations. 10 Needless to say, every generation has a responsibility to the
next to preserve that rhythm and harmony for the full enjoyment of a balanced and healthful ecology. Put
a little differently, the minors' assertion of their right to a sound environment constitutes, at the same time,
the performance of their obligation to ensure the protection of that right for the generations to come.
The locus standi of the petitioners having thus been addressed, We shall now proceed to the merits of the
petition.
After a careful perusal of the complaint in question and a meticulous consideration and evaluation of the
issues raised and arguments adduced by the parties, We do not hesitate to find for the petitioners and
rule against the respondent Judge's challenged order for having been issued with grave abuse of
discretion amounting to lack of jurisdiction. The pertinent portions of the said order reads as follows:
xxx xxx xxx
After a careful and circumspect evaluation of the Complaint, the Court cannot help but
agree with the defendant. For although we believe that plaintiffs have but the noblest of
all intentions, it (sic) fell short of alleging, with sufficient definiteness, a specific legal right
they are seeking to enforce and protect, or a specific legal wrong they are seeking to
prevent and redress (Sec. 1, Rule 2, RRC). Furthermore, the Court notes that the

Complaint is replete with vague assumptions and vague conclusions based on unverified
data. In fine, plaintiffs fail to state a cause of action in its Complaint against the herein
defendant.
Furthermore, the Court firmly believes that the matter before it, being impressed with
political color and involving a matter of public policy, may not be taken cognizance of by
this Court without doing violence to the sacred principle of "Separation of Powers" of the
three (3) co-equal branches of the Government.
The Court is likewise of the impression that it cannot, no matter how we stretch our
jurisdiction, grant the reliefs prayed for by the plaintiffs, i.e., to cancel all existing timber
license agreements in the country and to cease and desist from receiving, accepting,
processing, renewing or approving new timber license agreements. For to do otherwise
would amount to "impairment of contracts" abhored (sic) by the fundamental law. 11
We do not agree with the trial court's conclusions that the plaintiffs failed to allege with sufficient
definiteness a specific legal right involved or a specific legal wrong committed, and that the complaint is
replete with vague assumptions and conclusions based on unverified data. A reading of the complaint
itself belies these conclusions.
The complaint focuses on one specific fundamental legal right the right to a balanced and healthful
ecology which, for the first time in our nation's constitutional history, is solemnly incorporated in the
fundamental law. Section 16, Article II of the 1987 Constitution explicitly provides:
Sec. 16. The State shall protect and advance the right of the people to a balanced and
healthful ecology in accord with the rhythm and harmony of nature.
This right unites with the right to health which is provided for in the preceding section of
the same article:
Sec. 15. The State shall protect and promote the right to health of the people and instill
health consciousness among them.
While the right to a balanced and healthful ecology is to be found under the Declaration of Principles and
State Policies and not under the Bill of Rights, it does not follow that it is less important than any of the
civil and political rights enumerated in the latter. Such a right belongs to a different category of rights
altogether for it concerns nothing less than self-preservation and self-perpetuation aptly and fittingly
stressed by the petitioners the advancement of which may even be said to predate all governments
and constitutions. As a matter of fact, these basic rights need not even be written in the Constitution for
they are assumed to exist from the inception of humankind. If they are now explicitly mentioned in the
fundamental charter, it is because of the well-founded fear of its framers that unless the rights to a
balanced and healthful ecology and to health are mandated as state policies by the Constitution itself,
thereby highlighting their continuing importance and imposing upon the state a solemn obligation to
preserve the first and protect and advance the second, the day would not be too far when all else would
be lost not only for the present generation, but also for those to come generations which stand to
inherit nothing but parched earth incapable of sustaining life.
The right to a balanced and healthful ecology carries with it the correlative duty to refrain from impairing
the environment. During the debates on this right in one of the plenary sessions of the 1986 Constitutional
Commission, the following exchange transpired between Commissioner Wilfrido Villacorta and
Commissioner Adolfo Azcuna who sponsored the section in question:

MR. VILLACORTA:
Does this section mandate the State to provide sanctions against all
forms of pollution air, water and noise pollution?
MR. AZCUNA:
Yes, Madam President. The right to healthful (sic) environment
necessarily carries with it the correlative duty of not impairing the same
and, therefore, sanctions may be provided for impairment of
environmental balance. 12
The said right implies, among many other things, the judicious management and conservation of the
country's forests.
Without such forests, the ecological or environmental balance would be irreversiby disrupted.
Conformably with the enunciated right to a balanced and healthful ecology and the right to health, as well
as the other related provisions of the Constitution concerning the conservation, development and
utilization of the country's natural resources, 13 then President Corazon C. Aquino promulgated on 10
June 1987 E.O. No. 192, 14 Section 4 of which expressly mandates that the Department of Environment
and Natural Resources "shall be the primary government agency responsible for the conservation,
management, development and proper use of the country's environment and natural resources,
specifically forest and grazing lands, mineral, resources, including those in reservation and watershed
areas, and lands of the public domain, as well as the licensing and regulation of all natural resources as
may be provided for by law in order to ensure equitable sharing of the benefits derived therefrom for the
welfare of the present and future generations of Filipinos." Section 3 thereof makes the following
statement of policy:
Sec. 3. Declaration of Policy. It is hereby declared the policy of the State to ensure the
sustainable use, development, management, renewal, and conservation of the country's
forest, mineral, land, off-shore areas and other natural resources, including the protection
and enhancement of the quality of the environment, and equitable access of the different
segments of the population to the development and the use of the country's natural
resources, not only for the present generation but for future generations as well. It is also
the policy of the state to recognize and apply a true value system including social and
environmental cost implications relative to their utilization, development and conservation
of our natural resources.
This policy declaration is substantially re-stated it Title XIV, Book IV of the Administrative Code of
1987, 15specifically in Section 1 thereof which reads:
Sec. 1. Declaration of Policy. (1) The State shall ensure, for the benefit of the Filipino
people, the full exploration and development as well as the judicious disposition,
utilization, management, renewal and conservation of the country's forest, mineral, land,
waters, fisheries, wildlife, off-shore areas and other natural resources, consistent with the
necessity of maintaining a sound ecological balance and protecting and enhancing the
quality of the environment and the objective of making the exploration, development and
utilization of such natural resources equitably accessible to the different segments of the
present as well as future generations.

(2) The State shall likewise recognize and apply a true value system that takes into
account social and environmental cost implications relative to the utilization, development
and conservation of our natural resources.
The above provision stresses "the necessity of maintaining a sound ecological balance and protecting
and enhancing the quality of the environment." Section 2 of the same Title, on the other hand, specifically
speaks of the mandate of the DENR; however, it makes particular reference to the fact of the agency's
being subject to law and higher authority. Said section provides:
Sec. 2. Mandate. (1) The Department of Environment and Natural Resources shall be
primarily responsible for the implementation of the foregoing policy.
(2) It shall, subject to law and higher authority, be in charge of carrying out the State's
constitutional mandate to control and supervise the exploration, development, utilization,
and conservation of the country's natural resources.
Both E.O. NO. 192 and the Administrative Code of 1987 have set the objectives which will serve as the
bases for policy formulation, and have defined the powers and functions of the DENR.
It may, however, be recalled that even before the ratification of the 1987 Constitution, specific statutes
already paid special attention to the "environmental right" of the present and future generations. On 6
June 1977, P.D. No. 1151 (Philippine Environmental Policy) and P.D. No. 1152 (Philippine Environment
Code) were issued. The former "declared a continuing policy of the State (a) to create, develop, maintain
and improve conditions under which man and nature can thrive in productive and enjoyable harmony with
each other, (b) to fulfill the social, economic and other requirements of present and future generations of
Filipinos, and (c) to insure the attainment of an environmental quality that is conducive to a life of dignity
and well-being." 16 As its goal, it speaks of the "responsibilities of each generation as trustee and guardian
of the environment for succeeding generations." 17 The latter statute, on the other hand, gave flesh to the
said policy.
Thus, the right of the petitioners (and all those they represent) to a balanced and healthful ecology is as
clear as the DENR's duty under its mandate and by virtue of its powers and functions under E.O. No.
192 and the Administrative Code of 1987 to protect and advance the said right.
A denial or violation of that right by the other who has the corelative duty or obligation to respect or protect
the same gives rise to a cause of action. Petitioners maintain that the granting of the TLAs, which they
claim was done with grave abuse of discretion, violated their right to a balanced and healthful ecology;
hence, the full protection thereof requires that no further TLAs should be renewed or granted.
A cause of action is defined as:
. . . an act or omission of one party in violation of the legal right or rights of the other; and
its essential elements are legal right of the plaintiff, correlative obligation of the defendant,
and act or omission of the defendant in violation of said legal right. 18
It is settled in this jurisdiction that in a motion to dismiss based on the ground that the complaint fails to
state a cause of action, 19 the question submitted to the court for resolution involves the sufficiency of the
facts alleged in the complaint itself. No other matter should be considered; furthermore, the truth of falsity
of the said allegations is beside the point for the truth thereof is deemed hypothetically admitted. The only
issue to be resolved in such a case is: admitting such alleged facts to be true, may the court render a
valid judgment in accordance with the prayer in the complaint? 20 InMilitante vs. Edrosolano, 21 this Court

laid down the rule that the judiciary should "exercise the utmost care and circumspection in passing upon
a motion to dismiss on the ground of the absence thereof [cause of action] lest, by its failure to manifest a
correct appreciation of the facts alleged and deemed hypothetically admitted, what the law grants or
recognizes is effectively nullified. If that happens, there is a blot on the legal order. The law itself stands in
disrepute."
After careful examination of the petitioners' complaint, We find the statements under the introductory
affirmative allegations, as well as the specific averments under the sub-heading CAUSE OF ACTION, to
be adequate enough to show, prima facie, the claimed violation of their rights. On the basis thereof, they
may thus be granted, wholly or partly, the reliefs prayed for. It bears stressing, however, that insofar as
the cancellation of the TLAs is concerned, there is the need to implead, as party defendants, the grantees
thereof for they are indispensable parties.
The foregoing considered, Civil Case No. 90-777 be said to raise a political question. Policy formulation or
determination by the executive or legislative branches of Government is not squarely put in issue. What is
principally involved is the enforcement of a right vis-a-vis policies already formulated and expressed in
legislation. It must, nonetheless, be emphasized that the political question doctrine is no longer, the
insurmountable obstacle to the exercise of judicial power or the impenetrable shield that protects
executive and legislative actions from judicial inquiry or review. The second paragraph of section 1, Article
VIII of the Constitution states that:
Judicial power includes the duty of the courts of justice to settle actual controversies
involving rights which are legally demandable and enforceable, and to determine whether
or not there has been a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the Government.
Commenting on this provision in his book, Philippine Political Law, 22 Mr. Justice Isagani A. Cruz, a
distinguished member of this Court, says:
The first part of the authority represents the traditional concept of judicial power, involving
the settlement of conflicting rights as conferred as law. The second part of the authority
represents a broadening of judicial power to enable the courts of justice to review what
was before forbidden territory, to wit, the discretion of the political departments of the
government.
As worded, the new provision vests in the judiciary, and particularly the Supreme Court,
the power to rule upon even the wisdom of the decisions of the executive and the
legislature and to declare their acts invalid for lack or excess of jurisdiction because
tainted with grave abuse of discretion. The catch, of course, is the meaning of "grave
abuse of discretion," which is a very elastic phrase that can expand or contract according
to the disposition of the judiciary.
In Daza vs. Singson, 23 Mr. Justice Cruz, now speaking for this Court, noted:
In the case now before us, the jurisdictional objection becomes even less tenable and
decisive. The reason is that, even if we were to assume that the issue presented before
us was political in nature, we would still not be precluded from revolving it under the
expanded jurisdiction conferred upon us that now covers, in proper cases, even the
political question. Article VII, Section 1, of the Constitution clearly provides: . . .

The last ground invoked by the trial court in dismissing the complaint is the non-impairment of contracts
clause found in the Constitution. The court a quo declared that:
The Court is likewise of the impression that it cannot, no matter how we stretch our
jurisdiction, grant the reliefs prayed for by the plaintiffs, i.e., to cancel all existing timber
license agreements in the country and to cease and desist from receiving, accepting,
processing, renewing or approving new timber license agreements. For to do otherwise
would amount to "impairment of contracts" abhored (sic) by the fundamental law. 24
We are not persuaded at all; on the contrary, We are amazed, if not shocked, by such a sweeping
pronouncement. In the first place, the respondent Secretary did not, for obvious reasons, even invoke in
his motion to dismiss the non-impairment clause. If he had done so, he would have acted with utmost
infidelity to the Government by providing undue and unwarranted benefits and advantages to the timber
license holders because he would have forever bound the Government to strictly respect the said licenses
according to their terms and conditions regardless of changes in policy and the demands of public interest
and welfare. He was aware that as correctly pointed out by the petitioners, into every timber license must
be read Section 20 of the Forestry Reform Code (P.D. No. 705) which provides:
. . . Provided, That when the national interest so requires, the President may amend,
modify, replace or rescind any contract, concession, permit, licenses or any other form of
privilege granted herein . . .
Needless to say, all licenses may thus be revoked or rescinded by executive action. It is not a
contract, property or a property right protested by the due process clause of the Constitution.
In Tan vs. Director of Forestry, 25 this Court held:
. . . A timber license is an instrument by which the State regulates the utilization and
disposition of forest resources to the end that public welfare is promoted. A timber license
is not a contract within the purview of the due process clause; it is only a license or
privilege, which can be validly withdrawn whenever dictated by public interest or public
welfare as in this case.
A license is merely a permit or privilege to do what otherwise would be unlawful, and is
not a contract between the authority, federal, state, or municipal, granting it and the
person to whom it is granted; neither is it property or a property right, nor does it create a
vested right; nor is it taxation (37 C.J. 168). Thus, this Court held that the granting of
license does not create irrevocable rights, neither is it property or property rights (People
vs. Ong Tin, 54 O.G. 7576).
We reiterated this pronouncement in Felipe Ysmael, Jr. & Co., Inc. vs. Deputy Executive Secretary: 26
. . . Timber licenses, permits and license agreements are the principal instruments by
which the State regulates the utilization and disposition of forest resources to the end that
public welfare is promoted. And it can hardly be gainsaid that they merely evidence a
privilege granted by the State to qualified entities, and do not vest in the latter a
permanent or irrevocable right to the particular concession area and the forest products
therein. They may be validly amended, modified, replaced or rescinded by the Chief
Executive when national interests so require. Thus, they are not deemed contracts within
the purview of the due process of law clause [See Sections 3(ee) and 20 of Pres. Decree
No. 705, as amended. Also, Tan v. Director of Forestry, G.R. No. L-24548, October 27,
1983, 125 SCRA 302].

Since timber licenses are not contracts, the non-impairment clause, which reads:
Sec. 10. No law impairing, the obligation of contracts shall be passed.

27

cannot be invoked.
In the second place, even if it is to be assumed that the same are contracts, the instant case does not
involve a law or even an executive issuance declaring the cancellation or modification of existing timber
licenses. Hence, the non-impairment clause cannot as yet be invoked. Nevertheless, granting further that
a law has actually been passed mandating cancellations or modifications, the same cannot still be
stigmatized as a violation of the non-impairment clause. This is because by its very nature and purpose,
such as law could have only been passed in the exercise of the police power of the state for the purpose
of advancing the right of the people to a balanced and healthful ecology, promoting their health and
enhancing the general welfare. In Abe vs. Foster Wheeler
Corp. 28 this Court stated:
The freedom of contract, under our system of government, is not meant to be absolute.
The same is understood to be subject to reasonable legislative regulation aimed at the
promotion of public health, moral, safety and welfare. In other words, the constitutional
guaranty of non-impairment of obligations of contract is limited by the exercise of the
police power of the State, in the interest of public health, safety, moral and general
welfare.
The reason for this is emphatically set forth in Nebia vs. New York, 29 quoted in Philippine American Life
Insurance Co. vs. Auditor General, 30 to wit:
Under our form of government the use of property and the making of contracts are
normally matters of private and not of public concern. The general rule is that both shall
be free of governmental interference. But neither property rights nor contract rights are
absolute; for government cannot exist if the citizen may at will use his property to the
detriment of his fellows, or exercise his freedom of contract to work them harm. Equally
fundamental with the private right is that of the public to regulate it in the common
interest.
In short, the non-impairment clause must yield to the police power of the state.

31

Finally, it is difficult to imagine, as the trial court did, how the non-impairment clause could apply with
respect to the prayer to enjoin the respondent Secretary from receiving, accepting, processing, renewing
or approving new timber licenses for, save in cases of renewal, no contract would have as of yet existed
in the other instances. Moreover, with respect to renewal, the holder is not entitled to it as a matter of
right.
WHEREFORE, being impressed with merit, the instant Petition is hereby GRANTED, and the challenged
Order of respondent Judge of 18 July 1991 dismissing Civil Case No. 90-777 is hereby set aside. The
petitioners may therefore amend their complaint to implead as defendants the holders or grantees of the
questioned timber license agreements.
No pronouncement as to costs.
SO ORDERED.

Cruz, Padilla, Bidin, Grio-Aquino, Regalado, Romero, Nocon, Bellosillo, Melo and Quiason, JJ., concur.
Narvasa, C.J., Puno and Vitug, JJ., took no part.

Separate Opinions

FELICIANO, J., concurring


I join in the result reached by my distinguished brother in the Court, Davide, Jr., J., in this case which, to
my mind, is one of the most important cases decided by this Court in the last few years. The seminal
principles laid down in this decision are likely to influence profoundly the direction and course of the
protection and management of the environment, which of course embraces the utilization of all the natural
resources in the territorial base of our polity. I have therefore sought to clarify, basically to myself, what
the Court appears to be saying.
The Court explicitly states that petitioners have the locus standi necessary to sustain the bringing and,
maintenance of this suit (Decision, pp. 11-12). Locus standi is not a function of petitioners' claim that their
suit is properly regarded as a class suit. I understand locus standi to refer to the legal interest which a
plaintiff must have in the subject matter of the suit. Because of the very broadness of the concept of
"class" here involved membership in this "class" appears to embrace everyone living in the country
whether now or in the
future it appears to me that everyone who may be expected to benefit from the course of action
petitioners seek to require public respondents to take, is vested with the necessary locus standi. The
Court may be seen therefore to be recognizing a beneficiaries' right of action in the field of environmental
protection, as against both the public administrative agency directly concerned and the private persons or
entities operating in the field or sector of activity involved. Whether such beneficiaries' right of action may
be found under any and all circumstances, or whether some failure to act, in the first instance, on the part
of the governmental agency concerned must be shown ("prior exhaustion of administrative remedies"), is
not discussed in the decision and presumably is left for future determination in an appropriate case.
The Court has also declared that the complaint has alleged and focused upon "one specific fundamental
legal right the right to a balanced and healthful ecology" (Decision, p. 14). There is no question that
"the right to a balanced and healthful ecology" is "fundamental" and that, accordingly, it has been
"constitutionalized." But although it is fundamental in character, I suggest, with very great respect, that it
cannot be characterized as "specific," without doing excessive violence to language. It is in fact very
difficult to fashion language more comprehensive in scope and generalized in character than a right to "a
balanced and healthful ecology." The list of particular claims which can be subsumed under this rubic
appears to be entirely open-ended: prevention and control of emission of toxic fumes and smoke from
factories and motor vehicles; of discharge of oil, chemical effluents, garbage and raw sewage into rivers,
inland and coastal waters by vessels, oil rigs, factories, mines and whole communities; of dumping of
organic and inorganic wastes on open land, streets and thoroughfares; failure to rehabilitate land after
strip-mining or open-pit mining; kaingin or slash-and-burn farming; destruction of fisheries, coral reefs and
other living sea resources through the use of dynamite or cyanide and other chemicals; contamination of

ground water resources; loss of certain species of fauna and flora; and so on. The other statements
pointed out by the Court: Section 3, Executive Order No. 192 dated 10 June 1987; Section 1, Title XIV,
Book IV of the 1987 Administrative Code; and P.D. No. 1151, dated 6 June 1977 all appear to be
formulations of policy, as general and abstract as the constitutional statements of basic policy in Article II,
Section 16 ("the right to a balanced and healthful ecology") and 15 ("the right to health").
P.D. No. 1152, also dated 6 June 1977, entitled "The Philippine Environment Code," is, upon the other
hand, a compendious collection of more "specific environment management policies" and "environment
quality standards" (fourth "Whereas" clause, Preamble) relating to an extremely wide range of topics:
(a) air quality management;
(b) water quality management;
(c) land use management;
(d) natural resources management and conservation embracing:
(i) fisheries and aquatic resources;
(ii) wild life;
(iii) forestry and soil conservation;
(iv) flood control and natural calamities;
(v) energy development;
(vi) conservation and utilization of surface and ground water
(vii) mineral resources
Two (2) points are worth making in this connection. Firstly, neither petitioners nor the Court has identified
the particular provision or provisions (if any) of the Philippine Environment Code which give rise to a
specific legal right which petitioners are seeking to enforce. Secondly, the Philippine Environment Code
identifies with notable care the particular government agency charged with the formulation and
implementation of guidelines and programs dealing with each of the headings and sub-headings
mentioned above. The Philippine Environment Code does not, in other words, appear to contemplate
action on the part of private persons who are beneficiaries of implementation of that Code.
As a matter of logic, by finding petitioners' cause of action as anchored on a legal right comprised in the
constitutional statements above noted, the Court is in effect saying that Section 15 (and Section 16) of
Article II of the Constitution are self-executing and judicially enforceable even in their present form. The
implications of this doctrine will have to be explored in future cases; those implications are too large and
far-reaching in nature even to be hinted at here.
My suggestion is simply that petitioners must, before the trial court, show a more specific legal right a
right cast in language of a significantly lower order of generality than Article II (15) of the Constitution
that is or may be violated by the actions, or failures to act, imputed to the public respondent by petitioners
so that the trial court can validly render judgment granting all or part of the relief prayed for. To my mind,

the Court should be understood as simply saying that such a more specific legal right or rights may well
exist in our corpus of law, considering the general policy principles found in the Constitution and the
existence of the Philippine Environment Code, and that the trial court should have given petitioners an
effective opportunity so to demonstrate, instead of aborting the proceedings on a motion to dismiss.
It seems to me important that the legal right which is an essential component of a cause of action be a
specific, operable legal right, rather than a constitutional or statutory policy, for at least two (2) reasons.
One is that unless the legal right claimed to have been violated or disregarded is given specification in
operational terms, defendants may well be unable to defend themselves intelligently and effectively; in
other words, there are due process dimensions to this matter.
The second is a broader-gauge consideration where a specific violation of law or applicable regulation
is not alleged or proved, petitioners can be expected to fall back on the expanded conception of judicial
power in the second paragraph of Section 1 of Article VIII of the Constitution which reads:
Section 1. . . .
Judicial power includes the duty of the courts of justice to settle actual controversies
involving rights which are legally demandable and enforceable, and to determine whether
or not there has been agrave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the Government. (Emphasis
supplied)
When substantive standards as general as "the right to a balanced and healthy ecology" and "the
right to health" are combined with remedial standards as broad ranging as "a grave abuse of
discretion amounting to lack or excess of jurisdiction," the result will be, it is respectfully
submitted, to propel courts into the uncharted ocean of social and economic policy making. At
least in respect of the vast area of environmental protection and management, our courts have no
claim to special technical competence and experience and professional qualification. Where no
specific, operable norms and standards are shown to exist, then the policy making departments
the legislative and executive departments must be given a real and effective opportunity to
fashion and promulgate those norms and standards, and to implement them before the courts
should intervene.
My learned brother Davide, Jr., J., rightly insists that the timber companies, whose concession
agreements or TLA's petitioners demand public respondents should cancel, must be impleaded in the
proceedings below. It might be asked that, if petitioners' entitlement to the relief demanded
is not dependent upon proof of breach by the timber companies of one or more of the specific terms and
conditions of their concession agreements (and this, petitioners implicitly assume), what will those
companies litigate about? The answer I suggest is that they may seek to dispute the existence of the
specific legal right petitioners should allege, as well as the reality of the claimed factual nexus between
petitioners' specific legal rights and the claimed wrongful acts or failures to act of public respondent
administrative agency. They may also controvert the appropriateness of the remedy or remedies
demanded by petitioners, under all the circumstances which exist.
I vote to grant the Petition for Certiorari because the protection of the environment, including the forest
cover of our territory, is of extreme importance for the country. The doctrines set out in the Court's
decision issued today should, however, be subjected to closer examination.

# Separate Opinions
FELICIANO, J., concurring
I join in the result reached by my distinguished brother in the Court, Davide, Jr., J., in this case which, to
my mind, is one of the most important cases decided by this Court in the last few years. The seminal
principles laid down in this decision are likely to influence profoundly the direction and course of the
protection and management of the environment, which of course embraces the utilization of all the natural
resources in the territorial base of our polity. I have therefore sought to clarify, basically to myself, what
the Court appears to be saying.
The Court explicitly states that petitioners have the locus standi necessary to sustain the bringing and,
maintenance of this suit (Decision, pp. 11-12). Locus standi is not a function of petitioners' claim that their
suit is properly regarded as a class suit. I understand locus standi to refer to the legal interest which a
plaintiff must have in the subject matter of the suit. Because of the very broadness of the concept of
"class" here involved membership in this "class" appears to embrace everyone living in the country
whether now or in the
future it appears to me that everyone who may be expected to benefit from the course of action
petitioners seek to require public respondents to take, is vested with the necessary locus standi. The
Court may be seen therefore to be recognizing a beneficiaries' right of action in the field of environmental
protection, as against both the public administrative agency directly concerned and the private persons or
entities operating in the field or sector of activity involved. Whether such beneficiaries' right of action may
be found under any and all circumstances, or whether some failure to act, in the first instance, on the part
of the governmental agency concerned must be shown ("prior exhaustion of administrative remedies"), is
not discussed in the decision and presumably is left for future determination in an appropriate case.
The Court has also declared that the complaint has alleged and focused upon "one specific fundamental
legal right the right to a balanced and healthful ecology" (Decision, p. 14). There is no question that
"the right to a balanced and healthful ecology" is "fundamental" and that, accordingly, it has been
"constitutionalized." But although it is fundamental in character, I suggest, with very great respect, that it
cannot be characterized as "specific," without doing excessive violence to language. It is in fact very
difficult to fashion language more comprehensive in scope and generalized in character than a right to "a
balanced and healthful ecology." The list of particular claims which can be subsumed under this rubic
appears to be entirely open-ended: prevention and control of emission of toxic fumes and smoke from
factories and motor vehicles; of discharge of oil, chemical effluents, garbage and raw sewage into rivers,
inland and coastal waters by vessels, oil rigs, factories, mines and whole communities; of dumping of
organic and inorganic wastes on open land, streets and thoroughfares; failure to rehabilitate land after
strip-mining or open-pit mining; kaingin or slash-and-burn farming; destruction of fisheries, coral reefs and
other living sea resources through the use of dynamite or cyanide and other chemicals; contamination of
ground water resources; loss of certain species of fauna and flora; and so on. The other statements
pointed out by the Court: Section 3, Executive Order No. 192 dated 10 June 1987; Section 1, Title XIV,
Book IV of the 1987 Administrative Code; and P.D. No. 1151, dated 6 June 1977 all appear to be
formulations of policy, as general and abstract as the constitutional statements of basic policy in Article II,
Section 16 ("the right to a balanced and healthful ecology") and 15 ("the right to health").
P.D. No. 1152, also dated 6 June 1977, entitled "The Philippine Environment Code," is, upon the other
hand, a compendious collection of more "specific environment management policies" and "environment
quality standards" (fourth "Whereas" clause, Preamble) relating to an extremely wide range of topics:

(a) air quality management;


(b) water quality management;
(c) land use management;
(d) natural resources management and conservation embracing:
(i) fisheries and aquatic resources;
(ii) wild life;
(iii) forestry and soil conservation;
(iv) flood control and natural calamities;
(v) energy development;
(vi) conservation and utilization of surface and ground water
(vii) mineral resources
Two (2) points are worth making in this connection. Firstly, neither petitioners nor the Court has identified
the particular provision or provisions (if any) of the Philippine Environment Code which give rise to a
specific legal right which petitioners are seeking to enforce. Secondly, the Philippine Environment Code
identifies with notable care the particular government agency charged with the formulation and
implementation of guidelines and programs dealing with each of the headings and sub-headings
mentioned above. The Philippine Environment Code does not, in other words, appear to contemplate
action on the part of private persons who are beneficiaries of implementation of that Code.
As a matter of logic, by finding petitioners' cause of action as anchored on a legal right comprised in the
constitutional statements above noted, the Court is in effect saying that Section 15 (and Section 16) of
Article II of the Constitution are self-executing and judicially enforceable even in their present form. The
implications of this doctrine will have to be explored in future cases; those implications are too large and
far-reaching in nature even to be hinted at here.
My suggestion is simply that petitioners must, before the trial court, show a more specific legal right a
right cast in language of a significantly lower order of generality than Article II (15) of the Constitution
that is or may be violated by the actions, or failures to act, imputed to the public respondent by petitioners
so that the trial court can validly render judgment granting all or part of the relief prayed for. To my mind,
the Court should be understood as simply saying that such a more specific legal right or rights may well
exist in our corpus of law, considering the general policy principles found in the Constitution and the
existence of the Philippine Environment Code, and that the trial court should have given petitioners an
effective opportunity so to demonstrate, instead of aborting the proceedings on a motion to dismiss.
It seems to me important that the legal right which is an essential component of a cause of action be a
specific, operable legal right, rather than a constitutional or statutory policy, for at least two (2) reasons.
One is that unless the legal right claimed to have been violated or disregarded is given specification in
operational terms, defendants may well be unable to defend themselves intelligently and effectively; in
other words, there are due process dimensions to this matter.

The second is a broader-gauge consideration where a specific violation of law or applicable regulation
is not alleged or proved, petitioners can be expected to fall back on the expanded conception of judicial
power in the second paragraph of Section 1 of Article VIII of the Constitution which reads:
Section 1. . . .
Judicial power includes the duty of the courts of justice to settle actual controversies
involving rights which are legally demandable and enforceable, and to determine whether
or not there has been agrave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the Government. (Emphasis
supplied)
When substantive standards as general as "the right to a balanced and healthy ecology" and "the
right to health" are combined with remedial standards as broad ranging as "a grave abuse of
discretion amounting to lack or excess of jurisdiction," the result will be, it is respectfully
submitted, to propel courts into the uncharted ocean of social and economic policy making. At
least in respect of the vast area of environmental protection and management, our courts have no
claim to special technical competence and experience and professional qualification. Where no
specific, operable norms and standards are shown to exist, then the policy making departments
the legislative and executive departments must be given a real and effective opportunity to
fashion and promulgate those norms and standards, and to implement them before the courts
should intervene.
My learned brother Davide, Jr., J., rightly insists that the timber companies, whose concession
agreements or TLA's petitioners demand public respondents should cancel, must be impleaded in the
proceedings below. It might be asked that, if petitioners' entitlement to the relief demanded
is not dependent upon proof of breach by the timber companies of one or more of the specific terms and
conditions of their concession agreements (and this, petitioners implicitly assume), what will those
companies litigate about? The answer I suggest is that they may seek to dispute the existence of the
specific legal right petitioners should allege, as well as the reality of the claimed factual nexus between
petitioners' specific legal rights and the claimed wrongful acts or failures to act of public respondent
administrative agency. They may also controvert the appropriateness of the remedy or remedies
demanded by petitioners, under all the circumstances which exist.
I vote to grant the Petition for Certiorari because the protection of the environment, including the forest
cover of our territory, is of extreme importance for the country. The doctrines set out in the Court's
decision issued today should, however, be subjected to closer examination.
# Footnotes
1 Rollo, 164; 186.
2 Id., 62-65, exclusive of annexes.
3 Under Section 12, Rule 3, Revised Rules of Court.
4 Rollo, 67.
5 Id., 74.

6 Rollo, 70-73.
7 Annex "B" of Petitions; Id., 43-44.
8 Paragraph 7, Petition, 6; Rollo, 20.
9 Webster's Third New International Dictionary, unabridged, 1986, 1508.
10 Title XIV (Environment and Natural Resources), Book IV of the Administrative Code of
1987, E.O. No. 292.
11 Annex "B" of Petition; Rollo, 43-44.
12 Record of the Constitutional Commission, vol. 4, 913.
13 For instance, the Preamble and Article XII on the National Economy and Patrimony.
14 The Reorganization Act of the Department of Environment and Natural Resources.
15 E.O. No. 292.
16 Section 1.
17 Section 2.
18 Ma-ao Sugar Central Co. vs. Barrios, 79 Phil. 666 [1947]; Community Investment and
Finance Corp. vs. Garcia, 88 Phil. 215 [1951]; Remitere vs. Vda. de Yulo, 16 SCRA 251
[1966]; Caseas vs. Rosales, 19 SCRA 462 [1967]; Virata vs. Sandiganbayan, 202 SCRA
680 [1991]; Madrona vs. Rosal, 204 SCRA 1 [1991].
19 Section 1(q), Rule 16, Revised Rules of Court.
20 Adamos vs. J.M. Tuason and Co., Inc. 25 SCRA 529 [1968]; Virata vs.
Sandiganbayn, supra; Madrona vs. Rosal, supra.
21 39 SCRA 473, 479 [1971].
22 1991 ed., 226-227.
23 180 SCRA 496, 501-502 [1989]. See also, Coseteng vs. Mitra, 187 SCRA 377 [1990];
Gonzales vs. Macaraig, 191 SCRA 452 [1990]; Llamas vs. Orbos, 202 SCRA 844 [1991];
Bengzon vs. Senate Blue Ribbon Committee, 203 SCRA 767 [1991].
24 Rollo, 44.
25 125 SCRA 302, 325 [1983].
26 190 SCRA 673, 684 [1990].

27 Article III, 1987 Constitution.


28 110 Phil. 198, 203 [1960]; footnotes omitted.
29 291 U.S. 502, 523, 78 L. ed. 940, 947-949.
30 22 SCRA 135, 146-147 [1968].
31 Ongsiako vs. Gamboa, 86 Phil. 50 [1950]; Abe vs. Foster Wheeler Corp. supra.; Phil.
American Life Insurance Co. vs. Auditor General, supra.; Alalayan vs. NPC, 24 SCRA
172[1968]; Victoriano vs. Elizalde Rope Workers' Union, 59 SCRA 54 [1974]; Kabiling vs.
National Housing Authority, 156 SCRA 623 [1987].

G.R. No. 118910 November 16, 1995


KILOSBAYAN, INCORPORATED, JOVITO R. SALONGA, CIRILO A. RIGOS, ERME CAMBA, EMILIO
C. CAPULONG, JR., JOSE T. APOLO, EPHRAIM TENDERO, FERNANDO SANTIAGO, JOSE
ABCEDE, CHRISTINE TAN, RAFAEL G. FERNANDO, RAOUL V. VICTORINO, JOSE CUNANAN,
QUINTIN S. DOROMAL, SEN. FREDDIE WEBB, SEN. WIGBERTO TAADA, REP. JOKER P.
ARROYO, petitioners,
vs.
MANUEL L. MORATO, in his capacity as Chairman of the Philippine Charity Sweepstakes Office,
and the PHILIPPINE GAMING MANAGEMENT CORPORATION, respondents.
RESOLUTION

MENDOZA, J.:
Petitioners seek reconsideration of our decision in this case. They insist that the decision in the first case
has already settled (1) whether petitioner Kilosbayan, Inc. has a standing to sue and (2) whether under its
charter (R.A. No. 1169, as amended) the Philippine Charity Sweepstakes Office can enter into any form of
association or collaboration with any party in operating an on-line lottery. Consequently, petitioners
contend, these questions can no longer be reopened.
Because two members of the Court did not consider themselves bound by the decision in the first case,
petitioners suggest that the two, in joining the dissenters in the first case in reexamining the questions in
the present case, acted otherwise than according to law. They cite the following statement in the opinion
of the Court:
The voting on petitioners' standing in the previous case was a narrow one, with seven (7)
members sustaining petitioners' standing and six (6) denying petitioners' right to bring the
suit. The majority was thus a tenuous one that is not likely to be maintained in any
subsequent litigation. In addition, there have been changes in the membership of the
Court, with the retirement of Justices Cruz and Bidin and the appointment of the writer of
this opinion and Justice Francisco. Given this fact it is hardly tenable to insist on the
maintenance of the ruling as to petitioners' standing.

Petitioners claim that this statement "conveys a none too subtle suggestion, perhaps a Freudian
slip, that the two new appointees, regardless of the merit of the Decision in the first Kilosbayan
case against the lotto (Kilosbayan, et al. v. Guingona, 232 SCRA 110 (1994)) must of necessity
align themselves with all the Ramos appointees who were dissenters in the first case and
constitute the new majority in the second lotto case." And petitioners ask, "why should it be so?"
Petitioners ask a question to which they have made up an answer. Their attempt at psychoanalysis,
detecting a Freudian slip where none exists, may be more revealing of their own unexpressed wish to find
motives where there are none which they can impute to some members of the Court.
For the truth is that the statement is no more than an effort to explain rather than to justify the
majority's decision to overrule the ruling in the previous case. It is simply meant to explain that because
the five members of the Court who dissented in the first case (Melo, Quiason, Puno, Vitug and
Kapunan, JJ.) and the two new members (Mendoza and Francisco, JJ.) thought the previous ruling to be
erroneous and its reexamination not to be barred by stare decisis, res judicata or conclusiveness of
judgment, or law of the case, it was hardly tenable for petitioners to insist on the first ruling.
Consequently to petitioners' question "What is the glue that holds them together," implying some ulterior
motives on the part of the new majority in reexamining the two questions, the answer is: None, except a
conviction on the part of the five, who had been members of the Court at the time they dissented in the
first case, and the two new members that the previous ruling was erroneous. The eighth Justice
(Padilla, J.) on the other hand agrees with the seven Justices that the ELA is in a real sense a lease
agreement and therefore does not violate R.A. No. 1169.
The decision in the first case was a split decision: 7-6. With the retirement of one of the original majority
(Cruz, J.) and one of the dissenters (Bidin, J.) it was not surprising that the first decision in the first case
was later reversed.
It is argued that, in any case, a reexamination of the two questions is barred because the PCSO and the
Philippine Gaming Management Corporation made a " formal commitment not to ask for a reconsideration
of the Decision in the first lotto case and instead submit a new agreement that would be in conformity with
the PCSO Charter (R.A. No. 1169, as amended) and with the Decision of the Supreme Court in the first
Kilosbayan case against on-line, hi-tech lotto."
To be sure, a new contract was entered into which the majority of the Court finds has been purged of the
features which made the first contract objectionable. Moreover, what the PCSO said in its manifestation in
the first case was the following:
1. They are no longer filing a motion for reconsideration of the Decision of this Honorable
Court dated May 5, 1994, a copy of which was received on May 6, 1994.
2. Respondents PCSO and PGMC are presently negotiating a new lease agreement
consistent with the authority of PCSO under its charter (R.A. No. 1169, as amended by
B.P. Blg. 42) and conformable with the pronouncements of this Honorable Court in its
Decision of May 5, 1995.
The PGMC made substantially the same manifestation as the PCSO.
There was thus no "formal commitment" but only a manifestation that the parties were not filing a
motion for reconsideration. Even if the parties made a "formal commitment," the six (6) dissenting
Justices certainly could not be bound thereby not to insist on their contrary view on the question of

standing. Much less were the two new members bound by any "formal commitment" made by the parties.
They believed that the ruling in the first case was erroneous. Since in their view reexamination was not
barred by the doctrine of stare decisis, res judicata or conclusiveness of judgment or law of the case, they
voted the way they did with the remaining five (5) dissenters in the first case to form a new majority of
eight.
Petitioners ask, "Why should this be so?" Because, as explained in the decision, the first decision was
erroneousand no legal doctrine stood in the way of its reexamination. It can, therefore, be asked "with
equal candor": "Why should this not be so?"
Nor is this the first time a split decision was tested, if not reversed, in a subsequent case because of
change in the membership of a court. In 1957, this Court, voting 6-5, held in Feliciano v. Aquinas, G.R.
No. L-10201, Sept. 23, 1957 that the phrase "at the time of the election" in 2174 of the Revised
Administrative Code of 1917 meant that a candidate for municipal elective position must be at least 23
years of age on the date of the election. On the other hand, the dissenters argued that it was enough if he
attained that age on the day he assumed office.
Less than three years later, the same question was before the Court again, as a candidate for municipal
councilor stated under oath in her certificate of candidacy that she was eligible for that position although
she attained the requisite age (23 years) only when she assumed office. The question was whether she
could be prosecuted for falsification. In People v. Yang, 107 Phi. 888 (1960), the Court ruled she
could not. Justice, later Chief Justice, Benison, who dissented in the first case, Feliciano
v. Aquinas, supra, wrote the opinion of the Court, holding that while the statement that the accused was
eligible was "inexact or erroneous, according to the majority in the Feliciano case," the accused could not
be held liable for falsification, because
the question [whether the law really required candidates to have the required age on the
day of the election or whether it was sufficient that they attained it at the beginning of the
term of office] has not been discussed anew, despite the presence of new members; we
simply assume for the purpose of this decision that the doctrine stands.
Thus because in the meantime there had been a change in the membership of the Court with the
retirement of two members (Recess and Flex, JJ.) who had taken part in the decision in the first case and
their replacement by new members (Barrera and Gutierrez-David, JJ.) and the fact that the vote in the
first case was a narrow one (6 to 5), the Court allowed that the continuing validity of its ruling in the first
case might well be doubted. For this reason it gave the accused the benefit of the doubt that she had
acted in the good faith belief that it was sufficient that she was 23 years of age when she assumed office.
In that case, the change in the membership of the Court and the possibility of change in the ruling were
noted without anyone much less would-be psychoanalysts finding in the statement of the Court any
Freudian slip. The possibility of change in the rule as a result of change in membership was accepted as
a sufficient reason for finding good faith and lack of criminal intent on the part of the accused.
Indeed, a change in the composition of the Court could prove the means of undoing an erroneous
decision. This was the lesson of Knox v. Lee, 12 Wall. 457 (1871). The Legal Tender Acts, which were
passed during the Civil War, made U.S. notes (greenbacks) legal tender for the payment of debts, public
or private, with certain exceptions. The validity of the acts, as applied to preexisting debts, was
challenged in Hepburn v. Griswold, 8 Wall. 603 (1869). The Court was then composed of only eight (8)
Justices because of Congressional effort to limit the appointing power of President Johnson. Voting 5-3,
the Court declared the acts void. Chief Justice Chase wrote the opinion of the Court in which four others,
including Justice Grier, concurred. Justices Miller, Swayne and Davis dissented. A private memorandum

left by the dissenting Justices described how an effort was made "to convince an aged and infirm member
of the court [Justice Grier] that he had not understood the question on which he voted," with the result that
what was originally a 4-4 vote was converted into a majority (5-3) for holding the acts invalid.
On the day the decision was announced, President Grant nominated to the Court William Strong and
Joseph P. Bradley to fill the vacancy caused by the resignation of Justice Grier and to restore the
membership of the Court to nine. In 1871, Hepburn v. Griswold was overruled in the Legal Tender Cases,
as Knox v. Lee came to be known, in an opinion by Justice Strong, with a dissenting opinion by Chief
Justice Chase and the three other surviving members of the former majority. There were allegations that
the new Justices were appointed for their known views on the validity of the Legal Tender Acts, just as
there were others who defended the character and independence of the new Justices. History has
vindicated the overruling of the Hepburn case by the new majority. The Legal Tender Cases proved to be
the Court's means of salvation from what Chief Justice Hughes later described as one of the Court's "selfinflicted wounds." 1
We now consider the specific grounds for petitioners' motion for reconsideration.
I. We have held that because there are no genuine issues of constitutionality in this case, the rule
concerning real party in interest, applicable to private litigation rather than the more liberal rule
on standing, applies to petitioners. Two objections are made against that ruling: (1) that the constitutional
policies and principles invoked by petitioners, while not supplying the basis for affirmative relief from the
courts, may nonetheless be resorted to for striking down laws or official actions which are inconsistent
with them and (2) that the Constitution, by guaranteeing to independent people's organizations "effective
and reasonable participation at all levels of social, political and economic decision-making" (Art. XIII, 16),
grants them standing to sue on constitutional grounds.
The policies and principles of the Constitution invoked by petitioner read:
Art. II, 5. The maintenance of peace and order, the protection life, liberty, and property,
and thepromotion of the general welfare are essential for the enjoyment by all the people
of the blessings of democracy.
Id., 12. The natural and primary right and duty of parents in the rearing of the youth for
civic efficiency and the development of moral character shall receive the support of the
Government.
Id., 13. The State recognizes the vital role of the youth in nation-building and shall
promote and protect their physical, moral, spiritual, intellectual, and social well-being. It
shall inculcate in the youth patriotism and nationalism, and encourage their involvement
in public and civic affairs.
Id., 17. The State shall give priority to education, science and technology, arts, culture,
and sports to foster patriotism and nationalism, accelerate social progress, and promote
total human liberation and development.
As already stated, however, these provisions are not self-executing. They do not confer rights which can
be enforced in the courts but only provide guidelines for legislative or executive action. By authorizing the
holding of lottery for charity, Congress has in effect determined that consistently with these policies and
principles of the Constitution, the PCSO may be given this authority. That is why we said with respect to
the opening by the PAGCOR of a casino in Cagayan de Oro, "the morality of gambling is not a justiciable

issue. Gambling is not illegal per se. . . . It is left to Congress to deal with the activity as it sees fit."
(Magtajas v. Pryce Properties Corp., Inc., 234 SCRA 255, 268 [1994]).
It is noteworthy that petitioners do not question the validity of the law allowing lotteries. It is the contract
entered into by the PCSO and the PGMC which they are assailing. This case, therefore, does not raise
issues of constitutionality but only of contract law, which petitioners, not being privies to the agreement,
cannot raise.
Nor does Kilosbayan's status as a people's organization give it the requisite personality to question the
validity of the contract in this case. The Constitution provides that "the State shall respect the role of
independent people's organizations to enable the people to pursue and protect, within the democratic
framework, their legitimate and collective interests and aspirations through peaceful and lawful means,"
that their right to "effective and reasonable participation at all levels of social, political, and economic
decision-making shall not be abridged." (Art. XIII, 15-16)
These provisions have not changed the traditional rule that only real parties in interest or those with
standing, as the case may be, may invoke the judicial power. The jurisdiction of this Court, even in cases
involving constitutional questions, is limited by the "case and controversy" requirement of Art. VIII, 5.
This requirement lies at the very heart of the judicial function. It is what differentiates decision-making in
the courts from decision-making in the political departments of the government and bars the bringing of
suits by just any party.
Petitioners quote extensively from the speech of Commissioner Garcia before the Constitutional
Commission, explaining the provisions on independent people's organizations. There is nothing in the
speech, however, which supports their claim of standing. On the contrary, the speech points the way to
the legislative and executive branches of the government, rather than to the courts, as the appropriate
fora for the advocacy of petitioners' views. 2 Indeed, the provisions on independent people's organizations
may most usefully be read in connection with the provision on initiative and referendum as a means
whereby the people may propose or enact laws or reject any of those passed by Congress. For the fact is
that petitioners' opposition to the contract in question is nothing more than an opposition to the
government policy on lotteries.
It is nevertheless insisted that this Court has in the past accorded standing to taxpayers and concerned
citizens in cases involving "paramount public interest." Taxpayers, voters, concerned citizens and
legislators have indeed been allowed to sue but then only (1) in cases involving constitutional issues and
(2) under certain conditions. Petitioners do not meet these requirements on standing.
Taxpayers are allowed to sue, for example, where there is a claim of illegal disbursement of public funds.
(Pascual v. Secretary of Public Works, 110 Phi. 331 (1960); Sanidad v. Comelec, 73 SCRA 333 (1976);
Bugnay Const. & Dev. v. Laron, 176 SCRA 240 (1989); City Council of Cebu v. Cuizon, 47 SCRA 325
[1972]) or where a tax measure is assailed as unconstitutional. (VAT Cases [Tolentino v. Secretary of
Finance], 235 SCRA 630 [1994]) Voters are allowed to question the validity of election laws because of
their obvious interest in the validity of such laws. (Gonzales v. Comelec, 21 SCRA 774 [1967]) Concerned
citizens can bring suits if the constitutional question they raise is of "transcendental importance" which
must be settled early. (Emergency Powers Cases [Araneta v. Dinglasan], 84 Phi. 368 (1949); Iloilo Palay
and Corn Planters Ass'n v. Feliciano, 121 Phi. 358 (1965); Philconsa v. Gimenez, 122 Phi. 894 (1965);
CLU v. Executive Secretary, 194 SCRA 317 [1991]) Legislators are allowed to sue to question the validity
of any official action which they claim infringes their prerogatives qualegislators. (Philconsa v. Enriquez,
235 506 (1994); Guingona v. PCGG, 207 SCRA 659 (1992); Gonzales v. Macaraig, 191 SCRA 452
(1990); Tolentino v. Comelec, 41 SCRA 702 (1971); Tatad v. Garcia, G.R. No. 114222, April 16, 1995
(Mendoza, J., concurring))

Petitioners do not have the same kind of interest that these various litigants have. Petitioners assert an
interest as taxpayers, but they do not meet the standing requirement for bringing taxpayer's suits as set
forth in Dumlao v.Comelec, 95 SCRA 392, 403 (1980), to wit:
While, concededly, the elections to be held involve the expenditure of public
moneys, nowhere in their Petition do said petitioners allege that their tax money is "being
extracted and spent in violation of specific constitutional protections against abuses of
legislative power" (Flast v. Cohen, 392 U.S., 83 [1960]), or that there is a misapplication
of such funds by respondent COMELEC (see Pascual vs. Secretary of Public Works, 110
Phil. 331 [1960]), or that public money is being deflected to any improper purpose.
Neither do petitioners seek to restrain respondent from wasting public funds through the
enforcement of an invalid or unconstitutional law. (Philippine Constitution Association vs.
Mathay, 18 SCRA 300 [1966]), citing Philippine Constitution Association vs. Gimenez, 15
SCRA 479 [1965]). Besides, the institution of a taxpayer's suit, per se, is no assurance of
judicial review. As held by this Court in Tan vs. Macapagal (43 SCRA 677 [1972]),
speaking through our present Chief Justice, this Court is vested with discretion as to
whether or not a taxpayer's suit should be entertained. (Emphasis added)
Petitioners' suit does not fall under any of these categories of taxpayers' suits.
Neither do the other cases cited by petitioners support their contention that taxpayers have standing to
question government contracts regardless of whether public funds are involved or not. In Gonzales
v. National Housing, Corp., 94 SCRA 786 (1979), petitioner filed a taxpayer's suit seeking the annulment
of a contract between the NHC and a foreign corporation. The case was dismissed by the trial court. The
dismissal was affirmed by this Court on the grounds of res judicata and pendency of a prejudicial
question, thus avoiding the question of petitioner's standing.
On the other hand, in Gonzales v. Raquiza, 180 SCRA 254 (1989), petitioner sought the annulment of a
contract made by the government with a foreign corporation for the purchase of road construction
equipment. The question of standing was not discussed, but even if it was, petitioner's standing could be
sustained because he was a minority stockholder of the Philippine National Bank, which was one of the
defendants in the case.
In the other case cited by petitioners, City Council of Cebu v. Cuizon, 47 SCRA 325 (1972), members of
the city council were allowed to sue to question the validity of a contract entered into by the city
government for the purchase of road construction equipment because their contention was that the
contract had been made without their authority. In addition, as taxpayers they had an interest in seeing to
it that public funds were spent pursuant to an appropriation made by law.
But, in the case at bar, there is an allegation that public funds are being misapplied or misappropriated.
The controlling doctrine is that of Gonzales v. Marcos, 65 SCRA 624 (1975) where it was held that funds
raised from contributions for the benefit of the Cultural Center of the Philippines were not public funds and
petitioner had no standing to bring a taxpayer's suit to question their disbursement by the President of the
Philippines.
Thus, petitioners' right to sue as taxpayers cannot be sustained. Nor as concerned citizens can they bring
this suit because no specific injury suffered by them is alleged. As for the petitioners, who are members of
Congress, their right to sue as legislators cannot be invoked because they do not complain of any
infringement of their rights as legislators.

Finally, in Valmonte v. PCSO, G.R. No. 78716, September 22, 1987, we threw out a petition questioning
another form of lottery conducted by the PCSO on the ground that petitioner, who claimed to be a "citizen,
lawyer, taxpayer and father of three minor children," had no direct and personal interest in the lottery. We
said: "He must be able to show, not only that the law is invalid, but also that he has sustained or is in
immediate danger of sustaining some direct injury as a result of its enforcement, and not merely that he
suffers thereby in some indefinite way. It must appear that the person complaining has been or is about to
be denied some right or privilege to which he is lawfully entitled or that he is about to be subjected to
some burdens or penalties by reason of the statute complained of." In the case at bar, petitioners have
not shown why, unlike petitioner in the Valmonte case, they should be accorded standing to bring this suit.
The case of Oposa v. Factoran, Jr. 224 SCRA 792 (1993) is different. Citizens' standing to bring a suit
seeking the cancellation of timber licenses was sustained in that case because the Court considered Art.
II, 16 a right-conferring provision which can be enforced in the courts. That provision states:
The State shall protect and advance the right of the people to a balanced and healthful
ecology in accord with the rhythm and harmony of nature. (Emphasis)
In contrast, the policies and principles invoked by petitioners in this case do not permit of such
categorization.
Indeed, as already stated, petitioners' opposition is not really to the validity of the ELA but to lotteries
which they regard to be immoral. This is not, however, a legal issue, but a policy matter for Congress to
decide and Congress has permitted lotteries for charity.
Nevertheless, although we have concluded that petitioners do not have standing, we have not stopped
there and dismissed their case. For in the view we take, whether a party has a cause of action and,
therefore, is a real party in interest or one with standing to raise a constitutional question must turn on
whether he has a right which has been violated. For this reason the Court has not ducked the substantive
issues raised by petitioners.
II. R.A. No. 1169, as amended by B.P No . 42, states:
1. The Philippine Charity Sweepstakes Office. The Philippine Charity Sweepstakes
Office, hereinafter designated the Office, shall be the principal government agency for
raising and providing for funds for health programs, medical assistance and services and
charities of national character, and as such shall have the general powers conferred in
section thirteen of Act Numbered One Thousand Four Hundred Fifty-Nine, as amended,
and shall have the authority:
A. To hold and conduct charity sweepstakes races, lotteries and other similar activities, in
such frequency and manner, as shall be determined, and subject to such rules and
regulations as shall be promulgated by the Board of Directors.
B. Subject to the approval of the Minister of Human Settlements, to engage in health and
welfare-related investments, programs, projects and activities which may be profitoriented, by itself or in collaboration, association or joint venture with any person,
association, company or entity, whether domestic or foreign, except for the activities
mentioned in the preceding paragraph (A), for the purpose of providing for permanent
and continuing sources of funds for health programs, including the expansion of existing
ones, medical assistance and services, and/or charitable grants: Provided, That such

investments will not compete with the private sector in areas where investments are
adequate as may be determined by the National Economic and Development Authority.
Petitioners insist on the ruling in the previous case that the PCSO cannot hold and conduct charity
sweepstakes, lotteries and other similar activities in collaboration, association or joint venture with any
other party because of the clause "except for the activities mentioned in the preceding paragraph (A)" in
paragraph (B) of 1. Petitioners contend that the ruling is the law of this case because the parties are the
same and the case involves the same issue, i.e., the meaning of this statutory provision.
The "law of the case" doctrine is inapplicable, because this case is not a continuation of the first one.
Petitioners also say that inquiry into the same question as to the meaning of the statutory provision is
barred by the doctrine of res judicata. The general rule on the "conclusiveness of judgment," however, is
subject to the exception that a question may be reopened if it is a legal question and the two actions
involve substantially different claims. This is generally accepted in American law from which our Rules of
Court was adopted. (Montana v. United States, 440 U.S. 59 L.Ed.2d 147, 210 (1979); RESTATEMENT
OF THE LAW 2d, ON JUDGMENTS, 28; P. BATOR, D. MELTZER, P. MISHKIN AND D. SHAPIRO, THE
FEDERAL COURTS AND THE FEDERAL SYSTEM 1058, n.2 [3rd Ed., 1988]) There is nothing in the
record of this case to suggest that this exception is inapplicable in this jurisdiction.
Indeed, the questions raised in this case are legal questions and the claims involved are substantially
different from those involved in the prior case between the parties. As already stated, the ELA is
substantially different from the Contract of Lease declared void in the first case.
Borrowing from the dissenting opinion of Justice Feliciano, petitioners argue that the phrase "by itself or in
collaboration, association or joint venture with any other party" qualifies not only 1 (B) but also 1 (A),
because the exception clause ("except for the activities mentioned in the preceding paragraph [A]")
"operates, as it were, as a renvoi clause which refers back to Section 1(A) and in this manner avoids the
necessity of simultaneously amending the text of Section 1(A)."
This interpretation, however, fails to take into account not only the location of the phrase in paragraph (B),
when it should be in paragraph (A) had that been the intention of the lawmaking authority, but also the
phrase "by itself." In other words, under paragraph (B), the PCSO is prohibited from "engag[ing] in . . .
investments, programs, projects and activities" if these involve sweepstakes races, lotteries and other
similar activities not only "in collaboration, association or joint venture" with any other party but also "by
itself." Obviously, this prohibition cannot apply when the PCSO conducts these activities itself. Otherwise,
what paragraph (A) authorizes the PCSO to do, paragraph (B) would prohibit.
The fact is that the phrase in question does not qualify the authority of the PCSO under paragraph (A),
but rather the authority granted to it by paragraph (B). The amendment of paragraph (B) by B.P. Blg. 42
was intended to enable the PCSO to engage in certain investments, programs, projects and activities for
the purpose of raising funds for health programs and charity. That is why the law provides that such
investments by the PCSO should "not compete with the private sector in areas where investments are
adequate as may be determined by the National Economic and Development Authority." Justice Davide,
then an Assemblyman, made a proposal which was accepted, reflecting the understanding that the bill
they were discussing concerned the authority of the PCSO to invest in the business of others. The
following excerpt from the Record of the Batasan Pambansa shows this to be the subject of the
discussion:
MR. DAVIDE. May I introduce an amendment after "adequate". The intention of the
amendment is not to leave the determination of whether it is adequate or not to anybody.
And my amendment is to add after "adequate" the words AS MAY BE DETERMINED BY

THE NATIONAL ECONOMIC AND DEVELOPMENT AUTHORITY. As a mater of fact, it


will strengthen the authority to invest in these areas, provided that the determination of
whether the private sector's activity is already adequate must be determined by the
National Economic and Development Authority.
Mr. ZAMORA. Mr. Speaker, the committee accepts the proposed amendment.
MR. DAVIDE. Thank you, Mr. Speaker.
(2 RECORD OF THE BATASAN PAMBANSA, Sept. 6, 1979,
p. 1007)
Thus what the PCSO is prohibited from doing is from investing in a business engaged in sweepstakes
races, lotteries and other similar activities. It is prohibited from doing so whether "in collaboration,
association or joint venture" with others or "by itself." This seems to be the only possible interpretation of
1 (A) and (B) in light of its text and its legislative history. That there is today no other entity engaged in
sweepstakes races, lotteries and the like does not detract from the validity of this interpretation.
III. The Court noted in its decision that the provisions of the first contract, which were considered to be
features of a joint venture agreement, had been removed in the new contract. For instance, 5 of the ELA
provides that in the operation of the on-line lottery, the PCSO must employ "its own competent and
qualified personnel." Petitioners claim, however, that the "contemporaneous interpretation" of PGMC
officials of this provision is otherwise. They cite the testimony of Glen Barroga of the PGMC before a
Senate committee to the effect that under the ELA the PGMC would be operating the lottery system "side
by side" with PCSO personnel as part of the transfer of technology.
Whether the transfer of technology would result in a violation of PCSO's franchise should be determined
by facts and not by what some officials of the PGMC state by way of opinion. In the absence of proof to
the contrary, it must be presumed that 5 reflects the true intention of the parties. Thus, Art. 1370 of the
Civil Code says that "If the terms of a contract are clear and leave no doubt upon the intention of the
contracting parties, the literal meaning of its stipulations shall control." The intention of the parties must be
ascertained from their "contemporaneous and subsequent acts." (Art. 1371; Atlantic Gulf Co. v. Insular
Government, 10 Phil. 166 [1908]) It cannot simply be judged from what one of them says. On the other
hand, the claim of third parties, like petitioners, that the clause on upgrading of equipment would enable
the parties after a while to change the contract and enter into something else in violation of the law is
mere speculation and cannot be a basis for judging the validity of the contract.
IV. It is contended that 1 of E.O. No. 301 covers all types of "contract[s] for public services or for
furnishing of supplies, materials and equipment to the government or to any of its branches, agencies or
instrumentalities" and not only contracts of purchase and sale. Consequently, a lease of equipment, like
the ELA, must be submitted to public bidding in order to be valid. This contention is based on two
premises: (1) that 1 of E.O. No. 301 applies to any contract whereby the government acquires title to or
the use of the equipment and (2) that the words "supplies," "materials," and "equipment" are distinct from
each other so that when an exception in 1 speaks of "supplies," it cannot be construed to mean
"equipment."
Petitioners' contention will not bear analysis. For example, the term "supplies" is used in paragraph (a),
which provides that a contract for the furnishing of "supplies" in order to meet an emergency is exempt
from public bidding. Unless "supplies" is construed to include "equipment," however, the lease of heavy
equipment needed for rescue operations in case of a calamity will have to be submitted to public bidding
before it can be entered into by the government.

In dissent Justice Feliciano says that in such a situation the government can simply resort to
expropriation, paying compensation afterward. This is just like purchasing the equipment through
negotiation when the question is whether the purchase should be by public bidding, not to mention the
fact that the power to expropriate may not be exercised when the government can very well negotiate with
private owners.
Indeed, there are fundamental difficulties in simultaneously contending (1) that E.O. No. 301, 1 covers
both contracts of sale and lease agreements and (2) that the words "supplies,"
"materials" and "equipment" can not be interchanged. Thus, under paragraph (b) of 1, public bidding is
not required "whenever the supplies are to be used in connection with a project or activity which cannot
be delayed without causing detriment to the public service." Following petitioners' theory, there should be
a public bidding before the government can enter into a contract for the lease of bulldozers and dredging
equipment even if these are urgently needed in areas ravaged by lahar because, first, lease contracts are
covered by the general rule and, second, the exception to public bidding in paragraph (b) covers only
"supplies" but not equipment.
To take still another example. Paragraph (d), which does away with the requirement of public bidding
"whenever the supplies under procurement have been unsuccessfully placed on bid for at least two
consecutive times, either due to lack of bidders or the offers received in each instance were exorbitant or
nonconforming to specifications." Again, following the theory of the petitioners, a contract for the lease of
equipment cannot be entered into even if there are no bids because, first, lease contracts are governed
by the general rule on public bidding and, second, the exception to public bidding in paragraph (d) applies
only to contracts for the furnishing of "supplies."
Other examples can be given to show the absurdity of interpreting 1 as applicable to any contract for the
furnishing of supplies, materials and equipment and of considering the words "supplies," "materials" and
"equipment" to be not interchangeable. Our ruling that 1 of E.O. No. 301 does not cover the lease of
equipment avoids these fundamental difficulties and is supported by the text of 1, which is entitled
"Guidelines forNegotiated Contracts" and by the fact that the only provisions of E.O. No. 301 on leases,
namely, 6 and 7, concern the lease of buildings by or to the government. Thus the text of 1 reads:
1. Guidelines for Negotiated Contracts. Any provision of law, decree, executive order
or other issuances to the contrary notwithstanding, no contract for public services or for
furnishing supplies, materials and equipment to the government or any of its branches,
agencies or instrumentalities shall be renewed or entered into without public bidding,
except under any of the following situations:
a. Whenever the supplies are urgently needed to meet an emergency
which may involve the loss of, or danger to, life and/or property;
b. Whenever the supplies are to be used in connection with a project or
activity which cannot be delayed without causing detriment to the public
service;
c. Whenever the materials are sold by an exclusive distributor or
manufacturer who does not have subdealers selling at lower prices and
for which no suitable substitute can be obtained elsewhere at more
advantageous terms to the government;
d. Whenever the supplies under procurement have been unsuccessfully
placed on bid for at least two consecutive times, either due to lack of

bidders or the offers received in each instance were exhorbitant or nonconforming to specifications;
e. In cases where it is apparent that the requisition of the needed
supplies through negotiated purchase is most advantageous to the
government to be determined by the Department Head concerned; and
f. Whenever the purchase is made from an agency of the government.
Indeed, the purpose for promulgating E.O. No. 301 was merely to decentralize the system of
reviewing negotiated contracts of purchase for the furnishing of supplies, materials and equipment as well
as lease contracts of buildings. Theretofore, E.O. No. 298, promulgated on August 12, 1940, required
consultation with the Secretary of Justice and the Department Head concerned and the approval of the
President of the Philippines before contracts for the furnishing of supplies, materials and equipment could
be made on a negotiated basis, without public bidding. E.O. No. 301 changed this by providing as follows:
2. Jurisdiction over Negotiated Contracts. In line with the principles of
decentralization and accountability, negotiated contracts for public services or for
furnishing supplies, materials or equipment may be entered into by the department or
agency head or the governing board of the government-owned or controlled corporation
concerned, without need of prior approval by higher authorities, subject to availability of
funds, compliance with the standards or guidelines prescribed in Section 1 hereof, and to
the audit jurisdiction of the commission on Audit in accordance with existing rules and
regulations.
Negotiated contracts involving P2,000,000 up to P10,000,000 shall be signed by the
Secretary and two other Undersecretaries.
xxx xxx xxx
7. Jurisdiction Over Lease Contracts. The heads of agency intending to rent privatelyowned buildings or spaces for their use, or to lease out government-owned buildings or
spaces for private use, shall have authority to determine the reasonableness of the terms
of the lease and the rental rates thereof, and to enter into such lease contracts without
need of prior approval by higher authorities, subject to compliance with the uniform
standards or guidelines established pursuant to Section 6 hereof by the DPWH and to the
audit jurisdiction of COA or its duly authorized representative in accordance with existing
rules and regulations.
In sum, E.O. No. 301 applies only to contracts for the purchase of supplies, materials and equipment, and
it was merely to change the system of administrative review of emergency purchases, as theretofore
prescribed by E.O. No. 298, that E.O. No. 301 was issued on July 26, 1987. Part B of this Executive
Order applies to leases of buildings, not of equipment, and therefore does not govern the lease contract in
this case. Even if it applies, it does not require public bidding for entering into it.
Our holding that E.O. No. 301, 1 applies only to contracts of purchase and sale is conformable to P.D.
No. 526, promulgated on August 2, 1974, which is in pari materia. P.D. No. 526 requires local
governments to hold public bidding in the "procurement of supplies." By specifying "procurement of
supplies" and excepting from the general rule "purchases" when made under certain circumstances, P.D.
No. 526, 12 indicates quite clearly that it applies only to contracts of purchase and sale. This provision
reads:

12. Procurement without public bidding. Procurement of supplies may be made


without the benefit of public bidding in the following modes:
(1) Personal canvass of responsible merchants;
(2) Emergency purchases;
(3) Direct purchases from manufacturers or exclusive distributors;
(4) Thru the Bureau of Supply Coordination; and
(5) Purchase from other government entities or foreign governments.
Sec. 3 broadly defines the term "supplies" as including
everything except real estate, which may be needed in the transaction of
public business, or in the pursuit of any undertaking, project, or activity,
whether of the nature of equipment, furniture, stationery, materials for
construction, or personal property of any sort, including non-personal or
contractual services such as the repair and maintenance of equipment
and furniture, as well as trucking, hauling, janitorial, security, and related
or analogous services.
Thus, the texts of both E.O. No. 301, 1 and of P.D. No. 526, 1 and 12, make it clear that only contracts
for the purchase and sale of supplies, materials and equipment are contemplated by the rule concerning
public biddings.
Finally, it is contended that equipment leases are attractive and commonly used in place of contracts of
purchase and sale because of "multifarious credit and tax constraints" and therefore could not have been
left out from the requirement of public bidding. Obviously these credit and tax constraints can have no
attraction to the government when considering the advantages of sale over lease of equipment. The fact
that lease contracts are in common use is not a reason for implying that the rule on public bidding applies
not only to government purchases but also to lease contracts. For the fact also is that the government
leases equipment, such as copying machines, personal computers and the like, without going through
public bidding.
FOR THE FOREGOING REASONS, the motion for reconsideration of petitioners is DENIED with finality.
SO ORDERED.

Melo, Puno, Kapunan, Francisco and Hermosisima, Jr., JJ., concur.


Narvasa, C.J. and Panganiban , JJ., took no part.
Padilla and Vitug, JJ., maintained their separate concurring opinion.
Feliciano, Regalado, Davide, Jr., Romero and Bellosillo, JJ., maintained their dissenting opinion.

Footnotes
1 The two other cases were Dred Scott v. Sanford, 19 How. 393 (1857) (which
invalidated an act of Congress forbidding slavery in the South) and Pollack v.
Farmers Loan & Trust Co., 157 U.S. 429, 158 U.S. 601 (1895) (which held a tax
on income derived from property to be a tax on the property itself which had to be
apportioned according to population under the U.S. Constitution) C. HUGHES,
THE SUPREME COURT OF THE UNITED STATES 50-54 (1928).
2 That is why in the main decision it was pointed out that petitioners might try the
Commission on Audit, the Ombudsman or the Solicitor General (except that in
this case the latter has found nothing wrong with the contract) in airing their
grievances, a point apparently overlooked by Davide, J. in his dissent noting an
alleged inconsistency in the majority's ruling that petitioners have no standing in
the courts but that they can complain to the COA, the Ombudsman or the
Solicitor General. The rules on standing do not obtain in these agencies;
petitioners can file their complaints there ex relatione.

G.R. No. 134577 November 18, 1998


SEN. MIRIAM DEFENSOR SANTIAGO and SEN. FRANCISCO S. TATAD, petitioners,
vs.
SEN. TEOFISTO T. GUINGONA, JR. and SEN. MARCELO B. FERNAN, respondents.

PANGANIBAN, J.:
The principle of separation of powers ordains that each of the three great branches of government has
exclusive cognizance of and is supreme in matters falling within its own constitutionally allocated sphere.
Constitutional respect and a becoming regard for she sovereign acts, of a coequal branch prevents this
Court from prying into the internal workings of the Senate. Where no provision of the Constitution or the
laws or even the Rules of the Senate is clearly shown to have been violated, disregarded or overlooked,
grave abuse of discretion cannot be imputed to Senate officials for acts done within their competence and
authority. This Court will be neither a tyrant nor a wimp; rather, it will remain steadfast and judicious in
upholding the rule and majesty of the law.
The Case
On July 31, 1998, Senators Miriam Defensor Santiago and Francisco S. Tatad instituted an original
petition forquo warranto under Rule 66, Section 5, Rules of Court, seeking the ouster of Senator Teofisto
T. Guingona, Jr. as minority leader of the Senate and the declaration of Senator Tatad as the rightful
minority leader.
On August 4, 1998, the Court, upon receipt of the Petition, required the respondents and the solicitor
general "to file COMMENT thereon within a non-extendible period of fifteen (15) days from notice." On
August 25, 1998, both respondents and the solicitor general submitted their respective Comments. In
compliance with a Resolution of the Court dated September 1, 1998, petitioners filed their Consolidated
Reply on September 23, 1998. Noting said pleading, this Court gave due course to the petition and
deemed the controversy submitted for decision, without need of memoranda, on September 29, 1998.
In the regular course, the regional trial courts and this Court have concurrent jurisdiction 1 to hear and
decide petitions for quo warranto (as well as certiorari, prohibition and mandamus), and a basic deference
to the hierarchy of courts impels a filing of such petitions in the lower tribunals. 2 However, for special and
important reasons or for exceptional and compelling circumstances, as in the present case, this Court has
allowed exceptions to this doctrine. 3 In fact, original petitions for certiorari,
prohibition, mandamus and quo warranto assailing acts of legislative officers like the Senate
President 4 and the Speaker of the House 5 have been recognized as exceptions to this rule.
The Facts
The Senate of the Philippines, with Sen. John Henry R. Osmea as presiding officer, convened on July
27, 1998 for the first regular session of the eleventh Congress. At the time, in terms of party affiliation, the
composition of the Senate was as follows: 6
10 members Laban ng Masang Pilipino (LAMP)
7 members Lakas-National Union of Christian Democrats-United

Muslim Democrats of the Philippines (Lakas-NUCDUMDP)


1 member Liberal Party (LP)
1 member Aksyon Demokrasya
1 member People's Reform Party (PRP)
1 member Gabay Bayan
2 members Independent

23 total number of senators 7 (The last six members are all classified by petitioners as
"independent".)
On the agenda for the day was the election of officers. Nominated by Sen. Blas F. Ople to the position of
Senate President was Sen. Marcelo B. Fernan. Sen. Francisco S. Tatad was also nominated to the same
position by Sen. Miriam Defenser Santiago. By a vote of 20 to 2, 8 Senator Fernan was declared the duly
elected President of the Senate.
The following were likewise elected: Senator Ople as president pro tempore, and Sen. Franklin M. Drilon
as majority leader.
Senator Tatad thereafter manifested that, with the agreement of Senator Santiago, allegedly the only
other member of the minority, he was assuming the position of minority leader. He explained that those
who had voted for Senator Fernan comprised the "majority," while only those who had voted for him, the
losing nominee, belonged to the "minority."
During the discussion on who should constitute the Senate "minority," Sen. Juan M. Flavier manifested
that the senators belonging to the Lakas-NUCD-UMDP Party numbering seven (7) and, thus, also a
minority had chosen Senator Guingona as the minority leader. No consensus on the matter was
arrived at. The following session day, the debate on the question continued, with Senators Santiago and
Tatad delivering privilege speeches. On the third session day, the Senate met in caucus, but still failed to
resolve the issue.
On July 30, 1998, the majority leader informed the body chat he was in receipt of a letter signed by the
seven Lakas-NUCD-UMDP senators, 9 stating that they had elected Senator Guingona as the minority
leader. By virtue thereof, the Senate President formally recognized Senator Guingona as the minority
leader of the Senate.
The following day, Senators Santiago and Tatad filed before this Court the subject petition for quo
warranto, alleging in the main that Senator Guingona had been usurping, unlawfully holding and
exercising the position of Senate minority leader, a position that, according to them, rightfully belonged to
Senator Tatad.
Issues

From the parties' pleadings, the Court formulated the following issues for resolution:
1. Does the Court have jurisdiction over the petition?
2. Was there an actual violation of the Constitution?
3. Was Respondent Guingona usurping, unlawfully holding and exercising the position of
Senate minority leader?
4. Did Respondent Fernan act with grave abuse of discretion in recognizing Respondent
Guingona as the minority leader?
The Court's Ruling
After a close perusal of the pleadings 10 and a careful deliberation on the arguments, pro and con, the
Court finds that no constitutional or legal infirmity or grave abuse of discretion attended the recognition of
and the assumption into office by Respondent Guingona as the Senate minority leader.
First Issue:
The Court's Jurisdiction
Petitioners principally invoke Avelino v. Cuenco 11 in arguing that this Court has jurisdiction to settle the
issue of who is the lawful Senate minority leader. They submit that the definitions of "majority" and
"minority" involve an interpretation of the Constitution, specifically Section 16 (1), Article VI thereof, stating
that "[t]he Senate shall elect its President and the House of Representatives its Speaker, by a majority
vote of all its respective Members."
Respondents and the solicitor general, in their separate Comments, contend in common that the issue of
who is the lawful Senate minority leader is an internal matter pertaining exclusively to the domain of the
legislature, over which the Court cannot exercise jurisdiction without transgressing the principle of
separation of powers. Allegedly, no constitutional issue is involved, as the fundamental law does not
provide for the office of a minority leader in the Senate. The legislature alone has the full discretion to
provide for such office and, in that event, to determine the procedure of selecting its occupant.
Respondents also maintain that Avelino cannot apply, because there exists no question involving an
interpretation or application of the Constitution, the laws or even the Rules of the Senate; neither are
there "peculiar circumstances" impelling the Court to assume jurisdiction over the petition. The solicitor
general adds that there is not even any legislative practice to support the petitioners' theory that a senator
who votes for the winning Senate President is precluded from becoming the minority leader.
To resolve the issue of jurisdiction, this Court carefully reviewed and deliberated on the various important
cases involving this very important and basic question, which it has ruled upon in the past.
The early case Avelino v. Cuenco cautiously tackled the scope of the Court's power of judicial review; that
is, questions involving an interpretation or application of a provision of the Constitution or the law,
including the rules of either house of Congress. Within this scope falls the jurisdiction of the Court over
questions on the validity of legislative or executive acts that are political in nature, whenever the tribunal
"finds constitutionally imposed limits on powers or functions conferred upon political bodies." 12

In the aforementioned case, the Court initially declined to resolve the question of who was the rightful
Senate President, since it was deemed a political controversy falling exclusively within the domain of the
Senate. Upon a motion for reconsideration, however, the Court ultimately assumed jurisdiction (1) "in the
light of subsequent events which justify its intervention;" and (2) because the resolution of the issue
hinged on the interpretation of the constitutional provision on the presence of a quorum to hold a
session 13 and therein elect a Senate President.
Justice Feria elucidated in his Concurring Opinion: "[I] concur with the majority that this Court has
jurisdiction over cases like the present . . . so as to establish in this country the judicial supremacy, with
the Supreme Court as the final arbiter, to see that no one branch or agency of the government transcends
the Constitution, not only in justiceable but political questions as well." 14
Justice Perfecto, also concurring, said in part:
Indeed there is no denying that the situation, as obtaining in the upper chamber of
Congress, is highly explosive. It had echoed in the House of Representatives. It has
already involved the President of the Philippines. The situation has created a veritable
national crisis, and it is apparent that solution cannot be expected from any quarter other
than this Supreme Court, upon which the hopes of the people for an effective settlement
are pinned. 15
. . . This case raises vital constitutional questions which no one can settle or decide if this
Court should refuse to decide them. 16
. . . The constitutional question of quorum should not be left unanswered.

17

In Taada v. Cueno, 18 this Court endeavored to define political question. And we said that "it refers to
'those questions which, under the Constitution, are to be decided by the people in their sovereign
capacity, or in regard to which full discretionary authority has been delegated to the legislative or
executive branch of the government.' It is concerned with issues dependent upon the wisdom, not [the]
legality, of a particular measure." 19
The Court ruled that the validity of the selection of members of the Senate Electoral Tribunal by the
senators was not a political question. The choice of these members did not depend on the Senate's "full
discretionary authority," but was subject to mandatory constitutional limitations. 20 Thus, the Court held
that not only was it clearly within its jurisdiction to pass upon the validity of the selection proceedings, but
it was also its duty to consider and determine the issue.
In another landmark case, Lansang v. Garcia, 21 Chief Justice Roberto Concepcion wrote that the Court
"had authority to and should inquire into the existence of the factual bases required by the Constitution for
the suspension of the privilege of the writ [of habeas corpus]." This ruling was made in spite of the
previous pronouncements in Barcelon v. Baker 22 andMontenegro v. Castaeda 23 that "the authority to
decide whether the exigency has arisen requiring suspension (of the privilege . . .) belongs to the
President and his 'decision is final and conclusive' upon the courts and upon all other persons." But the
Chief Justice cautioned: "the function of the Court is merely to check not to supplant the
Executive, or to ascertain merely whether he has gone beyond the constitutional limits of his
jurisdiction, not to exercise the power vested in him or to determine the wisdom of his act."
The eminent Chief Justice aptly explained later in Javellana v. Executive Secretary: 24

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 nonjusticiability of so-called political questions is the principle of separation of powers
characteristic of the presidential system of government the functions of which are
classified or divided, 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
concerning 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.
Accordingly, when the grant of power is qualified, conditional or subject to limitations, the
issue of 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 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 the 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 [92 Ky. 589, 18 SW 522, 523], 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."
Unlike our previous constitutions, the 1987 Constitution is explicit in defining the scope of judicial power.
The present Constitution now fortifies the authority of the courts to determine in an appropriate action the
validity of the acts of the political departments. It speaks of judicial prerogative in terms of duty, viz.:
Judicial power includes the duty of the courts of justice to settle actual controversies
involving rights which are legally demandable and enforceable, and to determine whether
or not there has been a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the Government. 25
This express definition has resulted in clearer and more resolute pronouncements of the Court. Daza v.
Singson,26 Coseteng v. Mitra, Jr. 27 and Guingona Jr. v. Gonzales 28 similarly resolved issues assailing the
acts of the leaders of both houses of Congress in apportioning among political parties the seats to which
each chamber was entitled in the Commission on Appointments. The Court held that the issue was
justiciable, "even if the question were political in nature," since it involved "the legality, not the wisdom, of
the manner of filling the Commission on Appointments as prescribed by [Section 18, Article VI of] the
Constitution."

The same question of jurisdiction was raised in Taada v. Angara, 29 wherein the petitioners sought to
nullify the Senate's concurrence in the ratification of the World Trade Organization (WTO) Agreement. The
Court ruled: "Where an action of the legislative branch is seriously alleged to have infringed the
Constitution, it becomes not only the right but in fact the duty of the judiciary to settle the dispute." The
Court en banc unanimously stressed that in taking jurisdiction over petitions questioning, an act of the
political departments of government, it will not review the wisdom, merits or propriety of such action, and
will strike it down only on either of two grounds: (1) unconstitutionality or illegality and (2) grave abuse of
discretion.
Earlier in Co v. Electoral Tribunal of the House of Representatives 30 (HRET), the Court refused to reverse
a decision of the HRET, in the absence of a showing that said tribunal had committed grave abuse of
discretion amounting to lack of jurisdiction. The Court ruled that full authority had been conferred upon the
electoral tribunals of the House of Representatives and of the Senate as sole judges of all contests
relating to the election, the returns, and the qualifications of their respective members. Such jurisdiction is
original and exclusive. 31 The Court may inquire into a decision or resolution of said tribunals only if such
"decision or resolution was rendered without or in excess of jurisdiction, or with grave abuse of
discretion" 32
Recently, the Court, in Arroyo v. De Venecia, 33 was asked to reexamine the enrolled bill doctrine and to
look beyond the certification of the Speaker of the House of Representatives that the bill, which was later
enacted as Republic Act 8240, was properly approved by the legislative body. Petitioners claimed that
certain procedural rules of the House had been breached in the passage of the bill. They averred further
that a violation of the constitutionally mandated House rules was a violation of the Constitution itself.
The Court, however, dismissed the petition, because the matter complained of concerned the internal
procedures of the House, with which the Court had no concern. It enucleated: 34
It would-be an unwarranted invasion of the prerogative of a coequal department for this
Court either to set aside a legislative action as void because the Court thinks the House
has disregarded its own rules of procedure, or to allow those defeated in the political
arena to seek a rematch in the judicial forum when petitioners can find their remedy in
that department itself. The Court has not been invested with a roving commission to
inquire into complaints, real or imagined, of legislative skullduggery. It would be acting in
excess of its power and would itself be guilty of grave abuse of discretion were it to do so.
. . . In the absence of anything to the contrary, the Court must assume that Congress or
any House thereof acted in the good faith belief that its conduct was permitted by its
rules, and deference rather than disrespect is due the judgment of that body.
In the instant controversy, the petitioners one of whom is Senator Santiago, a well-known
constitutionalist try to hew closely to these jurisprudential parameters. They claim that Section 16 (1),
Article VI of the constitution, has not been observed in the selection of the Senate minority leader. They
also invoke the Court's "expanded" judicial power "to determine whether or not there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction" on the part of respondents.
Dissenting in part, Mr. Justice Vicente V. Mendoza submits that the Court has no jurisdiction over the
petition. Well-settled is the doctrine, however, that jurisdiction over the subject matter of a case is
determined by the allegations of the complaint or petition, regardless of whether the plaintiff or petitioner
is entitled to the relief asserted. 35 In light of the aforesaid allegations of petitioners, it is clear that this
Court has jurisdiction over the petition. It is well within the power and jurisdiction of the Court to inquire
whether indeed the Senate or its officials committed a violation of the Constitution or gravely abused their
discretion in the exercise of their functions and prerogatives.

Second Issue:
Violation of the Constitution
Having assumed jurisdiction over the petition, we now go to the next crucial question: In recognizing
Respondent Guingona as the Senate minority leader, did the Senate or its officials, particularly Senate
President Fernan, violate the Constitution or the laws?
Petitioners answer the above question in the affirmative. They contend that the constitutional provision
requiring the election of the Senate President "by majority vote of all members" carries with it a judicial
duty to determine the concepts of "majority" and "minority," as well as who may elect a minority leader.
They argue that "majority" in the aforequoted constitutional provision refers to that group of senators who
(1) voted for the winning Senate President and (2) accepted committee chairmanships. Accordingly, those
who voted for the losing nominee and accepted no such chairmanships comprise the minority, to whom
the right to determine the minority leader belongs. As a result, petitioners assert, Respondent Guingona
cannot be the legitimate minority leader, since he voted for Respondent Fernan as Senate President.
Furthermore, the members of the Lakas-NUCD-UMDP cannot choose the minority leader, because they
did not belong to the minority, having voted for Fernan and accepted committee chairmanships.
We believe, however, that the interpretation proposed by petitioners finds no clear support from the
Constitution, the laws, the Rules of the Senate or even from practices of the Upper House.
The term "majority" has been judicially defined a number of times. When referring to a certain number out
of a total or aggregate, it simply "means the number greater than half or more than half of any
total." 36 The plain and unambiguous words of the subject constitutional clause simply mean that the
Senate President must obtain the votes of more than one half of all the senators. Not by any construal
does it thereby delineate who comprise the "majority," much less the "minority," in the said body. And
there is no showing that the framers of our Constitution had in mind other than the usual meanings of
these terms.
In effect, while the Constitution mandates that the President of the Senate must be elected by a number
constituting more than one half of all the members thereof, it does not provide that the members who will
not vote for him shall ipso facto constitute the "minority," who could thereby elect the minority leader.
Verily, no law or regulation states that the defeated candidate shall automatically become the minority
leader.
The Comment 37 of Respondent Guingona furnishes some relevant precedents, which were not contested
in petitioners' Reply. During the eighth Congress, which was the first to convene after the ratification of the
1987 Constitution, the nomination of Sen. Jovito R Salonga as Senate President was seconded by a
member of the minority, then Sen. Joseph E. Estrada. 38 During the ninth regular session, when Sen.
Edgardo J. Angara assumed the Senate presidency in 1993, a consensus was reached to assign
committee chairmanships to all senators, including those belonging to the minority. 39This practice
continued during the tenth Congress, where even the minority leader was allowed to chair a
committee. 40History would also show that the "majority" in either house of Congress has referred to the
political party to which the most number of lawmakers belonged, while the "minority" normally referred to
a party with a lesser number of members.
Let us go back to the definitions of the terms "majority" and "minority." Majority may also refer to "the
group, party, or faction with the larger number of votes," 41 not necessarily more than one half. This is
sometimes referred to as plurality. In contrast, minority is "a group, party, or faction with a smaller number
of votes or adherents than the majority." 42Between two unequal parts or numbers comprising a whole or

totality, the greater number would obviously be the majority while the lesser would be the minority. But
where there are more than two unequal groupings, it is not as easy to say which is the minority entitled to
select the leader representing all the minorities. In a government with a multi-party system such as in the
Philippines (as pointed out by petitioners themselves), there could be several minority parties, one of
which has to be indentified by the Comelec as the "dominant minority party" for purposes of the general
elections. In the prevailing composition of the present Senate, members either belong to different political
parties or are independent. No constitutional or statutory provision prescribe which of the many minority
groups or the independents or a combination thereof has the right to select the minority leader.
While the Constitution is explicit on the manner of electing a Senate President and a House Speaker, it is,
however, dead silent on the manner of selecting the other officers in both chambers of Congress. All that
the Charter says is that "[e]ach House shall choose such other officers as it may deem necessary." 43 To
our mind, themethod of choosing who will be such other officers is merely a derivative of the exercise of
the prerogative conferred by the aforequoted constitutional provision. Therefore, such method must be
prescribed by the Senate itself, not by this Court.
In this regard, the Constitution vests in each house of Congress the power "to determine the rules of its
proceedings." 44 Pursuant thereto, the Senate formulated and adopted a set of rules to govern its internal
affairs. 45Pertinent to the instant case are Rules I and II thereof, which provide:
Rule I
ELECTIVE OFFICERS
Sec 1. The Senate shall elect, in the manner hereinafter provided, a President, a
President Pro Tempore, a Secretary, and a Sergeant-at-Arms.
These officers shall take their oath of office before entering into the discharge of their
duties.
Rule II
ELECTION OF OFFICER
Sec. 2. The officers of the Senate shall be elected by the majority vote of all its Members.
Should there be more than one candidate for the same office, a nominal vote shall be
taken; otherwise, the elections shall be by viva voce or by resolution.
Notably, the Rules of the Senate do not provide for the positions of majority and minority leaders. Neither
is there an open clause providing specifically for such offices and prescribing the manner of creating them
or of choosing the holders thereof, At any rate, such offices, by tradition and long practice, are actually
extant. But, in the absence of constitutional or statutory guidelines or specific rules, this Court is devoid of
any basis upon which to determine the legality of the acts of the Senate relative thereto. On grounds of
respect for the basic concept of separation of powers, courts may not intervene in the internal affairs of
the legislature; it is not within the province of courts to direct Congress how to do its work. 46 Paraphrasing
the words of Justice Florentino P. Feliciano, this Court is of the opinion that where no specific, operable
norms and standards are shown to exist, then the legislature must be given a real and effective
opportunity to fashion and promulgate as well as to implement them, before the courts may intervene. 47

Needless to state, legislative rules, unlike statutory laws, do not have the imprints of permanence and
obligatoriness during their effectivity. In fact, they "are subject to revocation, modification or waiver at the
pleasure of the body adopting them." 48 Being merely matters of procedure, their observance are of no
concern to the courts, for said rules may be waived or disregarded by the legislative body 49 at will, upon
the concurrence of a majority.
In view of the foregoing, Congress verily has the power and prerogative to provide for such officers as it
may deem. And it is certainly within its own jurisdiction and discretion to prescribe the parameters for the
exercise of this prerogative. This Court has no authority to interfere and unilaterally intrude into that
exclusive realm, without running afoul of constitutional principles that it is bound to protect and uphold
the very duty that justifies the Court's being. Constitutional respect and a becoming regard for the
sovereign acts of a coequal branch prevents this Court from prying into the internal workings of the
Senate. To repeat, this Court will be neither a tyrant nor a wimp; rather, it will remain steadfast and
judicious in upholding the rule and majesty of the law.
To accede, then, to the interpretation of petitioners would practically amount to judicial legislation, a clear
breach of the constitutional doctrine of separation of powers. If for this argument alone, the petition would
easily fail.
While no provision of the Constitution or the laws or the rules and even the practice of the Senate was
violated, and while the judiciary is without power to decide matters over which full discretionary authority
has been lodged in the legislative department, this Court may still inquire whether an act of Congress or
its officials has been made with grave abuse of discretion. 50 This is the plain implication of Section 1,
Article VIII of the Constitution, which expressly confers upon the judiciary the power and the duty not only
"to settle actual controversies involving rights which are legally demandable and enforceable," but
likewise "to determine whether or not there has been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or instrumentality of the Government."
Explaining the above-quoted clause, former Chief Justice Concepcion, who was a member of the 1986
Constitutional Commission, said in part: 51
. . . the powers of government are generally considered divided into three branches: the
Legislative, the Executive and the Judiciary. Each one is supreme within its own sphere
and independent of the others. Because of that supremacy[, the] power to determine
whether a given law is valid or not is vested in courts of justice.
Briefly stated, courts of justice determine the limits of power of the agencies and offices of
the government as well as those of its officers. In other words, the judiciary is the final
arbiter on the question whether or not a branch of government or any of its officials has
acted without jurisdiction or in excess of jurisdiction, or so capriciously as to constitute an
abuse of discretion amounting to excess of jurisdiction or lack of jurisdiction. This is not
only a judicial power but a duty to pass judgment on matters of this nature.
This is the background of paragraph 2 of Section 1, which means that the courts cannot
hereafter evade the duty to settle matters of this nature, by claiming that such matters
constitute a political question.
With this paradigm, we now examine the two other issues challenging the actions, first, of Respondent
Guingona and, second, of Respondent Fernan.
Third Issue:

Usurpation of Office
Usurpation generally refers to unauthorized arbitrary assumption and exercise of power 52 by one without
color of title or who is not entitled by law thereto. 53 A quo warranto proceeding is the proper legal remedy
to determine the right or title to the contested public office and to oust the holder from its
enjoyment. 54 The action may be brought by the solicitor general or a public prosecutor 55 or any person
claiming to be entitled to the public office or position usurped or unlawfully held or exercised by
another. 56 The action shall be brought against the person who allegedly usurped, intruded into or is
unlawfully holding of exercising such office. 57
In order for a quo warranto proceeding to be successful, the person suing must show that he or she has
a clearright to the contested office or to use or exercise the functions of the office allegedly usurped or
unlawfully held by the respondent. 58 In this case, petitioners present no sufficient proof of a clear and
indubitable franchise to the office of the Senate minority leader.
As discussed earlier, the specific norms or standards that may be used in determining who may lawfully
occupy the disputed position has not been laid down by the Constitution, the statutes, or the Senate itself
in which the power has been vested. Absent any clear-cut guideline, in no way can it be said that illegality
or irregularity tainted Respondent Guingona's assumption and exercise of the powers of the office of
Senate minority leader. Furthermore, no grave abuse of discretion has been shown to characterize any of
his specific acts as minority leader.
Fourth Issue:
Fernan's Recognition of Guingona
The all-embracing and plenary power and duty of the Court "to determine whether or not there has been a
grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government" is restricted only by the definition and confines of the term "grave
abuse of discretion."
By grave abuse of discretion is meant such capricious or whimsical exercise of judgment
as is equivalent to lack of jurisdiction. The abuse of discretion must be patent and gross
as to amount to an evasion of positive duty or a virtual refusal to perform a duty enjoined
by law, or to act at all in contemplation of law as where the power is exercised in an
arbitrary and despotic manner by reason of passion and hostility. 59
By the above standard, we hold that Respondent Fernan did not gravely abuse his discretion as Senate
President in recognizing Respondent Guingona as the minority leader. Let us recall that the latter belongs
to one of the minority parties in the Senate, the Lakas-NUCD-UMDP. By unanimous resolution of the
members of this party that he be the minority leader, he was recognized as such by the Senate President.
Such formal recognition by Respondent Fernan came only after at least two Senate sessions and a
caucus, wherein both sides were liberally allowed to articulate their standpoints.
Under these circumstances, we believe that the Senate President cannot be accused of "capricious or
whimsical exercise of judgment" or of "an arbitrary and despotic manner by reason of passion or hostility."
Where no provision of the Constitution, the laws or even the rules of the Senate has been clearly shown
to have been violated, disregarded or overlooked, grave abuse of discretion cannot be imputed to Senate
officials for acts done within their competence and authority.
WHEREFORE, for the above reasons, the petition is hereby DISMISSED.

SO ORDERED.
Narvasa, C.J., Davide, Jr., Melo, Puno, Martinez, Quisumbing and Pardo, JJ., concur.
Romero, J., Please see separate opinion.
Bellosillo, J., No part. Did not take part in deliberation.
Vitug, J., Pls. see separate opinion.
Kapunan, J., I concur with Justice Mendoza's concurring and dissenting opinion.
Mendoza, J., Please see concurring and dissenting opinion.
Purisima, J., Join concurring and dissenting opinion of Justice Mendoza.

Separate Opinions

MENDOZA, J., concurring in the judgment and dissenting in part;


I concur in the judgment of the Court, but I disagree that "[it] has jurisdiction over the petition [in this case]
to determine whether the Senate or its officials committed a violation of the Constitution or gravely abused
their discretion in the exercise of their functions and prerogatives." 1
The Court has no jurisdiction over this case. The question who constitute the minority in the Senate
entitled to elect the minority leader of that chamber is political. It respects the internal affairs of a coequal
department of the government and is thus addressed solely to that august body.
Courts have no power to inquire into the internal organization and business of a house of Congress
except as the question affects the rights of third parties or a specific constitutional limitation is involved.
For this reason this Court has declined to take cognizance of cases involving the discipline of
members 2 of the legislature and the application and interpretation of the rules of procedure of a
house. 3 For indeed, these matters pertain to the internal government of Congress and are within its
exclusive jurisdiction.
Dean Sinco has pointed out that the Speaker of the House of Representatives and the President of the
Senate are not state officers. They do not attain these positions by popular vote but only by the vote of
their respective chambers. They receive their mandate as such not from the voters but from their peers in
the house. While their offices are a constitutional creation, nevertheless they are only legislative officers.
It is their position as members of Congress which gives them the status of state officers. As presiding
officers of their respective chambers, their election as well as removal is determined by the vote of the

majority of the members of the house to which they belong. 4 Thus, Art VI, 16(1) of the Constitution
provides:
The Senate shall elect its President and the of Representatives its Speaker, by a majority
vote of all its respective Members.
Each House shall choose such other officers as it may deem necessary.
This is likewise true of the "other officers" of each house whose election and removal rest solely
within the prerogative of the members and is no concern of the courts.
Indeed, in those cases in which this Court took cognizance of matters pertaining to the internal
government of each house, infringements of specific constitutional limitations were alleged.
In Avelino v. Cuenco, 5 the question was whether with only 12 senators present there was a quorum for
the election of the Senate President, considering that, of the 24 members, one was in the hospital while
another one was abroad. The case called for an interpretation of Art. VI, 10(2) of the 1935 Constitution
which provided that "A majority of each House shall constitute a quorum to do business. . . ." While
initially declining to assume jurisdiction, this Court finally took cognizance of the matter. As Justice
Perfecto, whose separate opinion in support of the assumption of jurisdiction was one of the reasons
which persuaded the Court to intervene in the Senate imbroglio, stated, "Whether there was a quorum or
not in the meeting of twelve Senators . . . is a question that calls for the interpretation, application and
enforcement of an express and specific provision of the Constitution." 6 In his view, "The word quorum is a
mathematical word. It has, as such, a precise and exact mathematical meaning. A majority means more
than one-half (1/2)." 7
In Taada v. Cuenco, 8 the question was whether the majority could fill the seats intended for the minority
party in the Senate Electoral Tribunal when there are not enough minority members in the Senate. Again,
the question was governed by a specific provision (Art. VI, 11) of the 1935 charter which provided that
the Electoral Tribunals of each house should be composed of "nine Members, three of whom shall be
Justices of the Supreme Court . . . I and the remaining six shall be Members of the Senate or of the
House of Representatives, as the case may be, who shall be chosen by each House, three upon the
nomination of the party having the largest number of votes and three of the party having the second
largest number of votes therein." There was, therefore, a specific constitutional provision to be applied.
The cases 9 concerning the composition of the Commission on Appointments likewise involved the mere
application of a constitutional provision, specifically Art. VI, 18 of the present Constitution which provides
that the Commission shall be composed of "twelve Senators and twelve Members of the House of
Representatives, elected by each House on the basis of proportional representation from the political
parties and parties or organizations registered under the party-list system represented therein."
Undoubtedly, the Court had jurisdiction over the cases.
On the other hand, as long as the proportional representation of political parties and organizations is
observed the Court has held itself to be without jurisdiction over the choice of nominees. In Cabili v.
Francisco, 10 it declined to take cognizance of a quo warranto suit seeking to annul the recomposition of
the Senate representation in the Commission and to reinstate a particular senator after satisfying itself
that such recomposition of the Senate representation was not a "departure from the constitution mandate
requiring proportional representation of the political organizations in the Commission on Appointments."
It is true that in Cunanan v. Tan 11 this Court took cognizance of the case which involved the
reorganization of the Commission as a result of the realignment of political forces in the House of

Representatives and the formation of a temporary alliance. But the Court's decision was justified because
the case actually involved the right of a third party whose nomination by the President had been rejected
by the reorganized Commission. As held in Pacete v. The Secretary of the Commission on
Appointments. 12 where the construction to be given to a rule affects persons other than members of the
legislative body, the question presented is judicial in character.
In contrast to the specific constitutional limitations involved in the foregoing cases, beyond providing that
the Senate and the House of Representatives shall elect a President and Speaker, respectively, and such
other officers as each house shall determine "by a majority vote of all [their] respective Members," the
Constitution leaves everything else to each house of Congress. Such matters are political and are left
solely to the judgment of the legislative department of the government.
This case involves neither an infringement of specific constitutional limitations nor a violation of the rights
of a party not a member of Congress. This Court has jurisdiction over this case only in the sense that
determining whether the question involved is reserved to Congress is itself an exercise of jurisdiction in
the same way that a court which dismisses a case for lack of jurisdiction must in a narrow sense have
jurisdiction since it cannot dismiss the case if it were otherwise. The determination of whether the
question involved is justiciable or not is in itself a process of constitutional interpretation. This is the great
lesson of Marbury v. Madison 13 in which the U.S. Supreme Court, while affirming its power of review, in
the end held itself to be without jurisdiction because the Judiciary Act of 1789 granting it jurisdiction over
that case was unconstitutional. In other words, a court doing a Marbury v. Madison has no jurisdiction
except to declare itself without jurisdiction over the case.
I vote to dismiss the petition in this case for lack of jurisdiction.

ROMERO, J., separate opinion;


"Loyalty to petrified opinion never yet broke a chain or freed a human soul."
These words vividly inscribed just beneath Mark Twain's bust at the Hall of Fame veritably speaks about
the creativity and dynamism which ought to characterize our perspective of things. It instructs us to
broaden our horizon that we may not be held captive by ignorance. Free and robust thinking is the
imperative.
But there are times when one has to render fealty to certain fundamental precepts and I believe that this
occasion presents an opportunity to do so. Thus, as I join the majority and cast my vote today for the
denial of the instant petition, may I just be allowed to reiterate jurisprudential postulates which I have long
embraced, not for the sake of "loyalty to petrified opinion" but to stress consistency in doctrine in the hope
that all future disputes of this nature may be similarly resolved in this manner.
This is not actually the first time that the Court has been invited to resolve a matter originating from the
internal processes undertaken by a co-equal branch of government, more particularly the Senate in this
case. Earlier, in the landmark case of Tolentino v. Secretary of Finance, et al., 1 we were confronted,
among other things, by the issue of whether a significant tax measure namely, Republic Act. No. 7716
(Expanded Value-Added Tax Law), went through the legislative mill in keeping with the constitutionallymandated procedure for the passage of bills. Speaking through Justice Vicente V. Mendoza, the majority
upheld the tax measure's validity, relying on the enrolled bill theory and the view that the Court is not the
appropriate forum to enforce internal legislative rules supposedly violated when the bill was being passed
by Congress. I took a different view, however, from the majority because of what I felt was a sweeping

reliance on said doctrines without giving due regard to the peculiar facts of the case. I underscored that
these principles may not be applied where the internal legislative rules would breach the Constitution
which this Court has a solemn duty to uphold. It was my position then that the introduction of several
provisions in the Bicameral Committee Report violated the constitutional proscription against any
amendment to a bill upon the last reading thereof and which this Court, in the exercise of its judicial
power, can properly inquire into without running afoul of the principle of separation of powers.
Last year, 2 Arroyo, et al. v. de Venecia, et al. 3 presented an opportunity for me to clarify my position
further. In that case, Congressman Joker Arroyo filed a petition before the Court complaining that during a
session by the House of Representatives, he was effectively prevented from raising the question of
quorum which to him tainted the validity of Republic Act No. 8240, or the so-called "sin taxes" law. The
Court, speaking again through Justice Mendoza, dismissed Mr. Arroyo's petition, arguing in the main that
courts are denied the power to inquire into allegations that, in enacting a law, a House of Congress failed
to comply with its own rules, in the absence of showing that there was a violation of a constitutional
provision or the rights of private individuals. Concurring with the majority opinion, I discerned a need to
explain my position then because of possible misinterpretation. I was very emphatic that I did not
abandon my position in Tolentino, the facts as presented in Arroyo being radically different from the
former. In keeping with my view that judicial review is permissible only to uphold the Constitution, I
pointed out that the legislative rules allegedly violated were purely internal and had no direct or
reasonable nexus to the requirements and proscriptions of the Constitution in the passage of a bill which
would otherwise warrant the Court's intervention.
In the instant case, at the risk of being repetitious, I again take a similar stand as the ones I made in the
two cited cases.
Although this case involves the question of who is the rightful occupant of a Senate "office" and does not
deal with the passage of a bill or the observance of internal rules for the Senate's conduct of its business,
the same ground as I previously invoked may justify the Court's refusal to pry into the procedures of the
Senate. There is to me no constitutional breach which has been made and, ergo, there is nothing for this
Court to uphold. The interpretation placed by petitioners on Section 16 (1), Article VI of the 1987
Constitution clearly does not find support in the text thereof. Expressium facit cessare tacitum. What is
expressed puts an end to that which is implied. The majority vote required for the election of a Senate
President and a Speaker of the House of Representatives speaks only of such number or quantity of
votes for an aspirant to be lawfully elected as such. There is here no declaration that by so electing, each
of the two Houses of Congress is thereby divided into camps called the "majority" and the "minority." In
fact, the "offices" of Majority Floor Leader and Minority Floor Leader are not explicitly provided for as
constitutional offices. As pointed out by my esteemed colleague, Justice Artemio V. Panganiban, who
penned the herein majority opinion, even on the theory that under paragraph 2, Section 16 (1) of Article VI
of the Constitution, each House shall choose such other officers as it may deem necessary, still "the
method of choosing who will be such officers is merely a derivative of the exercise of the prerogative
conferred by the aforequoted constitutional provision." With the prerogative being, therefore, bestowed
upon the Senate, whatever differences the parties may have against each other must be settled in their
own turf and the Court, conscious as it is of its constitutionally-delineated powers, will not take a perilous
move to overstep the same.

VITUG, J., separate opinion;


The 1987 Constitution, like the counterpart 1935 and 1973 Constitutions, has continued to be implicit in its
recognition of the time-honored precept of separation of powers which enjoins upon each of the three co-

equal and independent, albeit coordinate, branches of the government the Legislative, the Executive
and the Judiciary proper acknowledgment and respect for each other. The Supreme Court, said to be
holding neither the "purse" (held by Congress) nor the "sword" (held by the Executive) but serving as the
balance wheel in the State governance, functions both as the tribunal of last resort and as the
Constitutional Court of the nation. 1Peculiar, however, to the present Constitution, specifically under Article
VII, Section 1, thereof, is the extended jurisdiction of judicial power that now explicitly allows the
determination of "whether or not there has been grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the government." 2 This expanded concept of
judicial power seems to have been dictated by the martial law experience and to be an immediate
reaction to the abuse in the frequent recourse to the political question doctrine that in no small measure
has emasculated the Court. The term "political question," in this context, refers to matters which, under
the Constitution, are to be decided by the people in their sovereign capacity or in regard to which
discretionary authority has been delegated to the legislative or executive branch of the government.
The Supreme Court, nevertheless, should not be thought of as having been tasked with the awesome
responsibility of overseeing the entire bureaucracy. I find it here opportune to reiterate what I have stated
inTolentino vs. Secretary of Finance, 3 viz:
I cannot yet concede to the novel theory, so challengingly provocative as it might be, that
under the 1987 Constitution the Court may now at good liberty intrude, in the guise of the
people's imprimatur, into every affair of government. What significance can still then
remain, I ask, of the time honored and widely acclaimed principle of separation of powers
if, at every turn, the Court allows itself to pass upon at will the disposition of a co-equal,
independent and coordinate branch in our system of government. I dread to think of the
so varied uncertainties that such an undue interference can lead to. The respect for long
standing doctrines in our jurisprudence, nourished through time, is one of maturity, not
timidity, of stability rather than quiescence.
Pervasive and limitless, such as it, may seem to be, judicial power still succumbs to the
paramount doctrine of separation of powers. Congress is the branch of government, composed of
the representatives of the people, that lays down the policies of government and provides the
direction that the nation must take. The Executive carries out that mandate. Certainly, the Court
will not negate that which is done by these, co-equal and co-ordinate branches merely because of
a perceived case of grave abuse of discretion on their part, clearly too relative a phrase to be its
own sentinel against misuse, even as it will not hesitate to wield the power if that abuse becomes
all too clear. The exercise of judicial statesmanship, not judicial tyranny, is what has been
envisioned by and institutionalized in the 1987 Constitution.
There is no harnbook rule by which grave abuse of discretion may be determined. The provision was
evidently couched in general terms to make it malleable to judicial interpretation in the light of any
contemporary or emerging millieu. In its normal concept, the term has been said to imply capricious and
whimsical exercise of judgment, amounting, to lack or excess of jurisdiction, or at the power is exercised
in an arbitrary or despotic manner such as by reason of passion or personal hostility. When the question,
however, pertains to an affair internal to either of Congress or the Executive, I would subscribe to
the dictum, somewhat made implicit in my understanding of Arroyo vs. De Venecia, 4 that unless an
infringement of any specific Constitutional proscription thereby inheres the Court will not deign substitute
its own judgment over that of any of the other two branches of government. Verily, in this situation, it is an
impairment or a clear disregard of a specific constitutional precept or provision that can unbolt the steel
door for judicial intervention.
In the instant settings, I find insufficient indication to have the case hew to the above rule.

Accordingly, I vote for the dismissal of the petition.


Separate Opinions
MENDOZA, J., concurring in the judgment and dissenting in part;
I concur in the judgment of the Court, but I disagree that "[it] has jurisdiction over the petition [in this case]
to determine whether the Senate or its officials committed a violation of the Constitution or gravely abused
their discretion in the exercise of their functions and prerogatives." 1
The Court has no jurisdiction over this case. The question who constitute the minority in the Senate
entitled to elect the minority leader of that chamber is political. It respects the internal affairs of a coequal
department of the government and is thus addressed solely to that august body.
Courts have no power to inquire into the internal organization and business of a house of Congress
except as the question affects the rights of third parties or a specific constitutional limitation is involved.
For this reason this Court has declined to take cognizance of cases involving the discipline of
members 2 of the legislature and the application and interpretation of the rules of procedure of a
house. 3 For indeed, these matters pertain to the internal government of Congress and are within its
exclusive jurisdiction.
Dean Sinco has pointed out that the Speaker of the House of Representatives and the President of the
Senate are not state officers. They do not attain these positions by popular vote but only by the vote of
their respective chambers. They receive their mandate as such not from the voters but from their peers in
the house. While their offices are a constitutional creation, nevertheless they are only legislative officers.
It is their position as members of Congress which gives them the status of state officers. As presiding
officers of their respective chambers, their election as well as removal is determined by the vote of the
majority of the members of the house to which they belong. 4 Thus, Art VI, 16(1) of the Constitution
provides:
The Senate shall elect its President and the of Representatives its Speaker, by a majority
vote of all its respective Members.
Each House shall choose such other officers as it may deem necessary.
This is likewise true of the "other officers" of each house whose election and removal rest solely
within the prerogative of the members and is no concern of the courts.
Indeed, in those cases in which this Court took cognizance of matters pertaining to the internal
government of each house, infringements of specific constitutional limitations were alleged.
In Avelino v. Cuenco, 5 the question was whether with only 12 senators present there was a quorum for
the election of the Senate President, considering that, of the 24 members, one was in the hospital while
another one was abroad. The case called for an interpretation of Art. VI, 10(2) of the 1935 Constitution
which provided that "A majority of each House shall constitute a quorum to do business. . . ." While
initially declining to assume jurisdiction, this Court finally took cognizance of the matter. As Justice
Perfecto, whose separate opinion in support of the assumption of jurisdiction was one of the reasons
which persuaded the Court to intervene in the Senate imbroglio, stated, "Whether there was a quorum or
not in the meeting of twelve Senators . . . is a question that calls for the interpretation, application and

enforcement of an express and specific provision of the Constitution." 6 In his view, "The word quorum is a
mathematical word. It has, as such, a precise and exact mathematical meaning. A majority means more
than one-half (1/2)." 7
In Taada v. Cuenco, 8 the question was whether the majority could fill the seats intended for the minority
party in the Senate Electoral Tribunal when there are not enough minority members in the Senate. Again,
the question was governed by a specific provision (Art. VI, 11) of the 1935 charter which provided that
the Electoral Tribunals of each house should be composed of "nine Members, three of whom shall be
Justices of the Supreme Court . . . I and the remaining six shall be Members of the Senate or of the
House of Representatives, as the case may be, who shall be chosen by each House, three upon the
nomination of the party having the largest number of votes and three of the party having the second
largest number of votes therein." There was, therefore, a specific constitutional provision to be applied.
The cases 9 concerning the composition of the Commission on Appointments likewise involved the mere
application of a constitutional provision, specifically Art. VI, 18 of the present Constitution which provides
that the Commission shall be composed of "twelve Senators and twelve Members of the House of
Representatives, elected by each House on the basis of proportional representation from the political
parties and parties or organizations registered under the party-list system represented therein."
Undoubtedly, the Court had jurisdiction over the cases.
On the other hand, as long as the proportional representation of political parties and organizations is
observed the Court has held itself to be without jurisdiction over the choice of nominees. In Cabili v.
Francisco, 10 it declined to take cognizance of a quo warranto suit seeking to annul the recomposition of
the Senate representation in the Commission and to reinstate a particular senator after satisfying itself
that such recomposition of the Senate representation was not a "departure from the constitution mandate
requiring proportional representation of the political organizations in the Commission on Appointments."
It is true that in Cunanan v. Tan 11 this Court took cognizance of the case which involved the
reorganization of the Commission as a result of the realignment of political forces in the House of
Representatives and the formation of a temporary alliance. But the Court's decision was justified because
the case actually involved the right of a third party whose nomination by the President had been rejected
by the reorganized Commission. As held in Pacete v. The Secretary of the Commission on
Appointments. 12 where the construction to be given to a rule affects persons other than members of the
legislative body, the question presented is judicial in character.
In contrast to the specific constitutional limitations involved in the foregoing cases, beyond providing that
the Senate and the House of Representatives shall elect a President and Speaker, respectively, and such
other officers as each house shall determine "by a majority vote of all [their] respective Members," the
Constitution leaves everything else to each house of Congress. Such matters are political and are left
solely to the judgment of the legislative department of the government.
This case involves neither an infringement of specific constitutional limitations nor a violation of the rights
of a party not a member of Congress. This Court has jurisdiction over this case only in the sense that
determining whether the question involved is reserved to Congress is itself an exercise of jurisdiction in
the same way that a court which dismisses a case for lack of jurisdiction must in a narrow sense have
jurisdiction since it cannot dismiss the case if it were otherwise. The determination of whether the
question involved is justiciable or not is in itself a process of constitutional interpretation. This is the great
lesson of Marbury v. Madison 13 in which the U.S. Supreme Court, while affirming its power of review, in
the end held itself to be without jurisdiction because the Judiciary Act of 1789 granting it jurisdiction over
that case was unconstitutional. In other words, a court doing a Marbury v. Madison has no jurisdiction
except to declare itself without jurisdiction over the case.

I vote to dismiss the petition in this case for lack of jurisdiction.

ROMERO, J., separate opinion;


"Loyalty to petrified opinion never yet broke a chain or freed a human soul."
These words vividly inscribed just beneath Mark Twain's bust at the Hall of Fame veritably speaks about
the creativity and dynamism which ought to characterize our perspective of things. It instructs us to
broaden our horizon that we may not be held captive by ignorance. Free and robust thinking is the
imperative.
But there are times when one has to render fealty to certain fundamental precepts and I believe that this
occasion presents an opportunity to do so. Thus, as I join the majority and cast my vote today for the
denial of the instant petition, may I just be allowed to reiterate jurisprudential postulates which I have long
embraced, not for the sake of "loyalty to petrified opinion" but to stress consistency in doctrine in the hope
that all future disputes of this nature may be similarly resolved in this manner.
This is not actually the first time that the Court has been invited to resolve a matter originating from the
internal processes undertaken by a co-equal branch of government, more particularly the Senate in this
case. Earlier, in the landmark case of Tolentino v. Secretary of Finance, et al., 1 we were confronted,
among other things, by the issue of whether a significant tax measure namely, Republic Act. No. 7716
(Expanded Value-Added Tax Law), went through the legislative mill in keeping with the constitutionallymandated procedure for the passage of bills. Speaking through Justice Vicente V. Mendoza, the majority
upheld the tax measure's validity, relying on the enrolled bill theory and the view that the Court is not the
appropriate forum to enforce internal legislative rules supposedly violated when the bill was being passed
by Congress. I took a different view, however, from the majority because of what I felt was a sweeping
reliance on said doctrines without giving due regard to the peculiar facts of the case. I underscored that
these principles may not be applied where the internal legislative rules would breach the Constitution
which this Court has a solemn duty to uphold. It was my position then that the introduction of several
provisions in the Bicameral Committee Report violated the constitutional proscription against any
amendment to a bill upon the last reading thereof and which this Court, in the exercise of its judicial
power, can properly inquire into without running afoul of the principle of separation of powers.
Last year, 2 Arroyo, et al. v. de Venecia, et al. 3 presented an opportunity for me to clarify my position
further. In that case, Congressman Joker Arroyo filed a petition before the Court complaining that during a
session by the House of Representatives, he was effectively prevented from raising the question of
quorum which to him tainted the validity of Republic Act No. 8240, or the so-called "sin taxes" law. The
Court, speaking again through Justice Mendoza, dismissed Mr. Arroyo's petition, arguing in the main that
courts are denied the power to inquire into allegations that, in enacting a law, a House of Congress failed
to comply with its own rules, in the absence of showing that there was a violation of a constitutional
provision or the rights of private individuals. Concurring with the majority opinion, I discerned a need to
explain my position then because of possible misinterpretation. I was very emphatic that I did not
abandon my position in Tolentino, the facts as presented in Arroyo being radically different from the
former. In keeping with my view that judicial review is permissible only to uphold the Constitution, I
pointed out that the legislative rules allegedly violated were purely internal and had no direct or
reasonable nexus to the requirements and proscriptions of the Constitution in the passage of a bill which
would otherwise warrant the Court's intervention.

In the instant case, at the risk of being repetitious, I again take a similar stand as the ones I made in the
two cited cases.
Although this case involves the question of who is the rightful occupant of a Senate "office" and does not
deal with the passage of a bill or the observance of internal rules for the Senate's conduct of its business,
the same ground as I previously invoked may justify the Court's refusal to pry into the procedures of the
Senate. There is to me no constitutional breach which has been made and, ergo, there is nothing for this
Court to uphold. The interpretation placed by petitioners on Section 16 (1), Article VI of the 1987
Constitution clearly does not find support in the text thereof. Expressium facit cessare tacitum. What is
expressed puts an end to that which is implied. The majority vote required for the election of a Senate
President and a Speaker of the House of Representatives speaks only of such number or quantity of
votes for an aspirant to be lawfully elected as such. There is here no declaration that by so electing, each
of the two Houses of Congress is thereby divided into camps called the "majority" and the "minority." In
fact, the "offices" of Majority Floor Leader and Minority Floor Leader are not explicitly provided for as
constitutional offices. As pointed out by my esteemed colleague, Justice Artemio V. Panganiban, who
penned the herein majority opinion, even on the theory that under paragraph 2, Section 16 (1) of Article VI
of the Constitution, each House shall choose such other officers as it may deem necessary, still "the
method of choosing who will be such officers is merely a derivative of the exercise of the prerogative
conferred by the aforequoted constitutional provision." With the prerogative being, therefore, bestowed
upon the Senate, whatever differences the parties may have against each other must be settled in their
own turf and the Court, conscious as it is of its constitutionally-delineated powers, will not take a perilous
move to overstep the same.

VITUG, J., separate opinion;


The 1987 Constitution, like the counterpart 1935 and 1973 Constitutions, has continued to be implicit in its
recognition of the time-honored precept of separation of powers which enjoins upon each of the three coequal and independent, albeit coordinate, branches of the government the Legislative, the Executive
and the Judiciary proper acknowledgment and respect for each other. The Supreme Court, said to be
holding neither the "purse" (held by Congress) nor the "sword" (held by the Executive) but serving as the
balance wheel in the State governance, functions both as the tribunal of last resort and as the
Constitutional Court of the nation. 1Peculiar, however, to the present Constitution, specifically under Article
VII, Section 1, thereof, is the extended jurisdiction of judicial power that now explicitly allows the
determination of "whether or not there has been grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the government." 2 This expanded concept of
judicial power seems to have been dictated by the martial law experience and to be an immediate
reaction to the abuse in the frequent recourse to the political question doctrine that in no small measure
has emasculated the Court. The term "political question," in this context, refers to matters which, under
the Constitution, are to be decided by the people in their sovereign capacity or in regard to which
discretionary authority has been delegated to the legislative or executive branch of the government.
The Supreme Court, nevertheless, should not be thought of as having been tasked with the awesome
responsibility of overseeing the entire bureaucracy. I find it here opportune to reiterate what I have stated
inTolentino vs. Secretary of Finance, 3 viz:
I cannot yet concede to the novel theory, so challengingly provocative as it might be, that
under the 1987 Constitution the Court may now at good liberty intrude, in the guise of the
people's imprimatur, into every affair of government. What significance can still then
remain, I ask, of the time honored and widely acclaimed principle of separation of powers

if, at every turn, the Court allows itself to pass upon at will the disposition of a co-equal,
independent and coordinate branch in our system of government. I dread to think of the
so varied uncertainties that such an undue interference can lead to. The respect for long
standing doctrines in our jurisprudence, nourished through time, is one of maturity, not
timidity, of stability rather than quiescence.
Pervasive and limitless, such as it, may seem to be, judicial power still succumbs to the
paramount doctrine of separation of powers. Congress is the branch of government, composed of
the representatives of the people, that lays down the policies of government and provides the
direction that the nation must take. The Executive carries out that mandate. Certainly, the Court
will not negate that which is done by these, co-equal and co-ordinate branches merely because of
a perceived case of grave abuse of discretion on their part, clearly too relative a phrase to be its
own sentinel against misuse, even as it will not hesitate to wield the power if that abuse becomes
all too clear. The exercise of judicial statesmanship, not judicial tyranny, is what has been
envisioned by and institutionalized in the 1987 Constitution.
There is no harnbook rule by which grave abuse of discretion may be determined. The provision was
evidently couched in general terms to make it malleable to judicial interpretation in the light of any
contemporary or emerging millieu. In its normal concept, the term has been said to imply capricious and
whimsical exercise of judgment, amounting, to lack or excess of jurisdiction, or at the power is exercised
in an arbitrary or despotic manner such as by reason of passion or personal hostility. When the question,
however, pertains to an affair internal to either of Congress or the Executive, I would subscribe to
the dictum, somewhat made implicit in my understanding of Arroyo vs. De Venecia, 4 that unless an
infringement of any specific Constitutional proscription thereby inheres the Court will not deign substitute
its own judgment over that of any of the other two branches of government. Verily, in this situation, it is an
impairment or a clear disregard of a specific constitutional precept or provision that can unbolt the steel
door for judicial intervention.
In the instant settings, I find insufficient indication to have the case hew to the above rule.
Accordingly, I vote for the dismissal of the petition.
Footnotes
1 21 (1), BP 129; 5 (1), Art. VIII, Constitution.
2 See Manalo v. Gloria, 236 SCRA 130, 138-139, September 1, 1994; citing People v.
Cuaresma, 172 SCRA 415, 423-24, April 18, 1989, and Defensor-Santiago v. Vasquez,
217 SCRA 633, 651-652, January 27, 1993.
3 Uy v. Contreras, 237 SCRA 167, September 26, 1994; Vergara Sr. v. Suelto, 156 SCRA
753, December 21, 1987.
4 Avelino v. Cueno, 83 Phil 17 (1949); Guingona, Jr. v. Gonzales, 214 SCRA 789,
October 20, 1992.
5 Arroyo vs. De Venecia, 277 SCRA 268, August 14, 1997.
6 The solicitor general, in his Comment dated August 21, 1998, attributed to the 23
members of the Senate the following party affiliations:

"Senate President Marcelo B. Fernan Laban ng Masang Pilipino(LAMP)


Sen. Raul S. Roco Aksyon Demokratiko
Sen. Ramon B. Magsaysay, Jr. Lakas-National Union of
Christian DemocratsUnited Muslim Democrats
of the Philippines, (LakasNUCD-UMDP)
Sen. Franklin M. Drilon LAMP
Sen. Juan M. Flavier Lakas-NUCD-UMDP
Sen. Miriam Defensor-Santiago People's Reform Party (PRP)
Sen. Sergio R. Osmea Liberal Party (LP)
Sen. Francisco S. Tatad PRP
Sen. Gregorio B. Honasan LP (Independent)
Sen. Juan Ponce Enrile LP (Independent)
Sen. Anna Dominique M.L. Coseteng LAMP
Sen. Loren Legarda-Leviste Lakas-NUCD-UMDP
Sen. Renato L. Cayetano Lakas-NUCD-UMDP
Sen. Vicente C. Sotto III LAMP
Sen. Aquilino Q. Pimemtel, Jr. LAMP
Sen. Robert Z. Barbers Lakas-NUCD-UMDP
Sen. Rodolfo G. Biazon LAMP
Sen. Blas F. Ople LAMP
Sen. John Henry R. Osmea LAMP
Sen. Robert S. Jaworski LAMP
Sen. Ramon B. Revilla Lakas-NUCD-UMDP

Sen. Teofisto T. Guingona, Jr. Lakas-NUCD-UMDP


Sen. Tessie Aquino-Oreta LAMP"
(Rollo, pp. 63-64. See also Comment of Respondent Guingona, Jr., rollo, p. 41.)
7 One position was vacant, because of the election of the incumbent, Gloria Macapagal
Arroyo, as the Vice President of the Philippines.
8 Senator Fernan abstained from voting. (Petition, p. 4; rollo, p. 6. Comment of the
solicitor general, p. 2; rollo, p. 63.)
9 Senators Robert Z. Barbers, Renato L. Cayetano, Juan M. Flavier, Teofisto T. Guingona
Jr., Loren Legarda-Leviste, Ramon B. Magsaysay Jr., and Ramon B. Revilla.
10 The Petition was signed by both petitioners; the Comment of Senate President
Fernan, by Senator Fernan himself and Attys. Mary Jane L. Zantua and Lani Grace R.
Songco; the Comment of Senator Guingona, by Atty. Ricardo G. Nepomuceno Jr.; the
Comment of the OSG, by Sol. Gen. Ricardo P. Galvez, Asst. Sol. Gen. Carlos N. Ortega
and Associate Solicitor Rico Sebastian D. Liwanag; while the Consolidated Reply, by
Sen. Miriam Defenser Santiago.
11 83 Phil 17 (1949).
12 Bernas, The Constitution of the Republic of the Philippines: A Commentary, Vol. II,
1988 ed., p. 282.
13 10 (2), Art. VI of the 1935 Constitution, reads:
"(2) A majority of each House shall constitute a quorum to do business, but a smaller
number may adjourn from day to day and may compel the attendance of absent
Members in such manner and under such penalties as such House may provide."
14 Supra, p. 72.
15 At p. 76.
16 At p. 78.
17 At p. 79.
18 103 Phil 1051, 1068 (1957), per Concepcion, J.
19 Ibid., p. 1067, citing 16 CJS 413.
20 11, Art. VI of the 1935 Constitution.
21 42 SCRA 448, December 11, 1971.

22 5 Phil 87 (1905).
23 91 Phil 882 (1952).
24 50 SCRA 30, 84, 87, March 31, 1973.
25 Art. VIII, 1, par. 2.
26 180 SCRA 496, December 21, 1989, per Cruz, J.
27 187 SCRA 377, July 12, 1990, per Grio-Aquino, J.
28 214 SCRA 789, October 20, 1992, per Campos Jr., J.
29 272 SCRA 18, 47, May 2, 1997, per Panganiban, J.
30 199 SCRA 692, July 30, 1991, per Gutierrez Jr., J.
31 Citing Lazatin v. HRET, 168 SCRA 391, 1988.
32 Citing Robles v. HRET, 181 SCRA 780, 1990.
33 277 SCRA 268, August 14, 1997, per Mendoza, J.
34 At p. 299.
35 Alleje v. Court of Appeals, 240 SCRA 495, January 25, 1995; Sarmiento v. Court of
Appeals, 250 SCRA 108, November 16, 1995; Times Broadcasting Network v. Court of
Appeals, 274 SCRA 366, June 19, 1997; Chico v. Court of Appeals, G.R. No. 122704,
January 5, 1998.
36 Perez v. De la Cruz, 27 SCRA 587, 603 (1969), citing Webster's International
Dictionary, Unabridged; Concurring Opinion of J. Perfecto in Avelino v. Cueno, supra, p.
80. See also Petition,rollo, p. 12, citing Black's Law Dictionary, 6th ed., 1990.
37 P. 15; rollo, p. 55.
38 Citing Record of the Senate, 8th Congress, Vol. I, No. 14, p. 9.
39 Citing Record of the Senate, 9th Congress, Vol. III, No. 47-A, pp. 88-94.
40 Then Minority Leader Ernesto C. Maceda chaired the Committees on Constitutional
Amendments, Revision of Codes and Laws; and on Foreign Relations. Senator Honasan
chaired the Committees on Agrarian Reform; on Peace, Unification and Reconciliation;
and on Urban Planning, Housing and Resettlement. Senator Coseteng was the chair of
the Committees on Civil Service and Government Reorganization; and on Labor,
Employment and Human Resources. (See footnote 40 of Respondent Guingona's
Comment, supra.)

41 Webster's New World Dictionary, 2nd college ed., 1972.


42 Ibid.
43 16 (1), second par., Art. VI of the Constitution.
44 16 (3), Art. VI of the Constitution.
45 Rules of the Senate (see Appendix "A," Guide to the Senate by Reginald M. Pastrana
and Demaree J.B. Raval).
46 New York Public Interest Research Group, Inc. v. Steingut, 353 NE2d 558.
47 Concurring Opinion in Oposa v. Factoran Jr., 224 SCRA 792, 818, July 30, 1993.
48 Osmea Jr. v. Pendatun, 109 Phil 863, 870-871 (1960), citing 76 CJS 870. See
also Arroyo v. De Venecia, supra.
49 Ibid. See also Enrique M. Fernando, Constitution of the Philippines Annotated, 1977,
pp. 188-189.
50 Ledesma v. Court of Appeals, 278 SCRA 656, 681, September 5, 1997.
51 I RECORD OF THE CONSTITUTIONAL COMMISSION 436.
52 91 CJS 551, citing State ex rel Daniel v. Village of Mound, 48 NW2d 855, 863.
53 67 CJS 317, citing Wheat v. Smith, 7 SW 161.
54 Lota v. Court of Appeals, 2 SCRA 715, 718, June 30, 1961.
55 2, Rule 66, Rules of Court.
56 5, ibid. See also Municipality of San Narciso, Quezon v. Mendez Sr., 239 SCRA 11,
18, December 6, 1994; Tarrosa v. Singson, 232 SCRA 553, 557, May 25, 1994.
In this regard, the Court notes that Petitioner Santiago has no standing to bring the
instant petition forquo warranto, for she does not claim to be rightfully entitled to the
position of Senate minority leader. We have ruled in the past:
"Nothing is better settled than that a petitioner, in a quo
warranto proceeding to try title to a public office, must be able to show
that he is entitled to said office. Absent such an element, the petition
must be dismissed. This is a principle that goes back to Acosta v. Flor [5
Phil 18, 22], a 1905 decision. There, the doctrine has been laid down
that: 'No individual can bring a civil action relating to usurpation of a
public office without averring that he has a right to the same; and at any
stage of the proceedings, if it be shown that such individual has no right,
the action may be dismissed because there is no legal ground upon
which it may proceed when the fundamental basis of such action is

destroyed.' This has been the exacting rule, since then, followed with
stricter firmness in Cuyegkeng v. Cruz [108 Phil 1147], where this Court
held that one who does not claim to be entitled to the office allegedly
usurped or unlawfully held or exercised by, another, but who 'merely
asserts a right to be appointed' thereto, cannot question the latter's title
to the same by quo warranto. In other words, one whose, claim is
predicated solely upon a more or less remote possibility, that he may be
the recipient of the appointment, has no cause of action against the office
holder." (Garcia v. Perez, 99 SCRA 628, 633-34, September 11, 1980,
per De Castro, J.)
However, any question on standing has been rendered moot by the inclusion of Petitioner
Tatad, who claims to have the right to the contested office.
57 1, Rule 66, Rules of Court. In relation to this rule, Respondent Fernan claims that he
is not a proper party to the case, because he did not usurp nor is he unlawfully holding or
exercising the office of minority leader. While the action commenced by petitioners was
denominated a quo warranto petition under Rule 66, the Court notes that among the
principal averments made was that Respondent Fernan committed grave abuse of
discretion in recognizing Respondent Guingona as the Senate minority leader. Such
averment brings the petition within the purview of a certiorariproceeding under Rule 65. A
basic principle in remedial law states that it is not the title given by the parties to the
action which determines its nature, but the averments made in the pleadings. The case
may, thus, be treated as a joint certiorari and quo warranto action and, as such,
Respondent Fernan is a proper, if not necessary, party thereto.
58 Batario Jr. v. Parentela Jr., 9 SCRA 601, November 29, 1963; Caraon-Medina v.
Quizon, 18 SCRA 562, October 29, 1966.
59 Commissioner of Internal Revenue v. Court of Appeals, 257 SCRA 200, 209, June 4,
1996, per Kapunan, J.; citing Philippine Airlines, Inc. v. Confesor, 231 SCRA 41, March
10, 1994, and other cases. See also Imutan v. Court of Appeals, 102 SCRA 286, 292
January 27, 1981.
MENDOZA, J., concurring and dissenting opinion;
1 Majority Opinion. p. 18.
2 Alejandrino v. Quezon, 46 Phil. 83 (1924) (suspension of senator for disorderly conduct
for assaulting a fellow senator): Osmea v. Pendatun, 109 Phil. 863 (1960) (suspension
of senator for disorderly behavior for imputing bribery to President Garcia)
3 Arroyo v. De Venecia, 277 SCRA 268 (1997) (power of each house to determine its
rules of proceedings)
4 VICENTE G. SINCO, PHILIPPINE POLITICAL LAW 171-172 (11th ed. 1962).
5 83 Phil. 17 (1949).
6 Id., at 50.

7 Id., at 79.
8 103 Phil. 1051 (1957).
9 Daza v. Singson, 180 SCRA 496 (1989); Coseteng v. Mitra, Jr., 187 SCRA. 377 (1990);
Guingona, Jr. v. Gonzales, 214 SCRA 789 (1992).
10 88 Phil. 654 (1951).
11 115 Phil. vii (1962).
12 40 SCRA 58 (1971).
13 Cranch 137, 2L.Ed. 60 (1803).
ROMERO, J., separate opinion;
1 235 SCRA 630.
2 August 14, 1997.
3 G.R. No. 127255; 277 SCRA 268 (1997).
VITUG, J., separate opinion;
1 Justice Jose C. Vitug, The court and its Ways, The Court System Journal, June 1998,
Volume 3 No. 2.
2 Sec. 1, Article VIII.
3 235 SCRA 630, 720.
4 277 SCRA 268, 289.

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. TAADA, petitioners,
vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF FINANCE , THE SECRETARY OF JUSTICE,
THE SECRETARY OF LAND REFORM, THE SECRETARY OF NATIONAL DEFENSE, THE AUDITOR

GENERAL, THE BUDGET COMMISSIONER, THE CHAIRMAN OF PRESIDENTIAL COMMISSION ON


REORGANIZATION, THE TREASURER OF THE PHILIPPINES, THE COMMISSION ON ELECTIONS
AND THE COMMISSIONER OF CIVIL SERVICE, respondents.
G.R. No. L-36165 March 31, 1973.
GERARDO ROXAS, AMBROSIO PADILLA, JOVITO R. SALONGA, SALVADOR H. LAUREL, RAMON
V. MITRA, JR. and EVA ESTRADA-KALAW, petitioners,
vs.
ALEJANDRO MELCHOR, in his capacity as Executive Secretary; JUAN PONCE ENRILE, in his
capacity as Secretary of National Defense; General ROMEO ESPINO, in his capacity as Chief of
Staff of the Armed Forces of the Philippines; TANCIO E. CASTAEDA, 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. Taada and Associates for petitioners Vidal Tan, et al.
Taada, Salonga, Ordoez, Rodrigo, Sanidad, Roxas. Gonzales and Arroyo for petitioners Gerardo
Roxas, et al.
Joker P. Arroyo and Rogelio B. Padilla for petitioner Eddie Monteclaro.
Raul M. Gonzales and Associates for petitioners Napoleon V. Dilag, et al.
Arturo M. Tolentino for respondents Gil J. Puyat and Jose Roy.
Office of the Solicitor General Estelito P. Mendoza, Solicitor Vicente V. Mendoza and Solicitor Reynato S.
Puno for other respondents.
RESOLUTION

CONCEPCION, C.J.:
The above-entitled five (5) cases are a sequel of cases G.R. Nos. L-35925,
L-35929, L-35940, L-35941, L-35942, L-35948, L-35953, L-35961, L-35965 and
L-35979, decided on January 22, 1973, to which We will hereafter refer collectively as the plebiscite
cases.
Background of the Plebiscite Cases.
The factual setting thereof is set forth in the decision therein rendered, from which We quote:
On March 16, 1967, Congress of the Philippines passed Resolution No. 2, which
was amended by Resolution No. 4 of said body, adopted on June 17, 1969,
calling a Convention to propose amendments to the Constitution of the
Philippines. Said Resolution No. 2, as amended, was implemented by Republic
Act No. 6132, approved on August 24, 1970, pursuant to the provisions of which
the election of delegates to said Convention was held on November 10, 1970,
and the 1971 Constitutional Convention began to perform its functions on June 1,
1971. While the Convention was in session on September 21, 1972, the
President issued Proclamation No. 1081 placing the entire Philippines under
Martial Law. On November 29, 1972, the Convention approved its Proposed
Constitution of the Republic of the Philippines. The next day, November 30, 1972,
the President of the Philippines issued Presidential Decree No. 73, "submitting to
the Filipino people for ratification or rejection the Constitution of the Republic of
the Philippines proposed by the 1971 Constitutional Convention, and
appropriating funds therefor," as well as setting the plebiscite for said ratification
or rejection of the Proposed Constitution on January 15, 1973.
Soon after, or on December 7, 1972, Charito Planas filed, with this Court, Case
G.R. No. L-35925, against the Commission on Elections, the Treasurer of the
Philippines and the Auditor General, to enjoin said "respondents or their agents
from implementing Presidential Decree No. 73, in any manner, until further orders
of the Court," upon the grounds, inter alia, that said Presidential Decree "has no
force and effect as law because the calling ... of such plebiscite, the setting of
guidelines for the conduct of the same, the prescription of the ballots to be used
and the question to be answered by the voters, and the appropriation of public
funds for the purpose, are, by the Constitution, lodged exclusively in
Congress ...," and "there is no proper submission to the people of said Proposed
Constitution set for January 15, 1973, there being no freedom of speech, press
and assembly, and there being no sufficient time to inform the people of the
contents thereof."
Substantially identical actions were filed, on December 8, 1972, by Pablo C.
Sanidad against the Commission on Elections (Case G.R. No. L- 35929) on
December 11, 1972, by Gerardo Roxas, et al., against the Commission on
Elections, the Director of Printing, the National Treasurer and the Auditor General
(Case G.R. L-35940), by Eddie B. Monteclaro against the Commission on
Elections and the Treasurer of the Philippines (Case G.R. No. L-35941), and by
Sedfrey Ordoez, et al. against the National Treasurer and the Commission on
Elections (Case G.R. No. L-35942); on December 12, 1972, by Vidal Tan, et al.,
against the Commission on Elections, the Treasurer of the Philippines, the
Auditor General and the Director of Printing (Case G.R. No. L-35948) and by
Jose W. Diokno and Benigno S. Aquino against the Commission on Elections
(Case G.R. No. L-35953); on December 14, 1972, by Jacinto Jimenez against
the Commission on Elections, the Auditor General, the Treasurer of the

Philippines and the Director of the Bureau of Printing (Case G.R. No. L-35961),
and by Raul M. Gonzales against the Commission on Elections, the Budget
Commissioner, the National Treasurer and the Auditor General (Case G.R. No. L35965); and on December 16, 1972, by Ernesto C. Hidalgo against the
Commission on Elections, the Secretary of Education, the National Treasurer and
the Auditor General (Case G.R. No. L-35979).
In all these cases, except the last (G.R. No. L-35979), the respondents were
required to file their answers "not later than 12:00 (o'clock) noon of Saturday,
December 16, 1972." Said cases were, also, set for hearing and partly heard on
Monday, December 18, 1972, at 9:30 a.m. The hearing was continued on
December 19, 1972. By agreement of the parties, the aforementioned last case
G.R. No. L-35979 was, also, heard, jointly with the others, on December
19, 1972. At the conclusion of the hearing, on that date, the parties in all of the
aforementioned cases were given a short period of time within which "to submit
their notes on the points they desire to stress." Said notes were filed on different
dates, between December 21, 1972, and January 4, 1973.
Meanwhile, or on December 17, 1972, the President had issued an order
temporarily suspending the effects of Proclamation No. 1081, for the purpose of
free and open debate on the Proposed Constitution. On December 23, the
President announced the postponement of the plebiscite for the ratification or
rejection of the Proposed Constitution. No formal action to this effect was taken
until January 7, 1973, when General Order No. 20 was issued, directing "that the
plebiscite scheduled to be held on January 15, 1978, be postponed until further
notice." Said General Order No. 20, moreover, "suspended in the meantime" the
"order of December 17, 1972, temporarily suspending the effects of Proclamation
No. 1081 for purposes of free and open debate on the proposed Constitution."
In view of these events relative to the postponement of the aforementioned
plebiscite, the Court deemed it fit to refrain, for the time being, from deciding the
aforementioned cases, for neither the date nor the conditions under which said
plebiscite would be held were known or announced officially. Then, again,
Congress was, pursuant to the 1935 Constitution, scheduled to meet in regular
session on January 22, 1973, and since the main objection to Presidential
Decree No. 73 was that the President does not have the legislative authority to
call a plebiscite and appropriate funds therefor, which Congress unquestionably
could do, particularly in view of the formal postponement of the plebiscite by the
President reportedly after consultation with, among others, the leaders of
Congress and the Commission on Elections the Court deemed it more
imperative to defer its final action on these cases.
"In the afternoon of January 12, 1973, the petitioners in Case G.R. No.
L-35948 filed an "urgent motion," praying that said case be decided "as soon as
possible, preferably not later than January 15, 1973." It was alleged in said
motion, inter alia:
"6. That the President subsequently announced the issuance of Presidential
Decree No. 86 organizing the so-called Citizens Assemblies, to be consulted on
certain public questions [Bulletin Today, January 1, 1973];
"7. That thereafter it was later announced that "the Assemblies will be asked if
they favor or oppose

[1] The New Society;


[2] Reforms instituted under Martial Law;
[3] The holding of a plebiscite on the proposed new Constitution
and when (the tentative new dates given following the
postponement of the plebiscite from the original date of January
15 are February 19 and March 5);
[4] The opening of the regular session slated on January 22 in
accordance with the existing Constitution despite Martial Law."
[Bulletin Today, January 3, 1973.]
"8. That it was later reported that the following are to be the forms of the
questions to be asked to the Citizens Assemblies:
[1] Do you approve of the New Society?
[2] Do you approve of the reform measures under martial law?
[3] Do you think that Congress should meet again in regular
session?
[4] How soon would you like the plebiscite on the new
Constitution to be held? [Bulletin Today, January 5, 1973].
"9. That the voting by the so-called Citizens Assemblies was announced to take
place during the period from January 10 to January 15, 1973;
"10. That on January 10, 1973, it was reported that on more question would be
added to the four (4) question previously announced, and that the forms of the
question would be as follows:
[1] Do you like the New Society?
[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?

[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.
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
country, for reforms to take root and normalcy to return.
QUESTION No. 6

We want President Marcos to continue with Martial Law. We


want him to exercise his powers with more authority. We want
him to be strong and firm so that he can accomplish all his
reform programs and establish normalcy in the country. If all
other measures fail, we want President Marcos to declare a
revolutionary government along the lines of the new Constitution
without the ad interim Assembly."
"Attention is respectfully invited to the comments on "Question No. 3," which
reads:
QUESTION No. 3
The vote of the Citizens Assemblies should be considered the
plebiscite on the New Constitution.
If the Citizens Assemblies approve of the New Constitution, then
the new Constitution should be deemed ratified.
This, we are afraid, and therefore allege, is pregnant with ominous possibilities.
14. That, in the meantime, speaking on television and over the radio, on January
7, 1973, the President announced that the limited freedom of debate on the
proposed Constitution was being withdrawn and that the proclamation of martial
law and the orders and decrees issued thereunder would thenceforth strictly be
enforced [Daily Express, January 8, 1973];
15. That petitioners have reason to fear, and therefore state, that the question
added in the last list of questions to be asked to the Citizens Assemblies, namely:

Do you approve
of the New
Constitution?
in relation to the question following it:
Do you still want a plebiscite to
be called to ratify the new
Constitution?"
would be an attempt to by-pass and short-circuit this Honorable Court before
which the question of the validity of the plebiscite on the proposed Constitution is
now pending;
"16. That petitioners have reason to fear, and therefore allege, that if an
affirmative answer to the two questions just referred to will be reported then this
Honorable Court and the entire nation will be confronted with a fait
accompli which has been attained in a highly unconstitutional and undemocratic
manner;
"17. That the fait accompli would consist in the supposed expression of the
people approving the proposed Constitution;

"18. That, if such event would happen, then the case before this Honorable Court
could, to all intents and purposes, become moot because, petitioners fear, and
they therefore allege, that on the basis of such supposed expression of the will of
the people through the Citizens Assemblies, it would be announced that the
proposed Constitution, with all its defects, both congenital and otherwise, has
been ratified;
"19. That, in such a situation the Philippines will be facing a real crisis and there
is likelihood of confusion if not chaos, because then, the people and their officials
will not know which Constitution is in force.
"20. That the crisis mentioned above can only be avoided if this Honorable Court
will immediately decide and announce its decision on the present petition;
"21. That with the withdrawal by the President of the limited freedom of
discussion on the proposed Constitution which was given to the people pursuant
to Sec. 3 of Presidential Decree No. 73, the opposition of respondents to
petitioners' prayer at the plebiscite be prohibited has now collapsed and that a
free plebiscite can no longer be held."
At about the same time, a similar prayer was made in a "manifestation" filed by
the petitioners in L-35949, "Gerardo Roxas, et al. v. Commission on Elections, et
al.," and L-35942, "Sedfrey A. Ordoez, et al. v. The National Treasurer, et al."
The next day, January 13, 1973, which was a Saturday, the Court issued a
resolution requiring the respondents in said three (3) cases to comment on said
"urgent motion" and "manifestation," "not later than Tuesday noon, January 16,
1973." Prior thereto, or on January 15, 1973, shortly before noon, the petitioners
in said Case G.R. No. L-35948 riled a "supplemental motion for issuance of
restraining order and inclusion of additional respondents," praying
"... that a restraining order be issued enjoining and restraining
respondent Commission on Elections, as well as the Department
of Local Governments and its head, Secretary Jose Roo; the
Department of Agrarian Reforms and its head, Secretary
Conrado Estrella; the National Ratification Coordinating
Committee and its Chairman, Guillermo de Vega; their deputies,
subordinates and substitutes, and all other officials and persons
who may be assigned such task, from collecting, certifying, and
announcing and reporting to the President or other officials
concerned, the so-called Citizens' Assemblies referendum
results allegedly obtained when they were supposed to have met
during the period comprised between January 10 and January
15, 1973, on the two questions quoted in paragraph 1 of this
Supplemental Urgent Motion."
In support of this prayer, it was alleged
"3. That petitioners are now before this Honorable Court in order to ask further
that this Honorable Court issue a restraining order enjoining herein respondents,
particularly respondent Commission on Elections as well as the Department of
Local Governments and its head, Secretary Jose Roo; the Department of
Agrarian Reforms and its head, Secretary Conrado Estrella; the National
Ratification Coordinating Committee and its Chairman, Guillermo de Vega; and

their deputies, subordinates and/or substitutes, from collecting, certifying,


announcing and reporting to the President the supposed Citizens' Assemblies
referendum results allegedly obtained when they were supposed to have met
during the period between January 10 and January 15, 1973, particularly on the
two questions quoted in paragraph 1 of this Supplemental Urgent Motion;
"4. That the proceedings of the so-called Citizens' Assemblies are illegal, null and
void particularly insofar as such proceedings are being made the basis of a
supposed consensus for the ratification of the proposed Constitution because:
[a] The elections contemplated in the Constitution, Article XV, at
which the proposed constitutional amendments are to be
submitted for ratification, are elections at which only qualified
and duly registered voters are permitted to vote, whereas, the so
called Citizens' Assemblies were participated in by persons 15
years of age and older, regardless of qualifications or lack
thereof, as prescribed in the Election Code;
[b] Elections or plebiscites for the ratification of constitutional
amendments contemplated in Article XV of the Constitution have
provisions for the secrecy of choice and of vote, which is one of
the safeguards of freedom of action, but votes in the Citizens'
Assemblies were open and were cast by raising hands;
[c] The Election Code makes ample provisions for free, orderly
and honest elections, and such provisions are a minimum
requirement for elections or plebiscites for the ratification of
constitutional amendments, but there were no similar provisions
to guide and regulate proceedings of the so called Citizens'
Assemblies;
[d] It is seriously to be doubted that, for lack of material time,
more than a handful of the so called Citizens' Assemblies have
been actually formed, because the mechanics of their
organization were still being discussed a day or so before the
day they were supposed to begin functioning:
"Provincial governors and city and municipal
mayors had been meeting with barrio captains
and community leaders since last Monday
[January 8, 1973) to thresh out the mechanics in
the formation of the Citizens Assemblies and the
topics for discussion." [Bulletin Today, January
10, 1973]
"It should be recalled that the Citizens' Assemblies were ordered formed only at
the beginning of the year [Daily Express, January 1, 1973], and considering the
lack of experience of the local organizers of said assemblies, as well as the
absence of sufficient guidelines for organization, it is too much to believe that
such assemblies could be organized at such a short notice.
"5. That for lack of material time, the appropriate amended petition to include the
additional officials and government agencies mentioned in paragraph 3 of this
Supplemental Urgent Motion could not be completed because, as noted in the

Urgent Motion of January 12, 1973, the submission of the proposed Constitution
to the Citizens' Assemblies was not made known to the public until January 11,
1973. But be that as it may, the said additional officials and agencies may be
properly included in the petition at bar because:
[a] The herein petitioners have prayed in their petition for the
annulment not only of Presidential Decree No. 73, but also of
"any similar decree, proclamation, order or instruction.
so that Presidential Decree No. 86, insofar at least as it attempts to submit the
proposed Constitution to a plebiscite by the so-called Citizens' Assemblies, is
properly in issue in this case, and those who enforce, implement, or carry out the
said Presidential Decree No. 86. and the instructions incidental thereto clearly fall
within the scope of this petition;
[b] In their petition, petitioners sought the issuance of a writ of
preliminary injunction restraining not only the respondents
named in the petition but also their "agents" from implementing
not only Presidential Decree No. 73, but also "any other similar
decree, order, instruction, or proclamation in relation to the
holding of a plebiscite on January 15, 1973 for the purpose of
submitting to the Filipino people for their ratification or rejection
the 1972 Draft or proposed Constitution approved by the
Constitutional Convention on November 30, 1972"; and finally,
[c] Petitioners prayed for such other relief which may be just and
equitable. [p. 39, Petition].
"Therefore, viewing the case from all angles, the officials and government
agencies mentioned in paragraph 3 of this Supplemental Urgent Motion, can
lawfully be reached by the processes of this Honorable Court by reason of this
petition, considering, furthermore, that the Commission on Elections has under
our laws the power, among others, of:
(a) Direct and immediate supervision and control over national,
provincial, city, municipal and municipal district officials required
by law to perform duties relative to the conduct of elections on
matters pertaining to the enforcement of the provisions of this
Code ..." [Election Code of 1971, Sec. 3].
"6. That unless the petition at bar is decided immediately and the Commission on
Elections, together with the officials and government agencies mentioned in
paragraph 3 of this Supplemental Urgent Motion are restrained or enjoined from
collecting, certifying, reporting or announcing to the President the results of the
alleged voting of the so-called Citizens' Assemblies, irreparable damage will be
caused to the Republic of the Philippines, the Filipino people, the cause of
freedom an democracy, and the petitioners herein because:
[a] After the result of the supposed voting on the questions
mentioned in paragraph 1 hereof shall have been announced, a
conflict will arise between those who maintain that the 1935
Constitution is still in force, on the one hand, and those who will
maintain that it has been superseded by the proposed

Constitution, on the other, thereby creating confusion, if not


chaos;
[b] Even the jurisdiction of this Court will be subject to serious
attack because the advocates of the theory that the proposed
Constitution has been ratified by reason of the announcement of
the results of the proceedings of the so-called Citizens'
Assemblies will argue that, General Order No. 3, which shall also
be deemed ratified pursuant to the Transitory Provisions of the
proposed Constitution, has placed Presidential Decree Nos. 73
and 86 beyond the reach and jurisdiction of this Honorable
Court."
On the same date January 15, 1973 the Court passed a resolution
requiring the respondents in said case G.R. No. L-35948 to file "file an answer to
the said motion not later than 4 P.M., Tuesday, January 16, 1973," and setting the
motion for hearing "on January 17, 1973, at 9:30 a.m." While the case was being
heard, on the date last mentioned, at noontime, the Secretary of Justice called on
the writer of this opinion and said that, upon instructions of the President, he (the
Secretary of Justice) was delivering to him (the writer) a copy of Proclamation
No. 1102, which had just been signed by the President. Thereupon, the writer
returned to the Session Hall and announced to the Court, the parties in G.R. No.
L-35948 inasmuch as the hearing in connection therewith was still going on
and the public there present that the President had, according to information
conveyed by the Secretary of Justice, signed said Proclamation No. 1102, earlier
that morning. Thereupon, the writer read Proclamation No. 1102 which is of the
following tenor:
"BY THE PRESIDENT OF THE PHILIPPINES
"PROCLAMATION NO. 1102
"ANNOUNCING THE RATIFICATION BY THE FILIPINO PEOPLE OF THE
CONSTITUTION PROPOSED BY THE 1971 CONSTITUTIONAL CONVENTION.
"WHEREAS, the Constitution proposed by the nineteen hundred seventy-one
Constitutional Convention is subject to ratification by the Filipino people;
"WHEREAS, Citizens Assemblies were created in barrios, in municipalities and in
districts/wards in chartered cities pursuant to Presidential Decree No. 86, dated
December 31, 1972, composed of all persons who are residents of the barrio,
district or ward for at least six months, fifteen years of age or over, citizens of the
Philippines and who are registered in the list of Citizen Assembly members kept
by the barrio, district or ward secretary;
"WHEREAS, the said Citizens Assemblies were established precisely to broaden
the base of citizen participation in the democratic process and to afford ample
opportunity for the citizenry to express their views on important national issues;
"WHEREAS, responding to the clamor of the people and pursuant to Presidential
Decree No. 86-A, dated January 5, 1973, the following questions were posed
before the Citizens Assemblies or Barangays: Do you approve of the New
Constitution? Do you still want a plebiscite to be called to ratify the new
Constitution?

"WHEREAS, fourteen million nine hundred seventy-six thousand five hundred


sixty-one (14,976,561) members of all the Barangays (Citizens Assemblies)
voted for the adoption of the proposed Constitution, as against seven hundred
forty-three thousand eight hundred sixty-nine (743,869) who voted for its
rejection; while on the question as to whether or not the people would still like a
plebiscite to be called to ratify the new Constitution, fourteen million two hundred
ninety-eight thousand eight hundred fourteen (14,298,814) answered that there
was no need for a plebiscite and that the vote of the Barangays (Citizens
Assemblies) should be considered as a vote in a plebiscite;
"WHEREAS, since the referendum results show that more than ninety-five (95)
per cent of the members of the Barangays (Citizens Assemblies) are in favor of
the new Constitution, the Katipunan ng Mga Barangay has strongly
recommended that the new Constitution should already be deemed ratified by
the Filipino people;
"NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines,
by virtue of the powers in me vested by the Constitution, do hereby certify and
proclaim that the Constitution proposed by the nineteen hundred and seventyone (1971) Constitutional Convention has been ratified by an overwhelming
majority of all of the votes cast by the members of all the Barangays (Citizens
Assemblies) throughout the Philippines, and has thereby come into effect.
"IN WITNESS WHEREOF, I have hereunto set my hand and caused the seal of
the Republic of the Philippines to be affixed.
"Done in the City of Manila, this 17th day of January, in the year of Our Lord,
nineteen hundred and seventy-three.
"By the President:
"ALEJANDRO MELCHOR
"Executive Secretary"
Such is the background of the cases submitted determination. After admitting
some of the allegations made in the petition in L-35948 and denying the other
allegations thereof, respondents therein alleged in their answer thereto, by way
affirmative defenses: 1) that the "questions raised" in said petition "are political in
character"; 2) that "the Constitutional Convention acted freely and had plenary
authority to propose not only amendments but a Constitution which would
supersede the present Constitution"; 3) that "the President's call for a plebiscite
and the appropriation of funds for this purpose are valid"; 4) that "there is not an
improper submission" and "there can be a plebiscite under Martial Law"; and 5)
that the "argument that the Proposed Constitution is vague and incomplete,
makes an unconstitutional delegation of power, includes a referendum on the
proclamation of Martial Law and purports to exercise judicial power" is "not
relevant and ... without merit." Identical defenses were set up in the other cases
under consideration.
Immediately after the hearing held on January 17, 1973, or since the afternoon of
that date, the Members of the Court have been deliberating on the
aforementioned cases and, after extensive discussions on the merits thereof,
have deemed it best that each Member write his own views thereon and that
thereafter the Chief Justice should state the result or the votes thus cast on the

points in issue. Hence, the individual views of my brethren in the Court are set
forth in the opinions attached hereto, except that, instead of writing their separate
opinions, some Members have preferred to merely concur in the opinion of one
of our colleagues.
Then the writer of said decision expressed his own opinion on the issues involved therein, after which he
recapitulated the views of the Members of the Court, as follows:
1. There is unanimity on the justiciable nature of the issue on the legality of
Presidential Decree No. 73.
2. On the validity of the decree itself, Justices Makalintal, Castro, Fernando,
Teehankee, Esguerra and myself, or six (6) Members of the Court, are of the
opinion that the issue has become moot and academic, whereas Justices
Barredo, Makasiar and Antonio voted to uphold the validity of said Decree.
3. On the authority of the 1971 Constitutional Convention to pass the proposed
Constitution or to incorporate therein the provisions contested by the petitioners
in L-35948, Justices Makalintal, Castro, Teehankee and Esguerra opine that the
issue has become moot and academic. Justices Fernando, Barredo, Makasiar,
Antonio and myself have voted to uphold the authority of the Convention.
4. Justice Fernando, likewise, expressed the view that the 1971 Constitutional
Convention had authority to continue in the performance of its functions despite
the proclamation of Martial Law. In effect, Justices Barredo, Makasiar and
Antonio hold the same view.
5. On the question whether the proclamation of Martial Law affected the proper
submission of the proposed Constitution to a plebiscite, insofar as the freedom
essential therefor is concerned, Justice Fernando is of the opinion that there is a
repugnancy between the election contemplated under Art. XV of the 1935
Constitution and the existence of Martial Law, and would, therefore, grant the
petitions were they not moot and academic. Justices Barredo, Antonio and
Esguerra are of the opinion that issue involves questions of fact which cannot be
predetermined, and that Martial Law per se does not necessarily preclude the
factual possibility of adequate freedom, for the purposes contemplated.
6. On Presidential Proclamation No. 1102, the following views were expressed:
a. Justices Makalintal, Castro, Fernando, Teehankee, Makasiar,
Esguerra and myself are of the opinion that the question of
validity of said Proclamation has not been properly raised before
the Court, which, accordingly, should not pass upon such
question.
b. Justice Barredo holds that the issue on the constitutionality of
Proclamation No. 1102 has been submitted to and should be
determined by the Court, and that the "purported ratification of
the Proposed Constitution ... based on the referendum among
Citizens' Assemblies falls short of being in strict conformity with
the requirements of Article XV of the 1935 Constitution," but that
such unfortunate drawback notwithstanding, "considering all
other related relevant circumstances, ... the new Constitution is

legally recognizable and should be recognized as legitimately in


force."
c. Justice Zaldivar maintains unqualifiedly that the Proposed
Constitution has not been ratified in accordance with Article XV
of the 1935 Constitution, and that, accordingly, it has no force
and effect whatsoever.
d. Justice Antonio feels "that the Court is not competent to act"
on the issue whether the Proposed Constitution has been ratified
by the people or not, "in the absence of any judicially
discoverable and manageable standards," since the issue
"poses a question of fact.
7. On the question whether or not these cases should be dismissed, Justices
Makalintal, Castro, Barredo, Makasiar, Antonio and Esguerra voted in the
affirmative, for the reasons set forth in their respective opinions. Justices
Fernando, Teehankee, and the writer similarly voted, except as regards Case No.
L-35948 as to which they voted to grant to the petitioners therein a reasonable
period of time within which to file appropriate pleadings should they wish to
contest the legality of Presidential Proclamation No. 1102. Justice Zaldivar favors
the granting of said period to the petitioners in said Case No. L-35948 for the
aforementioned purpose, but he believes, in effect, that the Court should go
farther and decide on the merits everyone of the cases under consideration.
Accordingly, the Court acting in conformity with the position taken by six (6) of its members, 1 with three
(3) members dissenting, 2 with respect to G.R. No. L-35948, only and another member 3 dissenting, as
regards all of the cases dismissed the same, without special pronouncement as to costs.
The Present Cases
Prior thereto, or on January 20, 1973, Josue Javellana filed Case G.R. No. L-36142 against the Executive
Secretary and the Secretaries of National Defense, Justice and Finance, to restrain said respondents
"and their subordinates or agents from implementing any of the provisions of the propose Constitution not
found in the present Constitution" referring to that of 1935. The petition therein, filed by Josue
Javellana, as a "Filipino citizen, and a qualified and registered voter" and as "a class suit, for himself, and
in behalf of all citizens and voters similarly situated," was amended on or about January 24, 1973. After
reciting in substance the facts set forth in the decision in the plebiscite cases, Javellana alleged that the
President had announced "the immediate implementation of the New Constitution, thru his Cabinet,
respondents including," and that the latter "are acting without, or in excess of jurisdiction in implementing
the said proposed Constitution" upon the ground: "that the President, as Commander-in-Chief of the
Armed Forces of the Philippines, is without authority to create the Citizens Assemblies"; that the same
"are without power to approve the proposed Constitution ..."; "that the President is without power to
proclaim the ratification by the Filipino people of the proposed Constitution"; and "that the election held to
ratify the proposed Constitution was not a free election, hence null and void."
Similar actions were filed, on January 23, 1973, by Vidal Tan, J. Antonio Araneta, Alejandro Roces,
Manuel Crudo, Antonio U. Miranda, Emilio de Peralta and Lorenzo M. Taada, against the Executive
Secretary, the Secretaries of Finance, Justice, Land Reform, and National Defense, the Auditor General,
the Budget Commissioner, the Chairman of the Presidential Commission on Reorganization, the
Treasurer of the Philippines, the Commission on Elections and the Commissioner of Civil Service 4 on
February 3, 1973, by Eddie Monteclaro, personally and as President of the National Press Club of the
Philippines, against the Executive Secretary, the Secretary of Public Information, the Auditor General, the
Budget Commissioner and the National Treasurer 5 and on February 12, 1973, by Napoleon V. Dilag,

Alfredo Salapantan, Jr., Leonardo Asodisen, Jr. and Raul M. Gonzales, 6 against the Executive Secretary,
the Secretary of National Defense, the Budget Commissioner and the Auditor General.
Likewise, on January 23, 1973, Gerardo Roxas, Ambrosio Padilla, Jovito R. Salonga, Salvador H.
Laurel, 7 Ramon V. Mitra, Jr. and Eva Estrada-Kalaw, the first as "duly elected Senator and Minority Floor
Leader of the Senate," and others as "duly elected members" thereof, filed Case G.R. No. L-36165,
against the Executive Secretary, the Secretary National Defense, the Chief of Staff of the Armed Forces of
the Philippines, the Secretary of General Services, the President and the President Pro Tempore of the
Senate. In their petition as amended on January 26, 1973 petitioners Gerardo Roxas, et al.
allege, inter alia, that the term of office of three of the aforementioned petitioners 8 would 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 and control the Legislative Building"; that "(a)t about 5:00 to 6:00 P.M. the said day,
the premises of the entire Legislative Building were ordered cleared by the same authorities, and no one
was allowed to enter and have access to said premises"; that "(r)espondent Senate President Gil J. Puyat
and, in his absence, respondent President Pro Tempore Jose Roy we asked by petitioning Senators to
perform their duties under the law and the Rules of the Senate, but unlawfully refrained and continue to
refrain from doing so"; that the petitioners ready and willing to perform their duties as duly elected
members of the Senate of the Philippines," but respondent Secretary of National Defense, Executive
Secretary and Chief of Staff, "through their agents and representatives, are preventing petitioners from
performing their duties as duly elected Senators of the Philippines"; that "the Senate premise in the
Congress of the Philippines Building ... are occupied by and are under the physical control of the
elements military organizations under the direction of said respondents"; that, as per "official reports, the
Department of General Services ... is now the civilian agency in custody of the premises of the Legislative
Building"; that respondents "have unlawfully excluded and prevented, and continue to so exclude and
prevent" the petitioners "from the performance of their sworn duties, invoking the alleged approval of the
1972 (1973) Constitution of the Philippines by action of the so-called Citizens' Assemblies on January 10,
1973 to January 15, 1973, as stated in and by virtue of Proclamation No. 1102 signed and issued by the
President of the Philippines"; that "the alleged creation of the Citizens' Assemblies as instrumentalities for
the ratification of the Constitution of the Republic of the Philippines" is inherently illegal and palpably
unconstitutional; that respondents Senate President and Senate President Pro Tempore "have unlawfully
refrained and continue to refrain from and/or unlawfully neglected and continue to neglect the
performance of their duties and functions as such officers under the law and the Rules of the Senate"
quoted in the petition; that because of events supervening the institution of the plebiscite cases, to which
reference has been made in the preceding pages, the Supreme Court dismissed said cases on January
22, 1973, by a majority vote, upon the ground that the petitions therein had become moot and academic;
that the alleged ratification of the 1972 (1973) Constitution "is illegal, unconstitutional and void and ... can
not have superseded and revoked the 1935 Constitution," for the reasons specified in the petition as
amended; that, by acting as they did, the respondents and their "agents, representatives and
subordinates ...have excluded the petitioners from an office to which" they "are lawfully entitled"; that
"respondents Gil J. Puyat and Jose Roy have unlawfully refrained from convening the Senate for its 8th
session, assuming general jurisdiction over the Session Hall and the premises of the Senate and ...
continue such inaction up to this time and ... a writ of mandamus is warranted in order to compel them to
comply with the duties and functions specifically enjoined by law"; and that "against the above mentioned
unlawful acts of the respondents, the petitioners have no appeal nor other speedy and adequate remedy
in the ordinary course of law except by invoking the equitable remedies of mandamus and prohibition with
the provisional remedy of preliminary mandatory injunction."
Premised upon the foregoing allegations, said petitioners prayed that, "pending hearing on the merits, a
writ of preliminary mandatory injunction be issued ordering respondents Executive Secretary, the
Secretary of National Defense, the Chief of Staff of the Armed Forces of the Philippines, and the ...
Secretary of General Service, as well as all their agents, representatives and subordinates to vacate the

premises of the Senate of the Philippines and to deliver physical possession of the same to the President
of the Senate or his authorized representative"; and that hearing, judgment be rendered declaring null
and Proclamation No. 1102 ... and any order, decree, proclamation having the same import and objective,
issuing writs of prohibition and mandamus, as prayed for against above-mentioned respondents, and
making the writ injunction permanent; and that a writ of mandamusbe issued against the respondents Gil
J. Puyat and Jose Roy directing them to comply with their duties and functions as President and
President Pro Tempore, respectively, of the Senate of Philippines, as provided by law and the Rules of the
Senate."
Required to comment on the above-mentioned petitions and/or amended petitions, respondents filed, with
the leave Court first had and obtained, a consolidated comment on said petitions and/or amended
petitions, alleging that the same ought to have been dismissed outright; controverting petitioners'
allegations concerning the alleged lack impairment of the freedom of the 1971 Constitution Convention to
approve the proposed Constitution, its alleged lack of authority to incorporate certain contested provisions
thereof, the alleged lack of authority of the President to create and establish Citizens' Assemblies "for the
purpose submitting to them the matter of ratification of the new Constitution," the alleged "improper or
inadequate submiss of the proposed constitution," the "procedure for ratification adopted ... through the
Citizens Assemblies"; a maintaining that: 1) "(t)he Court is without jurisdiction to act on these petitions"; 2)
the questions raised therein are "political in character and therefore nonjusticiable"; 3) "there substantial
compliance with Article XV of the 1 Constitution"; 4) "(t)he Constitution was properly submitted the people
in a free, orderly and honest election; 5) "Proclamation No. 1102, certifying the results of the election, is
conclusive upon the courts"; and 6) "(t)he amending process outlined in Article XV of the 1935
Constitution is not exclusive of other modes of amendment."
Respondents Puyat and Roy, in said Case G.R. No. L-36165, filed their separate comment therein,
alleging that "(t)he subject matter" of said case "is a highly political question which, under the
circumstances, this ...Court would not be in a position to act upon judicially," and that, in view of the
opinions expressed by three members of this Court in its decision in the plebiscite cases, in effect
upholding the validity of Proclamation No. 1102, "further proceedings in this case may only be an
academic exercise in futility."
On February 5, 1973, the Court issued a resolution requiring respondents in L-36236 to comment on the
petition therein not later than Saturday, February 10, 1973, and setting the case for hearing on February
12, 1973, at 9:30 a.m. By resolution dated February 7, 1973, this Court resolved to consider the
comments of the respondents in cases G.R. Nos. L-36142, L-36164, and L-36165, as motions to dismiss
the petitions therein, and to set said cases for hearing on the same date and time as L-36236. On that
date, the parties in G.R. No. L-36283 10 agreed that the same be, likewise, heard, as it was, in fact, heard
jointly with the aforementioned cases G.R. Nos. L-36142, L-36164, L-36165 and L-36236. The hearing,
which began on February 12, 1973, shortly after 9:30 a.m., was continued not only that afternoon, but,
also, on February 13, 14, 15 and 16, morning and afternoon, after which the parties were granted up to
February 24, 1973, noon, within which to submit their notes of oral arguments and additional arguments,
as well as the documents required of them or whose presentation was reserved by them. The same
resolution granted the parties until March 1, 1973, to reply to the notes filed by their respective opponents.
Counsel for the petitioners in G.R. Nos. L-36164 and L-36165 filed their aforementioned notes on
February 24, 1973, on which date the Solicitor General sought an extension of time up to March 3, 1973,
within which to file his notes, which was granted, with the understanding that said notes shall include his
reply to the notes already filed by the petitioners in G.R. Nos. L-36164 a L-36165. Counsel for the
petitioners, likewise, moved and were granted an extension of time, to expire on March 10, 1973, within
which to file, as they did, their notes in reply to those submitted by the Solicitor General on March 3, 1973.
On March 21, 1973, petitioners in L-36165 filed a "Manifestation a Supplemental Rejoinder," whereas the
Office of the Solicitor General submitted in all these cases a "Rejoinder Petitioners' Replies."
After deliberating on these cases, the members of the Court agreed that each would write his own opinion
and serve a copy thereof on his colleagues, and this they did. Subsequently, the Court discussed said
opinions and votes were cast thereon. Such individual opinions are appended hereto.

Accordingly, the writer will first express his person opinion on the issues before the Court. After the
exposition his aforesaid opinion, the writer will make, concurrently with his colleagues in the Court, a
resume of summary of the votes cast by them in these cases.
Writer's Personal Opinion
I.
Alleged academic futility of further proceedings in G.R. L-36165.
This defense or theory, set up by counsel for respondents Gil J. Puyat and Jose Roy in G.R. No. L-36165,
and, also, by the Solicitor General, is predicated upon the fact that, in Our decision in the plebiscite cases,
Mr. Justice Barredo had expressed the view that the 1935 Constitution had "pro tanto passed into history"
and "been legitimately supplanted by the Constitution now in force by virtue of Proclamation No. 1102 ...";
that Mr. Justice Antonio did not feel "that this Court competent to act" in said cases "in the absence of any
judicially discoverable and manageable standards" and because "the access to relevant information is
insufficient to assure the correct determination of the issue," apart from the circumstance that "the new
constitution has been promulgated and great interests have already arisen under it" and that the political
organ of the Government has recognized its provisions; whereas, Mr. Justice Esguerra had postulated
that "(w)ithout any competent evidence ... about the circumstances attending the holding" of the
"referendum or plebiscite" thru the Citizens' Assemblies, he "cannot say that it was not lawfully held" and
that, accordingly, he assumed "that what the proclamation (No. 1102) says on its face is true and until
overcome by satisfactory evidence" he could not "subscribe to the claim that such plebiscite was not held
accordingly"; and that he accepted "as a fait accompli that the Constitution adopted (by the 1971
Constitutional Convention) on November 30, 1972, has been duly ratified.
Counsel for respondents Gil J. Puyat and Jose Roy goes on to say that, under these circumstances, "it
seems remote or improbable that the necessary eight (8) votes under the 1935 Constitution, and much
less the ten (10) votes required by the 1972 (1973) Constitution, can be obtained for the relief sought in
the Amended Petition" in G.R. No.
L-36165.
I am unable to share this view. To begin with, Mr. Justice Barredo announced publicly, in open court,
during the hearing of these cases, that he was and is willing to be convinced that his aforementioned
opinion in the plebiscite cases should be reconsidered and changed. In effect, he thus declared that he
had an open mind in connection with the cases at bar, and that in deciding the same he would not
necessarily adhere to said opinion if the petitioners herein succeeded in convincing him that their view
should be sustained.
Secondly, counsel for the aforesaid respondents had apparently assumed that, under the 1935
Constitution, eight (8) votes are necessary to declare invalid the contested Proclamation No. 1102. I do
not believe that this assumption is borne out by any provision of said Constitution. Section 10 of Article
VIII thereof reads:
All cases involving the constitutionality of a treaty or law shall be heard and
decided by the Supreme Court in banc, and no treaty or law may be declared
unconstitutional without the concurrence of two thirds of all the members of the
Court.
Pursuant to this section, the concurrence of two-thirds of all the Members of the Supreme Court is
required only to declare "treaty or law" unconstitutional. Construing said provision, in a resolution dated
September 16, 1949, then Chief Justice Moran, voicing the unanimous view of the Members of this Court,
postulated:

... There is nothing either in the Constitution or in the Judiciary Act requiring the
vote of eight Justices to nullify a rule or regulation or an executive order issued
by the President. It is very significant that in the previous drafts of section 10,
Article VIII of the Constitution, "executive order" and "regulation"were
included among those that required for their nullification the vote of two-thirds of
all the members of the Court. But "executive order" and "regulation" were
later deleted from the final draft (Aruego, The Framing of the Philippine
Constitution, Vol. I, pp. 495, 496), and thus a mere majority of six members of
this Court is enough to nullify them. 11
The distinction is not without reasonable foundation. The two thirds vote (eight [8] votes) requirement,
indeed, was made to apply only to treaty and law, because, in these cases, the participation of the two
other departments of the government the Executive and the Legislative is present, which
circumstance is absent in the case of rules, regulations and executive orders. Indeed, a law (statute)
passed by Congress is subject to the approval or veto of the President, whose disapproval cannot be
overridden except by the vote of two-thirds (2/3) of all members of 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 executive proclamation, with all the force of an executive order. 14
In fact, while executive order embody administrative acts or commands of the President, executive
proclamations are mainly informative and declaratory in character, and so does counsel for respondents
Gil J. Puyat and Jose Roy maintain in G.R. No.
L-36165. 15 As consequence, an executive proclamation has no more than "the force of an executive
order," so that, for the Supreme Court to declare such proclamation unconstitutional, under the 1935
Constitution, the same number of votes needed to invalidate an executive order, rule or regulation
namely, six (6) votes would suffice.
As regards the applicability of the provisions of the proposed new Constitution, approved by the 1971
Constitutional Convention, in the determination of the question whether or not it is now in force, it is
obvious that such question depends upon whether or not the said new Constitution has been ratified in
accordance with the requirements of the 1935 Constitution, upon the authority of which said Constitutional
Convention was called and approved the proposed Constitution. It is well settled that the matter of
ratification of an amendment to the Constitution should be settled by applying the provisions of the
Constitution in force at the time of the alleged ratification, or the old Constitution. 16

II
Does the issue on the validity of Proclamation No. 1102 partake of the nature of a political, and, hence,
non-justiciable question?
The Solicitor General maintains in his comment the affirmative view and this is his main defense. In
support thereof, he alleges that "petitioners would have this Court declare as invalid the New Constitution
of the Republic" from which he claims "this Court now derives its authority"; that "nearly 15 million of
our body politic from the age of 15 years have mandated this Constitution to be the New Constitution and
the prospect of unsettling acts done in reliance on it caution against interposition of the power of judicial
review"; that "in the case of the New Constitution, the government has been recognized in accordance
with the New Constitution"; that "the country's foreign relations are now being conducted in accordance
with the new charter"; that "foreign governments have taken note of it"; that the "plebiscite cases" are "not
precedents for holding questions regarding proposal and ratification justiciable"; and that "to abstain from
judgment on the ultimate issue of constitutionality is not to abdicate duty."
At the outset, it is obvious to me that We are not being asked to "declare" the new Constitution invalid.
What petitioners dispute is the theory that it has been validly ratified by the people, especially that they
have done so in accordance with Article XV of the 1935 Constitution. The petitioners maintain that the
conclusion reached by the Chief Executive in the dispositive portion of Proclamation No. 1102 is not
borne out by the whereases preceding the same, as the predicates from which said conclusion was
drawn; that the plebiscite or "election" required in said Article XV has not been 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 ability to have a reasonable
knowledge of the contents of the document on which they were allegedly called upon to express their
views.
Referring now more specifically to the issue on whether the new Constitution proposed by the 1971
Constitutional Convention has been ratified in accordance with the provisions of Article XV of the 1935
Constitution is a political question or not, I do not hesitate to state that the answer must be in the
negative. Indeed, such is the position taken by this Court, 17 in an endless line of decisions, too long to
leave any room for possible doubt that said issue is inherently and essentially justiciable. Such, also, has
been the consistent position of the courts of the United States of America, whose decisions have a
persuasive effect in this jurisdiction, our constitutional system in the 1935 Constitution being patterned
after that of the United States. Besides, no plausible reason has, to my mind, been advanced to warrant a
departure from said position, consistently with the form of government established under said
Constitution..
Thus, in the aforementioned plebiscite cases, 18 We rejected the theory of the respondents therein that
the question whether Presidential Decree No. 73 calling a plebiscite to be held on January 15, 1973, for
the ratification or rejection of the proposed new Constitution, was valid or not, was not a proper subject of
judicial inquiry because, they claimed, it partook of a political nature, and We unanimously declared that
the issue was a justiciable one. With identical unanimity, We overruled the respondents' contention in the
1971 habeas corpus cases, 19 questioning Our authority to determine the constitutional sufficiency of the

factual bases of the Presidential proclamation suspending the privilege of the writ of habeas corpus on
August 21, 1971, despite the opposite view taken by this Court in Barcelona v. Baker 20 and Montenegro
v. Castaeda, 21insofar as it adhered to the former case, which view We, accordingly, abandoned and
refused to apply. For the same reason, We did not apply and expressly modified, in Gonzales v.
Commission on Elections, 22 the political-question theory adopted in Mabanag v. Lopez Vito. 23 Hence,
respondents herein urge Us to reconsider the action thus taken by the Court and to revert to and follow
the views expressed in Barcelon v. Baker and Mabanag v. Lopez Vito. 24
The reasons adduced in support thereof are, however, substantially the same as those given in support of
the political-question theory advanced in said habeas corpus and plebiscite cases, which were carefully
considered by this Court and found by it to be legally unsound and constitutionally untenable. As a
consequence, Our decision in the aforementioned habeas corpus cases partakes of the nature and effect
of a stare decisis, which gained added weight by its virtual reiteration in the plebiscite cases.
The reason why the issue under consideration and other issues of similar character are justiciable, not
political, is plain and simple. One of the principal bases of the non-justiciability of so-called political
questions is the principle of separation of powers characteristic of the Presidential system of
government the functions of which are classified or divided, by reason of their nature, into three (3)
categories, namely: 1) those involving the making of laws, which are allocated to the legislative
department; 2) those concerned mainly with the enforcement of such laws and of judicial decisions
applying and/or interpreting the same, which belong to the executive department; and 3) those dealing
with the settlement of disputes, controversies or conflicts involving rights, duties or prerogatives that are
legally demandable and enforceable, which are apportioned to courts of justice. Within its own sphere
but only within such sphere each department is supreme and independent of the others, and each is
devoid of authority, not only to encroach upon the powers or field of action assigned to any of the other
departments, but, also, to inquire into or pass upon the advisability or wisdom of the acts performed,
measures taken or decisions made by the other departments provided that such acts, measures or
decisions are withinthe area allocated thereto by the Constitution. 25
This principle of separation of powers under the presidential system goes hand in hand with the system of
checks and balances, under which each department is vested by the Fundamental Law with some powers
to forestall, restrain or arrest a possible or actual misuse or abuse of powers by the other departments.
Hence, the appointing power of the Executive, his pardoning power, his veto power, his authority to call
the Legislature or Congress to special sessions and even to prescribe or limit the object or objects of
legislation that may be taken up in such sessions, etc. Conversely, Congress or an agency or arm thereof
such as the commission on Appointments may approve or disapprove some appointments made by
the President. It, also, has the power of appropriation, to "define, prescribe, and apportion the jurisdiction
of the various courts," as well as that of impeachment. Upon the other hand, under the judicial power
vested by the Constitution, the "Supreme Court and ... such inferior courts as may be established by law,"
may settle or decide with finality, not only justiciable controversies between private individuals or entities,
but, also, disputes or conflicts between a private individual or entity, on the one hand, and an officer or
branch of the government, on the other, or between two (2) officers or branches of service, when the latter
officer or branch is charged with acting without jurisdiction or in excess thereof or in violation of law. And
so, when a power vested in said officer or branch of the government is absolute orunqualified, the acts in
the exercise of such power are said to be political in nature, and, consequently, non-justiciable or beyond
judicial review. Otherwise, courts of justice would be arrogating upon themselves a power conferred by
the Constitution upon another branch of the service to the exclusion of the others. Hence, in Taada v.
Cuenco, 26 this Court quoted with approval from In re McConaughy, 27 the following:
"At the threshold of the case we are met with the assertion that the questions
involved are political, and not judicial. If this is correct, the court has no
jurisdiction as the certificate of the state canvassing board would then be final,
regardless of the actual vote upon the amendment. The question thus raised is a
fundamental one; but it has been so often decided contrary to the view
contended for by the Attorney General that it would seem to be finally settled.

xxx xxx xxx


"... What is generally meant, when it is said that a question is political, and not
judicial, is that it is a matter which is to be exercised by the people in their
primary political capacity, or that it has been specifically delegated to some other
department or particular officer of the government, with discretionary power to
act. See State vs. Cunningham, 81 Wis. 497, N.W. 724, 15 L.R.A. 561; In re
Gunn, 50 Kan. 155; 32 Pac. 470, 948, 19 L.R.A. 519; Green vs. Mills, 69 Fed.
852, 16 C.C.A. 516, 30 L.R.A. 90; Fletcher vs. Tuttle 151 Ill. 41, 37 N.E. 683, 25
L.R.A. 143, 42 Am. St. Rep. 220. Thus theLegislature may in its
discretion determine whether it will pass law or submit a proposed constitutional
amendment to the people. The courts have no judicial control over such matters,
not merely because they involve political questions, but because they are matters
which the people have by the Constitution delegated to the Legislature. The
Governor may exercise the powers delegated him, free from judicial control, so
long as he observes the laws act within the limits of the power conferred.
His discretionary acts cannot be controllable, not primarily because they are of a
politics nature, but because the Constitution and laws have placed the particular
matter under his control.But every officer under constitutional government must
act accordingly to law and subject its restrictions, and every departure therefrom
or disregard thereof must subject him to that restraining and controlling power of
the people, acting through the agency of the judiciary; for it must be remembered
that the people act through courts, as well as through the executive or the
Legislature. One department is just as representative as the other, and the
judiciary is the department which is charged with the special duty of determining
the limitations which the law places upon all official action. The recognition of this
principle, unknown except in Great Britain and America, is necessary, to "the end
that the government may be one of laws and not of men" words which
Webster said were the greatest contained in any written constitutional
document." (Emphasis supplied.)
and, in an attempt to describe the nature of a political question in terms, it was hoped, understandable to
the laymen, We added that "... the term "political question" connotes, in legal parlance, what it means in
ordinary parlance, namely, a question of policy" in matters concerning the government of a State, as a
body politic. "In other words, in the language of Corpus Juris Secundum (supra), it refers to "those
questions which, under the Constitution, are to be decided by the people in their sovereign capacity, or in
regard to which full discretionary authority has been delegated to the Legislature or executive branch of
the government." It is concerned with issues dependent upon the wisdom, not legality, of a particular
measure."
Accordingly, when the grant of power is qualified, conditional or subject to limitations, the issue on
whether or not the prescribed qualifications or conditions have been met, or the limitations respected, is
justiciable or non-political, the crux of the problem being one of legality or validity of the contested
act, not its wisdom. Otherwise, said qualifications, conditions or limitations particularly those prescribed
or imposed by the Constitution would be set at naught. What is more, the judicial inquiry into such
issue and the settlement thereof are the mainfunctions of courts of justice under the Presidential form of
government adopted in our 1935 Constitution, and the system of checks and balances, one of its basic
predicates. As a consequence, We have neither the authority nor the discretion to decline passing upon
said issue, but are under the ineluctable obligation made particularly more exacting and peremptory by
our oath, as members of the highest Court of the land, to support and defend the Constitution to settle
it. This explains why, in Miller v. Johnson, 28 it was held that courts have a "duty, rather than a power", to
determine whether another branch of the government has "kept within constitutional limits." Not satisfied
with this postulate, the court went farther and stressed that, if the Constitution provides how it may be
amended as it is in our 1935 Constitution "then, unless the manner is followed, the judiciary as the
interpreter of that constitution, will declare the amendment invalid." 29 In fact, this very Court speaking

through Justice Laurel, an outstanding authority on Philippine Constitutional Law, as well as one of the
highly respected and foremost leaders of the Convention that drafted the 1935 Constitution declared,
as early as July 15, 1936, that "(i)n times of social disquietude or political excitement, the great landmarks
of the Constitution are apt to be forgotten or marred, if not entirely obliterated. In cases of conflict,
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.
Prior thereto, however, many citizens had become dissatisfied with the charter government. Memorials
addressed by them to the Legislature having failed to bring about the desired effect, meetings were held
and associations formed by those who belonged to this segment of the population which eventually
resulted in a convention called for the drafting of a new Constitution to be submitted to the people for their
adoption or rejection. The convention was not authorized by any law of the existing government. The
delegates to such convention framed a new Constitution which was submitted to the people. Upon the
return of the votes cast by them, the convention declared that said Constitution had been adopted and
ratified by a majority of the people and became the paramount law and Constitution of Rhode Island.
The charter government, which was supported by a large number of citizens of the state, contested,
however, the validity of said proceedings. This notwithstanding, one Thomas W. Dorr, who had been
elected governor under the new Constitution of the rebels, prepared to assert authority by force of arms,
and many citizens assembled to support him. Thereupon, the charter government passed an Act
declaring the state under Martial Law and adopted measures to repel the threatened attack and subdue
the rebels. This was the state of affairs when the defendants, who were in the military service of the
charter government and were to arrest Luther, for engaging in the support of the rebel government
which was never able to exercise any authority in the state broke into his house.
Meanwhile, the charter government had taken measures to call its own convention to revise the existing
form of government. Eventually, a new constitution was drafted by a convention held under the authority
of the charter government, and thereafter was adopted and ratified by the people. "(T)he times and places
at which the votes were to be given, the persons who were to receive and return them, and the
qualifications of the voters having all been previously authorized and provided for by law passed by the
charter government," the latter formally surrendered all of its powers to the new government, established
under its authority, in May 1843, which had been in operation uninterruptedly since then.
About a year before, or in May 1842, Dorr, at the head of a military force, had made an unsuccessful
attempt to take possession of the state arsenal in Providence, but he was repulsed, and, after an
"assemblage of some hundreds of armed men under his command at Chepatchet in the June following,
which dispersed upon approach of the troops of the old government, no further effort was made to

establish" his government. "... until the Constitution of 1843" adopted under the auspices of the charter
government "went into operation, the charter government continued to assert its authority and exercise
its powers and to enforce obedience throughout the state ... ."
Having offered to introduce evidence to prove that the constitution of the rebels had been ratified by the
majority of the people, which the Circuit Court rejected, apart from rendering judgment for the defendants,
the plaintiff took the case for review to the Federal Supreme Court which affirmed the action of the Circuit
Court, stating:
It is worthy of remark, however, when we are referring to the authority of State
decisions, that the trial of Thomas W. Dorr took place after the constitution of
1843 went into operation. The judges who decided that case held their authority
under that constitution and it is admitted on all hands that it was adopted by the
people of the State, and is the lawful and established government. It is the
decision, therefore, of a State court, whose judicial authority to decide upon the
constitution and laws of Rhode Island is not questioned by either party to this
controversy, although the government under which it acted was framed and
adopted under the sanction and laws of the charter government.
The point, then, raised here has been already decided by the courts of Rhode
Island. The question relates, altogether, to the constitution and laws of that State,
and the well settled rule in this court is, that the courts of the United States adopt
and follow the decisions of the State courts in questions which concern merely
the constitution and laws of the State.
Upon what ground could the Circuit Court of the United States which tried this
case have departed from this rule, and disregarded and overruled the decisions
of the courts of Rhode Island?Undoubtedly the courts of the United States have
certain powers under the Constitution and laws of the United States which do not
belong to the State courts. But the power of determining that a State government
has been lawfully established, which the courts of the State disown and
repudiate, is not one of them. Upon such a question the courts of the United
States are bound to follow the decisions of the State tribunals, and must
therefore regard the charter government as the lawful and established
government during the time of this contest. 32
It is thus apparent that the context within which the case of Luther v. Borden was decided is basically and
fundamentally different from that of the cases at bar. To begin with, the case did not involve a federal
question, but one purely municipal in nature. Hence, the Federal Supreme Court was "bound to follow the
decisions of the State tribunals" of Rhode Island upholding the constitution adopted under the authority of
the charter government. Whatever else was said in that case constitutes, therefore, an obiter dictum.
Besides, no decision analogous to that rendered by the State Court of Rhode Island exists in the cases at
bar. Secondly, the states of the Union have a measure of internal sovereignty upon which the Federal
Government may not encroach, whereas ours is a unitary form of government, under which our local
governments derive their authority from the national government. Again, unlike our 1935 Constitution, the
charter or organic law of Rhode Island contained noprovision on the manner, procedure or conditions for
its amendment.
Then, too, the case of Luther v. Borden hinged more on the question of recognition of government, than
on recognition of constitution, and there is a fundamental difference between these two (2) types of
recognition, the first being generally conceded to be a political question, whereas the nature of the latter
depends upon a number of factors, one of them being whether the new Constitution has been adopted in
the manner prescribed in the Constitution in force at the time of the purported ratification of the former,
which is essentially a justiciablequestion. 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
mattersother than those referring to its power to review decisions of a state court concerning the
constitution and government of that state, not the Federal Constitution or Government, are manifestly
neither, controlling, nor even persuasive in the present cases, having as the Federal Supreme Court
admitted no authority whatsoever to pass upon such matters or to review decisions of said state court
thereon. In fact, referring to that case, the Supreme Court of Minnessota had the following to say:
Luther v. Borden, 7 How. 1, 12 L. Ed. 581, is always cited by those who assert
that the courts have no power to determine questions of a political character. It is
interesting historically, but it has not the slightest application to the case at bar.
When carefully analyzed, it appears that it merely determines that the federal
courts will accept as final and controlling a decision of the highest court of a state
upon a question of the construction of the Constitution of the state. ... . 33
Baker v. Carr, 34 cited by respondents, involved an action to annul a Tennessee statute apportioning the
seats in the General Assembly among the counties of the State, upon the theory that the legislation
violated the equal protection clause. A district court dismissed the case upon the ground, among others,
that the issue was a political one, but, after a painstaking review of the jurisprudence on the matter, the
Federal Supreme Court reversed the appealed decision and held that said issue was justiciable and nonpolitical, inasmuch as:"... (d)eciding whether a matter has in any measure been committed by the
Constitution to another branch of government, or whether the action of that branch exceeds whatever
authority has been committed, is itself a delicate exercise in constitutional interpretation, and is a
responsibility of this Court as ultimate interpreter of the Constitution ... ."
Similarly, in Powell v. McCormack, 35 the same Court, speaking through then Chief Justice Warren,
reversed a decision of the Court of Appeals of New York affirming that of a Federal District Court,
dismissing Powell's action for a declaratory judgment declaring thereunder that he whose qualifications
were uncontested had been unlawfully excluded from the 90th Congress of the U.S. Said dismissal
was predicated upon the ground, inter alia, that the issue was political, but the Federal Supreme Court
held that it was clearly a justiciable one.
The Supreme Court of Minnessota undertook a careful review of American jurisprudence on the matter.
Owing to the lucidity of its appraisal thereof, We append the same to this opinion as Annex A thereof.
After an, exhaustive analysis of the cases on this subject, the Court concluded:
The authorities are thus practically uniform in holding that whether a
constitutional amendment has been properly adopted according to the
requirements of an existing Constitution is a judicial question. There can be little
doubt that the consensus of judicial opinion is to the effect that it is the absolute
duty of the judiciary to determine whether the Constitution has been amended in
the manner required by the Constitution, unless a special tribunal has been
created to determine the question; and even then many of the courts hold that
the tribunal cannot be permitted to illegally amend the organic law. ... . 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 boundenduty to decide such question.

The Supreme Court of the United States has meaningfully postulated that "the courts cannot reject as 'no
law suit' " because it allegedly involves a political question "a bona fide controversy as to whether
some action denominated "political" exceeds constitutional authority." 37
III
Has the proposed new or revised Constitution been ratified conformably to said Art. XV of the 1935
Constitution?
Petitioners in L-36142 maintain the negative view, upon ground: 1) that the President "is without authority
to create the Citizens' Assemblies" through which, respondents maintain, the proposed new Constitution
has been ratified; that said Assemblies "are without power to approve the proposed Constitution"; 3) that
the President "is without power to proclaim the ratification by the Filipino people of the proposed
Constitution"; and 4) that "the election held (in the Citizens' Assemblies) to ratify the proposed
Constitution was not a free election, hence null and void."
Apart from substantially reiterating these grounds support of said negative view, the petitioners in L-36164
contend: 1) that the President "has no power to call a plebiscite for the ratification or rejection" of the
proposed new Constitution or "to appropriate funds for the holding of the said plebiscite"; 2) that the
proposed new or revised Constitution "is vague and incomplete," as well as "contains provisions which
are beyond the powers of the 1971 Convention to enact," thereby rendering it "unfit for ... submission the
people;" 3) that "(t)he period of time between November 1972 when the 1972 draft was approved and
January 11-15, 1973," when the Citizens' Assemblies supposedly ratified said draft, "was too short, worse
still, there was practically no time for the Citizens' Assemblies to discuss the merits of the Constitution
which the majority of them have not read a which they never knew would be submitted to them ratification
until they were asked the question "do you approve of the New Constitution?" during the said days of
the voting"; and that "(t)here was altogether no freedom discussion and no opportunity to concentrate on
the matter submitted to them when the 1972 draft was supposedly submitted to the Citizens' Assemblies
for ratification."
Petitioner in L-36236 added, as arguments in support of the negative view, that : 1) "(w)ith a governmentcontrolled 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 General, on behalf of the other respondents in
that case and the respondents in the other cases.
1. What is the procedure prescribed by the 1935 Constitution for its amendment?
Under section 1 of Art. XV of said Constitution, three (3) steps are essential, namely:
1. That the amendments to the Constitution be proposed either by Congress or by a convention called for
that purpose, "by a vote of three-fourths of all the Members of the Senate and the House of
Representatives voting separately," but "in joint session assembled";

2. That such amendments be "submitted to the people for their ratification" at an "election"; and
3. That such amendments be "approved by a majority of the votes cast" in said election.
Compliance with the first requirement is virtually conceded, although the petitioners in L-36164 question
the authority of the 1971 Constitutional Convention to incorporate certain provisions into the draft of the
new or revised Constitution. The main issue in these five (5) cases hinges, therefore, on whether or not
the last two (2) requirements have been complied with.
2. Has the contested draft of the new or revised Constitution been submitted to the people for their
ratification conformably to Art. XV of the Constitution?
In this connection, other provisions of the 1935 Constitution concerning "elections" must, also, be taken
into account, namely, section I of Art. V and Art. X of said Constitution. The former reads:
Section 1. Suffrage may be exercised by male citizens of the Philippines not
otherwise disqualified by law, who are twenty-one years of age or over and are
able to read and write, and who shall have resided in the Philippines for one year
and in the municipality wherein they propose to vote for at least six months
preceding the election. The National Assembly shall extend the right of suffrage
to women, if in a plebiscite which shall be held for that purpose within two years
after the adoption of this Constitution, not less than three hundred thousand
women possessing the necessary qualifications shall vote affirmatively on the
question.
Sections 1 and 2 of Art. X of the Constitution ordain in part:
Section 1. There shall be an independent Commission on Elections composed of
a Chairman and two other Members to be appointed by the President with the
consent of the Commission on Appointments, who shall hold office for a term of
nine years and may not be reappointed. ...
xxx xxx xxx
Sec. 2. The Commission on Elections shall have exclusive charge of the
enforcement and administration of all laws relative to the conduct of
elections and shall exercise all other functions which may be conferred upon it by
law. It shall decide, save those involving the right to vote, alladministrative
questions, affecting elections, including the determination of the number and
location of polling places, and the appointment of election inspectors and of other
election officials. All law enforcement agencies and instrumentalities of the
Government, when so required by the Commission, shall act as its 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 guarantees the right of suffrage to persons
possessing the aforementioned qualifications and none of the disqualifications, prescribed by law, and
that said right may be vested by competent authorities in persons lacking some or all of the
aforementioned qualifications, and possessing some of the aforesaid disqualifications. In support of this
view, he invokes the permissive nature of the language "(s)uffrage may be exercised" used in
section 1 of Art. V of the Constitution, and the provisions of the Revised Barrio Charter, Republic Act No.
3590, particularly sections 4 and 6 thereof, providing that citizens of the Philippines "eighteen years of
age or over," who are registered in the list of barrio assembly members, shall be members thereof and
may participate as such in the plebiscites prescribed in said Act.
I cannot accept the Solicitor General's theory. Art. V of the Constitution declares who may exercise the
right of suffrage, so that those lacking the qualifications therein prescribed may not exercise such right.
This view is borne out by the records of the Constitutional Convention that drafted the 1935 Constitution.
Indeed, section 1 of Art. V of the 1935 Constitution was largely based on the report of the committee on
suffrage of the Convention that drafted said Constitution which report was, in turn, "strongly influenced by
the election laws then in force in the Philippines ... ." 40 " Said committee had recommended: 1) "That the
right of suffrage should exercised only by male citizens of the Philippines." 2) "That should be limited to
those who could read and write." 3) "That the duty to vote should be made obligatory." It appears that the
first recommendation was discussed extensively in the Convention, and that, by way of compromise, it
was eventually agreed to include, in section 1 of Art. V of the Constitution, the second sentence thereof
imposing upon the National Assembly established by the original Constitution instead of the bicameral
Congress subsequently created by amendment said Constitution the duty to "extend the right of
suffrage women, if in a plebiscite to, be held for that purpose within two years after the adoption of this
Constitution, not less than three hundred thousand women possessing the necessary qualifications shall
vote affirmatively on the question." 41
The third recommendation on "compulsory" voting was, also debated upon rather extensively, after which
it was rejected by the Convention. 42 This accounts, in my opinion, for the permissive language used in
the first sentence of said Art. V. Despite some debates on the age qualification amendment having
been proposed to reduce the same to 18 or 20, which were rejected, and the residence qualification, as
well as the disqualifications to the exercise of the right of suffrage the second
recommendation limiting the right of suffrage to those who could "read and write" was in the language
of Dr. Jose M. Aruego, one of the Delegates to said Convention "readily approved in the Convention
without any dissenting vote," although there was some debate on whether the Fundamental Law should
specify the language or dialect that the voter could read and write, which was decided in the negative. 43
What is relevant to the issue before Us is the fact that the constitutional provision under consideration
was meant to be and is a grant or conferment of a right to persons possessing the qualifications and none
of the disqualifications therein mentioned, which in turn, constitute a limitation of or restriction to said right,
and cannot, accordingly, be dispensed with, except by constitutional amendment. Obviously, every such
constitutional grant or conferment of a right is necessarily a negation of the authority of Congress or of
any other branch of the Government to deny said right to the subject of the grant and, in this sense
only, may the same partake of the nature of a guarantee. But, this does not imply not even remotely, that
the Fundamental Law allows Congress or anybody else to vest in those lacking the qualifications and
having the disqualifications mentioned in the Constitution the right of suffrage.
At this juncture, it is noteworthy that the committee on suffrage responsible for the adoption of section 1 of
Art. V of the Constitution was "strongly influenced by the election laws then in force in the Philippines."
Our first Election Law was Act 1582, passed on January 9, 1907, which was partly amended by Acts
1669, 1709, 1726 and 1768, and incorporated into the Administrative Code of 1916 Act 2657 as
chapter 20 thereof, and then in the Administrative Code of 1917 Act 2711 as chapter 18 thereof,
which, in turn, was amended by Act 3387, approved on December 3, 1927. Sections 431 and 432 of said
Code of 1917, prescribing, respectively, the qualifications for and disqualifications from voting, are quoted
below. 44 In all of these legislative acts, the provisions concerning the qualifications of voters partook of

the nature of a grant or recognition of the right of suffrage, and, hence, of adenial thereof to those who
lacked the requisite qualification and possessed any of the statutory disqualifications. In short, the history
of section 1, Art. V of the Constitution, shows beyond doubt than the same conferred not guaranteed
the authority to persons having the qualifications prescribed therein and none of disqualifications to be
specified in ordinary laws and, necessary implication, denied such right to those lacking any said
qualifications, or having any of the aforementioned disqualifications.
This view is further bolstered by the fact that the 1971 Constitutional Convention sought the submission to
a plebiscite of a "partial amendment" to said section 1 of Art. V of the 1935 Constitution, by reducing the
voting age from twenty-one (21) years to eighteen (18) years, which, however, did not materialize on
account of the decision of this Court in Tolentino v. Commission on Elections, 45 granting the writs, of
prohibition and injunction therein applied for, upon the ground that, under the Constitution, all of the
amendments adopted by the Convention should be submitted in "an election" or a single election, not
separately or in several or distinct elections, and that the proposed amendment sought to be submitted to
a plebiscite was not even a complete amendment, but a "partial amendment" of said section 1, which
could be amended further, after its ratification, had the same taken place, so that the aforementioned
partial amendment was, for legal purposes, no more than a provisional or temporary amendment. Said
partial amendment was predicated upon the generally accepted contemporary construction that, under
the 1935 Constitution, persons below twenty-one (21) years of age could not exercise the right of
suffrage, without a previous amendment of the Constitution.
Upon the other hand, the question, whether 18-year-old members of barrio assemblies may vote in barrio
assembly plebiscites is, to say the least, a debatable one. Indeed, there seems to be a conflict between
the last paragraph of said section 6 of Rep. Act No. 3590, 46 pursuant to which the "majority vote of all the
barrio assemblymembers" (which include all barrio residents 18 years of age or over, duly registered in
the list of barrio assembly members) is necessary for the approval, in an assembly plebiscite, of "any
budgetary, supplemental appropriations or special tax ordinances," whereas, according to the paragraph
preceding the penultimate one of said section, 47 "(a)ll duly registered barrio assembly members qualified
to vote" who, pursuant to section 10 of the same Act, must be citizens "of the Philippines, twenty-one
years of age or over, able to read and write," and residents the barrio "during the six months immediately
preceding election, duly registered in the list of voters" and " otherwise disqualified ..." just like the
provisions of present and past election codes of the Philippines and Art. V of the 1935 Constitution
"may vote in the plebiscite."
I believe, however, that the apparent conflict should resolved in favor of the 21-year-old members of the
assembly, not only because this interpretation is in accord with Art. V the Constitution, but, also, because
provisions of a Constitution particularly of a written and rigid one, like ours generally accorded a
mandatory status unless the intention to the contrary is manifest, which is not so as regards said Art. V
for otherwise they would not have been considered sufficiently important to be included in the
Fundamental Law of the land. 48Besides, it would be illogical, if not absurd, believe that Republic Act No.
3590 requires, for the most important measures for which it demands in addition to favorable action of
the barrio council the approval of barrio assembly through aplebiscite, lesser qualifications than those
prescribed in dealing with ordinary measures for which such plebiscite need not be held.
It is similarly inconceivable that those who drafted the 1935 Constitution intended section 1 of Art. V
thereof to apply only to elections of public officers, not to plebiscites for the ratification of amendments to
the Fundamental Law or revision thereof, or of an entirely new Constitution, and permit the legislature to
require lesser qualifications for such ratification, notwithstanding the fact that the object thereof much
more important if not fundamental, such as the basic changes introduced in the draft of the revised
Constitution adopted by the 1971 Constitutional Convention, which a intended to be in force permanently,
or, at least, for many 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.
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 impossibleto ascertain with reasonable certainty the true vote," as where "it is impossible to
separate the legal votes from the illegal or spurious ... ." 54
In Usman v. Commission on Elections, et al., 55 We held:
Several circumstances, defying exact description and dependent mainly on the
factual milieu of the particular controversy, have the effect of destroying the
integrity and authenticity of disputed election returns and of avoiding their prima
facie value and character. If satisfactorily proven, although in a summary
proceeding, such circumstances as alleged by the affected or interested parties,
stamp the election returns with the indelible mark of falsity and irregularity, and,
consequently, of unreliability, and justify their exclusion from the canvass.
Then, too, the 1935 Constitution requires "a majority of the votes cast" for a proposed amendment to the
Fundamental Law to be "valid" as part thereof, and the term "votes cast" has a well-settled meaning.
The term "votes cast" ... was held in Smith v. Renville County Commissioners, 65
N.W. 956, 64 Minn. 16, to have been used as an equivalent of "ballots cast." 56
The word "cast" is defined as "to deposit formally or officially." 57
It seems to us that a vote is cast when a ballot is deposited indicating a
"choice." ... The word "cast" means "deposit (a ballot) formally or officially ... .
... In simple words, we would define a "vote cast" as the exercise on a ballot of
the choice of the voter on the measure proposed. 58
In short, said Art. XV envisages with the term "votes cast" choices made on ballots not orally or
by raising by the persons taking part in plebiscites. This is but natural and logical, for, since the early

years of the American regime, we had adopted the Australian Ballot System, with its major characteristics,
namely, uniform official ballots prepared and furnished by the Government and secrecy in the voting, with
the advantage of keeping records that permit judicial inquiry, when necessary, into the accuracy of the
election returns. And the 1935 Constitution has been consistently interpreted in all plebiscites for the
ratification rejection of proposed amendments thereto, from 1935 to 1967. Hence, the viva voce voting in
the Citizens' Assemblies was and is null and void ab initio.
b. How should the plebiscite be held? (COMELEC supervision indispensable; essential requisites)
Just as essential as compliance with said Art. V of the 19 Constitution is that of Art. X thereof, particularly
its sections 1 and 2. Indeed, section 1 provides that "(t)here shall be an independent Commission on
Elections ... ." The point to be stressed here is the term "independent." Indeed, why was the term used?
In the absence of said constitutional provision as to the independence of the Commission, would it have
been depends upon either Congress or the Judiciary? The answer must be the negative, because the
functions of the Commission "enforcement and administration" of election laws are neither
legislative nor judicial in nature, and, hence, beyond the field allocated to either Congress or courts of
justice. Said functions are by their nature essentially executive, for which reason, the Commission would
be under the "control" of the President, pursuant to section 10, paragraph (1) of Art. VII of the
Constitution, if Art. X thereof did not explicitly declare that it (the Commission) is an "independent" body.
In other words, in amending the original 1935 Constitution, by inserting therein said Art. X, on the
Commission on Elections, the purpose was to make said Commission independent principally of the
Chief Executive.
And the reason therefor is, also, obvious. Prior to the creation of the Commission on Elections as a
constitutional organ, election laws in the Philippines were enforced by the then Department of the Interior,
through its Executive Bureau, one of the offices under the supervision and control of said Department.
The same like other departments of the Executive Branch of the Government was, in turn, under the
control of the Chief Executive, before the adoption of the 1935 Constitution, and had been until the
abolition of said Department, sometime ago under the control of the President of the Philippines, since
the effectivity of said Fundamental Law. Under the provisions thereof, the Executive could so use his
power of control over the Department of the Interior and its Executive Bureau as to place the minority
party at such a great, if not decisive, disadvantage, as to deprive it, in effect, of the opportunity to defeat
the political party in power, and, hence, to enable the same to perpetuate itself therein. To forestall this
possibility, the original 1935 Constitution was amended by the establishment of the Commission on
Elections as a constitutional body independent primarily of the President of the Philippines.
The independence of the Commission was sought to be strengthened by the long term of office of its
members nine (9) years, except those first appointed 59 the longest under the Constitution, second
only to that of the Auditor General 60; by providing that they may not be removed from office except by
impeachment, placing them, in this respect, on the same plane as the President, the Vice-President, the
Justices of the Supreme Court and the Auditor General; that they may not be reappointed; that their
salaries, "shall be neither increased nor diminished during their term of office"; that the decisions the
Commission "shall be subject to review by the Supreme Court" only 61; that "(n)o pardon, parole, or
suspension sentence for the violation of any election law may be granted without the favorable
recommendation of the Commission" 62; and, that its chairman and members "shall not, during the
continuance in office, engage in the practice of any profession or intervene, directly or indirectly, in the
management or control of any private enterprise which in anyway may affected by the functions of their
office; nor shall they, directly or indirectly, be financially interested in any contract with the Government or
any subdivision or instrumentality thereof." 63 Thus, the framers of the amendment to the original
Constitution of 1935 endeavored to do everything possible protect and insure the independence of each
member of the Commission.
With respect to the functions thereof as a body, section 2 of said Art. X ordains that "(t)he Commission on
Elections shall have exclusive charge of the enforcement and administration all laws relative to the

conduct of elections," apart from such other "functions which may be conferred upon it by law." It further
provides that the Commission "shall decide, save those involving the right to vote, all administrative
question affecting elections, including the determination of the number and location of polling places, and
the appointment of election inspectors and of other election officials." And, to forests possible conflicts or
frictions between the Commission, on one hand, and the other offices or agencies of the executive
department, on the other, said section 2 postulates that "(a)ll law enforcement agencies and
instrumentalities of the Government, when so required by the Commission, shall act as its deputies for the
purpose of insuring free, orderly, and honest elections." Not satisfied with this, it declares, in effect, that
"(t)he decisions, orders, and ruling of the Commission" shall not be subject to review, except by the
Supreme Court.
In accordance with the letter and spirit of said Art. X of the Constitution, Rep. Act No. 6388, otherwise
known as the Election Code of 1971, implements the constitutional powers of the Commission on
Elections and grants additional powers thereto, some of which are enumerated in sections 5 and 6 of said
Act, quoted below. 64Moreover, said Act contains, inter alia, detailed provisions regulating contributions
and other (corrupt) practices; the establishment of election precincts; the designation and arrangement of
polling places, including voting booths, to protect the secrecy of the ballot; formation of lists of voters, the
identification and registration of voters, the proceedings therefor, as well as for the inclusion in, or
exclusion or cancellation from said list and the publication thereof; the establishment of municipal,
provincial and files of registered voters; the composition and appointment of board of election inspectors;
the particulars of the official ballots to be used and the precautions to be taken to insure authenticity
thereof; the procedure for the casting of votes; the counting of votes by boards of inspectors; the rules for
the appreciation of ballots and the preparation and disposition of election returns; the constitution and
operation of municipal, provincials and national boards of canvassers; the presentation of the political
parties and/or their candidates in each election precinct; the proclamation of the results, including, in the
case of election of public officers, election contests; and the jurisdiction of courts of justice in cases of
violation of the provisions of said Election Code and the penalties for such violations.
Few laws may be found with such meticulous and elaborate set of provisions aimed at "insuring free,
orderly, and honest election," as envisaged in section 2 of Art. X of the Constitution. Yet, none of the
foregoing constitutional and statutory provisions was followed by the so-called Barangays or Citizens'
Assemblies. And no reasons have been given, or even sought to be given therefor. In many, if not most,
instances, the election were held a viva voce, thus depriving the electorate of the right to vote secretly
one of the most, fundamental and critical features of our election laws from time immemorial
particularly at a time when the same was of utmostimportance, 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 place at such

notice, and no other order or decree has been brought to Our attention, expressly or impliedly repealing
the provisions of Presidential Decree 73, insofar as said procedure is concerned.
Upon the other hand, said General Order No. 20 expressly suspended "the provisions of Section 3 of
Presidential Decree No. 73 insofar as they allow free public discussion of proposed Constitution ...
temporarily suspending effects of Proclamation No. 1081 for the purposes of free open dabate on the
proposed Constitution ... ." This specific mention of the portions of the decrees or orders or instructions
suspended by General Order No. 20 necessarily implies that all other portions of said decrees, orders or
instructions and, hence, the provisions of Presidential Decree No. 73 outlining the procedure to be
followed in the plebiscite for ratification or rejection of the proposed Constitution remained in force,
assuming that said Decree is valid.
It is claimed that by virtue of Presidential Decree No. 86-A the text of which is quoted below 67 the
Executive declared, inter alia, that the collective views expressed in the Citizens' Assemblies "shall
be considered in the formulation of national policies or programs and, wherever practicable, shall be
translated into concrete and specific decision"; that such Citizens' Assemblies "shall consider vital national
issues ... like the holding of the plebiscite on the new Constitution ... and others in the future, which shall
serve as guide or basis for action or decision by the national government"; and that the Citizens'
Assemblies "shall conduct between January 10 and 15, 1973, a referendum on important national issues,
including those specified in paragraph 2 hereof, and submit the results thereof to the Department of Local
Governments and Community Development immediately thereafter, ... ." As in Presidential Decree No.
86, this Decree No. 86-A does not and cannot exclude the exercise of the constitutional supervisory
power of the Commission on Elections or its participation in the proceedings in said Assemblies, if the
same had been intended to constitute the "election" or Plebiscite required Art. V of the 1935 Constitution.
The provision of Decree No. 86-A directing the immediate submission of the result thereof to the
Department of Local Governments Community Development is not necessarily inconsistent with, and
must be subordinate to the constitutional power of the Commission on Elections to exercise its "exclusive
authority over the enforcement and administration of all laws to the conduct of elections," if the
proceedings in the Assemblies would partake of the nature of an "election" or plebiscite for the ratification
or rejection of the proposed Constitution.
We are told that Presidential Decree No. 86 was further amended by Presidential Decree No. 86-B, dated
1973, ordering "that important national issues shall from time to time; be referred to the Barangays
(Citizens Assemblies) for resolution in accordance with Presidential Decree No. 86-A dated January 5,
1973 and that the initial referendum include the matter of ratification of the Constitution by the 1971
Constitutional Convention" and that "(t)he Secretary of the Department of Local Governments and
Community Development shall insure the implementation of this order." As in the case of Presidential
Decrees Nos. 86 and 86-A, the foregoing directives do not necessarily exclude exercise of the powers
vested by the 1935 Constitution in the Commission on Elections, even if the Executive had the authority
to repeal Art. X of our Fundamental Law which he does not possess. Copy of Presidential Decree No.
86-B is appended hereto as Annex B hereof.
The point is that, such of the Barrio Assemblies as were held took place without the intervention of the
Commission on Elections, and without complying with the provisions of the Election Code of 1971 or even
of those of Presidential Decree No. 73. What is more, they were held under the supervision of the very
officers and agencies of the Executive Department sought to be excluded therefrom by Art. X of the 1935
Constitution. Worse still, said officers and agencies of the 1935 Constitution would be favored thereby,
owing to the practical indefinite extension of their respective terms of office in consequence of section 9 of
the Transitory Provisions, found in Art. XVII of the proposed Constitution, without any elections therefor.
And the procedure therein mostly followed is such that there is no reasonable means of checking the
accuracy of the returns files by the officers who conducted said plebiscites. This is another patent
violation of Art. of the Constitution which can hardly be sanctioned. And, since the provisions of this article
form part of the fundamental scheme set forth in the 1935 Constitution, as amended, to insure the "free,
orderly, and honest" expression of the people's will, the aforementioned violation thereof renders null and
void the contested proceedings or alleged plebiscite in the Citizens' Assemblies, insofar as the same are

claimed to have ratified the revised Constitution proposed by the 1971 Constitutional Convention. "... (a)ll
the authorities agree that the legal definition of an election, as well as that which is usually and ordinarily
understood by the term, is a choosing or as election by those having a right to participate (in the
selection) of those who shall fill the offices, or of the adoption or rejection of any public measure affecting
the territory involved. 15 Cyc. 279; Lewis v. Boynton, 25 Colo. 486, 55 Pac. 732; Saunders v. Haynes, 13
Cal. 145; Seaman v. Baughman, 82 Iowa 216, 47 N.W. 1091, 11 L.R.A. 354; State v. Hirsh, 125 Ind. 207,
24 N.E. 1062, 9 L.R.A. 170; Bouvier's Law Dictionary. 68
IV
Has the proposed Constitution aforementioned
been approved by a majority of the people in
Citizens' Assemblies allegedly held
throughout the Philippines?
Respondents maintain the affirmative, relying upon Proclamation No. 1102, the validity of which is
precisely being contested by petitioners herein. Respondents claim that said proclamation is "conclusive"
upon this Court, or is, at least, entitled to full faith and credence, as an enrolled bill; that the proposed
Constitution has been, in fact, ratified, approved or adopted by the "overwhelming" majority of the people;
that Art. XV of the 1935 Constitution has thus been "substancially" complied with; and that the Court
refrain from passing upon the validity of Proclamation No. 1102, not only because such question is
political in nature, but, also, because should the Court invalidate the proclamation, the former would, in
effect, veto the action of the people in whom sovereignty resides and from its power are derived.
The major flaw in this process of rationalization is that it assumes, as a fact, the very premise on which it
is predicated, and which, moreover, is contested by the petitioners. As the Supreme Court of Minnessota
has aptly put it
... every officer under a constitutional government must act according to law and
subject to its restrictions, and every departure therefrom or disregard thereof
must subject him to the restraining and controlling of the people, acting through
the agency of the judiciary; for it must be remembered that the people act
through courts, as well as through the executive or the Legislature. One
department is just as representative as the other, and the judiciary is the
department which is charged with the special duty of determining the limitations
which the law places upon all official action. ... .
Accordingly, the issue boils downs to whether or not the Executive acted within the limits of his authority
when he certified in Proclamation No. 1102 "that the Constitution proposed by the nineteen hundred and
seventy-one (1971) Constitutional Convention has been ratified by an overwhelming majority of all of the
votes cast by the members of all the Barangays (Citizens Assemblies) throughout the Philippines and has
thereby come into effect."
In this connection, it is not claimed that the Chief Executive had personal knowledge of the data he
certified in said proclamation. Moreover, Art. X of the 1935 Constitution was precisely inserted to
place beyond the Executive the power to supervise or even exercise any authority whatsoever over
"all laws relative to the conduct of elections," and, hence, whether the elections are for the choice or
selection of public officers or for the ratification or rejection of any proposed amendment, or revision of the
Fundamental Law, since the proceedings for the latter are, also, referred to in said Art. XV as "elections".
The Solicitor General stated, in his argument before this Court, that he had been informed that there was
in each municipality a municipal association of presidents of the citizens' assemblies for each barrio of the
municipality; that the president of each such municipal association formed part of a provincial or city
association of presidents of such municipal associations; that the president of each one of these

provincial or city associations in turn formed part of a National Association or Federation of Presidents of
such Provincial or City Associations; and that one Francisco Cruz from Pasig, Rizal, as President of said
National Association or Federation, reported to the President of the Philippines, in the morning of January
17, 1973, the total result of the voting in the citizens' assemblies all over the country from January 10 to
January 15, 1973. The Solicitor General further intimated that the said municipal associations had
reported the results of the citizens' assemblies in their respective municipalities to the corresponding
Provincial Association, which, in turn, transmitted the results of the voting in the to the Department of
Local Governments and Community Development, which tabulated the results of the voting in the citizens'
assemblies throughout the Philippines and then turned them over to Mr. Franciso Cruz, as President or
acting President of the National Association or Federation, whereupon Mr. Cruz, acting in a ceremonial
capacity, reported said results (tabulated by the Department of Governments and Community
Development) to the Chief Executive, who, accordingly, issued Proclamation No. 1102.
The record shows, however, that Mr. Cruz was not even a member of any barrio council since 1972, so
that he could possibly have been a member on January 17, 1973, of a municipal association
of presidents of barrio or ward citizens' assemblies, much less of a Provincial, City or National Association
or Federation of Presidents of any such provincial or city associations.
Secondly, at the conclusion of the hearing of these cases February 16, 1973, and in the resolution of this
Court of same date, the Solicitor General was asked to submit, together with his notes on his oral
argument, a true copy of aforementioned report of Mr. Cruz to the President and of "(p)roclamation,
decree, instruction, order, regulation or circular, if any, creating or directing or authorizing creation,
establishment or organization" of said municipal, provincial and national associations, but neither a copy
of alleged report to the President, nor a copy of any "(p)roclamation, decree, instruction, order, regulation
or circular," has been submitted to this Court. In the absence of said report, "(p)roclamation, decree,
instruction," etc., Proclamation No. 1102 is devoid of any factual and legalfoundation. Hence, the
conclusion set forth in the dispositive portion of said Proclamation No. 1102, to the effect that the
proposed new or revised Constitution had been ratified by majority of the votes cast by the people, can
not possibly have any legal effect or value.
The theory that said proclamation is "conclusive upon Court is clearly untenable. If it were, acts of the
Executive and those of Congress could not possibly be annulled or invalidated by courts of justice. Yet,
such is not the case. In fact, even a resolution of Congress declaring that a given person has been
elected President or Vice-President of the Philippines as provided in the 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
law permitting the filing of such protest and declaring what court or body would hear and decide the same.
So, too, a declaration to the effect that a given amendment to the Constitution or revised or new
Constitution has been ratified by a majority of the votes cast therefor, may be duly assailed in court
and be the object of judicial inquiry, in direct proceedings therefor such as the cases at bar and the
issue raised therein may and should be decided in accordance with the evidence presented.
The case of In re McConaughy 72 is squarely in point. "As the Constitution stood from the organization of
the state" of Minnessota "all taxes were required to be raised under the system known as the
'general property tax.' Dissatisfaction with the results of this method and the development of more
scientific and satisfactory methods of raising revenue induced the Legislature to submit to the people an
amendment to the Constitution which provided merely that taxes shall be uniform upon the same class of
subjects. This proposed amendment was submitted at the general election held in November, 1906, and
in due time it was certified by the state canvassing board and proclaimed by the Governor as having been
legally adopted. Acting upon the assumption that the amendment had become a part of the Constitution,
the Legislature enacted statutes providing for a State Tax Commission and a mortgage registry tax, and

the latter statute, upon the same theory, was held constitutional" by said Court. "The district court found
that the amendment had no in fact been adopted, and on this appeal" the Supreme Court was "required
to determine the correctness of that conclusion."
Referring to the effect of the certification of the State Board of Canvassers created by the Legislature and
of theproclamation made by the Governor based thereon, the Court held: "It will be noted that this board
does no more than tabulate the reports received from the various county board and add up and certify the
results. State v. Mason, 45 Wash. 234, 88 Pac. 126, 9 L.R.A. (U.S.) 1221. It is settled law that the
decisions of election officers, and canvassing boards are not conclusive and that the final decision must
rest with the courts, unless the law declares that the decisions of the board shall be final" and there is
no such law in the cases at bar. "... The correctness of the conclusion of the state board rests upon the
correctness of the returns made by the county boards and it is inconceivable that it was intended that this
statement of result should be final and conclusive regardless of the actual facts. The proclamation of the
Governor adds nothing in the way of conclusiveness to the legal effect of the action of the canvassing
board. Its purpose is to formally notify the people of the state of the result of the voting as found by the
canvassing board. James on Const. Conv. (4th Ed.) sec. 523."
In Bott v. Wartz, 73 the Court reviewed the statement of results of the election made by the canvassing
board, in order that the true results could be judicially determined. And so did the court in Rice v.
Palmer. 74
Inasmuch as Art. X of the 1935 Constitution places under the "exclusive" charge of the Commission on
Elections, "the enforcement and administration of all laws relative to the conduct of
elections," independently of the Executive, and there is not even a certification by the Commission in
support of the alleged results of the citizens' assemblies relied upon in Proclamation No. 1102 apart
from the fact that on January 17, 1973 neither the alleged president of the Federation of Provincial or City
Barangays nor the Department of Local Governments had certified to the President the alleged result of
the citizens' assemblies all over the Philippines it follows necessarily that, from a constitutional and
legal viewpoint, Proclamation No. 1102 is not even prima facie evidence of the alleged ratification of the
proposed Constitution.
Referring particularly to the cases before Us, it will be noted that, as pointed out in the discussion of the
preceding topic, the new or revised Constitution proposed by the 1971 Constitutional Convention
was not ratified in accordance with the provisions of the 1935 Constitution. In fact, it has not even been,
ratified in accordance with said proposed Constitution, the minimum age requirement therein for the
exercise of the right of suffrage beingeighteen (18) years, apart from the fact that Art. VI of the proposed
Constitution requires "secret" voting, which was not observed in many, if not most, Citizens' Assemblies.
Besides, both the 1935 Constitution and the proposed Constitution require a "majority of the votes cast" in
an election or plebiscite called for the ratification of an amendment or revision of the first Constitution or
the effectivity of the proposed Constitution, and the phrase "votes cast" has been construed to mean
"votes made in writing not orally, as it was in many Citizens' Assemblies. 75
Even counsel for Gil J. Puyat and Jose Roy, as respondents in L-36165, asserts openly that Art. XV of the
Constitution has not been complied with, and since the alleged substantial compliance with the
requirements thereof partakes of the nature of a defense set up by the other respondents in these cases,
the burden of proving such defense which, if true, should be within their peculiar knowledge is
clearly on such respondents. Accordingly, if despite the extensive notes and documents submitted by the
parties herein, the members of the Court do not know or are not prepared to say whether or not the
majority of the people or of those who took part in the Citizens' Assemblies have assented to the
proposed Constitution, the logical step would be to give due course to these cases, require the
respondents to file their answers, and the plaintiffs their reply, and, thereafter, to receive the pertinent
evidence and then proceed to the determination of the issues raised thereby. Otherwise, we would be
placing upon the petitioners the burden of disproving a defense set up by the respondents, who have not
so far established the truth of such defense.

Even more important, and decisive, than the foregoing is the circumstance that there is ample reason to
believe that many, if not most, of the people did not know that the Citizens' Assemblies were, at the time
they were held, plebiscites for the ratification or rejection of the proposed Constitution. Hence, in Our
decision in the plebiscite cases, We said, inter alia:
Meanwhile, or on December 17, 1972, the President had issued an order
temporarily suspending the effects of Proclamation No. 1081, for the purpose of
free and open debate on the Proposed Constitution. On December 23, the
President announced the postponement of the plebiscite for the ratification or
rejection of the Proposed Constitution. No formal action to this effect was taken
until January 7, 1973, when General Order No. 20 was issued, directing "that the
plebiscite scheduled to be held on January 15, 1973, be postponed until further
notice." Said General Order No. 20, moreover, "suspended in the meantime" the
"order of December 17, 1972, temporarily suspending the effects of Proclamation
No. 1081 for purposes of free and open debate on the proposed Constitution.
In view of these events relative to the postponement of the aforementioned
plebiscite, the Court deemed it fit to refrain, for the time being, from deciding the
aforementioned cases, for neither the date nor the conditions under which said
plebiscite would be held were known or announced officially. Then again,
Congress was, pursuant to the 1935 Constitution, scheduled to meet in regular
session on January 22, 1973, and since the main objection to Presidential
Decree No. 73 was that the President does not have the legislative authority to
call a plebiscite and appropriate funds therefor, which Congress unquestionably
could do, particularly in view of the formal postponement of the plebiscite by the
President reportedly after consultation with, among others, the leaders of
Congress and the Commission on Elections the Court deemed it more
imperative to defer its final action on these cases.
And, apparently, the parties in said cases entertained the same belief, for, on December 23, 1972 four
(4) days after the last hearing of said cases 76 the President announced the postponement of the
plebiscite scheduled by Presidential Decree No. 73 to be held on January 15, 1973, after consultation
with the Commission on Elections and the leaders of Congress, owing to doubts on the sufficiency of the
time available to translate the proposed Constitution into some local dialects and to comply with some
pre-electoral requirements, as well as to afford the people a reasonable opportunity to be posted on the
contents and implications of said transcendental document. On January 7, 1973, General Order No. 20
was issued formally, postponing said plebiscite "until further notice." How can said postponement be
reconciled with the theory that the proceedings in the Citizens' Assemblies scheduled to be held from
January 10 to January 15, 1973, were "plebiscites," in effect, accelerated, according to the theory of the
Solicitor General, for the ratification of the proposed Constitution? If said Assemblies were meant to be
the plebiscites or elections envisaged in Art. XV of the Constitution, what, then, was the
"plebiscite" postponed by General Order No. 20? Under these circumstances, it was only reasonable for
the people who attended such assemblies to believe that the same were not an "election" or plebiscite for
the ratification or adoption of said proposed Constitution.
And, this belief is further bolstered up by the questions propounded in the Citizens' Assemblies, namely:
[1] Do you like the New Society?
[2] Do you like the reforms under martial law?
[3] Do you like Congress again to hold sessions?
[4] Do you like the plebiscite to be held later?

[5] Do you like the way President Marcos is running the affairs of the
government? [Bulletin Today, January 10, 1973; emphasis an additional
question.]
[6] Do you approve of the citizens assemblies as the base of popular government
to decide issues of national interests?
[7] Do you approve of the new Constitution?
[8] Do you want a plebiscite to be called to ratify the new Constitution?
[9] Do you want the elections to be held in November, 1973 in accordance with
the provisions of the 1935 Constitution?
[10] If the elections would not be held, when do you want the next elections to be
called?
[11] Do you want martial law to continue? [Bulletin Today, January 11, 1973]
To begin with, questions nos. 1, 2, 3, 4, 5, 6, 9, 10 and 11 are not proper in a plebiscite for the ratification
of a proposed Constitution or of a proposed amendment thereto. Secondly, neither is the language of
question No. 7 "Do you approve the new Constitution?" One approves "of" the act of another which
does not need such approval for the effectivity of said act, which the first person, however, finds to be
good, wise satisfactory. The approval of the majority of the votes cast in plebiscite is,
however, essential for an amendment to the Constitution to be valid as part thereof. Thirdly, if the
proceedings in the Citizens' Assemblies constituted a plebiscite question No. 8 would have been
unnecessary and improper, regardless of whether question No. 7 were answered affirmatively or
negatively. If the majority of the answers to question No. 7 were in the affirmative, the proposed
Constitution would have become effective and no other plebiscite could be held thereafter in connection
therewith, even if the majority of the answers to question No. 8 were, also, in the affirmative. If the
majority of the answers to question No. 7 were in the negative, neither may another plebiscite be held,
even if the majority of the answers to question No. 8 were in the affirmative. In either case, not more
than one plebiscite could be held for the ratification or rejection of the proposed Constitution. In short, the
insertion of said two (2) questions apart from the other questions adverted to above indicates
strongly that the proceedings therein did not partake of the nature of a plebiscite or election for the
ratification or rejection of the proposed Constitution.
Indeed, I can not, in good conscience, declare that the proposed Constitution has been approved or
adopted by the people in the citizens' assemblies all over the Philippines, when it is, to my mind, a matter
of judicial knowledge that there have been no such citizens' assemblies in many parts of Manila and
suburbs, not to say, also, in other parts of the Philippines. In a letter of Governor Efren B. Pascual of
Bataan, dated January 15, 1973, to the Chief Executive, the former reported:
... 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 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 be discussed and asked in the Citizens' Assembly meetings. With this
latest order, we again had to make modifications in our instructions to all those managing and supervising
holding of the Citizens' Assembly meetings throughout province. ... As to our people, in general, their
enthusiastic participation showed their preference and readiness to accept the new method of
government to people consultation in shaping upgovernment policies."
This communication manifestly shows: 1) that, as late a January 11, 1973, the Bataan officials had still
to discuss not put into operation means and ways to carry out the changing instructions from the top
on how to organize the citizens' assemblies, what to do therein and even what questions or topics to
propound or touch in said assemblies; 2) that the assemblies would involve no more than consultations or
dialogues between people and government not decisions be made by the people; and 3) that said
consultations were aimed only at "shaping up government policies" and, hence could not, and did not,
partake of the nature of a plebiscite for the ratification or rejection of a proposed amendment of a new or
revised Constitution for the latter does not entail the formulation of a policy of the Government, but the
making of decision by the people on the new way of life, as a nation, they wish to have, once the
proposed Constitution shall have been ratified.
If this was the situation in Bataan one of the provinces nearest to Manila as late as January 11,
1973, one can easily imagine the predicament of the local officials and people in the remote barrios in
northern and southern Luzon, in the Bicol region, in the Visayan Islands and Mindanao. In fact, several
members of the Court, including those of their immediate families and their household, although duly
registered voters in the area of Greater Manila, were not even notified that citizens' assemblies would be
held in the places where their respective residences were located. In the Prohibition and Amendment
case, 77 attention was called to the "duty cast upon the court of taking judicial cognizance of anything
affecting the existence and validity of any law or portion of the
Constitution ... ." In line with its own pronouncement in another case, the Federal Supreme Court of the
United States stressed, in Baker v. Carr, 78 that "a court is not at liberty to shut its eyes to an obvious
mistake, when the validity of the law depends upon the truth of what is declared."
In the light of the foregoing, I cannot see how the question under consideration can be answered or
resolved otherwise than in the negative.
V

Have the people acquiesced in the proposed Constitution?


It is urged that the present Government of the Philippines is now and has been run, since January 17,
1971, under the Constitution drafted by the 1971 Constitutional Convention; that the political department
of the Government has recognized said revised Constitution; that our foreign relations are being
conducted under such new or revised Constitution; that the Legislative Department has recognized the
same; and that the people, in general, have, by their acts or omissions, indicated their conformity thereto.
As regards the so-called political organs of the Government, gather that respondents refer mainly to the
offices under the Executive Department. In a sense, the latter performs some functions which, from a
constitutional viewpoint, are politics in nature, such as in recognizing a new state or government, in
accepting diplomatic representatives accredited to our Government, and even in devising administrative
means and ways to better carry into effect. Acts of Congress which define the goals or objectives thereof,
but are either imprecise or silent on the particular measures to be resorted to in order to achieve the said
goals or delegate the power to do so, expressly or impliedly, to the Executive. This, notwithstanding, the
political organ of a government that purports to be republican is essentially the Congress or Legislative
Department. Whatever may be the functions allocated to the Executive Department specially under a
written, rigid Constitution with a republican system of Government like ours the role of that Department
is inherently, basically and fundamentally executive in nature to "take care that the laws be faithfully
executed," in the language of our 1935 Constitution. 79
Consequently, I am not prepared to concede that the acts the officers and offices of the Executive
Department, in line with Proclamation No. 1102, connote a recognition thereof o an acquiescence thereto.
Whether they recognized the proposed Constitution or acquiesce thereto or not is something that cannot
legally, much less necessarily or even normally, be deduced from 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 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
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, noneof 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 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 PlotAgainst 'Martial
Law Government' Disclosed". Then, in its issue of December 29, 1972, the same paper imputed to the
Executive an appeal "to diverse groups involved in a conspiracy to undermine" his powers" under martial

law to desist from provoking a constitutional crisis ... which may result in the exercise by me of authority I
have not exercised."
No matter how good the intention behind these statement may have been, the idea implied therein was
too clear an ominous for any member of Congress who thought of organizing, holding or taking part in a
session of Congress, not to get the impression that he could hardly do so without inviting or risking the
application of Martial Law to him. Under these conditions, I do not feel justified in holding that the failure of
the members of Congress to meet since January 22, 1973, was due to their recognition, acquiescence in
or conformity with the provisions of the aforementioned Constitution, or its alleged ratification.
For the same reasons, especially because of Proclamation No. 1081, placing the entire Philippines under
Martial Law, neither am I prepared to declare that the people's inaction as regards Proclamation No. 1102,
and their compliance with a number of Presidential orders, decrees and/or instructions some or many
of which have admittedly had salutary effects issued subsequently thereto amounts, constitutes or
attests to a ratification, adoption or approval of said Proclamation No. 1102. In the words of the Chief
Executive, "martial law connotespower of the gun, meant coercion by the military,
and compulsion and intimidation." 83 The failure to use the gun against those who comply with the orders
of the party wielding the weapon does not detract from the intimidation that Martial Law necessarily
connotes. It may reflect the good, reasonable and wholesome attitude of the person who has the gun,
either pointed at others, without pulling the trigger, or merely kept in its holster, but not without warning
that he may or would use it if he deemed it necessary. Still, the intimidation is there, and inaction or
obedience of the people, under these conditions, is not necessarily an act of conformity or acquiescence.
This is specially so when we consider that the masses are, by and large, unfamiliar with the parliamentary
system, the new form of government introduced in the proposed Constitution, with the particularity that it
is not even identical to that existing in England and other parts of the world, and that even experienced
lawyers and social scientists find it difficult to grasp the full implications of some provisions incorporated
therein.
As regards the applicability to these cases of the "enrolled bill" rule, it is well to remember that the same
refers to a document certified to the President for his action under the Constitution by the Senate
President and the Speaker of the House of Representatives, and attested to by the Secretary of the
Senate and the Secretary of the House of Representatives, concerning legislative measures approved by
the two Houses of Congress. The argument of the Solicitor General is, roughly, this: If the enrolled bill is
entitled to full faith and credence and, to this extent, it is conclusive upon the President and the judicial
branch of the Government, why should Proclamation No. 1102 merit less consideration than in enrolled
bill?
Before answering this question, I would like to ask the following: If, instead of being certified by the
aforementioned officers of Congress, the so-called enrolled bill were certified by, say, the President of the
Association of Sugar Planters and/or Millers of the Philippines, and the measure in question were a
proposed legislation concerning Sugar Plantations and Mills sponsored by said Association, which even
prepared the draft of said legislation, as well as lobbied actually for its approval, for which reason the
officers of the Association, particularly, its aforementioned president whose honesty and integrity are
unquestionable were present at the deliberations in Congress when the same approved the proposed
legislation, would the enrolled bill rule apply thereto? Surely, the answer would have to be in the negative.
Why? Simply, because said Association President has absolutely no official authority to perform in
connection therewith, and, hence, his certification is legally, as good as non-existent.
Similarly, a certification, if any, of the Secretary of the Department of Local Governments and Community
Development about the tabulated results of the voting in the Citizens Assemblies allegedly held all
over the Philippines and the records do not show that any such certification, to the President of the
Philippines or to the President Federation or National Association of presidents of Provincial Associations
of presidents of municipal association presidents of barrio or ward assemblies of citizens would not,
legally and constitutionally, be worth the paper on which it is written. Why? Because said Department
Secretary is not the officer designated by law to superintend plebiscites or elections held for the

ratification or rejection of a proposed amendment or revision of the Constitution and, hence, to tabulate
the results thereof. Worse still, it is the department which, according to Article X of the Constitution,
should not and must not be all participate in said plebiscite if plebiscite there was.
After citing approvingly its ruling in United States v. Sandoval, 84 the Highest Court of the United States
that courts "will not stand impotent before an obvious instance of a manifestly unauthorized exercise of
power." 85
I cannot honestly say, therefore, that the people impliedly or expressly indicated their conformity to the
proposed Constitution.
VI
Are the Parties entitled to any relief?
Before attempting to answer this question, a few words be said about the procedure followed in these five
(5) cases. In this connection, it should be noted that the Court has not decided whether or not to give due
course to the petitions herein or to require the respondents to answer thereto. Instead, it has required the
respondents to comment on the respective petitions with three (3) members of the voting to dismiss
them outright and then considers comments thus submitted by the respondents as motions to dismiss,
as well as set the same for hearing. This was due to the transcendental nature of the main issue raised,
the necessity of deciding the same with utmost dispatch, and the main defense set up by respondents
herein, namely, the alleged political nature of said issue, placing the same, according to respondents,
beyond the ambit of judicial inquiry and determination. If this defense was sustained, the cases could
readily be dismissed; but, owing to the importance of the questions involved, a reasoned resolution was
demanded by public interest. At the same time, respondents had cautioned against a judicial inquiry into
the merits of the issues posed on account of the magnitude of the evil consequences, it was claimed,
which would result from a decision thereon, if adverse to the Government.
As a matter of fact, some of those issues had been raised in the plebiscite cases, which were dismissed
as moot and academic, owing to the issuance of Proclamation No. 1102 subsequently to the filing of said
cases, although before the rendition of judgment therein. Still one of the members of the Court (Justice
Zaldivar) was of the opinion that the aforementioned issues should be settled in said cases, and he,
accordingly, filed an opinion passing upon the merits thereof. On the other hand, three (3) members of the
Court Justices Barredo, Antonio and Esguerra filed separate opinions favorable to the respondents
in the plebiscite cases, Justice Barredo holding "that the 1935 Constitution has pro tanto passed into
history and has been legitimately supplanted by the Constitution in force by virtue of Proclamation
1102." 86 When the petitions at bar were filed, the same three (3) members of the Court, consequently,
voted for the dismissal of said petitions. The majority of the members of the Court did not share, however,
either view, believing that the main question that arose before the rendition of said judgment had not been
sufficiently discussed and argued as the nature and importance thereof demanded.
The parties in the cases at bar were accordingly given every possible opportunity to do so and to
elucidate on and discuss said question. Thus, apart from hearing the parties in oral argument for five (5)
consecutive days morning and afternoon, or a total of exactly 26 hours and 31 minutes the
respective counsel filed extensive notes on their or arguments, as well as on such additional arguments
as they wished to submit, and reply notes or memoranda, in addition to rejoinders thereto, aside from a
sizeable number of document in support of their respective contentions, or as required by the Court. The
arguments, oral and written, submitted have been so extensive and exhaustive, and the documents filed
in support thereof so numerous and bulky, that, for all intents and purposes, the situation is as if
disregarding forms the petitions had been given due course and the cases had been submitted for
decision.

Accordingly, the majority of the members of the Court believe that they should express their views on the
aforementioned issues as if the same were being decided on the merits, and they have done so in their
individual opinion attached hereto. Hence, the resume of the votes cast and the tenor of the resolution, in
the last pages hereof, despite the fact that technically the Court has not, as yet, formally given due course
to the petitions herein.
And, now, here are my views on the reliefs sought by the parties.
In L-36165, it is clear that we should not issue the writ of mandamus prayed for against Gil J. Puyat and
Jose Roy, President and President Pro Tempore respectively of the Senate, it being settled in our
jurisdiction, based upon the theory of separation of powers, that the judiciary will not issue such writ to the
head of a co-equal department, like the aforementioned officers of the Senate.
In all other respects and with regard to the other respondent in said case, as well as in cases L-36142, L36164, L-36236 and L-36283, my vote is that the petitions therein should be given due course, there
being more thanprima facie showing that the proposed Constitution has not been ratified in accordance
with Article XV of the 1935 Constitution, either strictly, substantially, or has been acquiesced in by the
people or majority thereof; that said proposed Constitution is not in force and effect; and that the 1935
Constitution is still the Fundamental Law of the Land, without prejudice to the submission of said
proposed Constitution to the people at a plebiscite for its ratification or rejection in accordance with
Articles V, X and XV of the 1935 Constitution and the provisions of the Revised Election Code in force at
the time of such plebiscite.
Perhaps others would feel that my position in these cases overlooks what they might consider to be the
demands of "judicial statesmanship," whatever may be the meaning of such phrase. I am aware of this
possibility, if not probability; but "judicial statesmanship," though consistent with Rule of Law, cannot
prevail over the latter. Among consistent ends or consistent values, there always is a hierarchy, a rule of
priority.
We must realize that the New Society has many achievements which would have been very difficult, if not
impossible, to accomplish under the old dispensation. But, in and for the judiciary, statesmanship should
not prevail over the Rule of Law. Indeed, the primacy of the law or of the Rule of Law and faithful
adherence thereto are basic, fundamental and essential parts of statesmanship itself.
Resume of the Votes Cast and the Court's Resolution
As earlier stated, after the submittal by the members of the Court of their individual opinions and/or
concurrences as appended hereto, the writer will now make, with the concurrence of his colleagues, a
resume or summary of the votes cast by each of them.
It should be stated that by virtue of the various approaches and views expressed during the deliberations,
it was agreed to synthesize the basic issues at bar in broad general terms in five questions for purposes
of taking the votes. It was further agreed of course that each member of the Court would expound in his
individual opinion and/or concurrence his own approach to the stated issues and deal with them and state
(or not) his opinion thereon singly or jointly and with such priority, qualifications and modifications as he
may deem proper, as well as discuss thereon other related issues which he may consider vital and
relevant to the cases at bar.
The five questions thus agreed upon as reflecting the basic issues herein involved are the following:
1. Is the issue of the validity of Proclamation No. 1102 a justiciable, or political and therefore nonjusticiable, question?

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

Philippines, of their acceptance or repudiation of the proposed Constitution under Martial Law. Justice
Fernando states that "(I)f it is conceded that the doctrine stated in some American decisions to the effect
that independently of the validity of the ratification, a new Constitution once accepted acquiesced in by
the people must be accorded recognition by the Court, I am not at this stage prepared to state that such
doctrine calls for application in view of the shortness of time that has elapsed and the difficulty of
ascertaining what is the mind of the people in the absence of the freedom of debate that is a concomitant
feature of martial law." 88
Three (3) members of the Court express their lack of knowledge and/or competence to rule on the
question. Justices Makalintal and Castro are joined by Justice Teehankee in their statement that "Under a
regime of martial law, with the free expression of opinions through the usual media vehicle restricted,
(they) have no means of knowing, to the point of judicial certainty, whether the people have accepted the
Constitution." 89
4. On the fourth question of relief, six (6) members of the Court, namely, Justices Makalintal, Castro,
Barredo, Makasiar, Antonio and Esguerra voted to DISMISS the petition. Justice Makalintal and Castro so
voted on the strength of their view that "(T)he effectivity of the said Constitution, in the final analysis, is the
basic and ultimate question posed by these cases to resolve which considerations other than judicial, an
therefore beyond the competence of this Court, 90 are relevant and unavoidable." 91
Four (4) members of the Court, namely, Justices Zaldivar, Fernando, Teehankee and myself voted to
deny respondents' motion to dismiss and to give due course to the petitions.
5. On the fifth question of whether the new Constitution of 1973 is in force:
Four (4) members of the Court, namely, Justices Barredo, Makasiar, Antonio and
Esguerra hold that it is in force by virtue of the people's acceptance thereof;
Four (4) members of the Court, namely, Justices Makalintal, Castro, Fernando
and Teehankee cast no vote thereon on the premise stated in their votes on the
third question that they could not state with judicial certainty whether the people
have accepted or not accepted the Constitution; and
Two (2) members of the Court, namely, Justice Zaldivar and myself voted that the
Constitution proposed by the 1971 Constitutional Convention is not in force;
with the result that there are not enough votes to declare that the new Constitution is not in force.
ACCORDINGLY, by virtue of the majority of six (6) votes of Justices Makalintal, Castro, Barredo,
Makasiar, Antonio and Esguerra with the four (4) dissenting votes of the Chief Justice and Justices
Zaldivar, Fernando and Teehankee, all the aforementioned cases are hereby dismissed. This being the
vote of the majority, there is no further judicial obstacle to the new Constitution being considered in force
and effect.
It is so ordered.
Makalintal, Castro, Barredo, Makasiar, Antonio and Esguerra, JJ., concur.
ANNEX A
PERTINENT PORTIONS
OF THE

MINNESSOTA SUPREME COURT


DECISION
ON THE CASE
IN RE McCONAUGHY
"(a) An examination of the decisions shows that the courts have almost uniformly exercised the authority
to determine the validity of the proposal, submission, or ratification of constitutional amendments. It has
beenjudicially determined whether a proposed amendment received the constitutional majority of
votes (Dayton v. St. Paul, 22 Minn. 400; Rice v. Palmer, 78 Ark. 432, 96 S.W. 396; Bott v. Wurtz, 63 N.J.
Law, 289, 43 Atl. 744, 881, 45 L.R.A. 251; State v. Foraker, 46 Ohio St. 677, 23 N.E. 49l; 6 L.R.A. 422;
Tecumseh National Bank V. Saunders, 51 Neb. 801, 71 N.W. 779; Green v. State Board, 5 Idaho, 130, 47
Pac. 259, 95 Am. St. Rep. 169; In re Denny, 156 Ind. 104, 59 N.E. 359, 51 L.R.A. 722; Knight v. Shelton
[C.C.] 134 Fed. 423); whether a proposed amendment is a single amendment, within the constitutional
requirement that every amendment must be separately submitted (State v. Powell, 77 Miss. 543, 27
South. 927; Gabbert v. Chicago, etc., R. Co., 171 Mo. 84, 70 S.W. 891; State v. Timme, 54 Wis. 318, 11
N.W. 785; In re Denny, 156 Ind. 104, 59 N.E. 359, 51 L.R.A. 722; Lobaugh v. Cook, 127 Iowa, 181, 102
N.W. 1121; People v. Sours, 31 Colo. 369, 74 Pac. 167, 102 Am. St. Rep. 34; State v. Board, 34 Mont.
426, 87 Pac. 450; State v. Winnett [Neb.] 110 N.W. 1113, 10 L.R.A. [N.S.] 149); whether the failure to
enter the resolution of submission upon the legislative journals invalidates the amendment (Koehler v. Hill,
60 Iowa, 543,14 N.W. 738,15 N.W. 609; Oakland Paving Co. v. Hilton, 69 Cal. 479, 11 Pac. 3; West v.
State, 50 Fla. 154, 39 South. 412; Durfee v. Harper, 22 Mont. 354, 56 Pac. 56; State v. Tufly, 19 Nev. 391,
12 Pac. 835, 3 Am. St. Rep. 895); whether the description of the amendment and the form of the ballot
are sufficient (Russell v. Croy, 164 M 69, 63 S.W. 849; State v. Winnett [ Neb.] 110 N.W. 1113, L.R.A.
[N.S.] 149; Murphy Chair Co. v. Attorney General [Mich.] 112 N.W. 127); whether the method of
submission sufficient (Lovett v. Ferguson,, 10 S.D. 44, 71 N.W. 765; Russell v. Croy, 164 Mo. 69, 63 S.W.
849); whether the publication of the amendment or of a notice relative to it is sufficient (Com. v. Griest,
196 Pa. 396, 46 Atl. 505, 50 L.R.A. 568; Russell v. Croy, 164 Mo. 69, 63 S.W. 849); whether the
submission may be well by resolution as by a legislative act approved by the executive (Com. v. Griest,
196 Pa. 396, 46 Atl. 505, 50 L.R. 568; Warfield vi Vandiver, 101 Md. 78, 60 Atl. 538; Edward Lesueur, 132
Mo. 410, 33 S.W. 1130, 31 L.R.A. 815; Hays v. Hays, 5 Idaho, 154, 47 Pac. 732; State v. Dahl, 6 N.D. 81,
6 N.W. 418, 34 L.R.A. 97); at what election the amendment be submitted (People v. Curry, 130 Cal. 82,
62 Pac. 516).
In Rich v. Board of Canvassers, 100 Mich. 458, 59 N.W. 183, the court said: "It is contended that the
determination of the question whether an amendment to the Constitution has been carried involves the
exercise of political, and not judicial, power. If this be so, it follows that the promulgation of any purported
amendment by the executive or any executive department is final, and that the action cannot be
questioned by the judiciary; but, with reference to the conditions precedent to submitting a proposed
amendment to a vote of the people, it has been repeatedly held, by courts of the highest respectability,
that it is within the power of the judiciary to inquire into the question, even in a collateral proceeding. ... It
is to be noted that under section 1 of article 20 of the Constitution of the state no amendment can become
a part of the Constitution until ratified by a vote of the people. One prerequisite is equally as essential as
the other. The amendment must first receive the requisite majority in the Legislature, and afterwards be
adopted by the requisite vote. ... It is the fact of a majority vote which makes the amendment a part of the
Constitution."
"In considering the cases it is necessary to note whether in the particular case the court was called upon
to determine between rival governments, or whether the Legislature, or some board or official, had legally
performed the duty imposed by the Constitution or statutes. In re State v. McBride, 4 Mo. 303, 29 Am.
Dec. 636, it was held that the General Assembly, under the power granted by the Constitution, could
change the Constitutiononly in the manner prescribed by it, and that it was the duty of the court to
determine whether all prerequisites had been complied with. In Collier v. Frierson, 24 Ala. 100, it was held

that a Constitution can be changes only by the people in convention or in a mode described by the
Constitution itself, and that if the latter mode is adoptedevery 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 candispense with
them. To do so would be to violate the instrument which they are sworn to support; and every principle of
public law and sound constitutional policy requires the court to pronounce against every amendment
which is shown not to have been made in accordance with the rules prescribed by the fundamental law.'
"In State v. Swift, 69 Ind. 505, it was said that: 'The people of a state may form an original Constitution, or
abrogate an old one and form a new one, at any time, without any political restriction, except the
Constitution of the United States, but if they undertake to add an amendment, by the authority of
legislation to a Constitution already in existence, they can do it only by the method pointed out by the
Constitution to which the amendment is added. The power to amend a Constitution by legislative action
does not confer the power to break it, any more than it confers the power to legislate on any other subject
contrary to its prohibitions.' So, in State v. Timme, 54 Wis. 318, 11 N.W. 785, it was held
that no amendments can be made to the Constitution of the state without a compliance with the
provisions thereof, both in the passage of such amendment by the Legislature and the manner of
submitting it to the people. The courts have not all agreed as to the strictness of compliance which should
be required.
"In the Prohibition and Amendment Case, 24 Kan. 700, the court determined judicially whether an
amendment to the Constitution had been legally adopted. After approving the statement quoted
from Collier v. Frierson, supra, that 'we entertain no doubt that, to change the Constitution in an other
mode than by a convention, every requisite which is demanded by the instrument itself must be observed,
and the omission of any one is fatal to the amendment,' the court held that, 'as substance of right is
grander and more potent than methods of form,' there had been substantial compliance with the
constitutional requirement that a proposed amendment to the Constitution must be entered at length on
the legislative journal. It appears that the joint resolution making submission simply provided that a
proposition should be submitted to the electors at the general election of 1880. It did not declare that the
machinery of the general election law should control, or that any particular officers or board would
receive, count, or canvass the votes cast. But the existing election machinery was adequate, and the
votes were received, counted, and canvassed, and the result declared as fully as though it had been in
terms so ordered. These methods had been followed in the adoption of previous amendments, and was
held that, conceding the irregularity of the proceedings the Legislature and the doubtful scope of the
provisions for the election, yet in view of the very uncertainty of such provision the past legislative
history of similar propositions, theuniversal prior acquiescence in the same forms of procedure and the
popular and unchallenged acceptance of the legal pendency before the people of the question of the
amendment for decision, and in view of the duty cast upon the court taking judicial knowledge of anything
affecting the existence and validity of any law or portion of the Constitution, it must be adjudged that the
proposed amendment became part of the Constitution. The effect was to hold that a provision of the
Constitution requiring the proposed amendment to be entered in full on the journals was directory, and not
mandatory. This liberal view was approved in State v. Winnett (Neb.) 110 N. 1113, 10 L.R.A. (N.S.) 149,
and People v. Sours, 31 Colo. 369, Pac. 167, 102 Am. St. Rep. 34. But it has not been universally
accepted.
"In Oakland Paving Co. v. Hilton, 69 Cal. 479, 11 Pac. 3, the court, in commenting upon the Kansas case
said: 'The reasoning by which the learned court reached the conclusion it did is not based on any
sound legal principles, but contrary to them. Neither the argument nor the conclusion can command our
assent or approval. The argument is illogical, and based on premises which are without any sound
foundation, and rests merely on assumption.' See, also, the well-considered case of Kadderly v. Portland,
44 Or. 118, 74 Pac. 710, 75 Pac. 222.All these cases concede the jurisdiction of the court to determine
whether, in submitting a proposed amendment to the people, the Legislature legally observed the
constitutional provisions as to the manner of procedure. InLivermore v. Waite, 102 Cal. 113, 36 Pac. 424,
25 L.R.A. 312, the court, at the instance of a citizen and a taxpayer, restrained the Secretary of State from

taking steps to submit to the people a proposed amendment to the Constitution agreed to by the
Legislature on the ground that the Legislature had not acted in conformity with the Constitution and that
the proposed amendment was of such a character that it could not properly become a part of the
Constitution. The Supreme Court of Colorado, in People v. Sours, supra, refused to exercise this
authority.
"The entire question received elaborate consideration in Koehler v. Hill, 60 Iowa, 543, 14 N.W. 738, 15
N.W. 609. The amendment, which concededly had been adopted by the people, had not, before its
submission, been entered in full upon the legislative journals, as required by the Constitution, and it was
held that this was amaterial variance in both form and substance from the constitutional requirements,
and that the amendment didnot, therefore, become a part of the Constitution. As to the claim that the
question was political, and not judicial, it was said that, while it is not competent for courts to inquire into
the validity of the Constitution and the form of government under which they themselves exist, and from
which they derive their powers, yet, where the existing Constitution prescribes a method for its own
amendment, an amendment thereto, to be valid, must be adopted in strict conformity to that method; and
it is the duty of the courts in a proper case, when an amendment does not relate to their own power or
functions, to inquire whether, in the adoption of the amendment, the provisions of the existing Constitution
have been observed, and, if not, to declare the amendment invalid and of no force. This case was
followed in State v. Brookhart, 113 Iowa, 250, 84 N.W. 1064.
"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 17amendments adopted by the first Legislature, it
would have adopted the 17, or any of them, if they had been voted upon the second in the form adopted
by the first body. The substance of the contention was that there had not been a concurrence of
the two Legislatures on the same amendments, according to the letter and spirit of the Constitution. The
court held that the power of the Legislature in submitting amendments could not be distinguished from the
powers of convention, and that, as the people had spoken and ratified the amendments, they became a
part of the Constitution.
"In Westinghausen v. People, 44 Mich. 265, 6 N.W. 641, it was held that prior to 1876 a proposed
amendment to Constitution could not be submitted to the people at any other than a general election; but,
as the amendment under consideration had been submitted after the Constitution been changed, it had
been legally submitted and adopted.
"In State v. Powell, 77 Miss. 543, 27 South. 927, the question whether an amendment to the Constitution
had been legally submitted and adopted by the people was held to be judicial, and not political, in its
nature. The amendment under consideration changed the Constitution by providing for an elective,
instead of an appointive, judiciary. It was contented that the amendments had been improperly submitted
and adopted by a majority of the qualified voters voting at election, as required by the Constitution. The
law did 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, insertedinto the Constitution of the state
of Mississippi as a part of the Constitution.' In fact, the amendment was notsubmitted in the
manner prescribed by the Constitution, and it did not receive a majority of all the qualified voters voting at
the election. It was argued that the rules prescribed by the Constitution "are all for the guidance of the
Legislature, and from the very nature of the thing the Legislature must be the exclusive judge of all
questions to be measured or determined by these rules. Whether the question be political, and certainly a
legislative one, or judicial, to be determined by the courts, this section of rules, not only of procedure, but

of final judgment as well, confides to the separate magistracy of the legislative department full power to
hear, consider, and adjudge that question. The Legislature puts the question to the qualified electors.
The qualified electors answer back to the Legislature. "If it shall appear" to the Legislature that its
question has been answered in the affirmative, the amendment is inserted and made a part of the
Constitution. The Governor and the courts have no authority to speak at any stage of the proceedings
between the sovereign and the Legislature, and when the matter is thus concluded it is closed, and the
judiciary is as powerless to interfere as the executive.' But it was held that the question whether the
proposition submitted to the voters constituted one, or more than one, amendment, whether the
submission was according to the requirements of the Constitution, and whether the proposition was in
fact adopted, were all judicial, and not political, questions. 'We do not,' said Chief Justice Whitfield, 'seek
a jurisdiction not imposed upon us by the Constitution. We could not, if we would, escape the exercise of
that jurisdiction which the Constitution has imposed upon us. In the particular instance in which we are
now acting, our duty to know what the Constitution of the state is, and in accordance with our oaths to
support and maintain it in its integrity, imposed on us a most difficult and embarrassing duty, one which
we have not sought, but one which, like all others, must be discharged."
"In Bott v. Wurtz, 63 N.J. Law, 289, 43 Atl. 744, 881, 45 L.R.A. 251, it was held that it was the duty of the
judicial department of the government to determine whether the legislative department or its officers had
observed the constitutional injunctions in attempting to amend the Constitution, and to annul their acts if
they had not done so. The case is an interesting and well-considered one. The Constitution provided the
manner in which proposed amendments should be submitted to the people, but did not provide a method
for canvassing the votes. The Legislature having agreed to certain proposed amendments, passed an act
for submitting the same to the people. This statute provided for the transmission to the Secretary of State
of certificate showing the result of the voting throughout the state, and made it the duty of the Governor at
the designated time summon four or more Senators, who, with the Governor, should constitute a board of
state canvassers to canvass and estimate the votes for and against each amendment. This board was to
determine and declare which of the proposed amendments had been adopted and to deliver a statement
of the results to the Secretary of State, and "any proposed amendment, which by said certificate and
determination of the board of canvassers shall appear to have received in its favor the majority of all the
votes cast in the state for and against said proposed amendment, shall from the time of filing such
certificate be and become an amendment to and a part of the Constitution of the state; and it shall be the
duty of the Governor of the state forthwith, after such a determination, to issue a proclamation declaring
which of the said proposed amendments have been adopted by the people." This board was required to
file a statement of the result of the election, and the Governor to issue his proclamation declaring that the
amendment had been adopted and become a part of the Constitution. At the instance of a taxpayer the
Supreme Court allowed a writ of certiorari to remove into the court for review the statement of the results
of the election made by the canvassing board, in order that it might be judicially determined whether on
the facts shown in that statement the board had legally determined that the proposed amendment had
been adopted. The Supreme Court decided that the concurrence of the board of state canvassers and the
executive department of the government in their respective official functions placed the subjectmatter 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 anyprevailing 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
MALACAANG
MANILA
BY THE PRESIDENT OF THE PHILIPPINES
PRESIDENTIAL DECREE NO. 86-B
Defining Further the Role of Barangays (Citizens Assemblies)
WHEREAS, since their creation pursuant to Presidential Decree No. 86 dated December 31, 1972, the
Barangays (Citizens Assemblies) have petitioned the Office of the President to submit to them for
resolution important national issues;
WHEREAS, one of the questions persistently mention refers to the ratification of the Constitution
proposed by the 1971 Constitutional Convention;
WHEREAS, on the basis of the said petitions, it is evident that the people believe that the submission of
the proposed Constitution to the Citizens Assemblies or Barangays should taken as a plebiscite in itself in
view of the fact that freedom of debate has always been limited to the leadership in political, economic
and social fields, and that it is now necessary to bring this down to the level of the people themselves
through the Barangays or Citizens Assemblies;
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the powers in
me vested by the Constitution, do hereby order that important national issues shall from time to time be
referred to the Barangays (Citizens Assemblies) for resolution in accordance with Presidential Decree No.
86-A dated January 5, 1973 an that the initial referendum shall include the matter of ratification of the
Constitution proposed by the 1971 Constitutional Convention.
The Secretary of the Department of Local Government and Community Development shall insure the
implementation of this Order.
Done in the City of Manila, this 7th day of January in the year of Our Lord, nineteen hundred and seventythree.
(SGD.)
FERDINAND E.
MARCOS
By the President:

(SGD.) ALEJANDRO MELCHOR


Executive Secretary

Separate Opinions

MAKALINTAL, J., concurring:


CASTRO, J., concurring:
The preliminary question before this Court was whether or not the petitioners had made out a
sufficient prima facie case in their petitions to justify their being given due course. Considering on the one
hand the urgency of the matter and on the other hand its transcendental importance, which suggested the
need for hearing the side of the respondents before that preliminary question was resolved, We required
them to submit their comments on the petitions. After the comments were filed We considered them as
motions to dismiss so that they could be orally argued. As it turned out, the hearing lasted five days,
morning and afternoon, and could not have been more exhaustive if the petitions had been given due
course from the beginning.
The major thrust of the petitions is that the act of the Citizens Assemblies as certified and proclaimed by
the President on January 17, 1973 (Proclamation No. 1102) was not an act of ratification, let alone a valid
one, of the proposed Constitution, because it was not in accordance with the existing Constitution (of
1935) and the Election Code of 1971. Other grounds are relied upon by the petitioners in support of their
basic proposition, but to our mind they are merely subordinate and peripheral.
Article XV, Section 1, of the 1935 Constitution provides that amendments (proposed either by Congress in
joint session or by a Convention called by it for the purpose) "shall be valid part of this Constitution when
approved by a majority of votes cast at an election at which the amendments submitted to the people for
their ratification." At the time Constitution was approved by the Constitutional Convention on February 8,
1935, and ratified in a plebiscite held on following May 14, the word "election" had already a definite
meaning in our law and jurisprudence. It was not a vague and amorphous concept, but a procedure
prescribed by statute ascertaining the people's choices among candidates for public offices, or their will
on important matters submitted to the pursuant to law, for approval. It was in this sense that word was
used by the framers in Article XV (also in Articles VI and VII), and in accordance with such procedure that
plebiscites were held to ratify the very same Constitution in 1935 as well as the subsequent amendments
thereto, thus: in 1939 (Ordinance appended to the Constitution); 1940 (establishment of a bicameral
legislature; eligibility of the President and the Vice President for re election; creation of the Commission of
Elections); 1947 (Parity Amendment); and 1967 (increase in membership of the House of Representatives
and eligibility of members of Congress to run for the Constitutional Convention without forfeiture of their
offices).
The Election Code of 1971, in its Section 2, states that "all elections of public officers except barrio
officials andplebiscites shall be conducted in the manner provided by this Code." This is a statutory
requirement designed, as were the other election laws previously in force, to carry out the constitutional
mandate relative to the exercise of the right suffrage, and with specific reference to the term "plebiscites,"
the provision of Article XV regarding ratification of constitutional amendments.

The manner of conducting elections and plebiscites provided by the Code is spelled out in other sections
thereof. Section 99 requires that qualified voters be registered in a permanent list, the qualifications being
those set forth in Article V, Section 1, of the 1935 Constitution on the basis of age (21), literacy and
residence. These qualifications are reiterated in Section 101 of the Election Code. Section 102
enumerates the classes of persons disqualified to vote. Succeeding sections prescribe the election
paraphernalia to be used, the procedure for registering voters, the records, of registration and the custody
thereof, the description and printing of official ballots, the actual casting of votes and their subsequent
counting by the boards of inspectors, the rules for appreciation of ballots, and then the canvass and
proclamation of the results.
With specific reference to the ratification of the 1972 draft Constitution, several additional circumstances
should be considered:
(1) This draft was prepared and approved by a Convention which had been convened pursuant to
Resolution No. 2 passed by Congress on March 16, 1967, which provides:
Sec. 7. The amendments proposed by the Convention shall be valid and
considered part of the Constitution when approved by a majority of the votes cast
in an election at which they are submitted to the people for their ratification
pursuant to Article XV of the Constitution.
(2) Article XVII, Section 16, of the draft itself states:
Sec. 16. This Constitution shall take effect immediately upon its ratification by a
majority of the votes cast in a plebiscite called for the purpose and, except as
herein provided, shall supersede the Constitution of nineteen hundred and thirtyfive 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 a plebiscite for the ratification of the proposed New Constitution on such appropriate date
as he shall determine and providing for the necessary funds therefor." Pursuant to said Resolution the
President issued Decree No. 73 on the same day, calling a plebiscite to be held on January 15, 1973, at
which the proposed Constitution "shall be submitted to the people for ratification or rejection." The Decree
had eighteen (18) sections in all, prescribing in detail the different steps to be taken to carry out the
process of ratification, such as: (a) publication of the proposed Constitution in English and Pilipino; (b)
freedom of information and discussion; (c) registration of voters: (d) appointment of boards of election
inspectors and designation of watchers in each precinct; (e) printing of official ballots; (f) manner of voting
to insure freedom and secrecy thereof; (g) canvass of plebiscite returns; and (h) in general, compliance
with the provisions of the Election Code of 1971, with the Commission on Elections exercising its
constitutional and statutory powers of supervision of the entire process.
There can hardly be any doubt that in 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.
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.
The next day, January 11, it was reported that six additional questions would be submitted, namely:
(1) Do you approve of the citizens assemblies as the base of popular government
to decide issues of national interest?
(2) Do you approve of the new Constitution?
(3) Do you want a plebiscite to be called to ratify the new Constitution?
(4) Do you want the elections to be held in November, 1973 accordance with the
provisions of the 1935 Constitution?

(5) If the elections would not be held, when do you want the next elections to be
called?
(6) Do you want martial law to continue? [Bulletin Today, January 11, 1973;
emphasis supplied].
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
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
If the Citizens Assemblies approve of the New Constitution, then
the new Constitution should be deemed ratified.
The vote of the Citizens Assemblies should already be
considered the plebiscite on the New Constitution.
QUESTION No. 4
We are sick and tired of too frequent elections. We are fed up
with politics, of so many debates and so much expenses.
QUESTION No. 5
Probably a period of at least seven (7) years moratorium on
elections will be enough for stability to be established in the
country, for reforms to take root and normalcy to return.
QUESTION No. 6
We want President Marcos to continue with Martial Law. We
want him to exercise his powers with more authority. We want
him to be strong and firm so that he can accomplish all his
reform program and establish normalcy in the country. If all other
measures fail, we want President Marcos to declare a
revolutionary government along the lines of the new Constitution
without the ad interim Assembly.

So it was that on January 11, 1973, the second day of the purported referendum, the suggestion was
broached, for the first time, that the plebiscite should be done away with and a favorable vote by the
Assemblies deemed equivalent ratification. This was done, not in the questionnaire itself, but in the
suggested answer to question No. 3. Strangely, however, it was not similarly suggested that an
unfavorable vote be considered as rejection.
There should be no serious dispute as to the fact that the manner in which the voting was conducted in
the Citizen Assemblies, assuming that such voting was held, was not within the intendment of Article XV,
Section 1, of the 1935 Constitution nor in accordance with the Election Code of 1971. The referendum
can by no means be considered as the plebiscite contemplated in Section 2 of said Code and in Article
XVII, Section 16, of the draft Constitution itself, or as the election intended by Congress when it passed
Resolution No. 2 on March 16, 1967 calling a Convention for the revision of the 1935 Constitution. The
Citizens Assemblies were not limited to qualified, let alone registered voters, but included all citizens from
the age of fifteen, and regardless of whether or not they were illiterates, feeble-minded, or ex convicts *
these being the classes of persons expressly disqualified from voting by Section 102 of the Election
Code. In short, the constitutional and statutory qualifications were not considered in the determination of
who should participate. No official ballots were used in the voting; it was done mostly by acclamation or
open show of hands. Secrecy, which is one of the essential features of the election process, was not
therefore observed. No set of rules for counting the votes or of tabulating them and reporting the figures
was prescribed or followed. The Commission on Elections, which is the constitutional body charged with
the enforcement and administration of all laws relative to the conduct of elections, took no part at all,
either by way of supervision or in the assessment of the results.
It has been suggested that since according to Proclamation No. 1102 the overwhelming majority of all the
members of the Citizens Assemblies had voted for the adoption of the proposed Constitution there was a
substantial compliance with Article XV, Section 1, of the 1935 Constitution and with the Election Code of
1971. The suggestion misses the point entirely. It is of the essence of a valid exercise of the right of
suffrage that not only must a majority or plurality of the voters carry the day but that the same must be
duly ascertained in accordance with the procedure prescribed by law. In other words the very existence of
such majority or plurality depends upon the manner of its ascertainment, and to conclude that it exists
even if it has not been ascertained according to law is simply to beg the issue, or to assume the very fact
to be established. Otherwise no election or plebiscite could be questioned for non-compliance with the
provisions of the Election Law as long as it is certified that a majority of the citizens had voted favorably or
adversely on whatever it was that was submitted to them to vote upon.
However, a finding that the ratification of the draft Constitution by the Citizens Assemblies, as certified by
the President in Proclamation No. 1102, was not in accordance with the constitutional and statutory
procedure laid down for the purpose does not quite resolve the questions raised in these cases. Such a
finding, in our opinion, is on a matter which is essentially justiciable, that is, within the power of this Court
to inquire into. It imports nothing more than a simple reading and application of the pertinent provisions of
the 1935 Constitution, of the Election Code and of other related laws and official acts. No question of
wisdom or of policy is involved. But from this finding it does not necessarily follow that this Court may
justifiably declare that the Constitution has not become effective, and for that reason give due course to
these petitions or grant the writs herein prayed for. The effectivity of the said Constitution, in the final
analysis, is the basic and ultimate question posed by these cases, to resolve which considerations other
than judicial, and therefore beyond the competence of this Court, are relevant and unavoidable.
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
juregovernment under the 1973 Constitution."
Heretofore, constitutional disputes which have come before this Court for adjudication proceeded on the
assumption, conceded by all, that the Constitution was in full force and effect, with the power and
authority of the entire Government behind it; and the task of this Court was simply to determine whether
or not the particular act or statute that was being challenged contravened some rule or mandate of that
Constitution. The process employed was one of interpretation and synthesis. In the cases at bar there is
no such assumption: the Constitution (1935) has been derogated and its continued existence as well as
the validity of the act of derogation is issue. The legal problem posed by the situation is aggravated by the
fact that the political arms of the Government the Executive Departments and the two Houses of
Congress have accepted the new Constitution as effective: the former by organizing themselves and
discharging their functions under it, and the latter by not convening on January 22, 1973 or at any time
thereafter, as ordained by the 1935 Constitution, and in the case of a majority of the members by
expressing their option to serve in the Interim National Assembly in accordance with Article XVIII, Section
2, of the 1973 Constitution. *
The theory advanced by Senator Tolentino, as counsel for respondents Puyat and Roy, may be taken up
and restated at same length if only because it would constitute, if sustained, the most convenient ground
for the invocation of the political-question doctrine. In support of his theory, Senator Tolentino contends
that after President Marcos declared martial law on September 21, 1972 (Proclamation No. 1081) he
established a revolutionary government when he issued General Order No. 1 the next day, wherein he
proclaimed "that I shall govern the nation and direct the operation of the entire government, including all
its agencies and instrumentalities, in my capacity, and shall exercise all the powers and prerogatives
appurtenant and incident to my position as such Commander-in-Chief of all the Armed Forces of the
Philippines." By this order, it is pointed out, the Commander-in-Chief of the Armed Forces assumed all the
powers of government executive, legislative, and judicial; and thereafter proceeded to exercise such
powers by a series of Orders and Decrees which amounted to legislative enactments not justified under
martial law and, in some instances, trenched upon the domain of the judiciary, by removing from its
jurisdiction certain classes of cases, such as "those involving the validity, legality, or constitutionality of
Proclamation No. 1081, or of any decree, order or act issued, promulgated or performed by me or by my
duly designated representative pursuant thereto." (General Order No. 3 as amended by General Order
No. 3-A, dated September 24, 1972.) The ratification by the Citizens Assemblies, it is averred, was the
culminating act of the revolution, which thereupon converted the government into a de jure one under the
1973 Constitution.
If indeed it be accepted that the Citizens Assemblies had ratified the 1973 Constitution and that such
ratification as well as the establishment of the government thereunder formed part of a revolution, albeit
peaceful, then the issue of whether or not that Constitution has become effective and, as necessary
corollary, whether or not the government legitimately functions under it instead of under the 1935
Constitution, is political and therefore non-judicial in nature. Under such a postulate what the people did in
the Citizen Assemblies should be taken as an exercise of the ultimate sovereign power. If they had risen
up in arms and by force deposed the then existing government and set up a new government in its place,
there could not be the least doubt that their act would be political and not subject to judicial review but
only to the judgment of the same body politic act, in the context just set forth, is based on realities. If a
new government gains authority and dominance through force, it can be effectively challenged only by a
stronger force; judicial dictum can prevail against it. We do not see that situation would be any different,
as far as the doctrine of judicial review is concerned, if no force had been resorted to and the people, in
defiance of the existing Constitution but peacefully because of the absence of any appreciable opposition,
ordained a new Constitution and succeeded in having the government operate under it. Against such a
reality there can be no adequate judicial relief; and so courts forbear to take cognizance of the question
but leave it to be decided through political means.

The logic of the political-question doctrine is illustrated in statement of the U.S. Supreme Court in a
case * relied upon, curiously enough, by the Solicitor General, who disagrees with the revolutionary
government theory of Senator Tolentino. The case involved the issue of which of two opposing
governments struggling for supremacy in the State of Rhode Island was the lawful one. The issue had
previously come up in several other cases before the courts of the State, which uniformly held that the
inquiry belonged to the political power and not to the judicial. Commenting on the ruling thus arrived at,
the U.S. Supreme Court said: "And if a State court should enter upon the inquiry proposed in this case,
and should come to the conclusion that the government under which it acted had been put aside and
displaced by an opposing government, it would cease to be a court, and incapable of pronouncing a
judicial decision upon the question it undertook to try. If it decides at all as a court, it necessarily affirms
the existence and authority of the government under which it is exercising judicial power." In other words,
since the court would have no choice but to decide in one way alone in order to be able to decide at all,
the question could not be considered proper for judicial determination.
It should be noted that the above statement from Luther vs. Borden would be applicable in the cases at
bar only on the premise that the ratification of the Constitution was a revolutionary act and that the
government now functioning it is the product of such revolution. However, we are not prepared to agree
that the premise is justified.
In the first, place, with specific reference to the questioned ratification, several significant circumstances
may be noted. (1) The Citizens Assemblies were created, according to Presidential Decree No. 86, "to
broaden the base of citizen participation in the democratic process and to afford ample opportunities for
the citizenry to express their views on important national issues." (2) The President announced, according
to the Daily Express of January 2, 1973, that "the referendum will be in the nature of a loose
consultation with the people." (3) The question, as submitted to them on the particular point at issue here,
was "Do you a approve of the Constitution?" (4) President Marcos, in proclaiming that the Constitution
had been ratified, stated as follows: "(S)ince the referendum results show that more than ninety-five (95)
per cent of the members of the Barangays (Citizens Assemblies) are in favor of the new Constitution,
the Katipunan ng mga Barangay has strongly recommended that the new Constitution should already be
deemed ratified by the Filipino people." (5) There was not enough time for the Citizens Assemblies to
really familiarize themselves with the Constitution, much less with the many other subjects that were
submitted to them. In fact the plebiscite planned for January 15, 1973 under Presidential Decree No. 73
had been postponed to an indefinite date, the reasons for the postponement being, as attributed to the
President in the newspapers, that "there was little time to campaign for or against ratification" (Daily
Express, Dec. 22, 1972); that he would base his decision (as to the date, of the plebiscite) on the
compliance by the Commission (on Elections) on the publication requirement of the new Charter and on
the position taken by national leaders" (Daily Express, Dec. 23, 1972); and that "the postponement would
give us more time to debate on the merits of the Charter." (Bulletin Today, Dec. 24, 1972.)
The circumstances above enumerated lead us to the conclusion that the Citizens Assemblies could not
have understood the referendum to be for the ratification of the Constitution, but only for the expression of
their views on a consultative basis. Indeed, if the expression of those views had been intended as an act
of ratification (or of rejection as a logical corollary) there would have been no need for the Katipunan
ng mga Barangay to recommend that the Constitution should already be deemed ratified, for
recommendation imports recognition of some higher authority in whom the final decision rests.
But then the President, pursuant to such recommendation, did proclaim that the Constitution had been
ratified and had come into effect. The more relevant consideration, therefore, as far as we can see,
should be as to what the President had in mind in convening the Citizens Assemblies, submitting the
Constitution to them and proclaiming that the favorable expression of their views was an act of ratification.
In this respect subjective factors, which defy judicial analysis and adjudication, are necessarily involved.
In positing the problem within an identifiable frame of reference we find no need to consider whether or
not the regime established by President Marcos since he declared martial law and under which the new
Constitution was submitted to the Citizens Assemblies was a revolutionary one. The pivotal question is

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

ratified. The third obvious alternative was entirely ruled out, namely, a return to the 1935 Constitution, for
it was the status quo under that Constitution that had caused "anarchy, confusion and misery." The
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:
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).
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 15year-olds the right to vote. But the 15-year-olds of today are
high-school students, if not graduates, and they are better
informed than my contemporaries at that age. On the matter of
whether it is constitutional to proclaim martial law, it is
constitutional because the Constitution provides for it in the
event of invasion, insurrection, rebellion or immediate danger
thereof. We may quarrel about whether what we have gone
through is sufficient cause to proclaim martial law but at the very
least there is a danger of rebellion because so many of our
soldiers have been killed. You must remember this (martial law
provision) was lifted from the American legislation that was the
fundamental law of our country.
xxx xxx xxx
In the light of this seeming ambivalence, the choice of what course of action to pursue belongs to the
President. We have earlier made reference to subjective factors on which this Court, to our mind, is in no
position to pass judgment. Among them is the President's own assessment of the will of the people as
expressed through the Citizens Assemblies and of the importance of the 1973 Constitution to the
successful implementation of the social and economic reforms he has started or envisioned. If he should
decide that there is no turning back, that what the people recommended through the Citizens Assemblies,
as they were reported to him, demand that the action he took pursuant thereto be final and irrevocable,
then judicial review is out of the question.
In articulating our view that the procedure of ratification that was followed was not in accordance with the
1935 Constitution and related statutes, we have discharged our sworn duty as we conceive it to be. The
President should now perhaps decide, if he has not already decided, whether adherence to such
procedure is weighty enough a consideration, if only to dispel any cloud of doubt that may now and in the
future shroud the nation's Charter.
In the deliberations of this Court one of the issues formulated for resolution is whether or not the new
Constitution, since its submission to the Citizens Assemblies, has found acceptance among the people,
such issue being related to the political question theory propounded by the respondents. We have not
tarried on the point at all since we find no reliable basis on which to form a judgment. Under a regime of
martial law, with the free expression of opinions through the usual media vehicles restricted, we have no
means of knowing, to the point of judicial certainty, whether the people have accepted the Constitution. In
any event, we do not find the issue decisive insofar as our vote in these cases is concerned. To interpret
the Constitution that is judicial. That the Constitution should be deemed in effect because of popular
acquiescence that is political, and therefore beyond the domain of judicial review.
We therefore vote not to give due course to the instant petitions.
BARREDO, J., concurring:
As far as I am concerned, I regard the present petitions as no more than mere reiterations of the
Supplemental Petitions filed by Counsel Lorenzo M. Taada on January 15, 1973 in the so called
Plebiscite Cases decided by this Court on January 22, 1978. Of course, there are amplifications of some

of the grounds previously alleged and in the course of the unprecedented five-day hearing that was held
from February 12 to 16 last, more extensive and illuminating arguments were 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 Taada is before Us
now. Accordingly, I cannot see any reason why I should change the position I took in regard to the earlier
cases. I reiterate, therefore, the vote I cast when these petitions were initially considered by the Court;
namely, to dismiss them.
In view, however, of the transcendental importance of the issues before the Court and the significance to
our people and in history of the individual stands of the members of the Court in relation to said issues
and to the final outcome of these cases, and considering that I reserved before the filing of a more
extended opinion, I will take this opportunity to explain further why I hold that the 1973 Constitution is
already in force, if only to clarify that apart from the people's right of revolution to which I made pointed
reference in my previous opinion, I can see now, after further reflection, that the vote of the people in the
referendum in the Citizens Assemblies held on January 10 to 15, 1973, upon the result of which
Proclamation 1102 is based, may be viewed more importantly as a political act than as a purely legal one
with the result that such vote to consider the 1973 Constitution as ratified without the necessity of holding
a plebiscite in the form followed in the previous ratification plebiscites in 1935 of the Constitution itself,
1937 of women's suffrage, 1939 of the amendments to the Ordinance Appended to the Constitution, 1940
of the re-election of the President, the bicameral legislature and the Commission on Elections, 1947 of the
parity amendment and 1967, rejecting the proposed increase in the members of the House of
Representatives and eligibility of members of Congress to the Constitutional Convention, may be deemed
as a valid ratification substantially in compliance with the basic intent of Article XV of the 1935
Constitution. If indeed this explanation may be considered as a modification of my rationalization then, I
wish to emphasize that my position as to the fundamental issue regarding the enforceability of the new
Constitution is even firmer now than ever before. As I shall elucidate anon, paramount considerations of
national import have led me to the conviction that the best interests of all concerned would be best served
by the Supreme Court holding that the 1973 Constitution is now in force, not necessarily as a
consequence of the revolutionary concept previously suggested by me, but upon the ground that as a
political, more than as a legal, act of the people, the result of the referendum may be construed as a
compliance with the substantiality of Article XV of the 1935 Constitution.
I
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 secondreading 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 ratification of the draft constitution were concerned. These two orders were
not, however, to last very long. On January 7, 1973, the President, invoking information related to him that
the area of public debate and discussion had opened by his previous orders was being taken advantage
of by subversive elements to defeat the purposes for which they were issued and to foment public
confusion, withdrew said orders and enjoined full and stricter implementation of martial law.
In the meantime, the President had issued on December 3, 1972 Presidential Decree No. 86 creating
Citizens Assemblies "so as to afford ample opportunities for the citizenry to express their views on
important national issues" and one of the questions presented to said assemblies was: "Do you like the
plebiscite on the proposed Constitution to be held later" So, the same order of January 7, 1973, General
Order No. 20, the President ordered, "that the plebiscite scheduled to be held January 15, 1973, be
postponed until further notice".
In the meanwhile also, on January 5, 1973, the President issued Presidential Decree, No. 86-A providing
as follows:
PRESIDENTIAL DECREE NO. 86-A
STRENGTHENING AND DEFINING THE ROLE OF
BARANGAYS (CITIZENS ASSEMBLIES)
WHEREAS, on the basis of preliminary and initial reports from the field as
gathered from barangays (citizens assemblies) that have so far been
established, the people would like to decide for themselves questions or issues,
both local and national, affecting their day-to-day lives and their future;
WHEREAS, the barangays (citizens assemblies) would like themselves to be the
vehicle for expressing the views of the people on important national issues;
WHEREAS, such barangays (citizens assemblies) desire that they be given legal
status and due recognition as constituting the genuine, legitimate and valid
expression of the popular will; and
WHEREAS, the people would like the citizens assemblies to conduct
immediately a referendum on certain specified questions such as the ratification
of the new Constitution, continuance of martial law, the convening of Congress
on January 22, 1973, and the elections in November 1973 pursuant to the 1935
Constitution.
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines,
by virtue of the powers vested in me by the Constitution as Commander-in-Chief

of all Armed Forces of the Philippines, do hereby declare as part of the law of the
land the following:
1. The present barangays (citizens assemblies) are created under Presidential
Decree No. 86 dated December 31, 1972, shall constitute the base for citizen
participation in governmental affairs and their collective views shall be considered
in the formulation of national policies or programs and, wherever practicable,
shall be translated into concrete and specific decision;
2. Such barangays (citizens assemblies) shall consider vital national issues now
confronting the country, like the holding of the plebiscite on the new Constitution,
the continuation of martial rule, the convening of Congress on January 22, 1973,
and the holding of elections in November 1973, and others in the future, which
shall serve as guide or basis for action or decision by the national government;
3. The barangays (citizens assemblies) shall conduct between January 10 and
15, 1973, a referendum on important national issues, including those specified in
paragraph 2 hereof, and submit results thereof to the Department of Local
Governments Community Development immediately thereafter, pursuant to
express will of the people as reflected in the reports gathered from the many
thousands of barangays (citizens assemblies) throughout the country.
4. This Decree shall take effect immediately.
Done in the City of Manila, this 5th day of January, in the year of Our Lord,
nineteen hundred and seventy three.
And on January 7, 1973, this was followed by Presidential Decree No. 86-B reading thus:
PRESIDENTIAL DECREE NO. 86-B
DEFINING FURTHER THE ROLE OF BARANGAYS (CITIZENS
ASSEMBLIES)
WHEREAS, since their creation pursuant to Presidential Decree No. 86 dated
December 31, 1972, the Barangays (Citizens Assemblies) have petitioned the
Office of the President to submit them for resolution important national issues;
WHEREAS, one of the questions persistently mentioned refers to the ratification
of the Constitution proposed by the 1971 Constitutional Convention;
WHEREAS, on the basis of the said petitions, it is evident that the people believe
that the submission of the proposed Constitution to the Citizens Assemblies or
Barangays should be taken as a plebiscite in itself in view of the fact that
freedom of debate has always been limited to the leadership in political,
economic and social fields, and that it is now necessary to bring this down to the
level of the people themselves through the Barangays or Citizens Assemblies;
NOW THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines,
by virtue of the powers in me vested by the Constitution, do hereby order that
important national issues shall from time to time be referred to the Barangays
(Citizens Assemblies) for resolution in accordance with Presidential Decree No.
86-A dated January 5, 1973 and that the initial referendum shall include the

matter of ratification of the Constitution proposed by the 1971 Constitutional


Convention.
The Secretary of the Department of Local Governments and Community
Development shall insure the implementation of this Order.
Done in the City of Manila, this 7th day of January in the year of Our Lord,
nineteen hundred and seventy-three.
And so it was that by January 10, 1973, when the Citizens Assemblies thus created started the
referendum which was held from said date to January 15, 1973, the following questions were submitted to
them:
(1) Do you like the New Society?
(2) Do you like the reforms under martial law?
(3) Do you like Congress again to hold sessions?
(4) Do you like the plebiscite to be held later?
(5) Do you like the way President Marcos is running the affairs of the
government?.
but on January 11, 1973, six questions were added as follows:
(1) Do you approve of the citizens assemblies as the base of popular government
to decide issues of national interests?
(2) Do you approve of the New Constitution?
(3) Do you want a plebiscite to be called to ratify the new Constitution?
(4) Do you want the elections to be held in November, 1973 in accordance with
the provisions of the 1935 Constitution?
(5) If the elections would not be held, when do you want it to be called?
(6) Do you want martial law to continue?
It is not seriously denied that together with the question the voters were furnished "comments" on the said
questions more or less suggestive of the answer desired. It may assumed that the said "comments" came
from official sources, albeit specifically unidentified. As petitioners point out, the most relevant of these
"comments" were the following:
COMMENTS ON
xxx xxx xxx
QUESTION No. 2

But we do not want the Ad Interim Assembly to be convoke. Or if


it is to be convened at all, it should not be done so until after at
least seven (7) years from the approval of the New Constitution
by the Citizens Assemblies.
QUESTION No. 3
The vote of the Citizens Assemblies should already be
considered the plebiscite on the New Constitution.
If the Citizens Assemblies approve of the new Constitution then
the new Constitution should be deemed ratified.
The Solicitor General claims, and there seems to be showing otherwise, that the results of the referendum
were determined in the following manner:
Thereafter, the results of the voting were collated and sent to the Department of
Local Governments. The transmission of the results was made by telegram,
telephone, the provincial government SSB System in each province connecting
all towns; the SSB communication of the PACD connecting most provinces; the
Department of Public Information Network System; the Weather Bureau
Communication System connecting all provincial capitals and the National Civil
Defense Network connecting all provincial capitals. The certificates of results
were then flown to Manila to confirm the previous figures received by the
aforementioned means of transmission. The certificates of results tallied with the
previous figures taken with the exception of few cases of clerical errors.
The Department adopted a system of regionalizing the receiving section of the
Citizens Assemblies operation at the Department wherein the identity of the
barrio and the province was immediately given to a staff in charge of each region.
Every afternoon at 2:00 o'clock, the 11 regions submitted the figures they
received from the field to the central committee to tabulate the returns. The last
figures were tabulated at 12 midnight of January 16, 1973 and early morning of
January 17, 1973 and were then communicated to the President by the
Department of Local Governments.
The development culminated in the issuance by the President of Proclamation 1102 on January 17, 1973.
Said proclamation reads:
PROCLAMATION NO. 1102 ANNOUNCING THE RATIFICATION BY THE
FILIPINO PEOPLE OF THE CONSTITUTION PROPOSED BY THE 1971
CONSTITUTIONAL CONVENTION.
WHEREAS, the Constitution proposed by the nineteen hundred seventy-one
Constitutional Convention is subject to ratification by the Filipino people;
WHEREAS, Citizens Assemblies were created in barrios in municipalities and in
districts/wards in chartered cities pursuant to Presidential Decree No. 6, dated
December 31, 1972, composed of all persons who are residents of the barrio,
district or ward for at least six months, fifteen years of age or over, citizens of the
Philippines and who are registered in the list of Citizen Assembly members kept
by the barrio, district or ward secretary;

WHEREAS, the said Citizens Assemblies were establish precisely to broaden the
base of citizen participation in the democratic process and to afford ample
opportunity for the citizen to express their views on important national issues;
WHEREAS, responding to the clamor of the people an pursuant to Presidential
Decree No. 86-A, dated January 5, 1973, the following questions were posed
before Citizens' Assemblies or Barangays: Do you approve of the New
Constitution? Do you still want a plebiscite to be called to ratify the new
Constitution?
WHEREAS, fourteen million nine hundred seventy-six thousand five hundred
sixty one (14,976,561) members of all the Barangays (Citizens Assemblies)
voted for the adoption of the proposed Constitution, as against seven hundred
forty-three thousand eight hundred sixty nine (743,869) who voted for its
rejection; while on the question as to whether or not the people would still like a
plebiscite to be called to ratify the new Constitution fourteen million two hundred
ninety-eight thousand eight hundred fourteen (14,298,814) answered that there
was no need for plebiscite and that the vote of the Barangays (Citizens
Assemblies) should be considered as a vote in a plebiscite;
WHEREAS, since the referendum results show that more than ninety-five (95)
percent of the members of the Barangays (Citizen Assemblies) are in favor of the
New Constitution, the Katipunan ng Mga Barangay has strongly recommended
that the new Constitution should already be deemed ratified by the Filipino
people;
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines,
by virtue of the powers in me vested by the Constitution, do hereby certify and
proclaim that the Constitution proposed by the nineteen hundred and seventyone (1971) Constitutional Convention has been ratified by an overwhelmingly
majority of all of the votes cast by the members of all the Barangays (Citizens
Assemblies) throughout the Philippines, and has thereby come into effect.
IN WITNESS WHEREOF, I have hereunto set my hand and caused the seal of
the Republic of the Philippines to be affixed.
Done in the City of Manila, this 17th day of January, in the year of Our Lord,
nineteen hundred and seventy-three.
The first attempt to question the steps just enumerated taken by the President was in the so-called
Plebiscite Cases, ten in number, which were filed by different petitioners during the first half of December
1972. 1 Their common target then was Presidential Decree No. 73, but before the said cases could be
decided, the series of moves tending in effect to make them moot and academic insofar as they referred
exclusively to the said Presidential Decree began to take shape upon the issuance of Presidential Decree
No. 86-A, quoted above. And when Presidential Decree No. 86-B, also above quoted, was issued and the
six additional questions which were first publicized on January 11, 1973 were known, together with the
"comments", petitioners sensed that a new and unorthodox procedure was being adopted to secure
approval by the people of the new Constitution, hence Counsel Taada, not being satisfied with the fate of
his urgent motion for early decision of the above ten cases dated January 12, 1973, filed on January 15,
1973, his supplemental motion seeking the prohibition against and injunction of the proceedings going on.
Principal objective was to prevent that the President be furnished the report of the results of the
referendum and thereby disable him from carrying out what petitioners were apprehensively foreseeing
would be done the issuance of some kind of proclamation, order or decree, declaring that the new
Constitution had been ratified. Reacting swiftly, the Court resolved on the same day, January 15, which

was Monday, to consider the supplemental motion as a supplemental petition and to require the
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 Taada was still insisting on his prayer for preliminary injunction or restraining order, the
Secretary of Justice arrived and personally handed to the Chief Justice a copy Proclamation 1102 which
had been issued at about 11:00 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 Taada's pleading and argument had
anticipated its issuance, but the majority felt it was not ready to resolve the matter, for lack, according
them, of full ventilation, and so, the decision reserved petitioners the filing of the "appropriate" cases,
evidently, the present ones.
II
At the threshold, I find myself confronted by a matter which, although believed to be inconsequential by
my learned brethren, I strongly feel needs special attention. I refer to the point raised by Counsel Arturo
M. Tolentino for respondent Gil J. Puyat and Jose Roy, who have been sued as President and President
Pro Tempore of the Senate, to the effect that change in the composition of the Supreme Court provided
for the 1973 Constitution, from the 11-man tribunal under the 1935 Constitution to a 15-man Court, makes
of these cases which were filed after January 17, 1973 the date when Proclamation 1102 declared the
new Constitution as ratified, political nature and beyond our jurisdiction. The main consideration submitted
in this connection is that inasmuch as the number votes needed for a decision of this Court has been
increased from six to eight in ordinary cases and from eight to ten for the declaration of unconstitutionality
of a treaty, executive agreement 2 or law, the Court would have to resolve first as a prejudicial question
whether the Court is acting in these cases as the 15-man or the 11-man Court, in which event, it would be
faced with the dilemma that if it acts either as the former or as the latter, it would be prejudging the very
matter in issue one way or the other, and, in effect, it would be choosing between two constitutions, which
is a political determination not within the Court's competence.
While I agree that the problem is at first blush rather involved, I do not share the view that the premises
laid down by counsel necessarily preclude this Court from taking a definite stand on whether the Court is
acting in these cases as the 15-Man or the 11-man Court. I feel very strongly that the issue should not be
ignored or dodged, if only to make the world know that the Supreme Court of the Philippines is never
incognizant of the capacity in which it is acting, much less lacking in courage or wisdom to resolve an
issue that relates directly to its own composition. What a disgrace it would be to admit that this Supreme
Court does not know, to use a common apt expression, whether it is fish or fowl. Withal, scholars and
researchers who might go over our records in the future will inevitably examine minutely how each of us
voted and upon what considerations we have individually acted, and, indeed, doubts may arise as to
whether or not, despite the general result we might announce, there had been the requisite number of
votes for a valid collegiate action.
For instance, it may be argued that the present cases do not involve an issue of unconstitutionality,
hence, if we are acting as the 11-man Court, only six votes would suffice to declare Proclamation 1102
ineffective, and if upon analysis of our respective opinions it should be inferable therefrom that six of us
have considered the matter before the Court as justiciable and at the same time have found the
procedure of ratification adopted in Presidential Decrees 86-A and 86-B and related orders of the
President as not being in conformity with Article XV of the old Constitution, a cloud would exist as to
efficacy of the dispositive portion of Our decision dismiss these cases, even if we have it understood that
by the vote of justices in favor of such dismissal, We intended to mean the implementation or
enforcement of the new Constitution now being done could continue.

Be that as it may, I am against leaving such an important point open to speculation. By nature I am averse
to ambiguity and equivocation and as a member of the Supreme Court, last thing I should knowingly
countenance is uncertainty as to the juridical significance of any decision of the Court which is precisely
being looked upon as the haven in which doubts are supposed to be authoritatively dispelled. Besides,
from very nature of things, one thing is indubitably beyond dispute we cannot act in both capacities of a
15-man and an 11-man Court at the same time, in like manner that it is inconceivable that the 1935 and
1973 Constitution can be considered by Us both in force. Our inescapable duty is to make a choice
between them, according to what law and other considerations inherent to our function dictate. I cannot
bear the thought that someone may someday say that the Supreme Court of the Philippines once decided
a case without knowing the basis of its author to act or that it was ever wanting in judicial courage to
define the same.
Accordingly, with full consciousness of my limitations but compelled by my sense of duty and propriety to
straighten out this grave of issue touching on the capacity in which the Court acting in these cases, I hold
that we have no alternative but adopt in the present situation the orthodox rule that when validity of an act
or law is challenged as being repugnant constitutional mandate, the same is allowed to have effect until
the Supreme Court rules that it is unconstitutional. Stated differently, We have to proceed on the
assumption that the new Constitution is in force and that We are acting in these cases as the 15-man
Supreme Court provided for there Contrary to counsel's contention, there is here no prejudgment for or
against any of the two constitutions. The truth of matter is simply that in the normal and logical conduct
governmental activities, it is neither practical nor wise to defer the course of any action until after the
courts have ascertained their legality, not only because if that were to be the rule, the functioning of
government would correspondingly be undesirably hesitative and cumbersome, but more importantly,
because the courts must at the first instance accord due respect to the acts of the other departments, as
otherwise, the smooth running of the government would have to depend entirely on the unanimity of
opinions among all its departments, which is hardly possible, unless it is assumed that only the judges
have the exclusive prerogative of making and enforcing the law, aside from being its sole interpreter,
which is contrary to all norms of juridical and political thinking. To my knowledge, there is yet no country in
the world that has recognized judicial supremacy as its basic governmental principle, no matter how
desirable we might believe the idea to be.
Indeed, it is not hard to visualize the difficulty if not absurdity of Our acting on the assumption that this
Court is still functioning under the 1935 Constitution. It is undeniable that the whole government, including
the provincial, municipal and barrio units and not excluding the lower courts up to the Court of Appeals, is
operating under the 1973 Constitution. Almost daily, presidential orders and decrees of the most
legislative character affecting practically every aspect of governmental and private activity as well as the
relations between the government and the citizenry are pouring out from Malacaang under the authority
of said Constitution. On the other hand, taxes are being exacted and penalties in connection therewith are
being imposed under said orders and decrees. Obligations have been contracted and business and
industrial plans have been and are being projected pursuant to them. Displacements of public officials
and employees in big numbers are going on in obedience to them. For the ten justices of the Supreme
Court to constitute an island of resistance in the midst of these developments, which even unreasoning
obstinacy cannot ignore, much less impede, is unimaginable, let alone the absurd and complicated
consequences such a position entails in the internal workings within the judiciary amount its different
components, what with the lower courts considering such orders and decrees as forming part of the law of
the land in making their orders and decisions, whereas the Supreme Court is holding, as it were, their
effectivity at bay if it is not being indifferent to or ignoring them.
It is suggested that the President, being a man of law, committed to abide by the decision of the Supreme
Court, and if the Court feels that it cannot in the meantime consider the enforcement of the new
Constitution, he can wait for its decision. Accepting the truth of this assertion, it does necessarily follow
that by this attitude of the President, considers the Supreme Court as still operating under the
Constitution. Quite on the contrary, it is a fact that he has given instructions for the payment of the justices
in accordance with the rate fixed in the New Constitution. Not only that, official alter ego, the Secretary of
Justice, has been shoving this Court, since January 18, 1973, all matters related to the administrative

supervision of the lower courts which by the new charter has been transferred from the Department of
Justice to the Supreme Court, and as far as I know, President has not countermanded the Secretary's
steps in that direction. That, on the other hand, the President has not augmented the justices of the Court
to complete the prescribed number of fifteen is, in my appraisal, of no consequence considering that with
the presence of ten justices who are the Court now, there is a working quorum, and the addition of new
justices cannot in anyway affect the voting on the constitutional questions now before Us because, while
there sufficient justices to declare by their unanimous vote illegality of Proclamation 1102, the votes of the
justices to added would only be committed to upholding the same, since they cannot by any standard be
expected to vote against legality of the very Constitution under which they would be appointed.
Moreover, what makes the premise of presumptive valid preferable and, even imperative, is that We are
dealing here with a whole constitution that radically modifies or alters only the form of our government
from presidential parliamentary but also other constitutionally institutions vitally affecting all levels of
society. It is, to mind, unrealistic to insist on that, fundamentally, the 1973 Constitution is the same 1935
Constitution, with a few improvements. A cursory perusal of the former should convince anyone that it is in
essence a new one. While it does retain republicanism as the basic governmental tenet, the institutional
changes introduced thereby are rather radical and its social orientation is decidedly more socialistic, just
as its nationalistic features are somewhat different in certain respects. One cannot but note that the
change embraces practically every part of the old charter, from its preamble down to its amending and
effectivity clauses, involving as they do the statement of general principles, the citizenship and suffrage
qualifications, the articles on the form of government, the judiciary provisions, the spelling out of the
duties and responsibilities not only of citizens but also of officers of the government and the provisions on
the national economy as well as the patrimony of the nation, not to mention the distinctive features of the
general provisions. What is more, the transitory provisions notably depart from traditional and orthodox
views in that, in general, the powers of government during the interim period are more or less
concentrated in the President, to the extent that the continuation or discontinuance of what is now
practically a one-man-rule, is even left to his discretion. Notably, the express ratification of all
proclamations, orders, decrees and acts previously issued or done by the President, obviously meant to
encompass those issued during martial law, is a commitment to the concept of martial law powers being
implemented by President Marcos, in defiance of traditional views and prevailing jurisprudence, to the
effect that the Executive's power of legislation during a regime of martial law is all inclusive and is not
limited to the matters demanded by military necessity. In other words, the new constitution unlike any
other constitution countenances the institution by the executive of reforms which normally is the exclusive
attribute of the legislature.
Withal, the best proofs that by its expressed and implied intent, the Constitution of 1973 is a new one, are
that (1) Section 16 of its Article XVII which provides that this constitution shall "supersede the Constitution
of nineteen hundred and thirty-five and all amendments thereto" and (2) its transitory provisions expressly
continue the effectivity of existing laws, offices and courts as well as the tenure of all incumbent officials,
not adversely affected by it, which would have been unnecessary if the old constitution were being merely
amended.
The new Constitution, in its Section 10, Article XVII, provides that "(T)he incumbent members of the
Judiciary (which include the Chief Justice and Associate Justices of Supreme Court) may continue in
office (under the constitution) until they reach the age of seventy years, etc." By virtue of the presumptive
validity of the new charter, all of form part of the 15-man-Court provided for therein correspondingly, We
have in legal contemplation, ceased in the meanwhile to be members of the 11-man-Court in the 1935
Constitution. Should the Court finally decide that the Constitution is invalid, then We would automatically
revert to our positions in the 11-man- Court, otherwise, We would just continue to be in our membership in
the 15-man-Court, unless We feel We cannot in conscience accept the legality of existence. On the other
hand, if it is assumed that We are the 11-man-Court and it happens that Our collective decision is in favor
of the new constitution, it would be problematical for any dissenting justice to consider himself as included
automatically in the 15-man-Court, since that would tantamount to accepting a position he does not
honestly believe exists.

III
In brief, the main contention of the petitioners is that Proclamation 1102 is invalid because the ratification
of the 1973 Constitution it purports to declare as having taken place as a result of the referendum abovereferred to is ineffective since it cannot be said on the basis of the said referendum that said Constitution
has been "approved by a majority of the votes cast at an election" in the manner prescribed by Article XV
the Constitution of 1935. More specifically, they maintain that the word "election" in the said Article has
already acquired a definite accepted meaning out of the consistent holding in the past of ratification
plebiscites, and accordingly, no other form of ratification can be considered contemplated by the framers
of the Old Constitution than that which had been followed 1935, 1937, 1939, 1940, 1946 and 1967, the
last three or four which were held under the supervision of the Commission on Elections. Furthermore,
they emphatically deny the veracity of the proclaimed results of the referendum because, according to
them the referendum was a farce and its results were manufactured or prefabricated, considering that Mr.
Francisco Cruz, who is supposed to have submitted the final report to the President, which served as
basis for Proclamation 1102, had no official authority to render the same, and it is inconceivable and
humanly impossible for anyone to have been able to gather, tabulate and canvass the 15 million votes
allegedly reported within the short period of time employed. Of course, they also contend that in any
event, there was no proper submission because martial law per se creates constructive duress which
deprives the voters of the complete freedom needed for the exercise of their right of choice and actually,
there was neither time nor opportunity for real debate before they voted.
On the other hand, the position of the Solicitor General as counsel for the respondents is that the matter
raised in the petitions is a political one which the courts are not supposed to inquire into, and, anyway,
there has been a substantial compliance with Article XV of the 1935 Constitution, inasmuch as,
disregarding unessential matters of form, the undeniable fact is that the voting in the referendum resulted
in the approval by the people of the New Constitution.
I need not dwell at length on these variant positions of the parties. In my separate opinion in the Plebiscite
Cases, I already made the observation that in view of the lack of solemnity and regularity in the voting as
well as in the manner of reporting and canvassing conducted in connection with the referendum, I cannot
say that Article XV of the Old Constitution has been complied with, albeit I held that nonetheless, the
Constitution of 1973 is already in force. In order, however, to make myself clearer on some relevant
points, I would like to add a few considerations to what I have already said in the former cases.
In my opinion in those cases, the most important point I took into account was that in the face of the
Presidential certification through Proclamation 1102 itself that the New Constitution has been approved by
a majority of the people and having in mind facts of general knowledge which I have judicial notice of, I
am in no position to deny that the result of the referendum was as the President had stated. I can believe
that the figures referred to in the proclamation may not accurate, but I cannot say in conscience that all of
them are manufactured or prefabricated, simply because I saw with own eyes that people did actually
gather and listen discussions, if brief and inadequate for those who are abreast of current events and
general occurrences, and that they did vote. I believe I can safely say that what I have seen have also
been seen by many others throughout the country and unless it can be assumed, which honestly, I do not
believe to be possible, that in fact there were actually no meetings held and no voting done in more
places than those wherein there were such meetings and votings, I am not prepared to discredit entirely
the declaration that there was voting and that the majority of the votes were in favor of the New
Constitution. If in fact there were substantially less than 14 million votes of approval, the real figure, in my
estimate, could still be significant enough and legally sufficient to serve as basis for a valid ratification.
It is contended, however, that the understanding was that the referendum among the Citizens Assemblies
was to be in the nature merely of a loose consultation and not an outright submission for purposes of
ratification. I can see that at the outset, when the first set of questions was released, such may have been
the idea. It must not be lost sight of, however, that if the newspaper reports are to be believed, and I say
this only because petitioners would consider the newspapers as the official gazettes of the administration,
the last set of six questions were included precisely because the reaction to the idea of mere consultation

was that the people wanted greater direct participation, thru the Citizens Assemblies, in decision-making
regarding matters of vital national interest. Thus, looking at things more understandingly and realistically
the two questions emphasized by counsel, namely, (1) Do yo approve of the New Constitution? and (2)
Do you want plebiscite to be called to ratify the new Constitution? should be considered no longer as
loose consultations but as direct inquiries about the desire of the voters regarding the matters mentioned.
Accordingly, I take it that if the majority had expressed disapproval of the new Constitution, the logical
consequence would have been the complete abandonment of the idea of holding any plebiscite at all. On
the other hand, it is very plain to see that since the majority has already approved the new Constitution, a
plebiscite would be superfluous. Clear as these rationalizations may be, it must have been thought that if
the holding of a plebiscite was to be abandoned, there should be a direct and expressed desire of the
people to such effect in order to forestall as much as possible any serious controversy regarding the nonholding of the plebiscite required by the letter of Section 16 of Article XVII, the effectivity clause, of the
new Constitution. Oddly enough, the "comments" accompanying the questions do strongly suggest this
view. And as it turned out, the majority found no necessity in holding a plebiscite.
In connection with the question, Do you approve of the New Constitution? capital is being made of the
point that as so framed, the thrust of the said question does not seek an answer of fact but of opinion. It is
argued that it would have been factual were it worded categorically thus Do you approve the New
Constitution? The contention would have been weighty were it not unrealistic. I remember distinctly that
the observation regarding the construction of the subject question was not originally made by any of the
talented counsels for petitioners. It came from Mr. Justice Fred Ruiz Castro whose mastery of the English
language can rightly be the cause of envy of even professors of English. None of the other members of
the Court, as far as I can recall, ever noticed how the said question is phrased, or if anyone of Us did, I
am not aware that he gave it more than passing attention. What I mean is that if neither any of the
distinguished and learned counsels nor any member of the Court understood the said question otherwise
than calling for a factual answer instead of a mere opinion, how could anyone expect the millions of
unlettered members of the Citizens Assemblies to have noticed the point brought out by Justice Castro?
Truth to tell, I myself did not realize the difference until Justice Castro gave it emphasis. Besides, reading
the question in the light of the accompanying "comment" corresponding to it in particular, I am certain that
any one who answered the same understood it in no other sense than a direct inquiry as to whether or
not, as a matter of fact, he approves the New Constitution, and naturally, affirmative answer must be
taken as a categorical vote of approval thereof, considering, particularly, that according to the reported
result of the referendum said answer was even coupled with the request that the President defer the
convening of the Interim National Assembly.
It is also contended that because of this reference in answer to that question to the deferment of the
convening of the interim assembly, the said answer is at best a conditional approval not proper nor
acceptable for purposes of ratification plebiscite. The contention has no basis. In interest of accuracy, the
additional answer proposed in pertinent "comment" reads as follows: "But we do not want Ad Interim
Assembly to be convoked etc." On the assumption that the actual answer, as reported, was of similar
tenor, it is not fair to ascribe to it the imposition of a condition. At most, the intention is no more than a
suggestion or a wish.
As regards said "comments", it must be considered that a martial law was declared, the circumstances
surrounding making of the Constitution acquired a different and more meaningful aspect, namely, the
formation of a new society. From the point of view of the President and on the basis of intelligence reports
available to him, the only way to meet situation created by the subversive elements was to introduce
immediately effective reforms calculated to redeem the people from the depth of retrogression and
stagnation caused by rampant graft and corruption in high places, influence peddling, oligarchic political
practices, private armies, anarchy, deteriorating conditions of peace and order, the so inequalities
widening the gap between the rich and the poor, and many other deplorable long standing maladies
crying for early relief and solution. Definitely, as in the case of rebellious movement that threatened the
Quirino Administration, the remedy was far from using bullets alone. If a constitution was to be approved
as an effective instrument towards the eradication of such grave problems, it had to be approved without
loss of time and sans the cumbersome processes that, from the realistic viewpoint, have in the past

obstructed rather than hastened the progress of the people. Stated 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 semeans of coercion. Let us not forget that the times are abnormal, and
prolonged dialogue and exchange of ideas are not generally possible, nor practical, considering the need
for faster decisions and more resolute action. After all voting on a whole new constitution is different from
voting on one, two or three specific proposed amendments, the former calls for nothing more than a
collective view of all the provisions of the whole charter, for necessarily, one has to take the good together
with the bad in it. It is rare for anyone to reject a constitution only because of a few specific objectionable
features, no matter how substantial, considering the ever present possibility that after all it may be cured
by subsequent amendment. Accordingly, there was need to indicate to the people the paths open to them
in their quest for the betterment of their conditions, and as long as it is not shown that those who did not
agree to the suggestions in the "comments" were actually compelled to vote against their will, I am not
convinced that the existence of said "comments" should make any appreciable difference in the court's
appraisal of the result of the referendum.
I must confess that the fact that the referendum was held during martial law detracts somehow from the
value that the referendum would otherwise have had. As I intimated, however, in my former opinion, it is
not fair to condemn and disregard the result of the referendum barely because of martial law per se. For
one thing, many of the objectionable features of martial law have not actually materialized, if only because
the implementation of martial law since its inception has been generally characterized by restraint and
consideration, thanks to the expressed wishes of the President that the same be made "Philippine style",
which means without the rigor that has attended it in other lands and other times. Moreover, although the
restrictions on the freedom of speech, the press and movement during martial law do have their
corresponding adverse effects on the area of information which should be open to a voter, in its real
sense what "chills" his freedom of choice and mars his exercise of discretion is suspension of the
privilege of the writ of habeas corpus. The reason is simply that a man may freely and correctly vote even
if the needed information he possesses as to the candidates or issues being voted upon is more or less
incomplete, but when he is subject to arrest and detention without investigation and without being
informed of the cause thereof, that is something else which may actually cause him to cast a captive vote.
Thus it is the suspension of the writ of habeas corpus accompanying martial law that can cause possible
restraint on the freedom choice in an election held during martial law. It is a fact, however, borne by
history and actual experience, that in the Philippines, the suspension of the privilege of the writ habeas
corpus has never produced any chilling effect upon the voters, since it is known by all that only those who
run afoul the law, saving inconsequential instances, have any cause for apprehension in regard to the
conduct by them of the normal activities of life. And so it is recorded that in the elections 1951 and 1971,
held while the privilege of writ of habeas corpus was under suspension, the Filipino voters gave the then
opposition parties overwhelming if not sweeping victories, in defiance of the respective administrations
that ordered the suspensions.
At this juncture, I think it is fit to make it clear that I am not trying to show that the result of the referendum
may considered as sufficient basis for declaring that the New Constitution has been ratified in accordance
with the amending clause of the 1935 Constitution. I reiterate that in point of law, I find neither strict nor
substantial compliance. The foregoing discussion is only to counter, if I may, certain impression regarding
the general conditions obtaining during and in relation to the referendum which could have in one way or
another affected the exercise of the freedom of choice and the use of discretion by the members of the
Citizens Assemblies, to the end that as far as the same conditions may be relevant in my subsequent
discussions of the acceptance by the people of the New Constitution they may also be considered.
IV

It is my sincere conviction that the Constitution of 1973 has been accepted or adopted by the people. And
on this premise, my considered opinion is that the Court may no longer decide these cases on the basis
of purely legal considerations. Factors which are non-legal but nevertheless ponderous and compelling
cannot be ignored, for their relevancy is inherent in the issue itself to be resolved.
In my opinion in the Plebiscite Cases, I joined my colleagues in holding that the question of whether or not
there was proper submission under Presidential Decree No. 73 is justiciable, and I still hold that the
propriety of submission under any other law or in any other form is constitutionally a fit subject for inquiry
by the courts. The ruling in the decided cases relied upon by petitioners are to this effect. In view,
however, of the factual background of the cases at bar which include ratification itself, it is necessary for
me to point out that when it comes to ratification, I am persuaded that there should be a boundary beyond
which the competence of the courts no longer has any reason for being, because the other side is
exclusively political territory reserved for their own dominion by the people.
The main basis of my opinion in the previous cases was acceptance by the people. Others may feel there
is not enough indication of such acceptance in the record and in the circumstances the Court can take
judicial notice of. For my part, I consider it unnecessary to be strictly judicial in inquiring into such fact.
Being personally aware, as I have already stated, that the Citizens Assemblies did meet and vote, if
irregularly and crudely, it is not for me to resort, for the purposes of these cases, to judicial tape and
measure, to find out with absolute precision the veracity of the total number of votes actually cast. After
all, the claims that upon a comparison of conflicting reports, cases of excess votes may be found, even if
extrapolated will not, as far as I can figure out, suffice to overcome the outcome officially announced.
Rather than try to form a conclusion out of the raw evidence before Us which the parties did not care to
really complete, I feel safer by referring to the results announced in the proclamation itself. Giving
substantial allowances for possible error and downright manipulation, it must not be overlooked that, after
all, their having been accepted and adopted by the President, based on official reports submitted to him in
due course of performance of duty of appropriate subordinate officials, elevated them to the category of
an act of a coordinate department of the government which under the principle separation of powers is
clothed with presumptive correctness or at least entitled to a high degree of acceptability, until overcome
by better evidence, which in these cases does not exist. In any event, considering that due to the
unorthodoxy of the procedure adopted and the difficulty of an accurate checking of all the figures, I am
unable to conceive of any manageable means of acquiring information upon which to predicate a denial, I
have no alternative but to rely on what has been officially declared. At this point, I would venture to
express the feeling that if it were not generally conceded that there has been sufficient showing of the
acceptance in question by this time, there would have been already demonstrative and significant
indications of a rather widespread, if not organized resistance in one form or another. Much as they are to
be given due recognition as magnificent manifestations of loyalty and devotion to principles, I cannot
accord to the filing of these cases as indicative enough of the general attitude of the people.
It is true that in the opinion I had the privilege of penning the Court in Tolentino vs. Comelec, 41 SCRA
702, I made strong and unequivocal pronouncements to the effect that any amendment to the
Constitution of 1935, to be valid, must appear to have been made in strict conformity with the
requirements of Article XV thereof. What is more, that decision asserted judicial competence to inquire
into the matter of compliance or non compliance as a justiciable matter. I still believe in the correctness of
those views and I would even add that I sincerely feel it reflects the spirit of the said constitutional
provision. Without trying to strain any point however, I, submit the following considerations in the context
of the peculiar circumstances of the cases now at bar, which are entirely different from those in the
backdrop of the Tolentino rulings I have referred to.
1. Consider that in the present case what is involved is not just an amendment of a particular provision of
an existing Constitution; here, it is, as I have discussed earlier above, an entirely new Constitution that is
being proposed. This important circumstance makes a great deal of difference.
No less than counsel Tolentino for herein respondents Puyat and Roy, who was himself the petitioner in
the case I have just referred to is, now inviting Our attention to the exact language of Article XV and

suggesting that the said Article may be strictly applied to proposed amendments but may hardly govern
the ratification of a new Constitution. It is particularly stressed that the Article specifically refers to nothing
else but "amendments to this Constitution" which if ratified "shall be valid as part of this Constitution."
Indeed, how can a whole new constitution be by any manner of reasoning an amendment to any other
constitution and how can it, if ratified, form part of such other constitution? In fact, in the Tolentino case I
already somehow hinted this point when I made reference in the resolution denying the motion for
reconsideration to the fact that Article XV must be followed "as long as any amendment is formulated and
submitted under the aegis of the present Charter." Said resolution even added. "(T)his is not to say that
the people may not, in the exercise of their inherent revolutionary powers, amend the Constitution or
promulgate an entirely new one otherwise.".
It is not strange at all to think that the amending clause of a constitution should be confined in its
application only to proposed changes in any part of the same constitution itself, for the very fact that a
new constitution is being adopted implies a general intent to put aside the whole of the old one, and what
would be really incongrous is the idea that in such an eventuality, the new Constitution would subject its
going into effect to any provision of the constitution it is to supersede, to use the language precisely of
Section 6, Article XVII, the effectivity clause, of the New Constitution. My understanding is that generally,
constitutions are self-born, they very rarely, if at all, come into being, by virtue of any provision of another
constitution. 3 This must be the reason why every constitution has its own effectivity clause, so that if, the
Constitutional Convention had only anticipated the idea of the referendum and provided for such a
method to be used in the ratification of the New Constitution, I would have had serious doubts as to
whether Article XV could have had priority of application.
2. When an entirely new constitution is proposed to supersede the existing one, we cannot but take into
consideration the forces and the circumstances dictating the replacement. From the very nature of things,
the proposal to ordain a new constitution must be viewed as the most eloquent expression of a people's
resolute determination to bring about a massive change of the existing order, a meaningful transformation
of the old society and a responsive reformation of the contemporary institutions and principles.
Accordingly, should any question arise as to its effectivity and there is some reasonable indication that the
new charter has already received in one way or another the sanction of the people, I would hold that the
better rule is for the courts to defer to the people's judgment, so long as they are convinced of the fact of
their approval, regardless of the form by which it is expressed provided it be reasonably feasible and
reliable. Otherwise stated, in such instances, the courts should not bother about inquiring into compliance
with technical requisites, and as a matter of policy should consider the matter non-justiciable.
3. There is still another circumstance which I consider to be of great relevancy. I refer to the ostensible
reaction of the component elements, both collective and individual, of the Congress of the Philippines.
Neither the Senate nor the House of Representatives has been reported to have even made any
appreciable effort or attempt to convene as they were supposed to do under the Constitution of 1935 on
January 22, 1973 for the regular session. It must be assumed that being composed of experienced,
knowledgeable and courageous members, it would not have been difficult for said parliamentary bodies to
have conceived some ingenious way of giving evidence of their determined adherence to the Constitution
under which they were elected. Frankly, much as I admire the efforts of the handful of senators who had
their picture taken in front of the padlocked portals of the Senate chamber, I do not feel warranted to
accord such act as enough token of resistance. As counsel Tolentino has informed the court, there was
noting to stop the senators and the congressmen to meet in any other convenient place and somehow
officially organize themselves in a way that can logically be considered as a session, even if nothing were
done than to merely call the roll and disperse. Counsel Tolentino even pointed out that if there were not
enough members to form a quorum, any smaller group could have ordered the arrest of the absent
members. And with particular relevance to the present cases, it was not constitutionally indispensable for
the presiding officers to issue any call to the members to convene, hence the present prayers
for mandamus have no legal and factual bases. And to top it all, quite to the contrary, the records of the
Commission on Elections show that at least 15 of 24 senators and over 95 out of less than 120 members
of the House of Representatives, have officially and in writing exercised the option given to them to join

the Interim National Assembly under the New Constitution, thereby manifesting their acceptance of the
new charter.
Now, having these facts in mind, and it being obvious that of the three great departments of the
government under the 1935 Constitution, two, the Executive and the Legislative, have already accepted
the New Constitution and recognized its enforceability and enforcement, I cannot see how this Supreme
Court can by judicial fiat hold back the political developments taking place and for the sake of being the
guardian of the Constitution and the defender of its integrity and supremacy make its judicial power
prevail against the decision of those who were duly chosen by the people to be their authorized
spokesmen and representatives. It is not alone the physical futility of such a gesture that concerns me.
More than that, there is the stark reality that the Senators and the Congressmen, no less than the
President, have taken the same oath of loyalty to the Constitution that we, the Justices, have taken and
they are, therefore, equally bound with Us to preserve and protect the Constitution. If as the
representatives of the people, they have already opted to accept the New Constitution as the more
effective instrument for fulfillment of the national destiny, I really wonder if there is even any idealistic
worth in our desperately clinging by Ourselves alone to Our sworn duty vis-a-vis the 1935 Constitution.
Conscious of the declared objectives of the new dispensation and cognizant of the decisive steps being
with the least loss of time, towards their accomplishment, cannot but feel apprehensive that instead of
serving the best interests of our people, which to me is in reality the real meaning of our oath of office, the
Court might be standing in the way of the very thing our beloved country needs to retrieve its past glory
and greatness. In other words, it is my conviction that what these cases demand most of all is not a
decision demonstrative of our legal erudition and Solomonic wisdom but an all rounded judgment
resulting from the consideration of all relevant circumstances, principally the political, or, in brief, a
decision more political than legal, which a court can render only by deferring to the apparent judgment of
the people and the announcement thereof by the political departments of the government and declaring
the matter non-justiciable.
4. Viewed from the strictly legal angle and in the light of judicial methods of ascertainment, I cannot agree
with the Solicitor General that in the legal sense, there has been at least substantial compliance with
Article XV of the 1935 Constitution, but what I can see is that in a political sense, the answers to the
referendum questions were not given by the people as legal conclusions. I take it that when they
answered that by their signified approval of the New Constitution, they do not consider it necessary to
hold a plebiscite, they could not have had in mind any intent to do what was constitutionally improper.
Basically accustomed to proceed along constitutional channels, they must have acted in the honest
conviction that what was being done was in conformity with prevailing constitutional standards. We are
not to assume that the sovereign people were indulging in a futile exercise of their supreme political right
to choose the fundamental charter by which their lives, their liberties and their fortunes shall be
safeguarded. In other words, we must perforce infer that they meant their decision to count, and it
behooves this Court to render judgment herein in that context. It is my considered opinion that viewed
understandingly and realistically, there is more than sufficient ground to hold that, judged by such intent
and, particularly, from the political standpoint, the ratification of the 1973 Constitution declared in
Proclamation 1102 complies substantially with Article XV of the 1935 Charter, specially when it is
considered that the most important element of the ratification therein contemplated is not in the word
"election", which conceivably can be in many feasible and manageable forms but in the word "approved"
which may be said to constitute the substantiality of the whole article, so long as such approval is
reasonably ascertained. In the last analysis, therefore, it can be rightly said, even if only in a broad sense,
that the ratification here in question was constitutionally justified and justifiable.
5. Finally, if any doubt should still linger as to the legitimacy of the New Constitution on legal grounds, the
same should be dispelled by viewing the situation in the manner suggested by Counsel Tolentino and by
the writer of this opinion in his separate opinion, oft-referred to above, in the Plebiscite Cases that is,
as an extra constitutional exercise by the people, under the leadership of President Marcos, of their
inalienable right to change their fundamental charter by any means they may deem appropriate, the
moment they are convinced that the existing one is no longer responsive to their fundamental, political
and social needs nor conducive to the timely attainment of their national destiny. This is not only the

teaching of the American Declaration of Independence but is indeed, a truth that is self-evident. More, it
should be regarded as implied in every constitution that regardless of the language of its amending
clause, once the people have given their sanction to a new charter, the latter may be deemed as
constitutionally permissible even from the point of view of the preceding constitution. Those who may feel
restrained to consider this view out of respect to the import of Tolentino vs. Comelec, supra., would be
well advised to bear in mind that the case was decided in the context of submission, not accomplished
ratification.
V
The language of the disputed amending clause of the 1935 Constitution should not be deemed as the be
all and end all the nation. More important than even the Constitution itself with all its excellent features,
are the people living under it their happiness, their posterity and their national destiny. There is nothing
that cannot be sacrificed in the pursuit of these objectives, which constitute the totality of the reasons for
national existence. The sacred liberties and freedom enshrined in it and the commitment and
consecration thereof to the forms of democracy we have hitherto observed are mere integral parts of this
totality; they are less important by themselves.
What seems to me to be bothering many of our countrymen now is that by denying the present petitions,
the Court would be deemed as sanctioning, not only the deviations from traditional democratic concepts
and principles but also the qualified curtailment of individual liberties now being practiced, and this would
amount, it is feared, to a repudiation of our oath to support and defend the Constitution of 1935. This is
certainly something one must gravely ponder upon. When I consider, however, that the President, the
Vice President, the members of both Houses of Congress, not to speak of all executive departments and
bureaus under them as well as all the lower courts, including the Court of Appeals have already accepted
the New Constitution as an instrument of a meaningful nationwide-all-level change in our government and
society purported to make more realistic and feasible, rather than idealistic and cumbersomely
deliberative, the attainment of our national aspirations, I am led to wonder whether or not we, as members
of the Supreme Court are being true to our duty to our people by refusing to follow suit and accept the
realities of the moment, despite our being convinced of the sincerity and laudableness of their objectives,
only because we feel that by the people's own act of ratifying the Constitution of 1935, they have so
encased themselves within its provisions and may, therefore, no longer take measures to redeem
themselves from the situation brought about by the deficiencies of the old order, unless they act in strict
conformity therewith. I cannot believe that any people can be so stifled and enchained. In any event, I
consider it a God-given attribute of the people to disengage themselves, if necessary, from any covenant
that would obstruct their taking what subsequently appears to them to be the better road to the promotion
and protection of their welfare. And once they have made their decision in that respect, whether
sophisticatedly or crudely, whether in legal form or otherwise, certainly, there can be no court or power on
earth that can reverse them.
I would not be human if I should be insensitive to the passionate and eloquent appeals of Counsels
Taada and Salonga that these cases be decided on the basis of conscience. That is exactly what I am
doing. But if counsel mean that only by granting their petitions can this Court be worthily the bulwark of
the 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, Osmea, Roxas, Laurel and
Recto, to mention only some of them, had their differences of views and they did not hesitate to take
diametrically opposing sides that even reached tragic proportions, but all of them are admired and
venerated.

It is my faith that to act with absolute loyalty to our country and people is more important than loyalty to
any particular precept or provision of the Constitution or to the Constitution itself. My oath to abide by the
Constitution binds me to whatever course of action I feel sincerely is demanded by the welfare and best
interests of the people.
In this momentous juncture of our history, what is imperative is national unity. May God grant that the
controversies the events leading to these cases have entail will heal after the decision herein is
promulgated, so that all us Filipinos may forever join hands in the pursuit of our national destiny.
IN VIEW OF ALL THE FOREGOING, I vote to dismiss these petitions for mandamus and prohibition
without costs.
MAKASIAR, J., concurring:
Assuming, without conceding, that Article XV of the 1935 Constitution prescribes a procedure for the
ratification of constitutional amendments or of a new Constitution and that such procedure was no
complied with, the validity of Presidential Proclamation No. 1102 is a political, not a justiciable, issue; for it
is inseparably or inextricably link with and strikes at, because it is decisive of, the validity of ratification
and adoption of, as well as acquiescence of people in, the 1973 Constitution and the legitimacy of the
government organized and operating thereunder. And being political, it is beyond the ambit of judicial
inquiry, tested by the definition of a political question enunciated inTaada, 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." (Taada, et al. vs. Cuenco, et al., supra).
Article XV of the 1935 Constitution provides: "Such amendments shall be valid as part of this Constitution
when approved by a majority of the votes cast at an election at which the amendments are submitted to
the people for ratification." Under Article XV of the 1935 Constitution, the power to propose constitutional
amendments is vested in Congress or in a constitutional convention; while the power to ratify or reject
such proposed amendments or new Constitution is reserved by the sovereign people. The nullification of
Proclamation No. 1102 would inevitably render inoperative the 1973 Constitution, which is in fact the
express prayer of the petitioners in G.R. No. L-36164. Regardless of the modality of submission or
ratification or adoption even if it deviates from or violates the procedure delineated therefore by the old
Constitution once the new Constitution is ratified, adopted and/or acquiesced in by the people or
ratified even by a body or agency not duly authorized therefor but is subsequently adopted or recognized
by the people and by the other official organs and functionaries of the government established under such
a new Constitution, this Court is precluded from inquiring into the validity of such ratification, adoption or
acquiescence and of the consequent effectivity of the new Constitution. This is as it should be in a
democracy, for the people are the repository of all sovereign powers as well as the source of all
governmental authority (Pole vs. Gray, 104 SO 2nd 841 [1958]). This basic democratic concept is
expressly restated in Section 1 of Article II of the Declaration of Principles of the 1935 and 1973
Constitutions, thus: "Sovereignty resides in the people and all government authority emanates from
them."

The legality of the submission is no longer relevant; because the ratification, adoption and/or
acquiescence by the people cures any infirmity in its submission or any other irregularities therein which
are deemed mandatory before submission as they are considered merely directory after such ratification
or adoption or acquiescence by the people. As Mr. Justice Brewer, then of the Kansas State Supreme
Court and later Associate Justice of the Federal Supreme Court, stated in re Prohibitory Amendment
Cases (24 Kansas 700 & 710 Reprint 499, 506): "The two important, vital elements of the Legislature and
a majority of the popular vote. Beyond these, other provisions are mere machineries and forms. They
may not be disregarded, because by them certainty as to the essentials is secured. But they are not
themselves the essentials." (Cited in Larken vs. Gronna, 285 NW 59, 61-64, 1939).
This was the ruling by the American Supreme Court in the 1939 case of Coleman vs. Miller (307 U.S. 433,
83 L.ed. 1385), where Chief Justice Hughes, speaking for the majority, stated that:
... Thus the political departments of the government dealt with the effect of both
previous rejection and attempted withdrawal and determined that both were
ineffectual in the presence of an actual ratification ... . This decision by the
political departments of the Government as to the validity of the adoption of the
Fourteenth amendment has been accepted.
We think that in accordance with this historic precedent the question of the
efficacy of ratifications by state legislatures, in the light of previous rejection or
attempted withdrawal, should be regarded as a political question pertaining to the
political departments, with the ultimate authority in the Congress in the exercise
of its control over the promulgation of the adoption of the amendment.
This view was likewise emphasized by Mr. Justice Black in his concurring opinion, in which Mr. Justices
Roberts, Frankfurter, and Douglas join, thus:
The Constitution grants Congress exclusive power to control submission of
constitutional amendments. Final determination by Congress that ratification by
three-fourths of the States has taken place "is conclusive upon the courts." In the
exercise of that power, Congress, of course, is governed by the Constitution.
However, whether submission, intervening procedure or Congressional
determination of ratification conforms to the commands of the Constitution, calls
for decisions by a "political department" of questions of a type which this Court
has frequently designated "political." And decision of a "political question" by the
"political department" to which the Constitution has committed it "conclusively
binds the judges, as well as all other officers, citizens and subjects
of...government." Proclamation under authority of Congress that an amendment
has been ratified will carry with it a solemn assurance by the Congress that
ratification has taken place as the Constitution commands. Upon this assurance
a proclaimed amendment must be accepted as a part of the Constitution, leaving
to the judiciary its traditional authority of interpretation. To the extent that the
Court's opinion in the present case even impliedly assumes a power to make
judicial interpretation of the exclusive constitutional authority of Congress over
submission and ratification of amendments, we are unable to agree... (American
Constitutional Issues, by Pritchett, 1962 Ed., p. 44).
The doctrine in the aforesaid case of Coleman vs. Miller was adopted by Our Supreme Court in
toto in Mabanag vs. Lopez Vito (78 Phil. 1).
The ruling in the cases of Gonzales vs. Comelec, et al. (L-28224, Nov. 29, 1967, 21 SCRA 774)
and Tolentino vs. Comelec, et al. (L-34150, Oct. 16, 1971, 41 SCRA 702) on which petitioners place great
reliance that the courts may review the propriety of a submission of a proposed constitutional

amendment before the ratification or adoption of such proposed amendment by the sovereign people,
hardly applies to the cases at bar; because the issue involved in the aforesaid cases refers to only the
propriety of the submission of a proposed constitutional amendment to the people for ratification, unlike
the present petitions, which challenge inevitably the validity of the 1973 Constitution after its ratification or
adoption thru acquiescence by the sovereign people. As heretofore stated, it is specious and pure
sophistry to advance the reasoning that the present petitions pray only for the nullification of the 1973
Constitution and the government operating thereunder.
It should be stressed that even in the Gonzales case, supra, We held that:
Indeed, the power to amend the Constitution or to propose amendments thereto
is not included in the general grant of legislative powers to Congress. It is part of
the inherent powers of the people as the repository of sovereignty in a
republican state, such as ours to make, and hence, to amend their own
Fundamental Law. Congress may propose amendments to the same explicitly
grants such power. Hence, when exercising the same, it is said that Senators
and Members of the House of Representatives act, not as members, but as
component elements of a constituent assembly. When acting as such, the
members of Congress derive their authority from the Constitution, unlike the
people, when performing the same function, for their authority does not emanate
from the Constitution they are the very source of all powers of
government, including the Constitution itself. (21 SCRA 787)
We did not categorically and entirely overturn the doctrine in Mabanag vs. Lopez Vito (78 Phil. 1) that
both the proposal to amend and the ratification of such a constitutional amendment are political in nature
forming as they do the essential parts of one political scheme the amending process. WE merely
stated therein that the force of the ruling in the said case of Mabanag vs. Lopez Vito has been weakened
by subsequent cases. Thus, We pronounced therein:
It is true that in Mabanag vs. Lopez Vito, this Court characterizing the issue
submitted thereto as a political one, declined to pass upon the question whether
or not a given number of votes cast in Congress in favor of a proposed
amendment to the Constitution which was being submitted to the people for
ratification satisfied the three fourths vote requirement of the fundamental law.
The force of this precedent has been weakened, however, by Suanes vs. Chief
Accountant of the Senate, Avelino vs. Cuenco, Taada vs. Cuenco and Macias
vs. Commission on Elections. In the first, we held the officers and employees of
the Senate Electoral Tribunal are supervision and control, not of that of the
Senate President, claimed by the latter; in the second, this Court proceeded to
determine the number of Senators necessary for a quorum in the Senate; in the
third we nullified the election, by Senators belonging to the party having the
largest number of votes in said chamber purporting to act on behalf of the party
having the second largest number of votes therein, of two (2) Senators belonging
to the first party, as members, for the second party, of the Senate Electoral
Tribunal; and in the fourth, we declared unconstitutional an act of Congress
purporting to apportion the representative districts for the House of
Representatives, upon the ground that the apportionment had not been made as
may be possible according to the number of inhabitants of each province. Thus
we rejected the theory advanced in these four (4) cases, that the issues therein
raised were political questions the determination of which is beyond judicial
review. (21 SCRA pp. 785-786);
for which reason We concluded

In short, the issue whether or not a resolution of Congress before acting as a


constituent assembly violates the Constitution is essentially justiciable, not
political, and, hence, subject to judicial review, and to the extent that this view
may be inconsistent with the stand taken in Mabanag vs. Lopez Vito, the latter
should be deemed modified accordingly. (p. 787, emphasis supplied.)
In the Tolentino case, supra, We reiterated the foregoing statements (41 SCRA 703-714).
The inevitable consequence therefore is that the validity of the ratification or adoption of or acquiescence
by the people in the 1973 Constitution, remains a political issue removed from the jurisdiction of this Court
to review.
One more word about the Gonzales and Tolentino cases. Both primarily stressed on the impropriety of the
submission of a proposed constitutional amendment. Courts do not deal with propriety or wisdom or
absence of either of an official act or of a law. Judicial power concerns only with the legality or illegality,
constitutionality or unconstitutionality of an act: it inquires into the existence of power or lack of it. Judicial
wisdom is not to be pitted against the wisdom of the political department of the government.
The classic example of an illegal submission that did not impair the validity of the ratification or adoption
of a new Constitution is the case of the Federal Constitution of the United States. It should be recalled
that the thirteen (13) original states of the American Union which succeeded in liberating themselves
from England after the revolution which began on April 19, 1775 with the skirmish at Lexington,
Massachusetts and ended with the surrender of General Cornwallis at Yorktown, Virginia, on October 19,
1781(Encyclopedia Brit., Vol. I, 1933 Ed., p. 776) adopted their Articles of Confederation and Perpetual
Union, that was written from 1776 to 1777 and ratified on March 1, 1781 (Encyclopedia Brit., Vol. II, 1966
Ed., p. 525). About six thereafter, the Congress of the Confederation passed a resolution on February 21,
1787 calling for a Federal Constitutional Convention "for the sole and express purpose of revising the
articles of confederation ... ." (Appendix I, Federalist, Modern Library ed., p. 577, emphasis supplied).
The Convention convened at Philadelphia on May 14, 1787. Article XIII of the Articles of Confederation
and Perpetual Union stated specifically:
The articles of this confederation shall be inviolably observed in every state, and
the union shall be perpetual; nor shall any alterations at any time hereafter be
made in any of them; unless such alteration be agreed to in a congress of the
united states, and be afterwards confirmed by the legislatures of every state.
(See the Federalist, Appendix II, Modern Library Ed., 1937, p. 584; emphasis
supplied.)
But the foregoing requirements prescribed by the Articles of Confederation and Perpetual Union for the
alteration for the ratification of the Federal Constitution as drafted by the Philadelphia Convention were
not followed. Fearful the said Federal Constitution would not be ratified by the legislatures as prescribed,
the Philadelphia Convention adopted a resolution requesting the Congress of the Confederation to pass a
resolution providing that the Constitution should be submitted to elected state conventions and if ratified
by the conventions in nine (9) states, not necessarily in all thirteen (13) states, the said Constitution shall
take effect.
Thus, history Professor Edward Earle Mead of Princeton University recorded that:
It would have been a counsel of perfection to consign the new constitution to the
tender mercies of the legislatures of each and all of the 13 states. Experience
clearly indicated that ratification then would have had the same chance as the
scriptural camel passing through the eye of a needle. It was therefore determined
to recommend to Congress that the new Constitution be submitted to

conventions in the several states especially elected to pass upon it and that,
furthermore, the new government should go into effect if and when it should be
ratified by nine of the thirteen states ... . (The Federalist, Modern Library Ed.,
1937, Introduction by Edward Earle Mead, pp. viii-ix; emphasis supplied)
Historian Samuel Eliot Morison similarly recounted:
The Convention, anticipating that the influence of many state politicians would be
Antifederalist, provided for ratification of the Constitution by popularly elected
conventions in each state. Suspecting that Rhode Island, at least, would prove
recalcitrant, it declared that the Constitution would go into effect as soon as nine
states ratified. The convention method had the further advantage that judges,
ministers, and others ineligible to state legislatures, could be elected to a
convention. The nine-state provision was, of course, mildly revolutionary. But the
Congress of the Confederation, still sitting in New York to carry on federal
government until relieved, formally submitted the new constitution to the states
and politely faded out before the first presidential inauguration. (The Oxford
History of the Am. People, by Samuel Eliot Morison, 1965 ed., p. 312).
And so the American Constitution was ratified by nine (9) states on June 21, 1788 and by the last four
states on May 29, 1790 (12 C.J. p. 679 footnote, 16 C.J.S., 27. by the state conventions and not by all
thirteen (13) state legislatures as required by Article XIII of the Articles of Confederation and Perpetual
Union aforequoted and in spite of the fact that the Federal Constitution as originally adopted suffers
from two basic infirmities, namely, the absence of a bill of Rights and of a provision affirming the power of
judicial review.
The liberties of the American people were guaranteed by subsequent amendments to the Federal
Constitution. The doctrine of judicial review has become part of American constitutional law only by virtue
of a judicial pronouncement by Chief Justice Marshall in the case of Marbury vs. Madison (1803, 1
Cranch 137).
Until this date, no challenge has been launched against the validity of the ratification of the American
Constitution, nor against the legitimacy of the government organized and functioning thereunder.
In the 1946 case of Wheeler vs. Board of Trustees (37 SE 2nd 322, 326-330), which enunciated the
principle that the validity of a new or revised Constitution does not depend on the method of its
submission or ratification by the people, but on the fact or fiat or approval or adoption or acquiescence by
the people which fact of ratification or adoption or acquiescence is all that is essential, the Court cited
precisely the case of the irregular revision and ratification by state conventions of the Federal
Constitution, thus:
No case identical in its facts with the case now under consideration has been
called to our attention, and we have found none. We think that the principle
which we apply in the instant case was very clearly applied in the creation of the
constitution of the United States. The convention created by a resolution of
Congress had authority to do one thing, and one only, to wit, amend the articles
of confederation. This they did not do, but submitted to the sovereign power, the
people, a new constitution. In this manner was the constitution of the United
States submitted to the people and it became operative as the organic law of this
nation when it had been properly adopted by the people.
Pomeroy's Constitutional Law, p. 55, discussing the convention that formulated
the constitution of the United States, has this to say: "The convention proceeded
to do, and did accomplish, what they were not authorized to do by a resolution of

Congress that called them together. That resolution plainly contemplated


amendments to the articles of confederation, to be submitted to and passed by
the Congress, and afterwards ratified by all the State legislatures, in the manner
pointed out by the existing organic law. But the convention soon became
convinced that any amendments were powerless to effect a cure; that the
disease was too deeply seated to be reached such tentative means. They saw
that the system they were called to improve must be totally abandoned, and that
the national idea must be re-established at the center of their political society. It
was objected by some members, that they had no power, no authority, to
construct a new government. They had no authority, if their decisions were to be
final; and no authority whatsoever, under the articles of confederation, to adopt
the course they did. But they knew that their labors were only to be suggestions;
and that they as well as any private individuals, and any private individuals as
well as they, had a right to propose a plan of government to the people for their
adoption. They were, in fact, a mere assemblage of private citizens, and their
work had no more binding sanction than a constitution drafted by Mr. Hamilton in
his office would have had. The people, by their expressed will, transformed this
suggestion, this proposal, into an organic law, and the people might have done
the same with a constitution submitted to them by a single citizen."
xxx xxx xxx
... When the people adopt a completely revised or new constitution, the framing
or submission of the instrument is not what gives it binding force and effect. The
fiat of the people and only the fiat of the people, can breathe life into a
constitution.
xxx xxx xxx
... We do not hesitate to say that a court is never justified in placing by
implication a limitation upon the sovereign. This would be an authorized exercise
of sovereign power by the court. In State v. Swift, 69 Ind. 505, 519, the Indiana
Supreme Court said: "The people of a State may form an original constitution, or
abrogate an old one and form a new one, at any time, without any political
restriction except the constitution of the United States; ... ." (37 SE 327-328, 329,
emphasis supplied.)
In the 1903 case of Weston vs. Ryan, the Court held:
It remains to be said that if we felt at liberty to pass upon this question, and were
compelled to hold that the act of February 23, 1887, is unconstitutional and void,
it would not, in our opinion, by any means follow that the amendment is not a part
of our state Constitution. In the recent case of Taylor vs. Commonwealth (Va.) 44
S.E. 754, the Supreme Court of Virginia hold that their state Constitution of 1902,
having been acknowledged and accepted by the officers administering the state
government, and by the people, and being in force without opposition, must be
regarded as an existing Constitution irrespective of the question as to whether or
not the convention which promulgated it had authority so to do without submitting
it to a vote of the people. In Brittle v. People, 2 Neb. 198, is a similar holding as to
certain provisions of the Nebraska Constitution of 1886, which were added by the
Legislature at the requirement of Congress, though never submitted to the
people for their approval." (97 NW 349-350; emphasis supplied).

Against the decision in the Wheeler case, supra, confirming the validity of the ratification and adoption of
the American Constitution, in spite of the fact that such ratification was in clear violation of the prescription
on alteration and ratification of the Articles of Confederation and Perpetual Union, petitioners in G.R. No.
L-36165 dismissed this most significant historical fact by calling the Federal Constitution of the United
States as a revolutionary one, invoking the opinion expressed in Vol. 16, Corpus Juris Secundum, p. 27,
that it was a revolutionary constitution because it did not obey the requirement that the Articles of
Confederation and Perpetual Union can be amended only with the consent of all thirteen (13) state
legislatures. This opinion does not cite any decided case, but merely refers to the footnotes on the brief
historic account of the United States Constitution on p. 679 of Vol. 12, CJS. Petitioners, on p. 18 of their
main Notes, refer US to pp. 270-316 of the Oxford History of the American People, 1965 Ed. by Samuel
Eliot Morison, who discusses the Articles of Confederation and Perpetual Union in Chapter XVIII
captioned "Revolutionary Constitution Making, 1775 1781" (pp. 270-281). In Chapter XX on "The Creative
Period in Politics, 1785-1788," Professor Morison delineates the genesis of the Federal Constitution, but
does not refer to it even implicitly as revolutionary constitution (pp. 297-316). However, the Federal
Constitution may be considered revolutionary from the view point of McIver if the term revolution is
understood in "its wider sense to embrace decisive changes in the character of government, even though
they do not involve the violent overthrow of an established order, ... ." (R.M. MacIver, The Web of
Government, 1965 ed., p. 203).
It is rather ridiculous to refer to the American Constitution as a revolutionary constitution. The Articles of
Confederation and Perpetual Union that was in force from July 12, 1776 to 1788, forged as it was during
the war of independence was a revolutionary constitution of the thirteen (13) states. In the existing
Federal Constitution of the United States which was adopted seven (7) or nine (9) years after the thirteen
(13) states won their independence and long after popular support for the government of the
Confederation had stabilized was not a product of a revolution. The Federal Constitution was a "creation
of the brain and purpose of man" in an era of peace. It can only be considered revolutionary in the sense
that it is a radical departure from its predecessor, the Articles of Confederation and Perpetual Union.
It is equally absurd to affirm that the present Federal Constitution of the United States is not the
successor to the Articles of Confederation and Perpetual Union. The fallacy of the statement is so obvious
that no further refutation is needed.
As heretofore stated, the issue as to the validity of Proclamation No. 1102 strikes at the validity and
enforceability of the 1973 Constitution and of the government established and operating thereunder.
Petitioners pray for a declaration that the 1973 Constitution is inoperative (L-36164). If Proclamation No.
1102 is nullified, then there is no valid ratification of the 1973 Constitution and the inevitable conclusion is
that the government organized and functioning thereunder is not a legitimate government.
That the issue of the legitimacy of a government is likewise political and not justiciable, had long been
decided as early as the 1849 case of Luther vs. Borden (7 How. 1, 12 L.ed., 581), affirmed in the 1900
case of Taylor vs. Beckham (178 U.S. 548, 44 L.ed. 1187) and re-enunciated in 1912 in the case
of Pacific States Telephone and Telegraph Company vs. Oregon (223 U.S. 118, 133-151, 56 L.ed. 377386). Because it reaffirmed the pronouncements in both Borden and Beckham cases, it is sufficient for us
to quote the decision in Pacific States Telephone and Telegraph Co., supra, penned by Mr. Chief Justice
White, who re-stated:
In view of the importance of the subject, the apparent misapprehension on one
side and seeming misconception on the other, suggested by the argument as to
the full significance of the previous doctrine, we do not content ourselves with a
mere citation of the cases, but state more at length than we otherwise would the
issues and the doctrine expounded in the leading and absolutely controlling
case Luther v. Borden, 7 How. 1, 12 L.ed. 581.
xxx xxx xxx

... On this subject it was said (p. 38):


"For if this court is authorized to enter upon this inquiry, proposed by the plaintiff,
and it should be decided that the character government had no legal existence
during the period of time above mentioned, if it had been annulled by the
adoption of the opposing government, then the laws passed by its legislature
during that time were nullities; its taxes wrongfully collected, its salaries and
compensations to its officers illegally paid ; its public accounts improperly settled
and the judgments and sentences of its courts in civil and criminal cases null and
void, and the officers who carried their decisions into operation answerable as
trespassers, if not in some cases as criminals."
xxx xxx xxx
"The fourth section of the fourth article of the Constitution of the United States
shall guarantee to every state in the Union a republican form of government, and
shall protect each of them against invasion; and on the application of the
Legislature or of the Executive (when the legislature cannot be convened)
against domestic violence.
"Under this article of the Constitution it rests with Congress to decide what
government is established one in a state. For, as the United State guarantee to
each state a republican government, Congress must necessarily decide what
government is established in the state before it can determine whether it is
republican or not. And when the senators and representatives of a state are
admitted into the Councils of the Union, the authority of the government under
which they were appointed, as well as its republican character, is recognized by
the proper constitutional authority. And its decision is binding on every other
department of the government, and could not be questioned in a judicial tribunal.
It is true that the contest in this case did not last long enough to bring the matter
to this issue; and as no senators or representatives were elected under the
authority of the government of which Mr. Dorr was the head, Congress was not
called upon to decide the controversy. Yet the right to decide is placed there and
not in the courts."
xxx xxx xxx
... We do not stop to cite other cases which indirectly or incidentally refer to the
subject, but conclude by directing attention to the statement by the court,
speaking through Mr. Chief Justice Fuller, in Taylor vs. Beckham, 178 U.S. 548,
44 L.ed. 1187, 20 Sup. Ct. Rep. 890, 1009, where, after disposing of a contention
made concerning the 14th Amendment, and coming to consider a proposition
which was necessary to be decided concerning the nature and effect of the
guaranty of S 4 of article 4, it was said (p. 578):
"But it is said that the 14th Amendment must be read with S 4 of article 4, of the
Constitution, providing that the United States shall guarantee to every state in
this Union a republican form of government, and shall protect each of them
against invasion; and on application of the legislature, or the Executive (when the
legislature cannot be convened), against domestic violence."
xxx xxx xxx

"It was long ago settled that the enforcement of this guaranty belonged to the
political department. Luther v. Borden, 7 How. 1, 12 L.ed. 581. In that case it was
held that the question, which of the two opposing governments of Rhode Island,
namely, the charter government or the government established by a voluntary
convention, was the legitimate one, was a question for the determination of the
political department; and when that department had decided, the courts were
bound to take notice of the decision and follow it."
xxx xxx xxx
As the issues presented, in their very essence, are, and have long since by this
Court been, definitely determined to be political and governmental, and
embraced within the scope of the scope of the powers conferred upon Congress,
and not, therefore within the reach of judicial power, it follows that the case
presented is not within our jurisdiction, and the writ of error must therefore be,
and it is, dismissed for want of jurisdiction. (223 U.S. pp. 142-151; emphasis
supplied).
Even a constitutional amendment that is only promulgated by the Constitutional Convention without
authority therefor and without submitting the same to the people for ratification, becomes valid, when
recognized, accepted and acted upon the by Chief of State and other government functionaries, as well
as by the people. In the 1903 case of Taylor vs. Commonwealth (44 SE 754-755), the Court ruled:
The sole ground urged in support of the contention that Constitution proclaimed
in 1902 is invalid is that it was ordained and promulgated by the convention
without being submitted for ratification or rejection by the people of the
commonwealth.
The Constitution of 1902 was ordained and proclaimed by convention duly called
by direct vote of the people of the state to revise and amend the Constitution of
1869. The result of the work that the convention has been recognized, accepted,
and acted upon as the only valid Constitution of the state by the Governor in
swearing fidelity to it and proclaiming it, as directed thereby; by the Legislature in
its formal official act adopting a joint resolution, July 15, 1902, recognizing the
Constitution ordained by the convention which assembled in the city of Richmond
on the 12th day of June 1901, as the Constitution of Virginia; by the individual
oaths of members to support it, and by its having been engaged for nearly a year
in legislating under it and putting its provisions into operation but the judiciary in
taking the oath prescribed thereby to support and by enforcing its provisions; and
by the people in their primary capacity by peacefully accepting it and acquiescing
in it, registering as voters under it to the extent of thousands through the state,
and by voting, under its provisions, at a general election for their representatives
in the Congress of the United States. (p. 755).
The Court in the Taylor case above-mentioned further said:
While constitutional procedure for adoption or proposal to amend the constitution
must be duly followed, without omitting any requisite steps, courts should uphold
amendment, unless satisfied that the Constitution was violated in submitting the
proposal. ... Substance more than form must be regarded in considering whether
the complete constitutional system for submitting the proposal to amend the
constitution was observed.
In the 1925 case of Taylor vs. King (130 A 407, 408 410), the Court stated:

There may be technical error in the manner in which a proposed amendment is


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

a co-equal department to perform a duty. It is responsible to the people; but if it


does act, then, when the question is properly presented, it is the duty of the court
to say whether it has conformed to the organic law. While the judiciary should
protect the rights of the people with great care and jealousy, because this is its
duty, and also because, in times of great popular excitement, it is usually their
last resort, yet it should at the same time be careful to overstep the proper
bounds of its power, as being perhaps equally dangerous; and especially where
such momentous results might follow as would be likely in this instance, if the
power of the judiciary permitted, and its duty required, the overthrow of the work
of the convention.
After the American Revolution the state of Rhode Island retained its colonial
character as its constitution, and no law existed providing for the making of a new
one. In 1841 public meetings were held, resulting in the election of a convention
to form a new one, to be submitted to a popular vote. The convention framed
one, submitted it to a vote, and declared it adopted. Elections were held for state
officers, who proceeded to organize a new government. The charter government
did not acquiesce in these proceedings, and finally declared the state under
martial law. It called another convention, which in 1843 formed a new
constitution. Whether the charter government, or the one established by the
voluntary convention, was the legitimate one, was uniformly held by the courts of
the state not to be a judicial, but a political question; and the political department
having recognized the one, it was held to be the duty of the judiciary to follow its
decision. The supreme court of the United States, in Luther v. Borden, 7 How. 1,
while not expressly deciding the principle, as it held the federal court, yet in the
argument approves it, and in substance says that where the political department
has decided such a matter the judiciary should abide by it.
Let us illustrate the difficulty of a court deciding the question: Suppose this court
were to hold that the convention, when it reassembled, had no power to make
any material amendment, and that such as were made are void by reason of the
people having theretofore approved the instrument. Then, next, this court must
determine what amendments were material; and we find the court, in effect,
making a constitution. This would be arrogating sovereignty to itself. Perhaps the
members of the court might differ as to what amendments are material, and the
result would be confusion and anarchy. One judge might say that all the
amendments, material and immaterial, were void; another, that the convention
had then the implied power to correct palpable errors, and then the court might
differ as to what amendments are material. If the instrument as ratified by the
people could not be corrected or altered at all, or if the court must determine
what changes were material, then the instrument, as passed upon by the people
or as fixed by the court would be lacking a promulgation by the convention; and,
if this be essential, then the question would arise, what constitution are we now
living under, and what is the organic law of the state? A suggestion of these
matters shows what endless confusion and harm to the state might and likely
would arise. If, through error of opinion, the convention exceeded its power, and
the people are dissatisfied, they have ample remedy, without the judiciary being
asked to overstep the proper limits of its power. The instrument provides for
amendment and change. If a wrong has been done, it can, in the proper way in
which it should be remedied, is by the people acting as a body politic. It is not a
question of whether merely an amendment to a constitution, made without calling
a convention, has been adopted, as required by that constitution. If it provides
how it is to be done, then, unless the manner be followed, the judiciary, as the
interpreter of that constitution, will declare the amendment invalid. Koehler v. Hill,
60 Iowa, 543, 14 N.W. Rep. 738, and 15 N.W. Rep. 609; State v. Tuffy, 1 Nev.

391, 12 Pac. Rep. 835. But it is a case where a new constitution has been
formed and promulgated according to the forms of law. Great interests have
already arisen under it; important rights exist by virtue of it; persons have been
convicted of the highest crime known to the law, according to its provisions; the
political power of the government has in many ways recognized it; and, under
such circumstances, it is our duty to treat and regard it as a valid constitution,
and now the organic law of our commonwealth.
We need not consider the validity of the amendments made after the convention
reassembled. If the making of them was in excess of its powers, yet, as the entire
instrument has been recognized as valid in the manner suggested, it would be
equally an abuse of power by 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 Osmea vs. Marcos(Pres. Election Contest No. 3, Jan. 8, 1973), was
re-elected by the vote of over 5 million electors in 1969 for another term of four years until noon of
December 30, 1973 under the 1935 Constitution. This Court, not having a similar mandate by
direct fiat from the sovereign people, to execute the law and administer the affairs of government, must
restrain its enthusiasm to sally forth into the domain of political action expressly and exclusively reserved
by the sovereign people themselves.
The people in Article XV of the 1935 Constitution did not intend to tie their hands to a specific procedure
for popular ratification of their organic law. That would be incompatible with their sovereign character of
which We are reminded by Section 1, of Article II of both the 1935 and the 1973 Constitutions.
The opinion of Judge Thomas McIntire Cooley that the sovereign people cannot violate the procedure for
ratification which they themselves define in their Constitution, cannot apply to a unitary state like the
Republic of the Philippines. His opinion expressed in 1868 may apply to a Federal State like the United
States, in order to secure and preserve the existence of the Federal Republic of the United States against
any radical innovation initiated by the citizens of the fifty (50) different states of the American Union, which
states may be jealous of the powers of the Federal government presently granted by the American
Constitution. This dangerous possibility does not obtain in the case of our Republic.
Then again, Judge Cooley advanced the aforesaid opinion in 1868 when he wrote his opus
"Constitutional Limitations." * (Vol. 6, Encyclopedia Brit., 1969 ed. pp. 445 446). It is possible that, were
he live today, in a milieu vastly different from 1868 to 1898, he might have altered his views on the matter.
Even if conclusiveness is to be denied to the truth of the declaration by the President in Proclamation No.
1102 that the people through their Citizens' Assemblies had overwhelmingly approved the new
Constitution due regard to a separate, coordinate and co-equal branch of the government demands
adherence to the presumption of correctness of the President's declaration. Such presumption is
accorded under the law and jurisprudence to officials in the lower levels of the Executive branch, there is
no over-riding reason to deny the same to the Chief of State as head of the Executive Branch. WE cannot
reverse the rule on presumptions, without being presumptuous, in the face of the certifications by the
Office the Secretary of the Department of Local Government and Community Development. (Annexes 1,
to 1-E, Annexes 2 to 2-O to the compliance with manifestation filed by the Solicitor General on behalf of

the respondents public officers dated March 7, 1973). There is nothing in the records that contradicts,
much less overthrow the results of the referendum as certified. Much less are We justified in reversing the
burden of proof by shifting it from the petitioners to the respondents. Under the rules on pleadings, the
petitioners have the duty to demonstrate by clear and convincing evidence their claim that the people did
not ratify through the Citizens' Assemblies nor adopt by acquiescence the 1973 Constitution. And have
failed to do so.
No member of this Tribunal is justified in resolving the issues posed by the cases at bar on the basis of
reports relayed to him from private sources which could be biased and hearsay, aside from the fact that
such reports are not contained in the record. Proclamation No. 1102 is not just an ordinary act of the Chief
Executive. It is a well-nigh solemn declaration which announces the highest act of the sovereign people
their imprimatur to the basic Charter that shall govern their lives hereafter may be for decades, if not
for generations.
Petitioners decry that even 15-year olds, ex convicts and illiterates were allowed to vote in the Citizens'
Assemblies, despite their admission that the term "Filipino people" in the preamble as well as "people" in
Sections 1 and 5 of Article II of the 1935 Constitution and in Section 1(3) of Article III of the Bill of Rights
includes all Filipino citizens of all ages, of both sexes, whether literate or illiterate, whether peaceful
citizens, rebels, secessionists, convicts or ex-convicts. Without admitting that ex-convicts voted in the
referendum, about which no proof was even offered, these sectors of our citizenry, whom petitioners
seem to regard with contempt or decision and whom petitioners would deny their sovereign right to pass
upon the basic Charter that shall govern their lives and the lives of their progenies, are entitled as much
as the educated, the law abiding, and those who are 21 years of age or above to express their conformity
or non conformity to the proposed Constitution, because their stake under the new Charter is not any less
than the stake of the more fortunate among us. As a matter of fact, these citizens, whose juridical
personality or capacity to act is limited by age, civil interdiction or ignorance deserve more solicitude from
the State than the rest of the citizenry. In the ultimate analysis, the inclusion of those from 15 years up to
below 21 years old, the ex-convicts and the ignorant, is more democratic as it broadens the base of
democracy and therefore more faithful to the express affirmation in Section 1 of Article II of the
Declaration of Principles that "sovereignty resides in the people and all government authority emanates
from them."
Moreover, ex-convicts granted absolute pardon are qualified to vote. Not all ex-convicts are banned from
voting. Only those who had been sentenced to at least one year imprisonment are disenfranchised but
they recover their right of suffrage upon expiration of ten years after service of sentence (Sec. 102, 1971
Rev. Elec. Code). Furthermore, ex-convicts and imbeciles constitute a very negligible number in any
locality or barrio, including the localities of petitioners.
Included likewise in the delegated authority of the President, is the prerogative to proclaim the results of
the plebiscite or the voting the Citizens' Assemblies. Petitioners deny the accuracy or correctness of
Proclamation No. 1102 that the 1973 Constitution was ratified by the overwhelming vote of close to 15
million citizens because there was no official certification to the results of the same from the Department
of Local Governments. But there was such certification as per Annex 1 to 1-A to the Notes submitted by
the Solicitor General counsel for respondents public officers. This should suffice to dispose of this point.
Even in the absence of such certification, in much the same way that in passing law, Congress or the
legislative body is presumed to be in possession of the facts upon which such laws are predicated
(Justice Fernando, The Power of Judicial Review, 1967 Ed., pp. 112-11 citing Lorenzo vs. Dir., etc., [1927]
50 Phil. 595 and O'Gonmore, et al: vs. Hartford, etc., [1931] 282 U.S. 251), it should likewise be
presumed that the President was in possession of the fact upon which Proclamation No. 1102 was based.
This presumption is further strengthened by the fact that the Department of Local Governments, the
Department National Defense and the Philippine Constabulary as well the Bureau of Posts are all under
the President, which offices as his alter ego, are presumptively acting for and in behalf of the President
and their acts are valid until disapproved or reprobated by the President (Planas vs. Gil, 67 Phil. 62; Villen
vs. Secretary of Interior, 67 Phil. 451). To deny the truth or the proclamation of the President as to the
overwhelming majority vote in the Citizens' Assemblies in favor of the new Constitution, is to charge the

President with falsification, which is a most grievous accusation. Under the, rules of pleadings and
evidence, the petitioners have the burden of proof by preponderance of evidence in civil cases and by
proof beyond reasonable doubt in criminal prosecutions, where the accused is always presumed to be
innocent. Must this constitutional right be reversed simply because the petitioner all assert the contrary?
Is the rule of law they pretend invoke only valid as long as it favors them?
The presumption of regularity in the performance of official functions is accorded by the law and
jurisprudence to acts of public officers whose category in the official hierarchy is very much lower than
that of the Chief of State. What reason is there to withhold such a presumption in favor of the President?
Does the fact that the President belong to the party in power and that four (4) of the five (5) senators who
are petitioners in L-36165 belong to the opposition party, justify a discrimination against the President in
matters of this nature? Unsupported as their word is by any credible and competent evidence under the
rules of evidence, must the word of the petitioners prevail over that of the Chief Executive, because they
happen to be former senators and delegates to the Constitutional Convention? More than any of the
petitioners herein in all these cases, the incumbent President realizes that he risks the wrath of his people
being visited upon him and the adverse or hostile verdict of history; because of the restrictions on the civil
liberties of his people, inevitable concomitants of martial law, which necessarily entail some degree of
sacrifice on the part of the citizenry. Until the contrary is established or demonstrated, herein petitioners
should grant that the Chief Executive is motivated by what is good for the security and stability of the
country, for the progress and happiness of the people. All the petitioners herein cannot stand on the
proposition that the rights under the 1935 Constitution are absolute and invulnerable to limitations that
may be needed for the purpose of bringing about the reforms for which the petitioners pretend to be
clamoring for and in behalf of the people. The five (5) petitioners in L-36165 and four (4) of the seven (7)
petitioners in L-36164 were all participants in the political drama of this country since 1946. They are
witness to the frustrations of well-meaning Presidents who wanted to effect the reforms, especially for the
benefit of the landless and the laboring class how politics and political bargaining had stymied the
effectuation of such reforms thru legislation. The eight (8) petitioners in L-36164 and L-36165 may not
have participated in the systematic blocking of the desired reforms in Congress or outside of it; but the
question may be asked as to what exactly they did to support such reforms. For the last seven (7)
decades since the turn of the century, for the last thirty-five (35) years since the establishment of the
Commonwealth government in 1935 and for the last twenty seven (27) years since the inauguration of the
Republic on July 4, 1946, no tangible substantial reform had been effected, funded and seriously
implemented, despite the violent uprisings in the thirties, and from 1946 to 1952, and the violent
demonstrations of recent memory. Congress and the oligarchs acted like ostriches, "burying their heads in
timeless sand. "Now the hopes for the long-awaited reforms to be within a year or to are brighter. It would
seem therefore to the duty of everyone including herein petitioners to give the present leadership the
opportunity to institute and carry out the needed reforms as provided for in the new or 1973 Constitution
and thru the means prescribed in that same Constitution.
As stated in Wheeler vs. Board of Trustees, "a court is never justified in placing by implication a limitation
upon the sovereign."
This Court in the Gonzales and Tolentino cases transcended its proper sphere and encroached upon the
province exclusively reserved to and by the sovereign people. This Court did not heed to the principle that
the courts are not the fountain of all remedies for all wrongs. WE cannot presume that we alone can
speak with wisdom as against the judgment of the people on the basic instrument which affects their very
lives. WE cannot determine what is good for the people or ought to be their fundamental law. WE can only
exercise the power delegated to Us by the sovereign people, to apply and interpret the Constitution and
the laws for the benefit of the people, not against them nor to prejudice them. WE cannot perform an act
inimical to the interest of Our principal, who at any time may directly exercise their sovereign power
ratifying a new Constitution in the manner convenient to them.
It is pertinent to ask whether the present Supreme Court can function under the 1935 Constitution without
being a part of the government established pursuant thereto. Unlike in the Borden case, supra, where
there was at least another government claiming to be the legitimate organ of the state of Rhode Island

(although only on paper as it had no established organ except Dorr who represented himself to be its
head; in the cases at bar there is no other government distinct from and maintaining a position against the
existing government headed by the incumbent Chief Executive. (See Taylor vs. Commonwealth, supra).
There is not even a rebel government duly organized as such even only for domestic purposes, let alone
a rebel government engaged in international negotiations. As heretofore stated, both the executive branch
and the legislative branch established under the 1935 Constitution had been supplanted by the
government functioning under the 1973 Constitution as of January 17, 1973. The vice president elected
under the 1935 Constitution does not asset any claim to the leadership of the Republic of the Philippines.
Can this Supreme Court legally exist without being part of any government?
Brilliant counsel for petitioners in L-36165 has been quite extravagant in his appraisal of Chief Justice
Roger Brooke Taney whom he calls the "hero of the American Bar," because during the American civil war
he apparently had the courage to nullify the proclamation of President Lincoln suspending the privileges
of the writ of habeas corpus in Ex parte Merryman (Federal Case No. 9487 [1861]). But who exactly was
Chief Justice Roger Brooke Taney? The Editorial Board of Vol. 21 of the Encyclopedia Brit., 1966 ed. (pp.
778-779, 1969 ed., pp. 654-657), briefly recounts that he was born in 1777 in Calvert County, Maryland,
of parents who were landed aristocrats as well as slave owners. Inheriting the traditional conservatism of
his parents who belonged to the landed aristocracy, Taney became a lawyer in 1799, practiced law and
was later appointed Attorney General of Maryland. He also was a member of the Maryland state
legislature for several terms. He was a leader of the Federalist Party, which disintegrated after the war of
1812, compelling him to join the Democratic Party of Andrew Jackson, also a slave owner and landed
aristocrat, who later appointed him first as Attorney General of the United States, then Secretary of the
Treasury and in 1836 Chief Justice of the United States Supreme Court to succeed Chief Justice John
Marshall, in which position he continued for 28 years until he died on October 21, 1864. His death "went
largely unnoticed and unregretted." Because he himself was a slave owner and a landed aristocrat, Chief
Justice Taney sympathized with the Southern States and, even while Chief Justice, hoped that the
Southern States would be allowed to secede peacefully from the Union. That he had no sympathy for the
Negroes was revealed by his decision in Dred Scott vs. Sandford (19 How. 398 [1857]) where he
pronounced that the American Negro is not entitled to the rights of an American citizen and that his status
as a slave is determined by his returning to a slave state. One can therefore discern his hostility towards
President Lincoln when he decided Ex parte Merryman, which animosity to say the least does no befit a
judicial mind. Such a man could hardly be spoken of as a hero of the American Bar, least of all of the
American nation. The choice of heroes should not be expressed indiscriminately just to embellish one's
rhetoric.
Distinguished counsel in L-36165 appears to have committed another historical error, which may be due
to his rhetorical in the Encyclopedia Britannica (Vol. 9, 1969 ed., pp. 508-509) to this effect. On the
contrary, Encyclopedia Britannica (Vol. 17 Encyclopedia Brit., 1966 & 1969 eds., 732-733), refers to
Marshal Henri Philippe Petain as the genuine hero or "Savior of Verdun"; because he held Verdun against
the 1916 offensive of the German army at the cost of 350,000 of his French soldiers, who were then
demoralized and plotting mutiny. Certainly, the surviving members of the family of Marshal Petain would
not relish the error. And neither would the members of the clan of Marshal Foch acknowledge the
undeserved accolade, although Marshal Foch has a distinct place in history on his own merits. The
foregoing clarification is offered in the interest of true scholarship and historical accuracy, so that the
historians, researchers and students may not be led astray or be confused by esteemed counsel's
eloquence and mastery of the spoken and written word as well as by his eminence as law professor,
author of law books, political leader, and member of the newly integrated Philippine Bar.
It is quite intriguing why the eminent counsel and co-petitioner in L-36164 did not address likewise his
challenge to the five (5) senators who are petitioners in L-36165 to also act as "heroes and idealists," to
defy the President by holding sessions by themselves alone in a hotel or in their houses if they can
muster a quorum or by causing the arrest of other senators to secure a quorum and thereafter remove
respondents Puyat and Roy (Avelino, et al. vs. Cuenco, et al. [1949] 83 Phil. 17), if they believe most
vehemently in the justice and correctness of their position that the 1973 Constitution has not been validly
ratified, adopted or acquiesced in by the people since January 18, 1973 until the present. The proclaimed

conviction of petitioners in L-36165 on this issue would have a ring of credibility, if they proceeded first to
hold a rump session outside the legislative building; because it is not unreasonable to demand or to exact
that he who exhorts others to be brave must first demonstrate his own courage. Surely, they will not affirm
that the mere filing of their petition in L-36165 already made them "heroes and idealists." The challenge
likewise seems to insinuate that the members of this Court who disagree with petitioners' views are
materialistic cowards or mercenary fence-sitters. The Court need not be reminded of its solemn duty and
how to perform it. WE refuse to believe that petitioners and their learned as well as illustrious counsels,
scholars and liberal thinkers that they are, do not recognize the sincerity of those who entertain opinions
that clash with their own. Such an attitude does not sit well with the dictum that "We can differ without
being difficult; we can disagree without being disagreeable," which distinguished counsel in L-36165 is
wont to quote.
WE reserve the right to prepare an extensive discussion of the other points raised by petitioners, which
We do not find now necessary to deal with in view of Our opinion on the main issue.
IN VIEW OF THE FOREGOING, ALL THE PETITIONS IN THESE FIVE CASES SHOULD BE
DISMISSED.
MAKASIAR, J., concurring:
Pursuant to Our reservation, We now discuss the other issues raised by the petitioners.
II
EVEN IF ISSUE IS JUSTICIABLE, PEOPLE'S RATIFICATION, ADOPTION OR ACQUIESCENCE
CREATES STRONG PRESUMPTION OF VALIDITY OF 1973 CONSTITUTION.
As intimated in the aforecited cases, even the courts, which affirm the proposition that the question as to
whether a constitutional amendment or the revised or new Constitution has been validly submitted to the
people for ratification in accordance with the procedure prescribed by the existing Constitution, is a
justiciable question,accord all presumption of validity to the constitutional amendment or the revised or
new Constitution after the government officials or the people have adopted or ratified or acquiesced in the
new Constitution or amendment, although there was an illegal or irregular or no submission at all to the
people. (Collier vs. Gray, 4th Dec. Dig. 935 [1934], Hammond vs. Clark, 71 SE 482-483; People vs.
Sours, 31 Colo. 369, 74 Pac. 167, 102 Am. St. Rep. 34; Thompson vs. Winneth, 78 Neb. 379, 110 NW
1113, 10 L.R.A. [N.S.] 149; State vs. Laylin, 69 Ohio St. Rep. 1, 68 NE 574; Weston vs. Ryan, 70 Neb.
211, 97 NW 347; Combs vs. State, 81 Ga. 780, 8 SE 318; Woodward vs. State, 103 Ga. 496, 30 SE 522;
Corre vs. Cooney, 70 Mont. 355, 225 P 1007, 1009). As late as 1971, the courts stressed that the
constitutional amendment or the new Constitution should not be condemned "unless our judgment its
nullity is manifest beyond reasonable doubt" (1971 case of Moore vs. Shanahan, 486 Pac. 2d 506, 207
Kan. 1, 645; and the 1956 case of Tipton vs. Smith, et al., supra).
Mr. Justice Enrique M. Fernando, speaking for the Court, pronounced that the presumption of
constitutionality must persist in the absence of factual foundation of record to overthrow such presumption
(Ermita-Malate Hotel, etc. vs. City Mayor, L-24698, July 31, 1967, 20 SCRA 849).
III
CONSTITUTIONAL CONVENTION CO-EQUAL WITH AND INDEPENDENT OF CONGRESS,
EXECUTIVE AND JUDICIARY.
The Constitutional Convention is co-ordinate and co-equal with, as well as independent of, the three
grand departments of the Government, namely, the legislative, the executive and the judicial. As a fourth

separate and distinct branch, to emphasize its independence, the Convention cannot be dictated to by
either of the other three departments as to the content as well as the form of the Charter that it proposes.
It enjoys the same immunity from interference or supervision by any of the aforesaid branches of the
Government in its proceedings, including the printing of its own journals (Taada and Fernando,
Constitution of the Philippines, 1952 ed., Vol. I, pp. 8 9; Malcolm and Laurel, Phil. Const. Law, p. 22;
Frantz vs. Autry, 91 Pac. 193). Implicit in that independence, for the purpose of maintaining the same
unimpaired and in order that its work will not be frustrated, the Convention has the power to fix the date
for the plebiscite and to provide funds therefor. To deny the Convention such prerogative, would leave it at
the tender mercy of both legislative and executive branches of the Government. An unsympathetic
Congress would not be disposed to submit the proposed Constitution drafted by the Constitutional
Convention to the people for ratification, much less appropriate the necessary funds therefor. That could
have been the fate of the 1973 Constitution, because the same abolished the Senate by creating a
unicameral National Assembly to be presided by a Prime Minister who wields both legislative and
executive powers and is the actual Chief Executive, for the President contemplated in the new
Constitution exercises primarily ceremonial prerogatives. The new Constitution likewise shortened
abruptly the terms of the members of the present Congress (whose terms end on December 31, 1973,
1975 and 1977) which provides that the new Constitution shall take effect immediately upon its ratification
(Sec. 16, Article XVII, 1973 Constitution). The fact that Section 2 of the same Article XVIII secures to the
members of Congress membership in the interim National Assembly as long as they opt to serve therein
within thirty (30) days after the ratification of the proposed Constitution, affords them little comfort;
because the convening of the interim National Assembly depends upon the incumbent President (under
Sec. 3[1], Art. XVII, 1973 Constitution). Under the foregoing circumstances, the members of Congress,
who were elected under the 1935 Constitution, would not be disposed to call a plebiscite and appropriate
funds therefor to enable the people to pass upon the 1973 Constitution, ratification of which means their
elimination from the political scene. They will not provide the means for their own liquidation.
Because the Constitutional Convention, by necessary implication as it is indispensable to its
independence and effectiveness, possesses the power to call a plebiscite and to appropriate funds for the
purpose, it inescapably must have the power to delegate the same to the President, who, in estimation of
the Convention can better determine appropriate time for such a referendum as well as the amount
necessary to effect the same; for which reason the Convention thru Resolution No. 29 approved on
November 22, 1972, which superseded Resolution No. 5843 adopted on November 16, 1972, proposed
to the President "that a decree be issued calling a plebiscite for the ratification of the proposed new
Constitution such appropriate date as he shall determine and providing for the necessary funds
therefor, ...," after stating in "whereas" clauses that the 1971 Constitutional Convention expected to
complete its work by the end of November, 1972 that the urgency of instituting reforms rendered
imperative the early approval of the new Constitution, and that the national and local leaders desire that
there be continuity in the immediate transition from the old to the new Constitution.
If Congress can legally delegate to the Chief Executive or his subaltern the power to promulgate
subordinate rules and regulations to implement the law, this authority to delegate implementing rules
should not be denied to the Constitutional Convention, a co-equal body.
Apart from the delegation to the Chief Executive of the power to call a plebiscite and to appropriate funds
therefor by the Constitutional Convention thru its Resolution No. 29, the organization of the Citizens'
Assemblies for consultation on national issues, is comprehended within the ordinance-making power of
the President under Section 63 of the Revised Administrative Code, which expressly confers on the Chief
Executive the power to promulgate administrative acts and commands touching on the organization or
mode of operation of the government or re-arranging or re-adjusting any district, division or part of the
Philippines "or disposing of issues of general concern ... ." (Emphasis supplied). Hence, as consultative
bodies representing the localities including the barrios, their creation by the President thru Presidential
Decree No. 86 of December 31, 1972, cannot be successfully challenged.

The employment by the President of these Citizens' Assemblies for consultation on the 1973 Constitution
or on whether there was further need of a plebiscite thereon, both issues of national concern is still
within the delegated authority reposed in him by the Constitutional Convention as aforesaid.
It should be noted that Resolution No. 29, which superseded Resolution No. 5843, does not prescribe that
the plebiscite must be conducted by the Commission on Elections in accordance with the provisions of
the 1971 Revised Election Code. If that were the intention of the Constitutional Convention in making the
delegation, it could have easily included the necessary phrase for the purpose, some such phrase like "to
call a plebiscite to be supervised by the Commission on Elections in accordance with the provisions of the
1971 Revised Election Code (or with existing laws)." That the Constitutional Convention omitted such
phrase, can only mean that it left to the President the determination of the manner by which the plebiscite
should be conducted, who shall supervise the plebiscite, and who can participate in the plebiscite. The
fact that said Resolution No. 29 expressly states "that copies of this resolution as approved in plenary
session be transmitted to the President of the Philippines and the Commission on Elections for
implementation," did not in effect designate the Commission on Elections as supervisor of the plebiscite.
The copies of said resolution that were transmitted to the Commission on Elections at best serve merely
to notify the Commission on Elections about said resolution, but not to direct said body to supervise the
plebiscite. The calling as well as conduct of the plebiscite was left to the discretion of the President, who,
because he is in possession of all the facts funnelled to him by his intelligence services, was in the
superior position to decide when the plebiscite shall be held, how it shall be conducted and who shall
oversee it.
It should be noted that in approving said Resolution No. 29, the Constitutional Convention itself
recognized the validity of, or validated Presidential Proclamation No. 1081 placing the entire country
under martial law by resolving to "propose to President Ferdinand E. Marcos that a decree be issued
calling a plebiscite ... ." The use of the term "decree" is significant for the basic orders regulating the
conduct of all inhabitants are issued in that form and nomenclature by the President as the Commander in
Chief and enforcer of martial law. Consequently, the issuance by the President of Presidential Decree No.
73 on December 1, 1972 setting the plebiscite on January 15, 1973 and appropriating funds therefor
pursuant to said Resolution No. 29, is a valid exercise of such delegated authority.
Such delegation, unlike the delegation by Congress of the rule-making power to the Chief Executive or to
any of his subalterns, does not need sufficient standards to circumscribe the exercise of the power
delegated, and is beyond the competence of this Court to nullify. But even if adequate criteria should be
required, the same are contained in the "Whereas" clauses of the Constitutional Convention Resolution
No. 29, thus:
WHEREAS, the 1971 Constitutional Convention is expected to complete its work
of drafting a proposed new Constitution for the Republic by the end of November,
1972;
WHEREAS, in view of the urgency of instituting reforms, the early approval of the
New Constitution has become imperative;
WHEREAS, it is the desire of the national and local leaders that there be
continuity in the immediate political transition from the old to the New
Constitution;" (Annex "1" of Answer, Res. No. 29, Constitutional Convention).
As Mr. Justice Fernando, with whom Messrs. Justices Barredo, Antonio and the writer concurred in the
Plebiscite Cases, stated:
... Once this work of drafting has been completed, it could itself direct the
submission to the people for ratification as contemplated in Article XV of the
Constitution. Here it did not do so. With Congress not being in session, could the

President, by the decree under question, call for such a plebiscite? Under such
circumstances, a negative answer certainly could result in the work of the
Convention being rendered nugatory. The view has been repeatedly expressed
in many American state court decisions that to avoid such undesirable
consequence the task of submission becomes ministerial, with the political
branches devoid of any discretion as to the holding of an election for that
purpose. Nor is the appropriation by him of the amount necessary to be
considered as offensive to the Constitution. If it were done by him in his capacity
as President, such an objection would indeed have been formidable, not to say
insurmountable. If the appropriation were made in his capacity as agent of the
Convention to assure that there be submission to the people, then such an
argument loses force. The Convention itself could have done so. It is
understandable why it should be thus. If it were otherwise, then a legislative
body, the appropriating arm of the government, could conceivably make use of
such authority to compel the Convention to submit to its wishes, on pain of being
rendered financially distraught. The President then, if performing his role as its
agent, could be held as not devoid of such competence. (pp. 2-3, concurring
opinion of J. Fernando in L-35925, etc., emphasis supplied).
IV
VAGUENESS OR AMBIGUITY DOES NOT INVALIDATE THE
1973 CONSTITUTION
(1) Petitions challenge the 1973 draft as vague and incomplete, and alluded to their arguments during the
hearings on December 18 and 19, 1972 on the Plebiscite Cases. But the inclusion of questionable or
ambiguous provisions does not affect the validity of the ratification or adoption of the 1973 Constitution
itself (Pope vs. Gray, 104 SO, 2d 841; 7th Dec. pp. 212-219, 1956-1966).
Alexander Hamilton, one of the leading founders and defenders of the American Constitution, answering
the critics of the Federal Constitution, stated that: "I never expect to see a perfect work from imperfect
man. The result of the deliberations of all collective bodies must necessarily be a compound, as well of
the errors and prejudices as of the good sense and wisdom, of the individuals of whom they are
composed. The compacts which are to embrace thirteen distinct States in a common bond of amity and
union, must necessarily be a compromise of as many dissimilar interests and inclinations. How can
perfection spring from such materials?" (The Federalist, Modern Library Ed., pp. xx-xxi).
(2) The 1973 Constitution is likewise impugned on the ground that it contains provisions which are ultra
vires or beyond the power of the Constitutional Convention to propose.
This objection relates to the wisdom of changing the form of government from Presidential to
Parliamentary and including such provisions as Section 3 of Article IV, Section 15 of Article XIV and
Sections 3(2) and 12 of Article XVII in the 1973 Constitution.
Article IV
Sec. 3. The right of the people to be secure in their persons, houses, papers, and
effects against unreasonable searches and seizures of whatever nature and for
any purpose shall not be violated, and no search warrant or warrant of arrest
shall issue except upon probable cause to be determined by the judge, or such
other responsible officer as may be authorized by law, after examination under
oath or affirmation of the complainant and the witnesses may produce, and
particularly describing the place to be searched, and the persons or things to be
seized.

Article XIV
Sec. 15. Any provision of paragraph one, Section fourteen, Article Eight and of
this Article notwithstanding, the Prime Minister may enter into international
treaties or agreements as the national welfare and interest may require." (Without
the consent of the National Assembly.)
Article XVII
Sec. 3(2) All proclamations, orders, decrees, instructions, and acts promulgated,
issued, or done by the incumbent President shall be part of the law of the land,
and shall remain valid, legal, binding and effective even after lifting of martial law
or the ratification of this Constitution, unless modified, revoked, or superseded by
subsequent proclamations, orders, decrees, instructions, or other acts of the
incumbent President, or unless expressly and explicitly modified or repealed by
the regular National Assembly.
xxx xxx xxx
Sec. 12. All treaties, executive agreements, and contracts entered into by the
Government, or any subdivision, agency, or instrumentality thereof, including
government-owned or controlled corporations, are hereby recognized as legal,
valid and binding. When the national interest so requires, the incumbent
President of the Philippines or the interim Prime Minister may review all
contracts, concessions, permits, or other forms of privileges for the exploration,
development, exploitation, or utilization of natural resources entered into,
granted, issued or acquired before the ratification of this Constitution.
In the Plebiscite Cases (L-35925, L-35929, L-35940, L-35942, L-35948, L-35953, L-35961, L-35965, & L35979), Chief Justice Roberto Concepcion, concurred in by Justices Fernando, Barredo, Antonio and the
writer, overruled this objection, thus:
... Regardless of the wisdom and moral aspects of the contested
provisions of the proposed Constitution, it is my considered view
that the Convention was legally deemed fit to propose save
perhaps what is or may be insistent with what is now known,
particularly in international law, as Jus Cogens not only
because the Convention exercised sovereign powers delegated
thereto by the people although insofar only as the
determination of the proposals to be made and formulated by
said body is concerned but also, because said proposals
cannot be valid as part of our Fundamental Law unless and until
"approved by the majority of the votes cast at an election which"
said proposals "are submitted to the people for their ratification,"
as provided in Section 1 of Article XV of the 1935 Constitution.
(Pp. 17-18, Decision in L-35925, etc.).
This Court likewise enunciated in Del Rosario vs. Comelec (L-32476, Oct. 20, 1970, 35 SCRA 367) that
the Constitutional Convention has the authority to "entirely overhaul the present Constitution and propose
an entirely new Constitution based on an ideology foreign to the democratic system ...; because the same
will be submitted to the people for ratification. Once ratified by the sovereign people, there can be no
debate about the validity of the new Constitution."

Mr. Justice Fernando, concurring in the same Plebiscite Cases, cited the foregoing pronouncement in the
Del Rosario case, supra, and added: "... it seems to me a sufficient answer that once convened, the area
open for deliberation to a constitutional convention ..., is practically limitless" (citing Cf. Koehler vs. Hill, 14
NW 738, 60 Iowa 543 [1883]; Hatch Stoneman, 6 P 734, 66 Cal. 632 [1885]; MacMillan v. Blattner, 25 NW
245, 67 Iowa 287 [1895]; State v. Powell, 27 SO 297, 77 Miss. 543 [1900]; Hammond v. Clark, 71 SE 479,
136 Ga. 313 [1911]; Hamilton v. Vaughan, 179 NW 533, 212 Mich. 31 [1920]; State v. Smith, 138 NE 881,
105 Ohio St. 570 [1922]; Looney vs. Leeper, 292 P 365, 145 Okl. 202 [1930]; School District vs. City of
Pontiac, 247 NW 474, 262 Mich. 338 [1933]).
Mr. Justice Barredo, in his concurring opinion in said Plebiscite Cases, expressed the view "that when the
people elected the delegates to the Convention and when the delegates themselves were campaigning,
such limitation of the scope of their function and objective was not in their minds."
V
1973 CONSTITUTION DULY ADOPTED AND
PROMULGATED.
Petitioners next claim that the 1971 Constitutional Convention adjourned on November 30, 1972 without
officially promulgating the said Constitution in Filipino as required by Sections 3(1) of Article XV on
General Provisions of the 1973 Constitution. This claim is without merit because their Annex "M" is the
Filipino version of the 1973 Constitution, like the English version, contains the certification by President
Diosdado Macapagal of the Constitutional Convention, duly attested by its Secretary, that the proposed
Constitution, approved on second reading on the 27th day of November, 1972 and on third reading in the
Convention's 291st plenary session on November 29, 1972 and accordingly signed on November 1972 by
the delegates whose signatures are thereunder affixed. It should be recalled that Constitutional
Convention President Diosdado Macapagal was, as President of the Republic 1962 to 1965, then the
titular head of the Liberal Party to which four (4) of the petitioners in L-36165 including their counsel,
former Senator Jovito Salonga, belong. Are they repudiating and disowning their former party leader and
benefactor?
VI
ARTICLE XV OF 1935 CONSTITUTION DOES NOT
PRESCRIBE ANY PROCEDURE FOR RATIFICATION OF
1973 CONSTITUTION.
(1) Article XV of the 1935 Constitution simply provides that "such amendments shall be valid as part of
this Constitution when approved by a majority of the votes cast at an election at which the amendments
are submitted to the people for ratification."
But petitioners construe the aforesaid provision to read: "Such amendments shall be valid as part of this
Constitution when approved by a majority of the votes cast at an election called by Congress at which the
amendments are submitted for ratification by the qualified electors defined in Article V hereof, supervised
by the Commission on Elections in accordance with the existing election law and after such amendments
shall have been published in all the newspapers of general circulation for at least four months prior to
such election."
This position certainly imposes limitation on the sovereign people, who have the sole power of ratification,
which imposition by the Court is never justified (Wheeler vs. Board of Trustees, supra).
In effect, petitioners and their counsels are amending by a strained and tortured construction Article XV of
the 1935 Constitution. This is a clear case of usurpation of sovereign power they do not possess

through some kind of escamotage. This Court should not commit such a grave error in the guise of
judicial interpretation.
In all the cases where the court held that illegal or irregular submission, due to absence of substantial
compliance with the procedure prescribed by the Constitution and/or the law, nullifies the proposed
amendment or the new Constitution, the procedure prescribed by the state Constitution is so detailed that
it specifies that the submission should be at a general or special election, or at the election for members
of the State legislature only or of all state officials only or of local officials only, or of both state and local
officials; fixes the date of the election or plebiscite limits the submission to only electors or qualified
electors; prescribes the publication of the proposed amendment or a new Constitution for a specific period
prior to the election or plebiscite; and designates the officer to conduct the plebiscite, to canvass and to
certify the results, including the form of the ballot which should so state the substance of the proposed
amendments to enable the voter to vote on each amendment separately or authorizes expressly the
Constitutional Convention or the legislature to determine the procedure or certain details thereof. See the
State Constitutions of Alabama [1901]; Arizona [1912]; Arkansas [1874]; Colorado [1976]; Connecticut
[1818]; Florida [1887]; Georgia [1945]; Illinois [1970]; Indiana [1851]; Iowa [1857]; Kansas [1861];
Kentucky [1891]; Louisiana [1921]; Maryland [1867]; Massachusetts [1790]; Michigan [1909]; Minnesota
[1857]; Mississippi [1890]; and Missouri [1945]).
As typical examples:
Constitution of Alabama (1901):
Article XVIII. Mode of Amending the Constitution
Sec. 284. Legislative Proposals. Amendments may be proposed to this
Constitution by the legislature in the manner following: The proposed
amendments shall be read in the house in which they originate on three several
days, and, if upon the third reading, three-fifths of all the members elected to that
house shall vote in favor thereof, the proposed amendments shall be sent to the
other house, in which they shall likewise be read on three several days, and if
upon the third reading, three-fifths of all the members elected that house shall
vote in favor of the proposed amendments, thelegislature shall order an election
by the qualified electors of the state upon such proposed amendments, to be
held either at the general election next succeeding the session of the legislature
at which the amendments are proposed or upon another day appointed by the
legislature, not less than three months after the final adjournment of the session
of the legislature at which the amendments were proposed. Notice of such
election, together with the proposed amendments, shall be given by proclamation
of the governor, which shall be published in every county in such manner as the
legislature shall direct, for at least eight successive weeks next preceding the
day appointed for such election. On the day so appointed an election shall be
held for the vote of the qualified electors of the state upon the proposed
amendments. If such election be held on the day of the general election, the
officers of such general election shall open a poll for the vote of the qualified
electors upon the proposed amendments; if it be held on a day other than that of
a general election, officers for such election shall be appointed; and the election
shall be held in all things in accordance with the law governing general elections.
In all elections upon such proposed amendments, the votes cast thereat shall be
canvassed, tabulated, and returns thereof be made to the secretary of state, and
counted, in the same manner as in elections for representatives to the
legislature; and if it shall thereupon appear that a majority of the qualified electors
who voted at such election upon the proposed amendments voted in favor of the
same, such amendments shall be valid to all intents and purposes as parts of this
Constitution. The result of such election shall be made known by proclamation of
the governor. Representation in the legislature shall be based upon population,

and such basis of representation shall not be changed by constitutional


amendments.
Sec. 285. Form of ballot for amendment. Upon the ballots used at all elections
provided for in section 284 of this Constitution, the substance or subject matter of
each proposed amendment shall be so printed that the nature thereof shall be
clearly indicated. Following each proposed amendment on the ballot shall be
printed the word "Yes" and immediately under that shall be printed the word "No".
The choice of the elector shall be indicated by a cross mark made by him or
under his direction, opposite the word expressing his desire, and no amendment
shall be adopted unless it receives the affirmative vote of a majority of all the
qualified electors who vote at such election.
Constitution of Arkansas (1874):
Article XIX. Miscellaneous Provisions.
Sec. 22. Constitutional amendments. Either branch of the General Assembly at a
regular session thereof may propose amendments to this Constitution, and, if the
same be agreed to by a majority of all the members, elected to each house, such
proposed amendments shall be entered on the journal with the yeas and nays,
and published in at least one newspaper in each county, where a newspaper is
published, for six months immediately preceding the next general election for
Senators and Representatives, at which time the same shall be submitted to the
electors of the State for approval or rejection, and if a majority of the electors
voting at such election adopt such amendments, the same shall become a part of
this Constitution; but no more than three amendments shall be proposed or
submitted at the same time. They shall be so submitted as to enable the electors
to vote on each amendment separately.
Constitution of Kansas (1861):
Article XIV. Amendments.
Sec. 1. Proposal of amendments; publications; elections. Propositions for the
amendment of this constitution may be made by either branch of the legislature;
and if two thirds of all the members elected to each house shall concur therein,
such proposed amendments, together with the yeas and nays, shall be entered
on the journal; and the secretary of state shall cause the same to be published in
at least one newspaper in each county of the state where a newspaper is
published, for three months preceding the next election for representatives, at
which time, the same shall be submitted to the electors, for their approval or
rejection; and if a majority of the electors voting on said amendments, at said
election, shall adopt the amendments, the same shall become a part of the
constitution. When more than one amendment 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 the City
of Baltimore, once a week for four weeks immediately preceding the next ensuing
general election, at which the proposed amendment or amendments shall be
submitted, in a form to be prescribed by the General Assembly, to the qualified
voters of the State for adoption or rejection. The votes cast for and against said
proposed amendment or amendments, severally, shall be returned to the
Governor, in the manner prescribed in other cases, and if it shall appear to the
Governor that a majority of the votes cast at said election on said amendment or
amendments, severally, were cast in favor thereof, the Governor shall, by his
proclamation, declare the said amendment or amendments having received said
majority of votes, to have been adopted by the people of Maryland as part of the
Constitution thereof, and henceforth said amendment or amendments shall be
part of the said Constitution. When two or more amendments shall be submitted
in the manner aforesaid, to the voters of this State at the same election, they
shall be so submitted as that each amendment shall be voted on separately.
Constitution of Missouri (1945):
Article XII. Amending the Constitution.
Sec. 2(b). Submission of amendments proposed by general assembly or by the
initiative. All amendments proposed by the general assembly or by the initiative
shall be submitted to the electors for their approval or rejection by official ballot
title as may be provided by law, on a separate ballot without party designation, at
the next general election, or at a special election called by the governor prior
thereto, at which he may submit any of the amendments. No such proposed
amendment shall contain more than one amended and revised article of this
constitution, or one new article which shall not contain more than one subject and
matters properly connected therewith. If possible, each proposed amendment
shall be published once a week for two consecutive weeks in two newspapers of
different political faith in each county, the last publication to be not more than
thirty nor less than fifteen days next preceding the election. If there be but one
newspaper in any county, publication of four consecutive weeks shall be made. If
a majority of the votes cast thereon is in favor of any amendment, the same shall
take effect at the end of thirty days after the election. More than one amendment
at the same election shall be so submitted as to enable the electors to vote on
each amendment separately.
Article XV of the 1935 Constitution does not require a specific procedure, much less a detailed procedure
for submission or ratification. As heretofore stated, it does not specify what kind of election at which the
new Constitution shall be submitted; nor does it designate the Commission on Elections to supervise the
plebiscite. Neither does it limit the ratification to the qualified electors as defined in Article V of the 1935
Constitution. Much less does it require the publication of the proposed Constitution for any specific period
before the plebiscite nor does it even insinuate that the plebiscite should be supervised in accordance
with the existing election law.

(2) As aforequoted, Article XV does not indicate the procedure for submission of the proposed
Constitution to the people for ratification. It does not make any reference to the Commission on Elections
as the body that shall supervise the plebiscite. And Article XV could not make any reference to the
Commission on Elections because the original 1935 Constitution as ratified on May 14, 1935 by the
people did not contain Article X on the Commission on Elections, which article was included therein
pursuant to an amendment by that National Assembly proposed only about five (5) years later on April
11, 1940, ratified by the people on June 18, 1940 as approved by the President of the United States on
December 1940 (see Sumulong vs. Commission, 70 Phil. 703, 713, 715; Gonzales, Phil. Const. Law,
1966 ed., p. 13). So it cannot be said that the original framers of the 1935 Constitution as ratified May 14,
1935 intended that a body known as the Commission on Elections should be the one to supervise the
plebiscite, because the Commission on Elections was not in existence then as was created only by
Commonwealth Act No. 607 approved on August 22, 1940 and amended by Commonwealth Act No. 657
approved on June 21, 1941 (see Taada & Carreon, Political Law of the Philippines, Vol. I, 1961 ed., pp.
475-476; Sumulong vs. Commission, 170 Phil. 703, 708-715; 73 Phil. 288, 290-300; Taada & Fernando,
Constitution of the Philippines, 1953 ed., Vol. I, p. 5, Vol. II,
pp. 11-19).
Because before August, 1940 the Commission on Election was not yet in existence, the former
Department of Interior (now Department of Local Governments and Community Development) supervised
the plebiscites on the 1937 amendment on 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 VicePresident, and the creation of the Commission on Elections (ratified on June 18, 1940). The supervision
of said plebiscites by the then Department of Interior was not automatic, but by virtue of an express
authorization in Commonwealth Act Nos. 34, 49 and 517.
If the National Assembly then intended that the Commission on Elections should also supervise the
plebiscite for ratification of constitutional amendments or revision, it should have likewise proposed the
corresponding amendment to Article XV by providing therein that the plebiscite on amendments shall be
supervised by the Commission on Elections.
3) If the framers of the 1935 Constitution and the people in ratifying the same on May 14, 1935 wanted
that only the qualified voters under Article V of the 1935 Constitution should participate in the referendum
on any amendment or revision thereof, they could have provided the same in 1935 or in the 1940
amendment by just adding a few words to Article XV by changing the last phrase to "submitted for
ratification to the qualified electors as defined in Article V hereof," or some such similar phrases.
Then again, the term "people" in Article XV cannot be understood to exclusively refer to the qualified
electors under Article V of the 1935 Constitution because the said term "people" as used in several
provisions of the 1935 Constitution, does not have a uniform meaning. Thus in the preamble, the term
"Filipino people" refer, to all Filipino citizens of all ages of both sexes. In Section 1 of Article II on the
Declaration of Principles, the term "people" in whom sovereignty resides and from whom all government
authority emanates, can only refer also to Filipino citizens of all ages and of both sexes. But in Section 5
of the same Article II on social justice, the term "people" comprehends not only Filipino citizens but also
all aliens residing in the country of all ages and of both sexes. Likewise, that is the same connotation of
the term "people" employed in Section 1(3) of Article III on the Bill of Rights concerning searches and
seizures.
When the 1935 Constitution wants to limit action or the exercise of a right to the electorate, it does so
expressly as the case of the election of senators and congressmen. Section 2 Article VI expressly
provides that the senators "shall be chosen at large by the qualified electors of the Philippines as may
provided by law." Section 5 of the same Article VI specifically provides that congressmen shall "be elected
by the qualified electors." The only provision that seems to sustain the theory of petitioners that the term
"people" in Article XV should refer to the qualified electors as defined in Article V of the 1935 Constitution
is the provision that the President and Vice-President shall be elected "by direct vote of the people." (Sec.

2 of Art. VII of the 1935 Constitution). But this alone cannot be conclusive as to such construction,
because of explicit provisions of Sections 2 and 5 of Article VI, which specifically prescribes that the
senators and congressmen shall be elected by the qualified electors.
As aforesaid, most of the constitutions of the various states of the United States, specifically delineate in
detail procedure of ratification of amendments to or revision of said Constitutions and expressly require
ratification by qualified electors, not by the generic term "people".
The proposal submitted to the Ozamis Committee on the Amending Process of the 1934-35 Constitutional
Convention satisfied that the amendment shall be submitted to qualified election for ratification. This
proposal was not accepted indicating that the 1934-35 Constitutional Convention did intend to limit the
term "people" in Article XV of the 1935 Constitution to qualified electors only. As above demonstrated, the
1934-35 Constitutional Convention limits the use of the term "qualified electors" to elections of public
officials. It did not want to tie the hands of succeeding future constitutional conventions as to who should
ratify the proposed amendment or revision.
(4) It is not exactly correct to opine that Article XV of 1935 Constitution on constitutional amendment
contemplates the automatic applicability of election laws to plebiscites on proposed constitutional
amendments or revision.
The very phraseology of the specific laws enacted by the National Assembly and later by Congress,
indicates that there is need of a statute expressly authorizing the application of the election laws to
plebiscites of this nature. Thus, Com. Act No. 34 on the woman's suffrage amendment enacted on
September 30, 1936, consists of 12 sections and, aside from providing that "there shall be held
a plebiscite on Friday, April 30, 1937, on the question of woman's suffrage ... and that said
amendment shall be published in the Official Gazette in English and Spanish for three consecutive
issues at least fifteen (15) days prior to said election, ... and shall be posted in a conspicuous place in its
municipal and provincial office building and in its polling place not later than April 22, 1937" (Sec. 12,
Com. Act No. 34), specifies that the provisions of the Election Law regarding, the holding of aspecial
election, insofar as said provisions are not in conflict with it, should apply to the said plebiscite (Sec. 3,
Com. Act No. 34)1; and, that the votes cast according to the returns of the board of inspectors shall be
counted by the National Assembly (Sec. 10, Com. Act No. 34).
The election laws then in force before 1938 were found in Sections 392-483 of the Revised Administrative
Code.
Sec. 1 of Com. Act No. 357, the previous Election Code enacted on August 22, 1938, makes it expressly
applicable to plebiscites. Yet the subsequent laws, namely, Com. Act Nos. 492 and 517 and Rep. Act No.
73 calling for the plebiscite on the constitutional amendments in 1939, 1940 and 1946, including the
amendment creating the Commission on Elections, specifically provided that the provisions of the existing
election law shall apply to such plebiscites insofar as they are not inconsistent with the aforesaid Com.
Act Nos. 492 and 517, as well as Rep. Act No. 73. Thus
Commonwealth Act No. 492, enacted on September 19, 1939, calling for a plebiscite on the proposed
amendments to the Constitution adopted by the National Assembly on September 15, 1939, consists of 8
sections and provides that the proposed amendments to the Constitution adopted in Resolution No. 39 on
September 15, 1939 "shall be submitted to the Filipino people for approval or disapproval at a general
election to be held throughout the Philippines on Tuesday, October 24, 1939"; that the amendments to
said Constitution proposed in "Res. No. 38, adopted on the same date, shall be submitted at following
election of local officials," (Sec. 1, Com. Act No. 492) that the said amendments shall be published in
English and Spanish in three consecutive issues of the Official Gazette at least ten (10) days prior to the
elections; that copies thereof shall be posted not later than October 20, 1939 (Sec. 2, Com. Act 492); that
the election shall be conducted according to provisions of the Election Code insofar as the same may be
applicable; that within thirty (30) days after the election, Speaker of the National Assembly shall request

the President to call a special session of the Assembly for the purpose of canvassing the returns and
certify the results thereof (Sec. 6, Com. Act No. 492).
Commonwealth Act No. 517, consisting of 11 sections, was approved on April 25, 1940 and provided,
among others: that the plebiscite on the constitutional amendments providing bicameral Congress, reelection of the President and Vice-President, and the creation of a Commission on Elections shall be held
at a general election on June 18, 1940 (Sec. 1); that said amendments shall be published in three
consecutive issues of the Official Gazette in English and Spanish at least 20 days prior to the election and
posted in every local government office building and polling place not later than May 18, 1940 (Sec. 2);
that the election shall be conducted in conformity with the Election Code insofar as the same may be
applicable (Sec. 3) that copies of the returns shall be forwarded to the Secretary of National Assembly
and the Secretary of Interior (Sec. 7); that the National Assembly shall canvass the returns to certify the
results at a special session to be called by President (Sec. 8).
Republic Act No. 73 approved on October 21, 1946 calling for a plebiscite on the parity amendment
consists of 8 sections provides that the Amendment "shall be submitted to the people, for approval or
disapproval, at a general election which shall be held on March 11, 1947, in accordance with the
provisions of this Act" (Sec. 1, R.A. No. 73); that the said amendment shall be published in English and
Spanish in three consecutive issues of the Official Gazette at least 20 days prior to the election; that
copies of the same shall be posted in a conspicuous place and in every polling place not later than
February 11, 1947 (Section 2, R.A. No. 73); that the provisions of Com. Act No. 357 (Election Code) and
Com. Act No. 657 creating the Commission on Elections, shall apply to the election insofar as they are
not inconsistent with this Act (Sec. 3, R.A. No. 73); and that within 30 days after the election, the Senate
and House of Representatives shall hold a joint session to canvass the returns and certify the results
thereof (Section 6, R.A. No. 73).
From the foregoing provisions, it is patent that Article XV of the 1935 Constitution does not contemplate
nor envision the automatic application of the election law; and even at that, not all the provisions of the
election law were made applicable because the various laws aforecited contain several provisions which
are inconsistent with the provisions of the Revised Election Code (Com. Act No. 357). Moreover, it should
be noted that the period for the publication of the copies of the proposed amendments was about 10
days, 15 days or 20 days, and for posting at least 4 days, 8 days or 30 days.
Republic Acts Nos. 180 and 6388 likewise expressly provide that the Election Code shall apply to
plebiscites (See. 2, R.A. No. 180, as amended, and Section 2, Rep. Act No. 6388).
If the Election Code ipso facto applies to plebiscites under Article XV of the 1935 Constitution, there would
be no need for Congress to expressly provide therefor in the election laws enacted after the inauguration
of the Commonwealth government under the 1935 Constitution.
(5) Article XV of the 1935 Constitution does not specify who can vote and how they shall vote. Unlike the
various State Constitutions of the American Union (with few exceptions), Article XV does not state that
only qualified electors can vote in the plebiscite. As above-intimated, most of the Constitutions of the
various states of the United States provide for very detailed amending process and specify that only
qualified electors can vote at such plebiscite or election.
Congress itself, in enacting Republic Act No. 3590, otherwise known as the Barrio Charter, which was
approved on June 17, 1967 and superseded Republic Act No. 2370, expanded the membership of the
barrio assembly to include citizens who are at least 18 years of age, whether literate or not, provided they
are also residents of the barrio for at least 6 months (Sec. 4, R.A. No. 3590).
Sec. 4. The barrio assembly. The barrio assembly shall consist of all persons
who are residents of the barrio for at least six months, eighteen years of age or

over, citizens of the Republic of the Philippines and who are duly registered in
the list of barrio assembly members kept by the Barrio Secretary.
The barrio assembly shall meet at least once a year to hear the annual report of
the barrio council concerning the activities and finances of the barrio.
It shall meet also at the case of the barrio council or upon written petition of at
least One-Tenth of the members of the barrio assembly.
No meeting of the barrio assembly shall take place unless notice is given one
week prior to the meeting except in matters involving public safety or security in
which case notice within a reasonable time shall be sufficient. The barrio captain,
or in his absence, the councilman acting as barrio captain, or any assembly
member selected during the meeting, shall act as presiding officer at all meetings
of the barrio assembly. The barrio secretary or in his absence, any member
designated by the presiding officer to act as secretary shall discharge the duties
of secretary of the barrio assembly.
For the purpose of conducting business and taking any official action in the barrio
assembly, it is necessary that at least one-fifth of the members of the barrio
assembly be present to constitute a quorum. All actions shall require a majority
vote of these present at the meeting there being a quorum.
Sec. 5. Powers of the barrio assembly. The powers of the barrio assembly
shall be as follows:
a. To recommend to the barrio council the adoption of measures
for the welfare of the barrio;
b. To decide on the holding of a plebiscite as provided for in
Section 6 of this Act;
c. To act on budgetary and supplemental appropriations and
special tax ordinances submitted for its approval by the barrio
council; and
d. To hear the annual report council concerning the activities and
finances of the assembly.
Sec. 6. Plebiscite. A plebiscite may be held in the barrio when authorized by a
majority vote of the members present in the barrio assembly, there being a
quorum, or when called by at least four members of the barrio council; Provided,
however, That no plebiscite shall be held until after thirty days from its approval
by either body, and such plebiscite has been given the widest publicity in the
barrio, stating the date, time, and place thereof, the questions or issues to be
decided, action to be taken by the voters, and such other information relevant to
the holding of the plebiscite.
All duly registered barrio assembly members qualified to vote may vote in the
plebiscite. Voting procedures may be made either in writing as in regular
election, and/or declaration by the voters to the board of election tellers. The
board of election tellers shall be the same board envisioned by section 8,

paragraph 2 of this Act, in case of vacancies in this body, the barrio council may
fill the same.
A plebiscite may be called to decide on the recall of any member of the barrio
council. A plebiscite shall be called to approve any budgetary, supplemental
appropriations or special tax ordinances.
For taking action on any of the above enumerated measures, majority vote of all
the barrio assembly members registered in the list of barrio secretary is
necessary.
xxx xxx xxx
Sec 10. Qualifications of voters and candidates. Every citizen of the
Philippines, twenty-one years of age or over, able to read and write, who has
been a resident of the barrio during the six months immediately preceding the
election, duly registered in the list of voters kept by the barrio secretary, who is
not otherwise disqualified, may vote or be a candidate in the barrio elections.
The following persons shall not be qualified to vote:
a. Any person who has been sentenced by final judgment to
suffer one year or more of imprisonment, within two years after
service of his sentence;
b. Any person who has violated his allegiance to the Republic of
the Philippines; and
c. Insane or feeble-minded persons.
All these barrio assembly members, who are at least 18 years of age, although illiterate, may vote at the
plebiscite on the recall of any member of the barrio council or on a budgetary, supplemental appropriation,
or special ordinances, a valid action on which requires "a majority vote of all of the barrio assembly
members registered in the list of the barrio secretary" (par. 5, Sec. 6, R.A. No. 3590). Such plebiscite may
be authorized by a majority vote of the members present in the barrio assembly, there being a quorum
(par. 1, Sec. 6).
However, in the case of election of barrio officials, only Filipino citizens, who are at least 21 years of age,
able to read and write, residents of the barrio during the 6 months immediately preceding the election and
duly registered in the list of voters kept by the barrio secretary, not otherwise disqualified, may vote (Sec.
10, R.A. No. 3590).
Paragraph 2 of Section 6 likewise authorizes open voting as it provides that "voting procedures may be
made ... either in writing as in regular elections, and/or declaration by the voters to the board of election
tellers."
That said paragraph 2 of Section 6 provides that "all duly registered barrio assembly members qualified to
vote may vote in the plebiscite," cannot sustain the position of petitioners in G.R. No. L-36165 that only
those who are 21 years of age and above and who possess all other qualifications of a voter under
Section 10 of R.A. No. 3590, can vote on the plebiscites referred to in Section 6; because paragraph 3 of
Section 6 does not expressly limit the voting to those with the qualifications under Section 10 as said
Section 6 does not distinguish between those who are 21 or above on the one hand and those 18 or

above but below 21 on the other, and whether literate or not, to constitute a quorum of the barrio
assembly.
Consequently, on questions submitted for plebiscite, all the registered members of the barrio assembly
can vote as long as they are 18 years of age or above; and that only those who are 21 years of age or
over and can read and write, can vote in the elections of barrio officials.
Otherwise there was no sense in extending membership in the barrio assembly to those who are at least
18 years of age, whether literate or not. Republic Act No. 3590 could simply have restated Section 4 of
Republic Act No. 2370, the old Barrio Charter, which provided that only those who are 21 and above can
be members of the barrio assembly.
Counsels Salonga and Taada as well as all the petitioners in L-36165 and two of the petitioners in L36164 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 18year olds as qualified electors for barrio plebiscites, this prerogative can also be exercised by the Chief
Executive as delegate of the Constitutional Convention in regard to the plebiscite on the 1973
Constitution.
As heretofore stated, the statement by the President in Presidential Proclamation No. 1102 that the 1973
Constitution was overwhelmingly ratified by the people through the Citizens' Assemblies in a referendum
conducted from January 10 to 15, 1973, should be accorded the presumption of correctness; because the
same was based on the certification by the Secretary of the Department of Local Government and
Community Development who tabulated the results of the referendum all over the country. The accuracy
of such tabulation and certification by the said Department Secretary should likewise be presumed;
because it was done in the regular performance of his official functions aside from the fact that the act of
the Department Secretary, as an alter ego of the President, is presumptively the act of the President
himself unless the latter disapproves or reprobates the same (Villena vs. Secretary of Interior, 67 Phil. 451
). The truth of the certification by the Department Secretary and the Chief Executive on the results of the
referendum, is further strengthened by the affidavits and certifications of Governor Isidro Rodriguez of
Rizal, Mayor Norberto S. Amoranto of Quezon City and Councilor Eduardo T. Parades of Quezon City.
The procedure for the ratification of the 1937 amendment on woman suffrage, the 1939 amendment to
the ordinance appended to the 1935 Constitution, the 1940 amendments establishing the bicameral
Congress, creating the Commission on Elections and providing for two consecutive terms for the
President, and the 1947 parity amendment, cannot be invoked; because those amendments were
proposed by the National Assembly as expressly authorized by Article V of the 1935 Constitution
respecting woman suffrage and as a constituent assembly in all the other amendments aforementioned
and therefore as such, Congress had also the authority to prescribe the procedure for the submission of
the proposed amendments to the 1935 Constitution.
In the cases at bar, the 1973 Constitution was proposed by an independent Constitutional Convention,
which as heretofore discussed, has the equal power to prescribe the modality for the submission of the
1973 Constitution to the people for ratification or delegate the same to the President of the Republic.
The certification of Governor Isidro Rodriguez of Rizal and Mayor Norberto Amoranto could be utilized as
the basis for the extrapolation of the Citizens' Assemblies in all the other provinces, cities and
municipalities in all the other provinces, cities and municipalities, and the affirmative votes in the Citizens'
Assemblies resulting from such extrapolation would still constitute a majority of the total votes cast in
favor of the 1973 Constitution.

As claimed by petitioners in L-36165, against the certification of the Department of Local Government and
Community Development that in Rizal there were 1,126,000 Yes votes and 100,310 No votes, the
certification of Governor Isidro Rodriguez of Rizal, shows only 614,157 Yes votes against 292,530 No
votes. In Cavite province, there were 249,882 Yes votes against 12,269 No votes as disclosed in Annex 1A of respondents' Compliance (the certification by the Department of Local Government and Community
Development), while the alleged certification of Governor Lino Bocalan of Cavite shows only 126,163 Yes
votes and 5,577 No votes. If such a ratio is extended by way of extrapolation to the other provinces, cities
and towns of the country, the result would still be an overwhelming vote in favor of the 1973 Constitution.
The alleged certification by Governor Lino Bocalan of Cavite, is not true; because in his duly
acknowledged certification dated March 16, 1973, he states that since the declaration of martial law and
up to the present time, he has been under house arrest in his residence in Urdaneta Village, Makati,
Rizal; that he never participated in the conduct of the Citizens' Assemblies on January 10 15, 1973 in the
province of Cavite; that the acting chairman and coordinator of the Citizens' Assemblies at that time was
Vice-Governor Dominador Camerino; and that he was shown a letter for his signature during the conduct
of the Citizens' Assemblies, which he did not sign but which he referred to Vice-Governor Camerino
(Annex 1-Rejoinder of the Sol. Gen. dated March 20, 1973).
Mayor Pablo Cuneta likewise executed an affidavit dated March 16, 1973 stating that on January 15,
1973, he caused the preparation of a letter addressed to Secretary Jose Roo of the Department of Local
Government and Community Development showing the results of the referendum in Pasay City; that on
the same day, there were still in any Citizens' Assemblies holding referendum in Pasay City, for which
reason he did not send the aforesaid letter pending submittal of the other results from the said Citizens'
Assemblies; and that in the afternoon of January 15, 1973, he indorsed the complete certificate of results
on the referendum in Pasay City to the Office of the President (Annex 5-Rejoinder of Sol. Gen. dated
March 20, 1973).
Pablo F. Samonte, Assistant City Treasurer and Officer in Charge of Pasay City also issued an affidavit
dated March 15, 1973 stating that a certain Atty. Delia Sutton of the Salonga Law Office asked him for the
results of the referendum; that he informed her that he had in his possession unsigned copies of such
results which may not be considered official as they had then no knowledge whether the original thereof
had been signed by the mayor; and that in spite of his advice that said unsigned copies were not official,
she requested him if she could give her the unofficial copies thereof, which he gave in good faith (Annex
C-Rejoinder to the Sol. Gen.).
There were 118,010 Yes votes as against 5,588 No votes in the Citizens' Assemblies of Quezon city
(Annex V to Petitioners' Notes in L-36165). The fact that a certain Mrs. Remedio Gutierrez, wife of alleged
barrio treasurer Faustino Gutierrez, of barrio South Triangle, Quezon City, states that "as far as we know,
there has been no Citizens' Assembly meeting in our Area, particularly in January of this year," does not
necessarily mean that there was no such meeting in said barrio; for she may not have been notified
thereof and as a result she was not able to attend said meeting. Much less can it be a basis for the claim
that there was no meeting at all in the other barrios of Quezon City. The barrio captain or the secretary of
the barrio assembly could have been a credible witness.
Councilor Eduardo T. Paredes, chairman of the Secretariat of Quezon City Ratification and Coordinating
Council, certified on March 12, 1973 that as such chairman he was in charge of the compilation and
tabulation of the results of the referendum among the Citizens' Assemblies in Quezon City based on the
results submitted to the Secretariat by the different Citizens' Assemblies; but many results of the
referendum were submitted direct to the national agencies having to do with such activity and all of which
he has no knowledge, participation and control (Annex 4 Rejoinder of the Sol. Gen.).
Governor Isidro Rodriguez of Rizal issued a certification dated March 16, 1973 that he prepared a letter to
the President dated January 15, 1973 informing him of the results of the referendum in Rizal, in
compliance with the instruction of the National Secretariat to submit such letter 2 or 3 days from January
10 to show the trend of voting in the Citizens' Assemblies; that the figures 614,157 and 292,530

mentioned in said letter were based on the certificates of results in his possession as of January 14,
1973, which results were made the basis of the computation of the percentage of voting trend in the
province; that his letter was never intended to show the final or complete result in the referendum in the
province as said referendum was then still going on from January 14-17, 1973, for which reason the said
letter merely stated that it was only a "summary result"; and that after January 15, 1973, he sent to the
National Secretariat all the certificates of results in 26 municipalities of Rizal for final tabulation (Annex 3Rejoinder of the Sol. Gen.; emphasis supplied).
Lydia M. Encarnacion, acting chief of the Records Section, Department of Local Government and
Community Development, issued a certificate dated March 16, 1973 that she was shown xerox copies of
unsigned letters allegedly coming from Governor Lino Bocalan dated January 15, 1973 and marked
"Rejoinder Annex Cavite" addressed to the President of the Philippines through the Secretary of the
Department of Local Government and Community Development and another unsigned letter reportedly
from Mayor Pablo Cuneta dated January 15, 1973 and marked "Rejoinder Annex Pasay City" addressed
to the Secretary of the Department of Local Government and Community Development; that both xerox
copies of the unsigned letters contain figures showing the results of the referendum of the Citizens'
Assemblies in those areas; and that the said letters were not received by her office and that her records
do not show any such documents received by her office (Annex 2-Rejoinder of the Sol. Gen.).
Thus it would seem that petitioners in L-36165 have attempted to deceive this Court by representing said
unsigned letters and/or certificates as duly signed and/or containing the complete returns of the voting in
the Citizens' Assemblies.
The observation We made with respect to the discrepancy between the number of Yes votes and No
votes contained in the summary report of Governor Rodriguez of Rizal as well as those contained in the
alleged report of Governor Lino Bocalan of Cavite who repudiated the same as not having been signed by
him for he was then under house arrest, on the one hand, and the number of votes certified by the
Department of Local Government and Community Development, on the other, to the effect that even
assuming the correctness of the figures insisted on by counsel for petitioners in L-36165, if they were
extrapolated and applied to the other provinces and cities of the country, the Yes votes would still be
overwhelmingly greater than the No votes, applies equally to the alleged discrepancy between the figures
contained in the certification of the Secretary of the Department of Local Government and Community
Development and the figures furnished to counsel for petitioners in L-36165 concerning the referendum in
Camarines Sur, Bataan and Negros Occidental.
The fact that the referendum in the municipality of Pasacao, Camarines Sur, shows that there were more
votes in favor of the plebiscite to be held later than those against, only serve to emphasize that there was
freedom of voting among the members of the Citizens' Assemblies all over the country during the
referendum from January 10 to 15, 1973 (Annex-6 Camarines Sur to Rejoinder of Petitioners in L-36165).
If there was no such freedom of choice, those who wanted a plebiscite would not outnumber those
against holding such plebiscite.
The letter of Governor Felix O. Alfelor, Sr. dated January 1973 confirms the "strong manifestation of
approval of the new Constitution by almost 97% by the members of the Citizens' Assemblies in
Camarines Sur" (Annex-Camarines Sur to Rejoinder of Petitioners in L-36165).
The report of Governor Efren B. Pascual of Bataan shows that the members of the Citizens' Assemblies
voted overwhelmingly in favor of the new Constitution despite the fact that the second set of questions
including the question "Do you approve of the new Constitution?" was received only on January 10.
Provincial Governor Pascual stated that "orderly conduct and favorable results of the referendum" were
due not only to the coordinated efforts and cooperation of all teachers and government employees in the
area but also to the enthusiastic participation by the people, showing "their preference and readiness to
accept this new method of government to people consultation in shaping up government policies."
(Annex-Bataan to Rejoinder of Petitioners in L-36165).

As heretofore stated, it is not necessary that voters ratifying the new Constitution are registered in the
book of voters; it is enough that they are electors voting on the new Constitution (Bott vs. Wurts, 40 A 740
[1898]; 43 A 744, 881 [1899]; 45 LRA 251). The fact that the number of actual voters in the referendum in
certain localities may exceed the number of voters actually registered for the 1971 elections, can only
mean that the excess represents the qualified voters who are not yet registered including those who are
at least 15 years of age and the illiterates. Although ex-convicts may have voted also in the referendum,
some of them might have been granted absolute pardon or were sentenced to less than one year
imprisonment to qualify them to vote (Sec. 201, 1971 Rev. Election Code). At any rate, the ex-convicts
constitute a negligible number, discounting which would not tilt the scale in favor of the negative votes.
Similarly, the fact that Mayor Marcial F. Samson of Caloocan City, who belongs to the Liberal Party, stated
in his letter dated March 13, 1973 that he does not "feel authorized by the proper authorities to confirm or
deny the data" concerning the number of participants, the Yes votes and No votes in the referendum on
the new Constitution among the members of the Citizens' Assemblies in Caloocan City, does not
necessarily give rise to the inference that Mayor Samson of Caloocan City is being intimidated, having
been recently released from detention; because in the same letter of Mayor Samson, he suggested to
counsel for petitioners in L-36165 that he can secure "the true and legitimate results of the referendum"
from the Office of the President (Annex Caloocan-B to Rejoinder of Petitioners in L-36165). Why did not
learned and eminent counsel heed such suggestion?
Counsel for petitioners in L-36165, to sustain their position, relies heavily on the computation of the
estimated turnover in the Citizens' Assemblies referendum on January 10 to 15, 1973 by a certain
Professor Benjamin R. Salonga, of the Mapua Institute of Technology, ostensibly a close relative of former
Senator Jovito R. Salonga, eminent counsel for petitioners in L-36165 (Annex M-as amended, to
Consolidated Rejoinder of petitioners in L-36165 to the Notes of Arguments and Memorandum of
respondents). Professor Salonga is not a qualified statistician, which all the more impairs his credibility.
Director Tito A. Mijares of the Bureau of Census and Statistics, in his letter dated March 16, 1973 address
to the Secretary of the Department of Local Government and Community Development, refutes the said
computation of Professor Benjamin R. Salonga, thus:
1) I do not quite understand why (Problem 1) all qualified registered voters and
the 15-20-year-old youths (1972) will have to be estimated in order to give a
101.9% estimate of the percentage participation of the "15-20 year old plus total
number of qualified voters" which does not deem to answer the problem. This
computation apparently fails to account for some 5.6 million persons "21 years
old and over" who were not registered voters (COMELEC), but who might be
qualified to participate at the Citizen's Assembly.
2) The official population projection of this office (medium assumption) for "15
year olds and over" as of January 1, 1973 is 22.506 million. If total number of
participants at the Citizens' Assembly Referendum held on January 10-15, 1973
was 16.702 million, participation rate will therefore be the ratio of the latter figure
to the former which gives 74.2%.
3) 1 cannot also understand c-2 "Solution to Problem 11." The "difference or
implied number of 15-20 year olds" of 5,039,906 would represent really not only
all 15-year olds and over who participated at the Citizens' Assembly but might not
have been registered voters at the time, assuming that all the 11,661,909
registered voted at Citizens' Assembly. Hence, the "estimate percentage
participation of 15-20 years olds" of 105.6% does not seem to provide any
meaningful information.
To obtain the participation rate of "15-20 years old" one must divide the number
in this age group, which was estimated to be 4.721 million as of January 1, 1973

by the population of "15 years old and over" for the same period which was
estimated to be 22.506 million, giving 21.0%.
In Problem III, it should be observed that registered voters also include names of
voters who are already dead. It cannot therefore be assumed that all of them
participated at the Citizens' Assembly. It can therefore be inferred that "a total
number of persons 15 and over unqualified/disqualified to vote" will be more than
10,548,197 and hence the "difference or implied number of registered voters that
participated" will be less than 6,153,618.
I have reservations on whether an "appropriate number of qualified voters that
supposedly voted" could be meaningfully estimated.
5) The last remark will therefore make the ratio (a) [Solution to Problem] more
than 1.71 and that for (b), accordingly, will also be less than 36.8%." (Annex F
Rejoinder).
From the foregoing analysis of the Director of Census and Statistics as of January 21, 1973, the official
population projection for 15-year olds and over is 22,506,000. If 16,702,000 voted in the referendum, the
participation ratio would be 74.2% of 22,506,000.
If the registered electors as of the election of November 8, 1971 numbered 11,661,909, the difference
between 16,702,000 who participated in the referendum and the registered electors of 11,661,909 for the
November 8, 1971 elections, is 5,040,091, which may include not only the 15-year olds and above but
below 21 but also the qualified electors who were not registered before the November 8, 1971 elections
as well as illiterates who are 15 years old and above but below 21.
Moreover, in the last Presidential election in November, 1969, We found that the incumbent President
obtained over 5,000,000 votes as against about 3,000,000 votes for his rival LP Senator Sergio Osmea,
Jr., garnering a majority of from about 896,498 to 1,436,118 (Osmea, Jr. vs. Marcos, Presidential
Election Contest No. 3, Jan. 8, 1973).
The petitioners in all the cases at bar cannot state with justification that those who voted for the
incumbent President in 1969 did not vote in favor of the 1973 Constitution during the referendum from
January 10 to 15, 1973. It should also be stressed that many of the partisans of the President in the 1969
Presidential elections, have several members in their families and relatives who are qualified to
participate in the referendum because they are 15 years or above including illiterates, which fact should
necessarily augment the number of votes who voted for the 1973 Constitution.
(6) It is also urged that martial law being the rule of force, is necessarily inconsistent with freedom of
choice, because the people fear to disagree with the President and Commander-in-Chief of the Armed
Forces of the Philippines and therefore cannot voice views opposite to or critical of the position of the
President on the 1973 Constitution and on the mode of its ratification.
It is also claimed or urged that there can be no free choice during martial law which inevitably generates
fear in the individual. Even without martial law, the penal, civil or administrative sanction provided for the
violation of ordinarily engenders fear in the individual which persuades the individual to comply with or
obey the law. But before martial law was proclaimed, many individuals fear such sanctions of the law
because of lack of effective equal enforcement or implementation thereof in brief, compartmentalized
justice and extraneous pressures and influences frustrated the firm and just enforcement of the laws. The
fear that is generated by martial law is merely the fear of immediate execution and swift enforcement of
the law and therefore immediate infliction of the punishment or sanction prescribed by the law whenever it
is transgressed during the period of martial law. This is not the fear that affects the voters' freedom of

choice or freedom to vote for or against the 1973 Constitution. Those who cringe in fear are the criminals
or the law violators. Surely, petitioners do not come under such category.
(7) Petitioners likewise claim that open voting by viva voce or raising of hands violates the secrecy of the
ballot as by the election laws. But the 1935 Constitution does not require secret voting. We search in vain
for such guarantee or prescription in said organic law. The Commission on Elections under the 1940
Amendment, embodied as Article X is merely mandated to insure "free, orderly and honest election."
Congress, under its plenary law-making authority, could have validly prescribed in the election law open
voting in the election of public officers, without trenching upon the Constitution. Any objection to such a
statute concerns its wisdom or propriety, not its legality or constitutionality. Secret balloting was
demanded by partisan strife in elections for elective officials. Partisanship based on party or personal
loyalties does not generally obtain in a plebiscite on proposed constitutional amendments or on a new
Constitution. We have seen even before and during martial law that voting in meetings of government
agencies or private organizations is usually done openly. This is specially true in sessions of Congress,
provincial boards, city councils, municipal boards and barrio councils when voting on national or local
issues, not on personalities.
Then again, open voting was not a universal phenomenon in the Citizens' Assemblies. It might have been
true in certain areas, but that does not necessarily mean that it was done throughout the country.
The recent example of an open voting is the last election on March 3, 1973 of the National Press Club
officers who were elected by acclamation presided over by its former president, petitioner Eduardo
Monteclaro in L-36236 (see Bulletin Today, p. 8, March 3, 1973 issue). There can be no more hardboiled
group of persons than newspapermen, who cannot say that voting among them by acclamation was
characterized by fear among the members of the National Press Club.
Moreover, petitioners would not be willing to affirm that all the members of the citizenry of this country are
against the new Constitution. They will not deny that there are those who favor the same, even among the
400,000 teachers among whom officers of the Department of Education campaigned for the ratification of
the new Constitution.
Not one of the petitioners can say that the common man farmer, laborer, fisherman, lowly employee,
jeepney driver, taxi driver, bus driver, pedestrian, salesman, or salesgirl does not want the new
Constitution, or the reforms provided for therein.
(8) Petitioners likewise claim that there was no sufficient publicity given to the new Constitution. This is
quite inaccurate; because even before the election in November, 1970 of delegates to the Constitutional
Convention, the proposed reforms were already discussed in various forums and through the press as
well as other media of information. Then after the Constitutional Convention convened in June, 1971,
specific reforms advanced by the delegates were discussed both in committee hearings as well as in the
tri-media the press, radio and television. Printed materials on the proposed reforms were circulated by
their proponents. From June, 1971 to November 29, 1972, reforms were openly discussed and debated
except for a few days after the proclamation of martial law on September 21, 1972. From the time the
Constitutional Convention reconvened in October, 1972 until January 7, 1973, the provisions of the new
Constitution were debated and discussed in forums sponsored by private organizations universities and
debated over the radio and on television. The Philippines is a literate country, second only to Japan in the
Far East, and more literate perhaps than many of mid-western and southern states of the American Union
and Spain. Many residents in about 1,500 towns and 33,000 barrios of the country have radios. Even the
illiterates listened to radio broadcasts on and discussed the provisions of the 1973 Constitution.
As reported by the eminent and widely read columnist, Teodoro Valencia in his column in Bulletin Today,
March 4, 1973 issue, "Otto Lang, Hollywood producer director (Tora, Tora, Tora) went around the country
doing a 30-minute documentary on the Philippines for American television stated that what impressed him

most in his travel throughout the country was the general acceptance of the New Society by the people
which he saw in his 6-week travel from Aparri to Jolo."
The report of Frank Valeo (Bulletin Today, March 3 and 4, 1973 and Daily Express, March 3, and Sunday
Express, March 4), Secretary of the United States Senate, who conducted a personal survey of the
country as delegate of Senator Mike Mansfield, Chairman, Committee on US-Philippine relations, states:
Martial law has paved the way for a re-ordering of the basic social structure of
the Philippines. President Marcos has been prompt and sure-footed in using the
power of presidential decree under martial law for this purpose. He has zeroed in
on areas which have been widely recognized as prime sources of the nation's
difficulties land tenancy, official corruption, tax evasion and abuse of oligarchic
economic power. Clearly, he knows the targets. What is not yet certain is how
accurate have been his shots. Nevertheless, there is marked public support for
his leadership and tangible alternatives have not been forthcoming. That would
suggest that he may not be striking too far from the mark.
The United States business community in Manila seems to have been re-assured
by recent developments ... . (Emphasis supplied.)
Petitioners cannot safely assume that all the peaceful citizens of the country, who constitute the majority
of the population, do not like the reforms stipulated in the new Constitution, as well as the decrees, orders
and circulars issued to implement the same. It should be recalled, as hereinbefore stated, that all these
reforms were the subject of discussion both in the committee hearings and on the floor of the
Constitutional Convention, as well as in public forums sponsored by concerned citizens or civic
organizations at which Con-Con delegates as well as other knowledgeable personages expounded their
views thereon and in all the media of information before the proclamation of martial law on September 21,
1972. This is the reason why the Constitutional Convention, after spending close to P30 million during the
period from June 1, 1971 to November 29, 1972, found it expedient to accelerate their proceedings in
November, 1972 because all views that could possibly be said on the proposed provisions of the 1973
Constitution were already expressed and circulated. The 1973 Constitution may contain some unwise
provisions. But this objection to such unwise or vague provisions, as heretofore stated, refers to the
wisdom of the aforesaid provisions, which issue is not for this Court to decide; otherwise We will be
substituting Our judgment for the judgment of the Constitutional Convention and in effect acting as a
constituent assembly.
VI
PRESIDENT AS COMMANDER IN CHIEF EXERCISES
LEGISLATIVE POWERS DURING MARTIAL LAW.
The position of the respondent public officers that undermartial law, the President as Commander-in-Chief
is vested with legislative powers, is sustained by the ruling in the 1949 case of Kuroda vs. Jalandoni, et al.
(83 Phil. 171, 177-178) which reiterates the 1945 case of Yamashita vs. Styer (75 Phil. 563, 571-72). The
trial of General Kuroda was after the surrender of Japan on October 2, 1945 (23 Encyc. Brit. 1969 ed., p.
799) and hence no more martial law in the Philippines.
... Consequently, in the promulgation and enforcement of Executive Order No.
68, the President of the Philippines has acted in conformity with the generally
accepted principles and policies of international law which are part of our
Constitution.

The promulgation of said executive order is an exercise by the President of his


powers as Commander in Chief of all our armed forces, as upheld by this Court
in the case of Yamashita vs. Styver (L-129, 42 Off. Gaz., 664) when we said
"War is not ended simply because hostilities have ceased. After
cessation of armed hostilities, incidents of war may remain
pending which should be disposed of as in time of war. "An
important incident to a conduct of war is the adoption measures
by the military command not only to repel and defeat the
enemies but to seize and subject to disciplinary measures those
enemies who in their attempt to thwart or impede our military
effort have violated the law of war." (Ex parte Quirin, 317 U.S., 1;
63 Sup. Ct., 2.) Indeed, the power to create a military
commission for the trial and punishment of war criminals is an
aspect of waging war. And, in the language of a writer, a military
commission "has jurisdiction so long as the technical state of war
continues. This includes the period of an armistice, or military
occupation, up to the effective date of treaty of peace, and may
extend beyond, by treaty agreement." (Cowles, Trial of War
Criminals by Military Tribunals, American Bar Association
Journal, June, 1944).
Consequently, the President as Commander-in-Chief is fully empowered to
consummate this unfinished aspect of war, namely the trial and punishment of
war criminals, through the issuance and enforcement of Executive Order No. 68.
(83 Phil. 177-178; emphasis supplied).
Chief Justice Stone of the United States Supreme Court likewise appears to subscribe to this view, when,
in his concurring opinion in Duncan vs. Kahanamoku (327 U.S. 304 [1946]), he defined martial law as
"the exercise of the power which resides in the executive branch of the government to preserve order and
insure the public safety in times of emergency, when other branches of the government are unable to
function, or their functioning would itself threaten the public safety." (Emphasis supplied). There is an
implied recognition in the aforesaid definition of martial law that even in places where the courts can
function, such operation of the courts may be affected by martial law should their "functioning ... threaten
the public safety." It is possible that the courts, in asserting their authority to pass upon questions which
may adversely affect the conduct of the punitive campaign against rebels, secessionists, dissidents as
well as subversives, martial law may restrict such judicial function until the danger to the security of the
state and of the people shall have been decimated.
The foregoing view appears to be shared by Rossiter when he stated:
Finally, this strong government, which in some instances might become an
outright dictatorship, can have no other purposes than the preservation of the
independence of the state, the maintenance of the existing constitutional order,
and the defense of the political and social liberties of the people. It is important to
recognize the true and limited ends of any practical application of the principle of
constitutional dictatorship. Perhaps the matter may be most clearly stated in this
way: the government of a free state is proceeding on its way and meeting the
usual problems of peace and normal times within the limiting framework of its
established constitutional order. The functions of government are parceled out
among a number of mutually independent offices and institutions; the power to
exercise those functions is circumscribed by well-established laws, customs, and
constitutional prescriptions; and the people for whom this government was
instituted are in possession of a lengthy catalogue of economic, political, and
social rights which their leaders recognize as inherent and inalienable. A severe

crisis arises the country is invaded by a hostile power, or a dissident segment


of the citizenry revolts, or the impact of a world-wide depression threatens to
bring the nation's economy in ruins. The government meets the crisis by
assuming more powers and respecting fewer rights. The result is a regime which
can act arbitrarily and even dictatorially in the swift adaption of measures
designed to save the state and its people from the destructive effects of the
particular crisis. And the narrow duty to be pursued by this strong government,
this constitutional dictatorship? Simply this and nothing more: to end the crisis
and restore normal times. The government assumes no power and abridges no
right unless plainly indispensable to that end; it extends no further in time than
the attainment of that end; and it makes no alteration in the political, social and
economic structure of the nation which cannot be eradicated with the restoration
of normal times. In short, the aim of constitutional dictatorship is the complete
restoration of the status quo ante bellum. This historical fact does not comport
with philosophical theory, that there never has been a perfect constitutional
dictatorship, is an assertion that can be made without fear of contradiction. But
this is true of all institutions of government, and the principle of constitutional
dictatorship remains eternally valid no matter how often and seriously it may
have been violated in practice. (Constitutional Dictatorship, 1948 ed., by Clinton
L. Rossiter, p. 7; emphasis supplied.)
Finally, Rossiter expressly recognizes that during martial law, the Chief Executive exercises legislative
power, whether of temporary or permanent character, thus:
The measures adopted in the prosecution of a constitutional dictatorship should
never be permanent in character or effect. Emergency powers are strictly
conditioned by their purpose and this purpose is the restoration of normal
conditions. The actions directed to this end should therefore be provisional. For
example, measures of a legislative nature which work a lasting change in the
structure of the state or constitute permanent derogations from existing
law should not be adopted under an emergency enabling act, at least not without
the positively registered approval of the legislature. Permanent laws, whether
adopted in regular or irregular times, are for parliaments to enact. By this same
token, the decisions and sentences of extraordinary courts should be reviewed
by the regular courts after the termination of the crisis.
But what if a radical act of permanent character, one working lasting changes in
the political and social fabric, is indispensable to the successful prosecution of
the particular constitutional dictatorship? The only answer can be: it must be
resolutely taken and openly acknowledged. President Lincoln found it necessary
to proceed to the revolutionary step of emancipation in aid of his conservative
purpose of preserving the Union; as a constitutional dictator he had a moral right
to take this radical action. Nevertheless, it is imperative that any action with such
lasting effects should eventually receive the positive approval of the people or of
their representatives in the legislature. (P. 303, emphasis supplied).
From the foregoing citations, under martial law occasioned by severe crisis generated by revolution,
insurrection or economic depression or dislocation, the government exercises more powers and respects
fewer rights in order "to end the crisis and restore normal times." The government can assume additional
powers indispensable to the attainment of that end the complete restoration of peace. In our particular
case, eradication of the causes that incited rebellion and subversion as secession, is the sine qua non to
the complete restoration of normalcy. Exercise of legislative power by the President as Commander in
Chief, upon his proclamation of martial law, is justified because, as he professes, it is directed towards the
institution of radical reforms essential to the elimination of the causes of rebellious, insurgent or

subversive conspiracies and the consequent dismantling of the rebellious, insurgent or subversive
apparatus.
Hence, the issuance of Presidential Decree Nos. 86 and 86-A as well as Proclamation No. 1102 is
indispensable to the effectuation of the reforms within the shortest possible time to hasten the restoration
of normalcy.
"Must the government be too strong for the liberties of the people; or must it be too weak to maintain its
existence?" That was the dilemma that vexed President Lincoln during the American Civil War, when
without express authority in the Constitution and the laws of the United States, he suspended one basic
human freedom the privilege of the writ of habeas corpus in order to preserve with permanence the
American Union, the Federal Constitution of the United States and all the civil liberties of the American
people. This is the same dilemma that presently confronts the Chief Executive of the Republic of the
Philippines, who, more than the Courts and Congress, must, by express constitutional mandate, secure
the safety of our Republic and the rights as well as lives of the people against open rebellion, insidious
subversion secession. The Chief Executive announced repeatedly that in choosing to proclaim martial
law, the power expressly vested in him by the 1935 Constitution (Sec. 10[2], Art. VII, 1935 Constitution) to
insure our national and individual survival in peace and freedom, he is in effect waging a peaceful,
democratic revolution from the center against the violent revolution and subversion being mounted by the
economic oligarchs of the extreme right, who resist reforms to maintain their economic hegemony, and
the communist rebels a Maoist oriented secessionists of the extreme left who demand swift institution of
reforms. In the exercise of his constitutional and statutory powers, to save the state and to protect the
citizenry against actual and threatened assaults from insurgents, secessionists and subversives,
doctrinaire concepts and principles, no matter how revered they may be by jurisprudence and time,
should not be regarded as peremptory commands; otherwise the dead hand of the past will regulate and
control the security and happiness of the living present. A contrary view would be to deny the self-evident
proposition that constitutions and laws are mere instruments for the well-being, peace, security and
prosperity of the country and its citizenry. The law as a means of social control is not static but dynamic.
Paraphrasing Mr. Justice Frankfurter, the Constitution is neither a printed finality nor the imprisonment of
the past, but the enfolding of the future. In the vein of Mr. Justice Holmes, the meaning of the words of the
Constitution is not to be determined by merely opening a dictionary. Its terms must be construed in the
context of the realities in the life of a nation it is intended to serve. Because experience may teach one
generation to doubt the validity and efficacy of the concepts embodied in the existing Constitution and
persuade another generation to abandon them entirely, heed should be paid to the wise counsel of some
learned jurists that in the resolution of constitutional questions like those posed before Us the
blending of idealism and practical wisdom or progressive legal realism should be applied (see Alexander
M. Bickel, the Supreme Court and the Idea of Progress, 1970 ed., pp. 19-21). To Justice Frankfurter, law
is "a vital agency for human betterment" and constitutional law "is applied politics using the word in its
noble sense." (Frankfurter, Law and Politics, 1939 ed., pp. 3 & 6; emphasis supplied). Justice Brandeis
gave utterance to the truth that "Our Constitution is not a straight jacket. It is a living organism. As such, it
is capable of growth or expansion and adaptation to new conditions. Growth implies changes, political,
economic and social." (Brandeis Papers, Harvard Law School; emphasis supplied). Harvard Professor
Thomas Reed Powell emphasizes "practical wisdom," for "the logic of constitutional law is the common
sense of the Supreme Court." (Powell, the Validity of State Legislation, under the Webb-Kenyon Law, 2
Southern Law Quarterly, pp. 112, 138-139, cited in Bickel's Opus, supra; emphasis supplied).
The eternal paradox in this finite world of mortal and fallible men is that nothing is permanent except
change. Living organisms as well as man-made institutions are not immutable. Civilized men organize
themselves into a State only for the purpose of serving their supreme interest their welfare. To achieve
such end, they created an agency known as the government. From the savage era thru ancient times, the
Middle Ages, the Dark Ages and the Renaissance to this era of sophisticated electronics and nuclear
weaponry, states and governments have mutated in their search for the magic instrument for their wellbeing. It was trial and error then as it is still now. Political philosophies and constitutional concepts, forms
and kinds of government, had been adopted, overturned, discarded, re-adopted or modified to suit the
needs of a given society at a particular given epoch. This is true of constitutions and laws because they

are not "the infallible instruments of a manifest destiny." No matter how we want the law to be stable, it
cannot stand still. As Mr. Justice Holmes aptly observed, every "constitution is an experiment as all life is
an experiment," (Abrahms vs. U.S., 250 US 616, 631) for "the life of the law is not logic, but experience."
In the pontifical tones of Mr. Justice Benjamin Nathan Cardozo, "so long as society is inconstant, there
can be no constancy in law," and "there will be change whether we will it or not." As Justice Jose P. Laurel
was wont to say, "We cannot, Canute-like, command the waves of progress to halt."
Thus, political scientists and jurists no longer exalt with vehemence a "government that governs least."
Adherents there are to the poetic dictum of Alexander Pope: "For forms of government let fools contest;
whatever is best administered is best." (Poems of Pope, 1931 Cambridge ed., p. 750). In between, the
shades vary from direct democracy, representative democracy, welfare states, socialist democracy,
mitigated socialism, to outright communism which degenerated in some countries into totalitarianism or
authoritarianism.
Hence, even the scholar, who advances academic opinions unrelated to factual situations in the seclusion
of his ivory tower, must perforce submit to the inexorable law of change in his views, concepts, methods
and techniques when brought into the actual arena of conflict as a public functionary face to face with
the practical problems of state, government and public administration. And so it is that some learned
jurists, in the resolution of constitutional issues that immediately affect the lives, liberties and fortunes of
the citizens and the nation, recommend the blending of idealism with practical wisdom which legal
thinkers prefer to identify as progressive legal realism. The national leader, who wields the powers of
government, must and has to innovate if he must govern effectively to serve the supreme interests of the
people. This is especially true in times of great crises where the need for a leader with vision, imagination,
capacity for decision and courageous action is greater, to preserve the unity of people, to promote their
well-being, and to insure the safety and stability of the Republic. When the methods of rebellion and
subversion have become covert, subtle and insidious, there should be a recognition of the corresponding
authority on the part of the Commander-in-Chief of the Armed Forces to utilize all the available techniques
to suppress the peril to the security of the government and the State.
Over a century and a half ago, Thomas Jefferson, one of the founding fathers of the American
Constitution and former President of the United States, who personifies the progressive liberal, spoke the
truth when he said that some men "ascribe men of the preceding age a wisdom more than human, and
suppose what they did to be beyond amendment. ... But I know also, that laws and institutions must go
hand in hand with the progress of the human mind. As that becomes more developed, more enlightened,
as new discoveries are made, new truths disclosed and manners and opinions change, with the change
of circumstances, institutions must also advance, and keep pace with the times." (Vol. 12, Encyclopedia
Britanica, 1969 ed., p. 989).
The wisdom of the decision of the Chief Executive can only be judged in the perspective of history. It
cannot be adequately and fairly appraised within the present ambience, charged as it is with so much
tension and emotion, if not partisan passion. The analytical, objective historians will write the final verdict
in the same way that they pronounced judgment on President Abraham Lincoln who suspended the
privilege of the writ of habeas corpuswithout any constitutional or statutory authority therefor and of
President Franklin Delano Roosevelt who approved the proclamation of martial law in 1941 by the
governor of Hawaii throughout the Hawaiian territory. President Lincoln not only emancipated the Negro
slaves in America, but also saved the Federal Republic of the United States from disintegration by his
suspension of the privilege of the writ of habeas corpus, which power the American Constitution and
Congress did not then expressly vest in him. No one can deny that the successful defense and
preservation of the territorial integrity of the United States was due in part, if not to a great extent, to the
proclamation of martial law over the territory of Hawaii main bastion of the outer periphery or the
outpost of the American defense perimeter in the Pacific which protected the United States mainland
not only from actual invasion but also from aerial or naval bombardment by the enemy. Parenthetically,
the impartial observer cannot accurately conclude that the American Supreme Court acted with courage
in its decision in the cases of Ex parte Milligan and Duncan vs. Kahanamoku (filed on May 10, 1865
argued on March 5 to 13, 1866, decided on April 3, 1866, and opinion delivered on December 17, 1866)

after the lifting of the proclamation suspending the privilege of the writ of habeas corpus, long after the
Civil War and the Second World ended respectively on April 9 or 26, 18-65 (Vol. 1, Encyclopedia
Britannica, 1969 ed., pp. 730, 742) and on September 2, 1945 (Vol. 23, Encyclopedia Britannica, 1969
ed., p. 799). Was the delay on the part of the American Supreme Court in deciding these cases against
the position of the United States President in suspending the privilege of the writ of habeas corpus in
one case and approving the proclamation of martial law in the other deliberate as an act of judicial
statesmanship and recognition on their part that an adverse court ruling during the period of such a grave
crisis might jeopardize the survival of the Federal Republic of the United States in its life-and-death
struggle against an organized and well armed rebellion within its own borders and against a formidable
enemy from without its territorial confines during the last global armageddon?
VIII
DOCTRINE OF SEPARATION OF POWERS PRECLUDES
MANDAMUS AGAINST SENATORS.
In G.R. No. L-36165, mandamus will not lie to compel respondents Gil Puyat and Jose Roy to convene
the Senate of the Philippines even on the assumption that the 1935 Constitution still subsists; because
pursuant to the doctrine of separation of powers under the 1935 Constitution, the processes of this Court
cannot legally reach a coordinate branch of the government or its head. This is a problem that is
addressed to the Senate itself for resolution; for it is purely an internal problem of the Senate. If a majority
of the senators can convene, they can elect a new Senate President and a new Senate President Pro
Tempore. But if they have no quorum, those present can order the arrest of the absent members (Sec.
10[2], Art. VI, 1935 Constitution). If this fails, then there is no remedy except an appeal to the people. The
dictum ubi jus, ubi remedium, is not absolute and certainly does not justify the invocation of the power of
this Court to compel action on the part of a co-equal body or its leadership. This was emphasized with
sufficient clarity by this Court in the 1949 case of Avelino vs. Cuenco (83 Phil. 17, 22,24), with which the
distinguished counsels for the petitioners in L-36164 and L-36165 are familiar. We stress that the doctrine
of separation of powers and the political nature of the controversy such as this, preclude the interposition
of the Judiciary to nullify an act of a coordinate body or to command performance by the head of such a
co-ordinate body of his functions..
Mystifying is the posture taken by counsels for petitioners in referring to the political question doctrine
almost in mockery as a magic formula which should be disregarded by this Court, forgetting that this
magic formula constitutes an essential skein in the constitutional fabric of our government, which,
together with other basic constitutional precepts, conserves the unity of our people, strengthens the
structure of the government and assures the continued stability of the country against the forces of
division, if not of anarchy.
Moreover, if they have a quorum, the senators can meet anywhere. Validity of the acts of the Senate does
not depend on the place of session; for the Constitution does not designate the place of such a meeting.
Section 9 of Article VI imposes upon Congress to convene in regular session every year on the 4th
Monday of January, unless a different date is fixed by law, or on special session called by the President.
As former Senator Arturo Tolentino, counsel for respondents Puyat and Roy in L-36165, stated, the duty
to convene is addressed to all members of Congress, not merely to its presiding officers. The fact that the
doors of Congress are padlocked, will not prevent the senators especially the petitioners in L-36165
if they are minded to do so, from meeting elsewhere at the Sunken Gardens, at the Luneta
Independence Grandstand, in any of the big hotels or theaters, in their own houses, or at the Araneta
Coliseum, which is owned by the father-in-law of petitioner Gerardo Roxas in L-36165.
However, a session by the Senate alone would be purely an exercise in futility, for it cannot validly meet
without the lower House (Sec. 10[5], Art. VI, 1935 Constitution). Hence, this petition by five former
senators formandamus in L-36165 is useless.

And as pointed out by former Senator Arturo Tolentino, counsel for respondents Puyat and
Roy, mandamus will lie only if there is a law imposing on the respondents the duty to convene the body.
The rule imposing such a duty invoked by petitioners in L-36165 is purely an internal rule of the Senate; it
is not a law because it is not enacted by both Houses and approved by the President.
The Constitutional provision on the convening of Congress, is addressed to the individual members of the
legislative body (Sec. 9, Art. VI of 1935 Constitution).
IX
TO NULLIFY PROCLAMATION NO. 1102 AND 1973
CONSTITUTION REQUIRES EIGHT OR TEN VOTES OF
SUPREME COURT.
The petitioners in L-36164 and L-36236 specifically pray for a declaration that the alleged ratification of
the 1973 Constitution is null and void and that the said 1973 Constitution be declared unenforceable and
inoperative.
As heretofore stated, Proclamation No. 1102 is an enactment of the President as Commander-in-Chief
during martial law as directly delegated to him by Section 10(2) of Article VII of the 1935 Constitution.
A declaration that the 1973 Constitution is unenforceable and inoperative is practically deciding that the
same is unconstitutional. The proposed Constitution is an act of the Constitutional Convention, which is
co-equal and coordinate with as well as independent of either Congress or the Chief Executive. Hence, its
final act, the 1973 Constitution, must have the same category at the very least as the act of Congress
itself.
Consequently, the required vote to nullify Proclamation No. 1102 and the 1973 Constitution should be
eight (8) under Section 10 of Article VIII of the 1935 Constitution in relation to Section 9 of the Judiciary
Act or Republic Act No. 296, as amended, or should be ten (10) under Section 2(2) of Article X of the
1973 Constitution. Should the required vote of eight (8) or ten (10), as the case may be, for the
declaration of invalidity or unconstitutionality be not achieved, the 1973 Constitution must be deemed to
be valid, in force and operative.
X
ARTICLE OF FAITH
WE yield to no man as devotees of human rights and civil liberties. Like Thomas Jefferson, We swear
"eternal hostility towards any form of tyranny over the mind of man" as well as towards bigotry and
intolerance, which are anathema to a free spirit. But human rights and civil liberties under a democratic or
republican state are never absolute and never immune to restrictions essential to the common weal. A
civilized society cannot long endure without peace and order, the maintenance of which is the primary
function of the government. Neither can civilized society survive without the natural right to defend itself
against all dangers that may destroy its life, whether in the form of invasion from without or rebellion and
subversion from within. This is the first law of nature and ranks second to none in the hierarchy of all
values, whether human or governmental. Every citizen, who prides himself in being a member or a
civilized society under an established government, impliedly submits to certain constraints on his freedom
for the general welfare and the preservation of the State itself, even as he reserves to himself certain
rights which constitute limitations on the powers of government. But when there is an inevitable clash
between an exertion of governmental authority and the assertion of individual freedom, the exercise of
which freedom imperils the State and the civilized society to which the individual belongs, there can be no
alternative but to submit to the superior right of the government to defend and preserve the State. In the
language of Mr. Justice Holmes often invoked by herein petitioners "when it comes to a decision

involving its (state life, the ordinary rights of individuals must yield to what he (the President) deems the
necessities of the moment. Public danger warrants the substitution of executive process for judicial
process. (See Keely vs. Sanders, 99 U.S. 441, 446, 25 L ed. 327, 328). This was admitted with regard to
killing men in the actual clash of arms. And we think it is obvious, although it was disputed, that the same
is true of temporary detention to prevent apprehended harm." (Moyer vs. Peabody, 212 U.S. 77, 85, 53 L
ed., 411, 417).
The rhetoric of freedom alone is not enough. It must be the rhetoric of freedom with order and security for
all, that should be the shibboleth; for freedom cannot be enjoyed in an environment of disorder and
anarchy.
The incumbent Chief Executive who was trying to gain the support for his reform program long before
September 21, 1972, realized almost too late that he was being deceived by his partymates as well as by
the opposition, who promised him cooperation, which promises were either offered as a bargaining
leverage to secure concessions from him or to delay the institution of the needed reforms. The people
have been victimized by such bargaining and dilly-dallying. To 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. He who toys with
revolution will be swallowed by that same revolution. History is replete with examples of libertarians who
turned tyrants and were burned at stake or beheaded or hanged or guillotined by the very people whom
they at first championed and later deceived. The most bloody of such mass executions by the wrath of a
wronged people, was the decapitation by guillotine of about 15,000 Frenchmen including the leaders of
the French revolution, like Robespierre, Danton, Desmoulins and Marat. He is fully cognizant of the
lessons of history.
HENCE, THE DISMISSAL OF THESE FIVE CASES IS JUSTIFIED.
ESGUERRA, J., concurring:
These petitions seek to stop and prohibit the respondents Executive Officers from implementing the
Constitution signed on November 30, 1972; in L-36165, to compel respondents Gil Puyat and Jose J.
Roy, President and President Pro-Tempore, respectively, of the Senate under the 1935 Constitution, to
convene the Senate in regular session which should have started on January 22, 1973; to nullify
Proclamation No. 1102 of the President, issued on January 17, 1973, which declared the ratification of the
Constitution on November 30, 1972, by the Filipino people, through the barangays or Citizens Assemblies
established under Presidential Decree No. 86 issued on December 31, 1972, which were empowered
under Presidential Decree No. 86-A, issued on January 5, 1973, to act in connection with the ratification
of said Constitution.
Grounds for the petitions are as follows:

1. That the Constitutional Convention was not a free forum for the making of a Constitution after the
declaration of Martial Law on September 21, 1972.
2. The Convention was not empowered to incorporate certain provisions in the 1972 Constitution because
they are highly unwise and objectionable and the people were not sufficiently informed about them.
3. The President had no authority to create and empower the Citizens' Assemblies to ratify the new
Constitution at the referendum conducted in connection therewith, as said assemblies were merely for
consultative purposes, and
4. The provisions of Article XV of the 1935 Constitution prescribing the manner of amending the same
were not duly observed.
The petitions were not given due course immediately but were referred to the Solicitor General as counsel
for the respondents for comment, with three members of the Court, including the undersigned, voting to
dismiss them outright. The comments were considered motions to dismiss which were set for hearing and
extensively argued. Thereafter both parties submitted their notes and memoranda on their oral
arguments.
I.
The issues raised for determination, on which the resolution of the Motion to Dismiss hinges, are as
follows:
1. Is the question presented political and, hence, beyond the competence of this Court to decide, or is it
justiciable and fit for judicial determination?
2. Was the new Constitution of November 30, 1972, ratified in accordance with the amending process
prescribed by Article XV of the 1935 Constitution?
3. Has the new Constitution been accepted and acquiesced in by the Filipino people?
4. Is the new Constitution actually in force and effect?
5. If the answers to questions Nos. 3 and 4 be in the affirmative, are petitioners entitled to the reliefs
prayed for?
II.
The pivotal question in these cases is whether the issue raised is highly political and, therefore, not
justiciable. I maintain that this Court should abstain from assuming jurisdiction, but, instead, as an act of
judicial statesmanship, should dismiss the petitions. In resolving whether or not the question presented is
political, joint discussion of issues Nos. 1, 3 and 4 is necessary so as to arrive at a logical conclusion. For
after the acceptance of a new Constitution and acquiescence therein by the people by putting it into
practical operation, any question regarding its validity should be foreclosed and all debates on whether it
was duly or lawfully ushered into existence as the organic law of the state become political and not
judicial in character.
The undisputed facts that led to the issuance of Proclamation No. 1102 and Presidential Decrees Nos. 86
and 86-A are fully set forth in the majority and dissenting opinions in the Plebiscite cases decided on
January 22, 1973, and need not be repeated here.

Petitioners seek to set at naught Proclamation No. 1102 and Presidential Decrees Nos. 86 and 86-A,
claiming that the ratification of the new Constitution pursuant to the said decrees is invalid and of no
effect. Presidential Decree No. 86 organized the barangays or Citizens Assemblies composed of all
citizens at least fifteen years of age, and through these assemblies the proposed 1972 Constitution was
submitted to the people for ratification. Proclamation No. 1102 of the President announced or declared the
result of the referendum or plebiscite conducted through the Citizens Assemblies, and that 14,976,561
members thereof voted for the ratification of the new Constitution and 743,869 voted against it. Petitioners
assail these two acts of the President as unauthorized and devoid of legal effect.
But looking through the veneer of judicial conformity with which the petitions have been adroitly contrived,
what is sought to be invalidated is the new Constitution itself the very framework of the present
Government since January 17, 1973. The reason is obvious. The Presidential decrees set up the means
for the ratification and acceptance of the new Constitution and Proclamation No. 1102 simply announced
the result of the referendum or plebiscite by the people through the Citizens Assemblies. The Government
under the new Constitution has been running on its tracks normally and apparently without obstruction in
the form of organized resistance capable of jeopardizing its existence and disrupting its operation.
Ultimately the issue is whether the new Constitution may be set aside by this Court. But has it the power
and authority to assume such a stupendous task when the result of such invalidation would be to subject
this nation to divisive controversies that may totally destroy the social order which the Government under
the new Constitution has been admirably protecting and promoting under Martial Law? That the new
Constitution has taken deep root and the people are happy and contended with it is a living reality which
the most articulate critics of the new order cannot deny. 95 out of 108 members of the House of
Representatives have opted to serve in the interim National Assembly provided for under the new
Constitution. 15 out of 24 Senators have done likewise. The members of the Congress did not meet
anymore last January 22, 1973, not because they were really prevented from so doing but because of no
serious effort on their parts to assert their offices under the 1935 Constitution. In brief, the Legislative
Department under the 1935 Constitution is a thing of the past. The Executive Department has been fully
reorganized; the appointments of key executive officers including those of the Armed Forces were
extended and they took an oath to support and defend the new Constitution. The courts, except the
Supreme Court by reason of these cases, have administered justice under the new constitution. All
government offices have dealt with the public and performed their functions according to the new
Constitution and laws promulgated thereunder.
If the real purpose of the petitions is to set aside the new Constitution, how can this Court justify its
assumption of jurisdiction when no power has ... conferred upon it the jurisdiction to declare the
Constitution or any part thereof null and void? It is the height of absurdity and impudence for a court to
wage open war against the organic act to which it owes its existence. The situation in which this Court
finds itself does not permit it to pass upon the question whether or not the new Constitution has entered
into force and has superseded the 1935 Constitution. If it declares that the present Constitution has not
been validly ratified, it has to uphold the 1935 Constitution as still the prevailing organic law. The result
would be too anomalous to describe, for then this Court would have to declare that it is governed by one
Constitution or the 1935 Constitution, and the legislative and executive branches by another or the 1972
Constitution.
If it declares that the 1972 Constitution is now operative, how can it exercise judicial discretion in these
cases when it would have no other choice but to uphold the new Constitution as against any other one? In
the circumstances it would be bereft of judicial attributes as the matter would then be not meet for judicial
determination, but one addressed to the sovereign power of the people who have already spoken and
delivered their mandate by accepting the fundamental law on which the government of this Republic is
now functioning. To deny that the new Constitution has been accepted and actually is in operation would
be flying in the face of reason and pounding one's bare head against a veritable stone wall or a heavily
reinforced concrete, or simply "kicking the deadly pricks" with one's bare foot in an effort to eliminate the
lethal points.

When a Constitution has been in operation for sometime, even without popular ratification at that,
submission of the people thereto by the organization of the government provided therein and observance
of its prescriptions by public officers chosen thereunder, is indicative of approval. Courts should be slow in
nullifying a Constitution claimed to have been adopted not in accordance with constitutional or statutory
directives [Miller vs. Johnson, 92 Ky. 589; 189 S.W. 522; Taylor vs Commonwealth, 101; Va. 829; 44 S.E.
754; Smith vs. Good, 34 F 204, 207; Wiston vs. Ryan, 70 Neb. 211; 97 N.W. 347].
In Miller vs. Johnson, supra, the Court said:
... But it is a case where a new constitution has been formed and promulgated
according to the forms of law. Great interests have already arisen under it;
important rights exist by virtue of it; persons have been convicted of the highest
crimes known to the law, according to its provisions; the political power of the
government has in many ways recognized it; and, under such circumstances, it is
our duty to treat and regard it as a valid constitution, and now the organic law of
our state. We need not consider the validity of the amendments made after the
convention reassembled. If the making of them was in excess of its power, yet as
the entire instrument has been recognized as valid in the manner suggested, it
would be equally an abuse of power by the judiciary, and violative of the rights of
the people, who can and properly should remedy the matter, if not to their
liking, if it were to declare the instrument or a portion invalid, and bring
confusion and anarchy upon the state. (Emphasis supplied)
In Smith vs. Good, supra, the Court said:
It is said that a state court is forbidden from entering upon such an inquiry when
applied to a new constitution, and not an amendment, because the judicial power
presupposes an established government, and if the authority of that government
is annulled and overthrown, the power of its courts is annulled with it; therefore, if
a state court should enter upon such an inquiry, come to the conclusion that the
government under which it acted had been displaced by an opposing
government, it would cease to be a court, and it would be incapable of
pronouncing a judicial decision upon the question before it; but, if it decides at all,
it must necessarily affirm the existence of the government under which it
exercises its judicial powers. (Emphasis supplied)
These rules are all traceable to Luther vs. Borden, 48 U.S (7 How.), 12 L. Ed. 581, 598 (1849) where it
was held:
Judicial power presupposes an established government capable of enacting laws
and enforcing their execution, and appointing judges to expound and administer
them. The acceptance of the judicial office is a recognition of the authority of
government from which it is derived. And if the authority of the government is
annulled and overthrown, the power of its courts and other officers is annulled
with it. And if a State court should enter upon the inquiry proposed in this case,
and should come to conclusion that the government under which it acted had
been put aside and displaced by an opposing government it would cease to be a
court, and be incapable of pronouncing a judicial decision upon the question it
undertook to try. If it decides at all as a court, it necessarily affirms the existence
and authority of the government under which it is exercising judicial power.
The foreign relations of the Republic of the Philippines have been normally conducted on the basis of the
new Constitution and no state with which we maintain diplomatic relations has withdrawn its recognition of

our government. (For particulars about executive acts done under the new Constitution, see pages 22-25
of the Comments of the Solicitor General, dated February 3, 1973.)
Certainly the invalidation of Proclamation No. 1102 and Presidential Decrees Nos. 86 and 86-A by this
Court would smack of plain political meddling which is described by the United States Supreme Court as
"entering a political thicket" in Colegrove vs. Green, 328 U.S. p. 549. At this juncture it would be the part
of wisdom for this Court to adopt the proper attitude towards political upheavals and realize that the
question before Us is political and not fit for judicial determination. For a political question is one entrusted
to the people for judgment in their sovereign capacity (Taada vs. Cuenco, G.R. No. L-10520, Feb.
28,1967; 100 Phil. 1101), or to a co-equal and coordinate branch of the Government (Vera vs. Arellano,
77 Phil. 192; Mabanag vs. Lopez Vito, 78 Phil. 1; Alejandrino vs. Quezon, 46 Phil. 35; Cabili vs.
Francisco, G.R. No. 4638, May 8, 1931). A case involves a political question when there would be "the
impossibility of undertaking independent resolutions without expressing a lack of respect due to
coordinate branches of government", or when there is "the potentiality of embarrassment from
multifarious pronouncements by various departments on one question."
To preserve the prestige and eminence that this Court has long enjoyed as the "ultimate organ of the
"Supreme Law of the Land" in that vast range of legal problems often strongly entangled in popular
feeling on which this Court must pronounce", let us harken to the following admonition of Justice
Frankfurter in his dissent in Baker vs. Carr, 369 U.S. 186; 82 S. Ct. 691; 7 L. Ed. 2d. 663:
The 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 superlegislature 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.

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 of Avelino v. Cuenco 6, this Court held that the exception to the rule
that courts will not interfere with a political question affecting another department is when such political
question involves an issue as to the construction and interpretation of the provision of the constitution.
And so, it has been held that the question of whether a constitution shall be amended or not is a political
question which is not in the power of the court to decide, but whether or not the constitution has been
legally amended is a justiciable question. 7
My study on the subject of whether a question before the court is political or judicial, based on decisions
of the courts in the United States where, after all, our constitutional system has been patterned to a
large extent made me arrive at the considered view that it is in the power of this Court, as the ultimate
interpreter of the Constitution, to determine the validity of the proposal, the submission, and the
ratification of any change in the Constitution. Ratification or non-ratification of a constitutional amendment
is a vital element in the procedure to amend the constitution, and I believe that the Court can inquire into,
and decide on, the question of whether or not an amendment to the constitution, as in the present cases,
has been ratified in accordance with the requirements prescribed in the Constitution that was amended.
And so, in the cases now before Us, I believe that the question of whether or not the Constitution
proposed by the 1971 Constitutional Convention had been validly ratified or not is a justiciable question.
The Chief Justice, in his opinion, has discussed lengthily the subject on whether or not, the cases, before
Us involve a political, or a judicial, question. I fully concur with his conclusion that the question involved in
these cases is justiciable.
On the question now of whether or not the Constitution proposed by the 1971 Constitutional Convention
has been validly ratified, I am reproducing herein pertinent portions of my dissenting opinion in the
plebiscite cases:
The ratification of the Constitution proposed by the 1971 Constitutional
Convention must be done in accordance with the provisions of Section 1, Article
XV of the 1935 Constitution of the Philippines, which reads:
"Section 1. The Congress in joint session assembled by a vote of
three fourths of all the Members of the Senate and of the House
of Representatives voting separately, may propose amendments
to the Constitution or call a convention for that purpose. Such

amendments shall be valid as part of this Constitution when


approved by a majority of the votes cast at an election at which
the amendments are submitted to the people for their
ratification."
It is in consonance with the abovequoted provision of the 1935 Constitution that
on March 16, 1967, the Congress of the Philippines Resolution No. 2 calling a
convention to propose amendments to the Constitution of the Philippines. Sec. 7
of said Resolution No. 2 reads as follows:
"Section 7. The amendments proposed by the Convention shall
be valid and considered part of the Constitution when approved
by a majority of the votes cast in an election at which they are
submitted to the people for their ratification pursuant to Article XV
of the Constitution.
It follows that from the very resolution of the Congress of the Philippines which
called for the 1971 Constitutional Convention, there was a clear mandate that the
amendments proposed by the 1971 Convention, in order to be valid and
considered part of the Constitution, must be approved by majority of the votes
cast in an election at which they are submitted to the people for the ratification as
provided in the Constitution.
This Court, in the case of Tolentino vs. Commission Elections, L-35140, October
16, 1971 (41 SCRA 715), speaking through Mr. Justice Barredo, said:
"The Constitutional Convention of 1971, as any other convention
of the same nature,owes its existence and all its authority and
power from the existing Constitution of the Philippines. This
Convention has not been called by the people directly as in the
case of a revolutionary convention which drafts the first
Constitution of an entirely new government born of either a war
of liberation from a mother country or of revolution against an
existing government or of a bloodless seizure of power a la coup
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 authority of
Section 1, Article XV of the present Constitution ... ."
xxx xxx xxx
"As to matters not related to its internal operation and the
performance of its assigned mission to propose amendments to
the Constitution, the Convention and its officers and members
are all subject to all the provisions of the existing Constitution.
Now we hold that even as to its latter task of proposing
amendments to the Constitution, it is subject to the provisions of
Section 1 of Article XV."

In Proclamation No. 1102, issued on January 17, 1973, the President of the
Philippines certified that as a result of the voting before the barangays (Citizens
Assemblies) 14,976,561 members of the barangays voted for the adoption of the
proposed Constitution, as against 743,869 who voted for its rejection, and on the
basis of the overwhelming majority of the votes cast by the members of all the
barangays throughout the Philippines, the President proclaimed that the
Constitution proposed by the 1971 Convention has been ratified and has thereby
come into effect.
It is very plain from the very wordings of Proclamation No. 1102 that the
provisions of Section 1 of Article XV of the Constitution of 1935 were not
complied with. It is not necessary that evidence be produced before this Court to
show that no elections were held in accordance with the provisions of the
Election Code. Proclamation No. 1102 unequivocally states that the proposed
Constitution of 1972 was voted upon by the barangays. It is very clear, therefore,
that the voting held in these barangays is not the election contemplated in the
provisions of Section 1, Article XV, of the 1935 Constitution. The election
contemplated in said constitutional provision is an election held in accordance
with the provisions of the election law, where only the qualified and registered
voters of the country would cast their votes, where official ballots prepared for the
purpose are used, where the voters would prepare their ballots in secret inside
the voting booths in the polling places established in the different election
precincts throughout the country, where the election is conducted by election
inspectors duly appointed in accordance with the election law, where the votes
are canvassed and reported in a manner provided for in the election law. It was
this kind of election that was held on May 14, 1935, when the Constitution of
1935 was ratified; on April 30, 1937, when the amendment to the Constitution
providing for Women's Suffrage was ratified; on June 18, 1940, when the 1940
Amendments to the Constitution were ratified; on March 11, 1947 when the Parity
Amendment to the Constitution was ratified; and on November 14, 1967 when
the amendments to the Constitution to increase the number of Members of the
House of Representatives and to allow the Members of Congress to run in the
elections for Delegates to the Constitutional Convention of 1971 were rejected.
I cannot see any valid reason why the practice or procedure in the past, in
implementing the constitutional provision requiring the holding, of an election to
ratify or reject an amendment to the Constitution, has not been followed in the
case of the Constitution proposed by the 1971 Constitutional Convention.
It is my view that the President of the Philippines cannot by decree order the
ratification of the proposed 1972 Constitution thru a voting in the barangays and
make said result the basis for proclaiming the ratification of the proposed
constitution. It is very clear, to me, that Proclamation No. 1102 was issued in
complete disregard or in violation, of the provisions of Section 1 of Article X of the
1935 Constitution.
Proclamation No. 1102 mentions, furthermore, that on the question as to whether
or not the people would still like a plebiscite to be called to ratify the new
Constitution, 14,298,814 members of the barangays answered that there was no
need for a plebiscite but that the vote of the barangays should be considered a
vote in a plebiscite. It would thus appear that the barangays assumed the power
to determine whether a plebiscite as ordained in the Constitution be held or not.
Indeed, the provision of Section 1, Article XV of the Constitution was completely
disregarded.

The affirmative votes cast in the barangays are not the votes contemplated in
Section 1 of Article XV of the 1935 Constitution. The votes contemplated in said
constitutional provision are votes obtained through the election processes as
provided by law.
"An election is the embodiment of the popular will, the
expression of the sovereign power of the people. In common
parlance, an election is the act of casting and receiving the
ballots, counting them, and making the return." (Hontiveros vs.
Altavas, 24 Phil. 632, 637).
"Election" implies a choice by an electoral body at the time and
substantially in the manner and with the safeguards provided by
law with respect to some question or issue. (Leffel v. Brown,
Com. P1., 159 N.E. 2d 807, 808 cited in 29 C.J.S. 13 at footnote
6.5).
"... the statutory method whereby qualified voters or electors
pass on various public matters submitted to them the election
of officers, national, state, county, township the passing on
various other questions submitted for their determination." (29
C.J.S. 13, citing Iowa-Illinois Gas & Elec. Co. v. City of
Bettendorf, 41 N.W. 2d 1, 5, 241 Iowa 358).
"Election" is expression of choice by voters of body politic.
(Ginsburg v. Giles, 72 S.W. 2d 438, 254 Ky. 720, in Words and
Phrases, Permanent Edition, p. 234).
"The right to vote may be exercised only on compliance with
such statutory requirements as have been set by the legislature."
(People ex rel. Rago v. Lipsky, 63 N.E. 2d 642, 327 III. App. 63;
Rothfels v. Southworth, 356 P. 2d 612, 11 Utah 2d 169 in 29
C.J.S. 38). (Emphasis supplied).
In this connection I herein quote the pertinent provisions of the Election Code of
1971:
"Sec. 2. Applicability of this Act. All elections of public officers except barrio
officials and plebiscites shall be conducted in the manner provided by this Code."
"Sec 99. Necessity of registration to be entitled to vote. In order that a
qualified voter may vote in any regular or special election or in any plebiscite, he
must be registered in the permanent list of voters for the city, municipality or
municipal district in which he resides: Provided, that no person shall register
more than once without first applying for cancellation of his previous registration."
(Emphasis supplied). (Please see also Sections 100-102, Election Code of 1971,
R.A. No. 6388)
It is stated in Proclamation No. 1102 that the voting was done by the members of
citizens assemblies who are 15 years of age or over. Under the provision of
Section I of Article V of the 1935 Constitution, the age requirement to be a
qualified voter is 21 years or over.

But what is more noteworthy is the fact that the voting in the barangays, except in
very few instances, was done by the raising of hands by the persons
indiscriminately gathered to participate in the voting, where even children below
15 years of age were included. This is a matter of common observation, or of
common knowledge, which the Court may take judicial notice of. To consider the
votes in the barangays as expressive of the popular will and use them as the
basis in declaring whether a Constitution is ratified or rejected is to resort to a
voting by demonstrations, which is would mean the rule of the crowd, which is
only one degree higher than the rule by the mob. Certainly, so important a
question as to whether the Constitution, which is the supreme law of the land,
should be ratified or not, must not be decided by simply gathering people and
asking them to raise their hands in answer to the question of whether the vote for
or against a proposed Constitution. The election as provided by law should be
strictly observed in determining the will of the sovereign people in a democracy.
In our Republic, the will of the people must be expressed through the ballot in a
manner that is provided by law.
It is said that in a democracy, the will of the people is the supreme law. Indeed,
the people are sovereign, but the will of the people must be expressed in a
manner as the law and the demands a well-ordered society require. The rule of
law must prevail even over the apparent will of the majority of the people, if that
will had not been expressed, or obtained, in accordance with the law. Under the
rule of law, public questions must be decided in accordance with the Constitution
and the law. This is specially true in the case of adoption of a constitution or in
the ratification of an amendment to the Constitution.
The following citations are, to me, very relevant in the effort to determine whether
the proposed Constitution of 1972 had been validly ratified, or not:
"When it is said that "the people" have the right to alter or amend
the constitution, it must not be understood that term necessarily
includes all the inhabitants of the state. Since the question of the
adoption or rejection of a proposed new constitution or
constitutional amendment must be answered a vote, the
determination of it rests with those who, by existing constitution,
are accorded the right 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 extralegal." (BIack's Constitutional Law, Second Edition, pp. 47-48).
"The theory of our political system is that the ultimate
sovereignty is in the people, from whom springs all legitimate
authority. The people of the Union created a national
constitution, and conferred upon it powers of sovereignty on
certain subjects, and the people of each State created a State
government, to exercise the remaining powers of sovereignty so
far as they were disposed to allow them to be exercised at all. By
the constitution which they establish, they not only tie up the
hands of their official agencies, but their own hands as well; and
neither the officers of the State, nor the whole people as an
aggregate body, are at liberty to take action in opposition to this

fundamental law." (Cooley's Constitutional Limitations, 8th


Edition, Vol. I, p. 81 cited in Graham v. Jones, 3 So. 2d. 761,
782).
"The theory that a favorable vote by the electorate, however
unanimous, on a proposal to amend a constitution, may cure,
render innocuous, all or any antecedent failures to observe
commands of that Constitution in respect of the formulation or
submission of proposed amendments thereto, does not prevail in
Alabama, where the doctrine of the stated theory was denied, in
obvious effect, by the pronouncement 60 years ago of broad,
wholesome constitutional principles in Collier v. Frierson, supra,
as quoted in the original opinion, ante. The people themselves
are bound by the Constitution; and, being so bound, are
powerless, whatever their numbers, to change or thwart its
mandates, except through the peaceful means of a constitutional
convention, or of an amendment according to the mode therein
prescribed, or through the exertion of the original right of
revolution. "The Constitution may be set aside by revolution, but
it can only be amended in the way it provides," said Hobson,
C.J., in McCreary v. Speer, 156 Ky. 783, 791, 162 S.W. 99, 103.
(Johnson vs. Craft, et al., 87 So. 375, 385, 387, On Rehearing).
"The fact that a majority voted for the amendment, unless the
vote was taken as provided by the Constitution, is not sufficient
to make a change in that instrument. Whether a proposed
amendment has been legally adopted is a judicial question, for
the court must uphold and enforce the Constitution as written
until it is amended in the way which it provides for." Wood v.
Tooker, 15 Mont. 8, 37 Pac 840, 25 L.R.A. 560;McConaughty v.
State, 106 Minn. 409, 119 N.W. 408; Oakland Paving Company
v. Hilton, 69 Cal. 499, 11 Pac. 3; Utter v. Mosely, 16 Idaho 274,
100 Pac. 1958, 133 Am. St. Rep. 94, 18 Ann. Cas. 723.
(McCreary v. Speer, 162 S.W. 99, 104).
"Provisions of a constitution regulating its own amendment, ...
are not merely directory, but are mandatory; and a strict
observance of every substantial mandatory; and a strict
observance of every substantial requirement is essential to the
validity of the proposed amendment. These provisions are as
binding on the people as on the legislature, and the former are
powerless by vote of acceptance to give legal sanction to an
amendment the submission of which was made in disregard of
the limitations contained in the constitution." (16 C.J.S. 35-36.
cited in Graham v. Jones, 3 So. 2d 761, 782).
"It is said that chaos and confusion in the government affairs of
the State will result from the Court's action in declaring the
proposed constitutional amendment void. This statement is
grossly and manifestly inaccurate. If confusion and chaos should
ensue, it will not be due to the action of the Court but will be the
result of the failure of the drafters joint resolution to observe,
follow and obey the plain essential provisions of the Constitution.
Furthermore, to say that, the Court disregards its sworn duty to
enforce the Constitution, chaos and confusion will result, is an

inherently weak argument in favor of the alleged constitutionality


of the proposed amendment. It is obvious that, if the Court were
to countenance the violations of the sacramental provisions
Constitution, those who would thereafter desire to violate it
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, 793794).
In our jurisprudence I find an instance where this Court did not allow the will of
the majority to prevail, because the requirements of the law were not complied
with. In the case of Monsale v. Nico, 83 Phil. 758, Monsale and Nico were both
candidates for the office of Municipal Mayor of Miagao, Iloilo, in the elections of
November 11, 1947. Monsale had duly filed his certificate of candidacy before the
expiration of the period for the filing of the same. However, on October 10, 1947,
after the period for the filing of the certificate of candidacy, Monsale withdrew his
certificate of candidacy. But on November 7, 1947 Monsale attempted to revive
his certificate of candidacy by withdrawing the withdrawal of certificate of
candidacy. The Commission on Elections, November 8, 1947, ruled that Monsale
could no longer be a candidate. Monsale nevertheless proceeded with his
candidacy. The boards of inspectors in Miagao, however, did not count the votes
cast for Monsale upon the ground that the votes cast for him were stray votes,
because he was considered as having no certificate of candidacy. On the other
hand, the boards of inspectors credited Nico with 2,291 votes, and Nico was
proclaimed elected. Monsale filed a protest against the election of Nico in the
Court of First Instance of Iloilo. In the count of the ballots during the proceedings
in the trial court, it appeared that Monsale had obtained 2,877 votes while Nico
obtained 2,276 votes, or a margin of 601 votes in favor of Monsale. The Court of
First Instance of Iloilo decided the election protest in favor of Monsale. Upon
appeal by Nico, this Court reversed the decision of the lower court. This Court
declared that because Monsale withdrew his certificate of candidacy, his attempt
to revive it by withdrawing his withdrawal of his certificate of candidacy did not
restore the effectiveness of his certificate of candidacy, and this Court declared
Nico the winner in spite of the fact that Monsale had obtained more votes than
he.
We have cited this Monsale case to show that the will of the majority of the voters
would not be given effect, as declared by this Court, if certain legal requirements
have not been complied with in order to render the votes valid and effective to
decide the result of an election.
And so, in the cases now before this Court, the fact that the voting in the citizens
assemblies (barangays) is not the election that is provided for in the 1935
Constitution for the ratification of the amendment to the Constitution, the
affirmative votes cast in those assemblies can not be made the basis for
declaring the ratification of the proposed 1972 Constitution, in spite of the fact
that it was reported that 14,976,561 members of the citizens assemblies voted
for the adoption as against 743,869 for the rejection, because the votes thus
obtained were not in accordance with the provisions of Section 1 of Article XV of
the 1935 Constitution of the Philippines. The rule of law mast be upheld.
My last observation: One of the valid grounds against the holding of the plebiscite
on January 15, 1973, as provided in Presidential Decree No. 73, is that there is

no freedom on the part of the people to exercise their right of choice because of
the existence of martial law in our country. The same ground holds true as
regards to the voting of the barangays on January 10 to 15, 1973. More so,
because by General Order No. 20, issued on January 7, 1973, the President of
the Philippines ordered "that the provisions of Section 3 of Presidential Decree
No. 73 in so far as they allow free public discussion of the proposed constitution,
as well as my order of December 17, 1972 temporarily suspending the effects of
Proclamation No. 1081 for the purpose of free and open debate on the proposed
constitution, be suspended in the meantime." It is, therefore, my view that voting
in the barangays on January 10, 1973 was not free, and so this is one added
reason why the results of the voting in the barangays should not be made the
basis for proclamation of the ratification of the proposed Constitution.
It is my view, therefore, that Proclamation No. 1102 repugnant to the 1935
Constitution, and so it is invalid, and should not be given effect. The Constitution
of 1972 proposed by the 1971 Constitutional Convention should be considered
as not yet ratified by the people of this Republic, and so it should not be given
force and effect.
It is urged by the Solicitor General, however, that the voting in the citizens assemblies was a substantial
compliance with the provisions of Article XV of the 1935 Constitution. The Solicitor General maintains that
the primary thrust of the provision of Article XV of the 1935 Constitution is that "to be valid, amendments
must gain the approval of the majority recognition of the democratic postulate that sovereign resides in
the people." It is not disputed that in a democratic sovereignty resides in the people. But the
term "people" must be understood in its constitutional meaning, and they are "those persons who are
permitted by the Constitution to exercise the elective franchise." 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 VicePresident 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 peopleand 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 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 suffrageto 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 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 GovernorGeneral of the Philippine Islands, together with a statement of the votes cast, and
a copy of said constitution ordinances. If a majority of the votes cast shall be for
the constitution, such vote shall be deemed an expression of the will of the
people of the Philippine Independence, and the Governor-General shall, within
thirty days after receipt of the certification from the Philippine Legislature, issue a
proclamation for the election of officers of the government of the Commonwealth
of the Philippine Islands provided for in the Constitution...
It can safely be said, therefore, that when the framers of the 1935 Constitution used, the word "election" in
Section I Article XV of the 1935 Constitution they had no other idea in mind except the elections that were
periodically held in the Philippines for the choice of public officials prior to the drafting of the 1935
Constitution, and also the "election" mentioned in the Independence Act at which "the qualified voters of
the Philippine Islands shall have an opportunity to vote directly for or against the proposed constitution..."
It is but logical to expect that the framers of the 1935 Constitution would provide a mode of ratifying an
amendment to that Constitution similar to the mode of ratifying the original Constitution itself.
It is clear therefore, that the ratification or any amendment to the 1935 Constitution could only be done by
holding an election, as the term "election" was understood, and practiced, when the 1935 Constitution as
drafted. The alleged referendum in the citizens assemblies participated in by persons aged 15 years or
more, regardless of whether they were qualified voters or not, voting by raising their hands, and the
results of the voting reported by the barrio or ward captain, to the municipal mayor, who in turn submitted
the report to the provincial Governor, and the latter forwarding the reports to the Department of Local
Governments, all without the intervention of the Commission on Elections which is the constitutional body
which has exclusive charge of the enforcement and administration of all laws, relative to the conduct of
elections was not only a non-substantial compliance with the provisions of Section 1 of Article XV of
the 1935 Constitution but a downright violation of said constitutional provision. It would be indulging in
sophistry to maintain that the voting in the citizens assemblies amounted to a substantial compliance with
the requirements prescribed in Section 1 of Article XV of the 1935 Constitution.
It is further contended by the Solicitor General, that even if the Constitution proposed by the 1971
Constitutional Convention was not ratified in accordance with the provisions of Section 1 of Article XV of
the 1935 Constitution, the fact is that after the President of the Philippines had issued Proclamation No.
1102 declaring that the said proposed Constitution "has been ratified by overwhelming majority of all the
votes cast by the members of all the barangays (citizens assemblies) throughout the Philippines and had
thereby come into effect" the people have accepted the new Constitution. What appears to me, however,
is that practically it is only the officials and employees under the executive department of the Government
who have been performing their duties apparently in observance of the provisions of the new Constitution.
It could not be otherwise, because the President of the Philippines, who is the head of the executive
department, had proclaimed that the new Constitution had come into effect, and his office had taken the
steps to implement the provisions of the new Constitution. True it is, that some 92 members of the House
of Representatives and 15 members of the Senate, of the Congress of the Philippines had expressed

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

must state that the Constitution is still in force, and this Court is still functioning under the 1935
Constitution.
I sincerely believe that the proposed Constitution may still be submitted to the people in an election or
plebiscite held in accordance with the provisions of Section 1 of Article XV of the 1935 Constitution. In
fact, as we have adverted to in this opinion, this was the mandate of Congress when, on March 16, 1967,
it passed Resolution No. 2 calling a convention to propose amendments to the 1935 Constitution. The
Court may take judicial notice of the fact that the President of the Philippines has reassured the nation
that the government of our Republic since the declaration of martial law is not a revolutionary
government, and that he has been acting all the way in consonance with his powers under the
Constitution. The people of this Republic has reason to be happy because, according to the President, we
still have a constitutional government. It being my view that the 1935 Constitution is still in force, I believe
Congress may still convene and pass a law calling for an election at which the Constitution proposed by
the 1971 Constitutional Convention will be submitted to the people their ratification or rejection. A
plebiscite called pursuant to Section 1 of Article XV of the 1935 Constitution is an assurance to our people
that we still have in our country the Rule of Law and that the democratic system of government that has
been implanted in our country by the Americans, and which has become part of our social and political
fabric, is still a reality.
The views that I have expressed in this opinion are inspired by a desire on my part to bring about stability
in democratic and constitutional system in our country. I feel that if this Court would give its imprimatur to
the ratification of the proposed Constitution, as announced in Proclamation No. 1102, it being very clear
that the provisions of Section 1 of Article XV of the 1935 Constitution had not been complied with, We will
be opening the gates for a similar disregard of the Constitution in the future. What I mean is that if this
Court now declares that a new Constitution is now in force because the members of the citizens
assemblies had approved the said new Constitution, although that approval was not in accordance with
the procedure and the requirements prescribed in the 1935 Constitution, it can happen again in some
future time that some amendments to the Constitution may be adopted, even in a manner contrary to the
existing Constitution and the law, and then said proposed amendment is submitted to the people in any
manner and what will matter is that a basis is claimed that there was approval by the people. There will
not be stability in our constitutional system, and necessarily no stability in our government. As a member
of this Court I only wish to contribute my humble efforts to prevent the happening of such a situation in the
future.
It appearing to me that the announced ratification of the proposed Constitution through the voting in the
citizens assemblies is a clear violation of the 1935 Constitution, what I say in this opinion is simply an
endeavor on my part to be true to my oath of office to defend and support the 1935 Constitution. I am
inspired by what the great jurist and statesman, Jose P. Laurel, said:
Let our judges be as it were the vestal keepers of the purity and sanctity of our
Constitution, and the protection and vindication of popular rights will be safe and
secure in their reverential guardianship.
I only wish to help prevent, if I can, democracy and the liberties of our people from vanishing in our land,
because, as Justice George Sutherland of the U. S. Supreme Court said:
(t)he saddest epitaph which can be carved in memory of a vanished liberty is that
it was lost because its possessors failed to stretch forth a saving hand while yet
there was time.
I concur fully with the personal views expressed by the Chief Justice in the opinion that he has written in
these cases. Along with him, I vote to deny the motion to dismiss and give due course to the petitions in
these cases.

FERNANDO, J., dissenting:


No question more momentous, none impressed with such transcendental significance is likely to confront
this Court in the near or distant future as that posed by these petitions. For while the specific substantive
issue is the validity of Presidential Proclamation No. 1102, an adverse judgment may be fraught with
consequences that, to say the least, are far-reaching in its implications. As stressed by respondents,
"what petitioners really seek to invalidate is the new Constitution." 1 Strict accuracy would of course qualify
such statement that what is in dispute, as noted in the opinion of the Chief Justice, goes only as far as the
validity of its ratification. It could very well be though that the ultimate outcome is not confined within such
limit, and this is not to deny that under its aegis, there have been marked gains in the social and
economic sphere, but given the premise of continuity in a regime under a fundamental law, which itself
explicitly recognizes the need for change and the process for bringing it about, 2 it seems to me that the
more appropriate course is this Court to give heed to the plea of petitioners that the most serious attention
be paid to their submission that the challenged executive act fails to meet the test of constitutionality.
Under the circumstances, with regret and with due respect for the opinion of my brethren, I must perforce
dissent. It would follow therefore that the legal position taken by the Chief Justice as set forth with his
usual lucidity and thoroughness has, on the whole, my concurrence, subject, of course, to reservations
insofar as it contains views and nuances to which I have in the past expressed doubts. Nonetheless, I feel
that a brief expression of the reasons for the stand I take would not be amiss.
In coping with its responsibility arising from the function of judicial review, this Court is not expected to be
an oracle given to utterances of eternal verities, but certainly it is more than just a keen but passive
observer of the contemporary scene. It is, by virtue of its role under the separation of powers concept,
involved not necessarily as a participant in the formation of government policy, but as an arbiter of its
legality. Even then, there is realism in what Lerner did say about the American Supreme Court as "the
focal point of a set of dynamic forces which [could play] havoc with the landmarks of the American state
and determine the power configuration of the day." 3 That is why there is this caveat. In the United States
as here, the exercise of the power of judicial review is conditioned on the necessity that the decision of a
case or controversy before it so requires. To repeat, the Justices of the highest tribunal are not, as Justice
Frankfurter made clear, "architects of policy. They can nullify the policy of others, they are incapable of
fashioning their own solutions for social problems." 4 Nonetheless, as was stressed by Professors
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 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." 12Once an aspect thereof is viewed as judicial, there would be no justification for considering
the rest as devoid of that character. It would be for me then an indefensible retreat, deriving no
justification from circumstances of weight and gravity, if this Court were to accede to what is sought by
respondents and rule that the question before us is political.
On this point, it may not be inappropriate to refer to a separate opinion of mine in Lansang v.
Garcia. 13 Thus: "The term has been made applicable to controversies clearly non-judicial and therefore
beyond its jurisdiction or to an issue involved in a case appropriately subject to its cognizance, as to
which there has been a prior legislative or executive determination to which deference must be paid. It
has likewise been employed loosely to characterize a suit where the party proceeded against is the
President or Congress, or any branch thereof. If to be delimited with accuracy, "political questions" should
refer to such as would under the Constitution be decided by the people in their sovereign capacity or in
regard to full discretionary authority is vested either in the President or Congress. It is thus beyond the
competence of the judiciary to pass upon. Unless clearly falling within the formulation, the decision
reached by the political branches whether in the form of a congressional act or an executive order could
be tested in court. Where private rights are affected, the judiciary has no choice but to look into its validity.
It is not to be lost sight of that such a power comes into play if there be an appropriate proceeding that
may be filed only after each coordinate branch has acted. Even when the Presidency or Congress
possesses plenary powers, its improvident exercise or the abuse thereof, if shown, may give rise to a
justiciable controversy. For the constitutional grant of authority is usually unrestricted. There are limits to
what may be done and how it is to be accomplished. Necessarily then, the courts in the proper exercise of
judicial review could inquire into the question of whether or not either of the two coordinate branches has
adhered to what is laid down by the Constitution. The question thus posed is judicial rather than
political." 14 The view entertained by Professor Dodd is not too dissimilar. For him such a term "is
employed to designate certain types of functions committed to the political organs of government (the
legislative and executive departments, or either of them) and not subject to judicial investigation." 15 After
a thorough study of American judicial decisions, both federal and state, he could conclude: "The field of
judicial nonenforceability is important, but is not large when contrasted with the whole body of written
constitutional texts. The exceptions from judicial enforceability fall primarily within the field of public or
governmental interests." 16 Nor was Professor Weston's formulation any different. As was expressed by
him: "Judicial questions, in what may be thought the more useful sense, are those which the sovereign
has set to be decided in the courts. Political questions, similarly, are those which the sovereign has
entrusted to the so-called political departments of government or has reserved to be settled by its own
extra-governmental action." 17 What appears undeniable then both from the standpoint of Philippine as
well as American decisions is the care and circumspection required before the conclusion is warranted
that the matter at issue is beyond judicial cognizance, a political question being raised.
2. The submission of respondents on this subject of political question, admittedly one of complexity and
importance, deserves to be pursued further. They would derive much aid and comfort from the writings of
both Professor Bickel 18 of Yale and Professor Freund 19 of Harvard, both of whom in turn are unabashed

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

Frankfurter recently remarked, 'has cast responsibilities upon the Supreme Court which it would be
"stultification" for it to evade.' " 28 Nor is it only Dean Rostow who could point Frankfurter, reputed to
belong to the same school of thought opposed to judicial activism, if not its leading advocate during his
long stay in the United States Supreme Court, as one fully cognizant of the stigma that attaches to a
tribunal which neglects to meet the demands of judicial review. There is a statement of similar importance
from Professor Mason: "In Stein v. New York Frankfurter remarked, somewhat self-consciously perhaps,
that the 'duty of deference cannot be allowed imperceptibly to slide into abdication.' " 29 Professor
Konefsky, like Dean Rostow, could not accept characterization of judicial review as undemocratic. Thus
his study of Holmes and Brandeis, the following appears: "When it is said that judicial review is an
undemocratic feature of our political system, it ought also to be remembered that architects of that system
did not equate constitutional government with unbridled majority rule. Out of their concern for political
stability and security for private rights, ..., they designed a structure whose keystone was to consist of
barriers to the untrammeled exercise of power by any group. They perceived no contradiction between
effective government and constitutional checks. To James Madison, who may legitimately be regarded as
the philosopher of the Constitution, the scheme of mutual restraints was the best answer to what he
viewed as the chief problem in erecting a system of free representative government: 'In framing a
government which is to be administered by men over men, the great difficulty lies in this: you must first
enable the government to control the governed; and in the next place oblige it to control itself.' " 30
There is thus an inevitability to the flowering of judicial review. Could it be that the tone of discontent
apparent in the writings of eminent authorities on the subject evince at the most fears that the American
Supreme Court might overstep the bounds allotted to the judiciary? It cannot be a denial of the fitness of
such competence being vested in judges and of their being called upon to fulfill such a trust whenever
appropriate to the decision of a case before them. That is why it has been correctly maintained that
notwithstanding the absence of any explicit provision in the fundamental law of the United States
Constitution, that distinguished American constitutional historian, Professor Corwin, could rightfully state
that judicial review "is simply incidental to the power of courts to interpret the law, of which the
Constitution is part, in connection with the decision of cases." 31 This is not to deny that there are those
who would place the blame or the credit, depending upon one's predilection, on Marshall's epochal
opinion in Marbury v. Madison. 32 Curtis belonged to that persuasion. As he put it: "The problem was given
no answer by the Constitution. A hole was left where the Court might drive in the peg of judicial
supremacy, if it could. And that is what John Marshall did." 33 At any rate there was something in the soil
of American juristic thought resulting in this tree of judicial power so precariously planted by Marshall
striking deep roots and showing wonderful vitality and hardiness. It now dominates the American legal
scene. Through it, Chief Justice Hughes, before occupying that exalted position, could state in a lecture:
"We are under a Constitution, but the Constitution is what the judges say it is ... ." 34 The above statement
is more than just an aphorism that lends itself to inclusion in judicial anthologies or bar association
speeches. It could and did provoke from Justice Jackson, an exponent of the judicial restraint school of
thought, this meaningful query: "The Constitution nowhere provides that it shall be what the judges say it
is. How, did it come about that the statement not only could be but could become current as the most
understandable comprehensive summary of American Constitutional law?" 35 It is no wonder that
Professor Haines could pithily and succinctly sum up the place of the highest American tribunal in the
scheme of things in this wise: "The Supreme Court of the United States has come to be regarded as the
unique feature of the American governmental system." 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 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. Taada
and Jovito Salonga at the van, rather than the advocacy of the Solicitor-General, possess the greater
weight and carry persuasion. So much then for the invocation of the political question principle as a bar to
the exercise of our jurisdiction.
3. That brings me to the issue of the validity of the ratification. The crucial point that had to be met is
whether Proclamation No. 1102 manifests fidelity to the explicit terms of Article XV. There is, of course,
the view not offensive to reason that a sense of the realities should temper the rigidity of devotion to the
strict letter of the text to allow deference to its spirit to control. With due recognition of its force in
constitutional litigation, 48 if my reading of the events and the process that led to such proclamation, so
clearly set forth in the opinion of the Chief Justice, is not inaccurate, then it cannot be confidently asserted
that there was such compliance. It would be to rely on conjectural assumptions that did founder on the
rock of the undisputed facts. Any other conclusion would, for me, require an interpretation that borders on
the strained. So it has to be if one does not lose sight of how the article on amendments is phrased. A
word, to paraphrase Justice Holmes may not be a crystal, transparent and unchanged, but it is not, to
borrow from Learned Hand, that eminent jurist, a rubber band either. It would be unwarranted in my view
then to assert that the requirements of the 1935 Constitution have been met. There are American
decisions, 49 and they are not few in number, which require that there be obedience to the literal terms of
the applicable provision. It is understandable why it should be thus. If the Constitution is the supreme law,
then its mandate must be fulfilled. No evasion is tolerated. Submission to its commands can be shown
only if each and every word is given meaning rather than ignored or disregarded. This is not to deny that
a recognition conclusive effect attached to the electorate manifesting its will to vote affirmatively on the
amendments proposed poses an obstacle to the judiciary being insistent on the utmost regularity. Briefly
stated, substantial compliance is enough. A great many American State decisions may be cited in support
of such a doctrine. 50
Even if the assumption be indulged in that Article XV is not phrased in terms too clear to be misread, so
that this Court is called upon to give meaning and perspective to what could be considered words of

vague generality, pregnant with uncertainty, still whatever obscurity it possesses is illumined when the
light of the previous legislation is thrown on it. In the first Commonwealth Act, 51 submitting to the Filipino
people for approval or disapproval certain amendments to the original ordinance appended to the 1935
Constitution, it was made that the election for such purpose was to "be conducted in conformity with the
provisions of the Election Code insofar as the same may be applicable." 52 Then came the
statute, 53 calling for the plebiscite on the three 1940 amendments providing for the plebiscite on the three
1930 amendments providing for a bicameral Congress or a Senate and a House of Representatives to
take the place of a unicameral National Assembly, 54 reducing the term of the President to four years but
allowing his re-election with the limitation that he cannot serve more than eight consecutive years, 55 and
creating an independent Commission on Elections. 56 Again, it was expressly provided that the election
"shall be conducted in conformity with the provisions of the Election Code in so far as the same may be
applicable." 57 The approval of the present parity amendment was by virtue of a Republic Act 58 which
specifically made applicable the then Election Code. 59 There is a similar provision in the
legislation, 60 which in cotemplation of the 1971 Constitutional Convention, saw to it that there be an
increase in the membership of the House of Representatives a maximum of one hundred eighty and
assured the eligibility of senators and representatives to become members of such constituent body
without forfeiting their seats, as proposed amendments to be voted on in the 1967 elections. 61 That is the
consistent course of interpretation followed by the legislative branch. It is most persuasive, if not
controlling. The restraints thus imposed would set limits to the Presidential action taken, even on the
assumption that either as an agent of the Constitutional Convention or under his martial law prerogatives,
he was not devoid of power to specify the mode of ratification. On two vital points, who can vote and how
they register their will, Article XV had been given a definitive construction. That is why I fail to see
sufficient justification for this Court affixing the imprimatur of its approval on the mode employed for the
ratification of the revised Constitution as reflected in Proclamation No. 1102.
4. Nor is the matter before us solely to be determined by the failure to comply with the requirements of
Article XV. Independently of the lack of validity of the ratification of the new Constitution, if it be accepted
by the people, in whom sovereignty resides according to the Constitution, 62 then this Court cannot refuse
to yield assent to such a political decision of the utmost gravity, conclusive in its effect. Such a
fundamental principle is meaningless if it does not imply, to follow Laski, that the nation as a whole
constitutes the "single center of ultimate reference," necessarily the possessor of that "power that is able
to resolve disputes by saying the last word." 63 If the origins of the democratic polity enshrined in the 1935
Constitution with the declaration that the Philippines is a republican state could be traced back to Athens
and to Rome, it is no doubt true, as McIver pointed out, that only with the recognition of the nation as the
separate political unit in public law is there the juridical recognition of the people composing it "as the
source of political authority." 64From them, as Corwin did stress, emanate "the highest possible
embodiment of human will," 65 which is supreme and must be obeyed. To avoid any confusion and in the
interest of clarity, it should be expressed in the manner ordained by law. Even if such is not the case,
however, once it is manifested, it is to be accepted as final and authoritative. The government which is
merely an agency to register its commands has no choice but to submit. Its officials must act accordingly.
No agency is exempt such a duty, not even this Court. In that sense, the lack of regularity in the method
employed to register its wishes is fatal in its consequences. Once the fact of acceptance by people of a
new fundamental law is made evident, the judiciary is left with no choice but to accord it recognition. The
obligation to render it obeisance falls on the courts as well.
There are American State decisions that enunciate such a doctrine. While certainly not controlling, they
are not entirely bereft of persuasive significance. In Miller v. Johnson, 66 decided in 1892, it was set forth
in the opinion of Chief Justice Holt that on May 3, 1890, an act was passed in Kentucky, providing for the
calling of a convention for the purpose of framing a new constitution and the election of delegates. It
provided that before any form of constitution made by them should become operative, it should be
submitted to the vote of the state and ratified by a majority of those voting. The constitution then in force
authorized the legislature, the preliminary steps having been taken, to call a convention "for the purpose
of readopting, amending, or changing" it contained no provision giving the legislature the power to require
a submission of its work to a vote of the people. The convention met in September, 1890. By April, 1891,
it completed a draft of a constitution, submitted it to a popular vote, and then adjourned until September

following. When the convention reassembled, the delegates made numerous changes in instrument. As
thus amended, it was promulgated by the convention of September 28, 1891, as the new constitution. An
action was brought to challenge its validity. It failed in the lower court. In affirming such judgment
dismissing the action, Chief Justice Holt stated: "If a set of men, not selected by the people according to
the forms of law, were to formulate an instrument and declare it the constitution, it would undoubtedly be
the duty of the courts to declare its work a nullity. This would be revolution, and this the courts of the
existing government must resist until they are overturned by power, and a new government established.
The convention, however, was the offspring of law. The instrument which we are asked to declare invalid
as a constitution has been made and promulgated according to the forms of law. It is a matter of current
history that both the executive and legislative branches of the government have recognized its validity as
a constitution, and are now daily doing so. ... While the judiciary should protect the rights of the people
with great care and jealousy, because this is its duty, and also because; in times of great popular
excitement, it is usually their last resort, yet it should at the same time be careful not to overstep the
proper bounds of its power, as being perhaps equally dangerous; and especially where such momentous
results might follow as would be likely in this instance, if the power of the judiciary permitted, and its duty
requires, the overthrow of the work of the convention." 67In 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
It cannot be plausibly asserted then that premises valid in law are lacking for the claim that the revised
Constitution has been accepted by the Filipino people. What is more, so it has been argued, it is not
merely a case of its being implied. Through the Citizens Assemblies, there was a plebiscite with the result
as indicated in Proclamation No. 1102. From the standpoint of respondents then, they could allege that
there was more than just mere acquiescence by the sovereign people. Its will was thus expressed
formally and unmistakably. It may be added that there was nothing inherently objectionable in the informal
method followed in ascertaining its preference. Nor is the fact that Filipinos of both sexes above the age
of fifteen were given the opportunity to vote to be deplored. The greater the base of mass participation,
the more there is fealty to the democratic concept. It does logically follow likewise that such
circumstances being conceded, then no justifiable question may be raised. This Court is to respect what
had thus received the people's sanction. That is not for me though whole of it. Further scrutiny even then
is not entirely foreclosed. There is still an aspect that is judicial, an inquiry may be had as to whether such
indeed was the result. This is no more than what the courts do in election cases. There are other factors
to bear in mind. The fact that the President so certified is well-nigh conclusive. There is in addition the
evidence flowing from the conditions of peace and stability. There thus appears to be conformity to the
existing order of things. The daily course of events yields such a conclusion. What is more, the officials
under the 1935 Constitution, including practically all Representatives and a majority of the Senators, have
signified their assent to it. The thought persists, however, that as yet sufficient time has not elapsed to be
really certain.

Nor is this all. There is for me an obstacle to the petitions being dismissed for such ascertainment of
popular will did take place during a period of martial law. It would have been different had there been that
freedom of debate with the least interference, thus allowing a free market of ideas. If it were thus, it could
be truly said that there was no barrier to liberty of choice. It would be a clear-cut decision either way. One
could be certain as to the fact of the acceptance of the new or of adherence to the old. This is not to deny
that votes are cast by individuals with their personal concerns uppermost in mind, worried about their
immediate needs and captive to their existing moods. That is inherent in any human institution, much
more so in a democratic polity. Nor is it open to any valid objection because in the final analysis the state
exists for the individuals who in their collectivity compose it. Whatever be their views, they are entitled to
respect. It is difficult for me, however, at this stage to feel secure in the conviction that they did utilize the
occasion afforded to give expression to what was really in their hearts. This is not to imply that such doubt
could not be dispelled by evidence to the contrary. If the petitions be dismissed however, then such
opportunity is forever lost.
5. With the foregoing legal principles in mind, I find myself unable to join the ranks of my esteemed
brethren who vote for the dismissal of these petitions. I cannot yield an affirmative response to the plea of
respondents to consider the matter closed, the proceedings terminated once and for all. It is not an easy
decision to reach. It has occasioned deep thought and considerable soul-searching. For there are
countervailing considerations that exert a compulsion not easy to resist. It can be asserted with truth,
especially in the field of social and economic rights, that with the revised Constitution, there is an
auspicious beginning for further progress. Then too it could resolve what appeared to be the deepening
contradictions of political life, reducing at times governmental authority to near impotence and imparting a
sense of disillusionment in democratic processes. It is not too much to say therefore that there had indeed
been the revision of a fundamental law to vitalize the very values out of which democracy grows. It is one
which has all the earmarks of being responsive to the dominant needs of the times. It represents an
outlook cognizant of the tensions of a turbulent era that is the present. That is why for some what was
done represented an act of courage and faith, coupled with the hope that the solution arrived at is a
harbinger of a bright and rosy future.
It is such a comfort then that even if my appraisal of the situation had commanded a majority, there is not,
while these lawsuits are being further considered, the least interference, with the executive department.
The President in the discharge of all his functions is entitled to obedience. He remains commander-inchief with all the constitutional powers it implies. Public officials can go about their accustomed tasks in
accordance with the revised Constitution. They can pursue even the tenor of their ways. They are free to
act according to its tenets. That was so these past few weeks, even petitions were filed. There was not at
any time any thought of any restraining order. So it was before. That is how things are expected to remain
even if the motions to dismiss were not granted. It might be asked though, suppose the petitions should
prevail? What then? Even so, the decision of this Court need not be executory right away. Such a
disposition of a case before this Court is not novel. That was how it was done in the Emergency Powers
Act controversy. 70 Once compliance is had with the requirements of Article XV of the 1935 Constitution, to
assure that the coming force of the revised charter is free from any taint of infirmity, then all doubts are set
at rest.
For some, to so view the question before us is to be caught in a web of unreality, to cherish illusions that
cannot stand the test of actuality. What is more, it may give the impression of reliance on what may, for
the practical man of affairs, be no more than gossamer distinctions and sterile refinements unrelated to
events. That may be so, but I find it impossible to transcend what for me are the implications of traditional
constitutionalism. This is not to assert that an occupant of the bench is bound to apply with undeviating
rigidity doctrines which may have served their day. He could at times even look upon them as mere
scribblings in the sands to be washed away by the advancing tides of the present. The introduction of
novel concepts may be carried only so far though. As Cardozo put the matter: "The judge, even when he
is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant, roaming at will in
pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated
principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to
exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and

subordinated to "the primordial necessity of order in the social life." Wide enough in all conscience is the
field of discretion that remains." 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.
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 thepeople for their ratification." 1
A necessary corollary issue is whether the purported ratification of the proposed Constitution as signed on
November 30, 1972 by the 1971 Constitutional Convention may be said also to have substantially
complied with its own mandate that "(T)his Constitution shall take immediately upon its ratification by
a majority of the votes castin 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)
"after ratification, whatever defects there might have been in the procedure
are overcome andmooted (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 wasnot 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 the provisions of Section 1
of Article XV of the Constitution, dealing with the procedure or manner of
amending the fundamental law are binding upon the Convention and the other
departments of the government. It must be added that ... they are no
less binding upon the people." 7
In the same Tolentino case, this Court further proclaimed that "as long as any
amendment is formulated and submitted under the aegis of the present Charter,
any proposal for such amendment which is not in conformity with
the letter, spirit and intent of the Charter for effecting amendments, cannot
receive the sanction of this Court." 8
As continues to be held by a majority of this Court, proposed amendments to
the Constitution "should be ratified in only one way, that is, in an election or
plebiscite held in accordance with law and participated in only by qualified and
duly registered voters" 9 and under the supervision of the Commission on
Elections. 10
Hence, if the Court declares Proclamation 1102 null and void because on its
face, the purported ratification of the proposed Constitution has not faithfully nor
substantially observed nor complied with the mandatory requirements of Article
XV of the (1935) Constitution, it would not be "invalidating" the proposed new
Constitution but would be simply declaring that the announced fact of ratification
thereof by means of the Citizens Assemblies referendums does not pass
the constitutional test and that the proposed new Constitution
has not constitutionally come into existence.
Since Proclamation 1102 is acknowledged by respondent to be "plainly merely
declaratory" of the disputed fact of ratification, they cannot assume the very fact

to be established and beg the issue by citing the self-same declaration as proof
of the purported ratification therein declared.
What complicates the cases at bar is the fact that the proposed 1972 Constitution was enforced as having
immediately taken effect upon the issuance on January 17, 1973 of Proclamation 1102 and the question
of whether "confusion and disorder in government affairs would (not) result" from a judicial declaration of
nullity of the purported ratification is raised by the Solicitor-General on behalf of respondents.
A comparable precedent of great crisis proportions is found in the Emergency Powers cases, 11 wherein
the Court in its Resolution of September 16, 1949 after judgment was initially not obtained on August 26,
1949 for lack of the required six (6) votes, finally declared in effect that the pre-war emergency powers
delegated by Congress to the President, under Commonwealth Act 671 in pursuance of Article VI, section
26 of the Constitution, had ceased and became inoperative at the latest in May, 1946 when Congress met
in its first regular session on May 25, 1946.
Then Chief Justice Manuel V. Moran recited the great interests and important rights that had arisen under
executive orders "issued in good faith and with the best of intentions by three successive Presidents, and
some of them may have already produced extensive effects on the life of the nation" in the same
manner as may have arisen under the bona fide acts of the President now in the honest belief that the
1972 Constitution had been validly ratified by means of the Citizens Assemblies referendums and
indicated the proper course and solution therefor, which were duly abided by and confusion and disorder
as well as harm to public interest and innocent parties thereby avoided as follows:
Upon the other hand, while I believe that the emergency powers had ceased in
June