JAVELLANA VS.

EXECUTIVE SECRETARY
G.R. No. L-36142, March 31 1973, 50 SCRA 33
FACTS:
On January 20, 1973, just two days before the Supreme Court decided the sequel of plebiscite
cases, Javellana filed this suit against the respondents to restrain them from implementing any
of the provisions of the proposed Constitution not found in the present 1935 Constitution. This is
a petition filed by him 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. Javellana also alleged
that the President had announced the immediate implementation of the new constitution, thru
his Cabinet, respondents including.
Respondents are acting without or in excess of jurisdiction in implementing the said proposed
constitution upon ground the that the President as Commander-in-Chief of the AFP is without
authority to create the Citizens Assemblies; without power to approve proposed constitution;
without power to proclaim the ratification by the Filipino people of the proposed constitution; and
the election held to ratify the proposed constitution was not a free election, hence null and void.
Following that, petitioners prayed for the nullification of Proclamation No. 1102 and any order,
decree, and proclamation which have the same import and objective.

1.
2.
3.
4.
5.

ISSUES:
Whether or not the issue of the validity of Proclamation No. 1102 is a justiciable or political
question, and therefore non-justiciable.
Whether or not the constitution proposed by the 1971 Constitutional Convention has been
ratified validly conforming to the applicable constitutional and statutory provisions.
Whether or not the proposed Constitution has been acquiesced in (with or without valid
ratification) by the people.
Whether or not the petitioners are entitled for relief.
Whether or not the proposed Constitution by the 1971 Constitutional Convention in force.

HELD:
First. To determine whether or not the new constitution is in force depends upon whether or not
the said new constitution has been ratified in accordance with the requirements of the 1935
Constitution. It is well settled that the matter of ratification of an amendment to the constitution
should be settled applying the provisions of the constitution in force at the time of the alleged
ratification of the old constitution.

The issue whether the new constitution proposed has been ratified in accordance with the
provisions of Article XV of the 1935 Constitution is justiciable as jurisprudence here and in the
US (from whom we patterned our 1935 Constitution) shall show.
Second. The Constitution does not allow Congress or anybody else to vest in those lacking the
qualifications and having the disqualifications mentioned in the Constitution the right of suffrage.
The votes of persons less than 21 years of age render the proceedings in the Citizens
assemblies void. Proceedings held in such Citizens Assemblies were fundamentally irregular, in
that persons lacking the qualifications prescribed in Article V Section 1 of the 1935 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.
Viva voce voting for the ratification of the constitution is void. Article XV of the 1935 Constitution
envisages with the term "votes cast" choices made on ballots not orally or by raising hands
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.
The plebiscite on the constitution not having been conducted under the supervision of
COMELEC is void. The point is that, such of the Barrio Assemblies as were held took place
without the intervention of the COMELEC and without complying with the provisions of the
Election Code of 1971 or even of those of Presidential Decree No. 73. The procedure therein
mostly followed is such that there is no reasonable means of checking the accuracy of the
returns filed by the officers who conducted said plebiscites. This is another patent violation of
Article X of the 1935 Constitution which 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. For this, the alleged plebiscite in the Citizens Assemblies is null and void, insofar
as the same are claimed to have ratified the revised Constitution.
Third. Proclamation No. 1102 is not an evidence of ratification. Article X of the 1935
Constitution places COMELEC the "exclusive" charge to the "the enforcement and
administration of all laws relative to the conduct of elections," independently of the Executive.
But there is not even a certification by the COMELEC in support of the alleged results of the
citizens assemblies relied upon in Proclamation No. 1102. Also, 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. The citizens assemblies did not adopt the proposed constitution. 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.
Fourth. The Court is not prepared to concede that the acts the officers and offices of the
Executive Department, in line with Proclamation No. 1102, connote recognition of or
acquiescence to the proposed Constitution.
A department of the Government cannot recognize its own acts. Recognition normally
connotes the acknowledgment by a party of the acts of another. Individual acts of recognition by
members of Congress do not constitute congressional recognition, unless the members have
performed said acts in session duly assembled. This is a well-established principle of
Administrative Law and of the Law of Public Officers. The compliance by the people with the
orders of martial law government does not constitute acquiescence to the proposed
Constitution. Neither does the Court 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 to a ratification, adoption or approval of said Proclamation No.
1102. The intimidation is there, and inaction or obedience of the people, under these conditions,
is not necessarily an act of conformity or acquiescence.
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 Reps, and attested to by the respective
Secretaries of both Houses, concerning legislative measures approved by said Houses.
Whereas, Proclamation No. 1102 is an act of the President declaring the results of a plebiscite
on the proposed Constitution, an act which Article X of the 1935 Constitution denies the
executive department of the Government.
In all other respects and with regard to the other respondent in said case, petitions therein
should be given due course, there being more than prima facie showing that the proposed
Constitution has not been ratified in accordance with Article XV of the 1935 Constitution, either
strictly, substantially, or has been acquiesced in by the people or majority thereof; that said
proposed Constitution is not in force and effect; and that the 1935 Constitution is still the
Fundamental Law of the Land, without prejudice to the submission of said proposed Constitution
to the people at a plebiscite for its ratification or rejection in accordance with Articles V, X and
XV of the 1935 Constitution and the provisions of the Revised Election Code in force at the time
of such plebiscite.
Fifth. 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; 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 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, there are not enough votes to declare
that the new Constitution is not in force.