You are on page 1of 3


EXECUTIVE SECRETARY justiciable as jurisprudence here and in the US (from whom we patterned our
G.R. No. L-36142. 31 March 1973 1935 Constitution) shall show.

FACTS: On January 20, 1973, just two days before the Supreme Court decided Second. The Constitution does not allow Congress or anybody else to vest in
the sequel of plebiscite cases, Javellana filed this suit against the respondents to those lacking the qualifications and having the disqualifications mentioned
restrain them from implementing any of the provisions of the in the Constitution the right of suffrage.
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 The votes of persons less than 21 years of age render the proceedings in the
and as a class suit, for himself and in behalf of all citizens and voters similarly Citizens assemblies void. Proceedings held in such Citizens Assemblies were
situated. Javellana also alleged that the President had announced the immediate fundamentally irregular, in that persons lacking the qualifications prescribed in
implementation of the new constitution, thru his Cabinet, respondents Article V Section 1 of the 1935 Constitution were allowed to vote in said
including. 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
Respondents are acting without or in excess of jurisdiction in implementing the voters, the proceedings in the Citizens Assemblies must be considered null and
said proposed constitution upon ground the that the President as Commander- void.
in-Chief of the AFP is without authority to create the Citizens Assemblies;
without power to approve proposed constitution; without power to proclaim Viva voce voting for the ratification of the constitution is void. Article XV of the
the ratification by the Filipino people of the proposed constitution; and the 1935 Constitution envisages with the term "votes cast" choices made on ballots
election held to ratify the proposed constitution was not a free election, hence not orally or by raising hands by the persons taking part in plebiscites. This
null and void. 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,
Following that, petitioners prayed for the nullification of Proclamation No. 1102 namely, uniform official ballots prepared and furnished by the Government and
and any order, decree, and proclamation which have the same import and secrecy in the voting, with the advantage of keeping records that permit
objective. judicial inquiry, when necessary, into the accuracy of the election returns.

ISSUES: The plebiscite on the constitution not having been conducted under the
1. WON the issue of the validity of Proclamation No. 1102 is a justiciable supervision of COMELEC is void. The point is that, such of the Barrio Assemblies
or political question, and therefore non-justiciable. as were held took place without the intervention of the COMELEC and without
2. WON the constitution proposed by the 1971 Constitutional Convention complying with the provisions of the Election Code of 1971 or even of those of
has been ratified validly conforming to the applicable constitutional Presidential Decree No. 73. The procedure therein mostly followed is such that
and statutory provisions. there is no reasonable means of checking the accuracy of the returns filed by the
3. WON the proposed Constitution has been acquiesced in (with or officers who conducted said plebiscites. This is another patent violation of
without valid ratification) by the people. Article X of the 1935 Constitution which form part of the fundamental scheme
4. WON the petitioners are entitled for relief. set forth in the 1935 Constitution, as amended, to insure the "free, orderly, and
5. WON the proposed Constitution by the 1971 Constitutional honest" expression of the people's will. For this, the alleged plebiscite in the
Convention in force. Citizens Assemblies is null and void, insofar as the same are claimed to have
RULING: First. To determine whether or not the new constitution is in force ratified the revised Constitution.
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 Third. Proclamation No. 1102 is not an evidence of ratification. Article X of the
that the matter of ratification of an amendment to the constitution should be 1935 Constitution places COMELEC the "exclusive" charge to the "the
settled applying the provisions of the constitution in force at the time of the enforcement and administration of all laws relative to the conduct of elections,"
alleged ratification of the old constitution. independently of the Executive. But there is not even a certification by the
The issue whether the new constitution proposed has been ratified in COMELEC in support of the alleged results of the citizens assemblies relied
accordance with the provisions of Article XV of the 1935 Constitution is 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 Fifth. Four (4) members of the Court, namely, Justices Barredo, Makasiar,
adopt the proposed constitution. It is to my mind a matter of judicial knowledge Antonio and Esguerra hold that it is in force by virtue of the people's acceptance
that there have been no such citizens assemblies in many parts of Manila and thereof; 4 members of the Court, namely, Justices Makalintal, Castro, Fernando
suburbs, not to say, also, in other parts of the Philippines. 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
Fourth. The Court is not prepared to concede that the acts the officers and people have accepted or not accepted the Constitution; and 2 members of the
offices of the Executive Department, in line with Proclamation No. 1102, Court, namely, Justice Zaldivar and myself voted that the Constitution proposed
connote recognition of or acquiescence tothe proposed Constitution. 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.
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
G.R. No. l- 35925. 22 January 1973 GR No. 53950. 1 April 1981

FACTS: While the 1971 Constitution Convention was in session on FACTS: The challenge in these two prohibition proceedings against the validity
of three Batasang Pambansa Resolutions proposing constitutional amendments
September 21, 1972, the president issued Proclamation No. 1081 placing
goes further than merely assailing their alleged constitutional infirmity. Samuel
the Philippines under martial law. On November 29, 1972 the Occena and Ramon A. Gonzales, both members of the Philippine Bar and former
Convention approved its proposed constitution. The next day the delegates to the 1971 Constitutional Convention that framed the present
president issued PD No. 73 submitting to the people for ratification or Constitution, are suing as taxpayers. The rather unorthodox aspect of these
rejection the proposed constitution as well as setting the plebiscite for petitions is the assertion that the 1973 Constitution is not the fundamental law,
said ratification. On December 7, 1972, Charito Planas filed a petition to the Javellana ruling to the contrary notwithstanding.
enjoin respondents from implemented PD No. 73 because the calling of
the plebiscite among others are lodged exclusively in the Congress. On ISSUE: WON the 1973 Constitution was valid in force and effect when the
December 17, 1972, the president issued an order temporarily Batasang Pambansa resolutions and the present petitions were promulgated
suspending the effects of PD 1081 for the purpose of free and open and filed, respectively.
debate on the proposed constitution. On December 23, the president
RULING: YES. It is much too late in the day to deny the force and applicability of
announced the postponement of the plebiscite, as such, the Court the 1973 Constitution. In the dispositive portion of Javellana vs. The Executive
refrained from deciding the cases. On January 12, the petitioners filed for Secretary, dismissing petitions for prohibition and mandamus to declare invalid
an urgent motion praying that the case be decided as soon as its ratification, this Court stated that it did so by a vote of six to four. It then
possible. concluded: "This being the vote of the majority, there is no further judicial
obstacle to the new Constitution being considered in force and effect." Such a
ISSUE: WON Presidential Decree No. 73 valid? statement served a useful purpose. It could even be said that there was a need
for it. It served to clear the atmosphere. It made manifest that as of 17 January
RULING: YES. The Court may pass upon constitutionality of PD 73 not only 1973, the present Constitution came into force and effect. With such a
because of a long list of cases decided by the Court but also of subdivision (1) of pronouncement by the Supreme Court and with the recognition of the cardinal
Section 2, Article VIII of the 1935 Constitution which expressly provides for the postulate that what the Supreme Court says is not only entitled to respect but
authority of the Court to review cases revolving such issue. The validity of the must also be obeyed, a factor for instability was removed. Thereafter, as a
decree itself was declared moot and academic by the Court. The convention is matter of law, all doubts were resolved. The 1973 Constitution is the
free to postulate any amendment as long as it is not inconsistent to what is fundamental law. It is as simple as that. What cannot be too strongly stressed is
known as Jus Cogens. that the function of judicial review has both a positive and a negative aspect. As
was so convincingly demonstrated by Professors Black and Murphy, the
Supreme Court can check as well as legitimate. In declaring what the law is, it
may not only nullify the acts of coordinate branches but may also sustain their
validity. In the latter case, there is an affirmation that what was done cannot be
stigmatized as constitutionally deficient. The mere dismissal of a suit of this
character suffices. That is the meaning of the concluding statement in Javellana.
Since then, this Court has invariably applied the present Constitution. The latest
case in point is People v. Sola, promulgated barely two weeks ago. During the
first year alone of the effectivity of the present Constitution, at least ten cases
may be cited.