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Republic of the Philippines SUPREME COURT Manila EN BANC

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ROMEO ESPINO, in his capacity as Chief of Staff of the Armed Forces of the Philippines; TANCIO E. CASTAÑEDA, in his capacity as Secretary General Services; Senator GIL J. PUYAT, in his capacity as President of the Senate; and Senator JOSE ROY, his capacity, as President Pro Tempore of the of the Senate, respondents. G.R. No. L-36236 March 31, 1973

G.R. No. L-36142 March 31, 1973 JOSUE JAVELLANA, petitioner, vs. THE EXECUTIVE SECRETARY, THE SECRETARY OF NATIONAL DEFENSE, THE SECRETARY OF JUSTICE AND THE SECRETARY OF FINANCE, respondents. G.R. No. L-36164 March 31, 1973 VIDAL TAN, J. ANTONIO ARANETA, ALEJANDRO ROCES, MANUEL CRUDO, ANTONIO U. MIRANDA, EMILIO DE PERALTA AND LORENZO M. TAÑADA, petitioners, vs. THE EXECUTIVE SECRETARY, THE SECRETARY OF FINANCE , THE SECRETARY OF JUSTICE, THE SECRETARY OF LAND REFORM, THE SECRETARY OF NATIONAL DEFENSE, THE AUDITOR GENERAL, THE BUDGET COMMISSIONER, THE CHAIRMAN OF PRESIDENTIAL COMMISSION ON REORGANIZATION, THE TREASURER OF THE PHILIPPINES, THE COMMISSION ON ELECTIONS AND THE COMMISSIONER OF CIVIL SERVICE, respondents. G.R. No. L-36165 March 31, 1973. GERARDO ROXAS, AMBROSIO PADILLA, JOVITO R. SALONGA, SALVADOR H. LAUREL, RAMON V. MITRA, JR. and EVA ESTRADA-KALAW, petitioners, vs. ALEJANDRO MELCHOR, in his capacity as Executive Secretary; JUAN PONCE ENRILE, in his capacity as Secretary of National Defense; General

EDDIE B. MONTECLARO, [personally and in his capacity as President of the National Press Club of the Philippines], petitioner, vs. THE EXECUTIVE SECRETARY, THE SECRETARY OF PUBLIC INFORMATION, THE AUDITOR GENERAL, THE BUDGET COMMISSIONER & THE NATIONAL TREASURER, respondents. G.R. No. L-36283 March 31, 1973 NAPOLEON V. DILAG, ALFREDO SALAPANTAN, JR., LEONARDO ASODISEN, JR., and RAUL M. GONZALEZ,petitioners, vs. THE HONORABLE EXECUTIVE SECRETARY, THE HONORABLE SECRETARY OF NATIONAL DEFENSE, THE HONORABLE BUDGET COMMISSIONER, THE HONORABLE AUDITOR GENERAL, respondents. Ramon A. Gonzales for petitioner Josue Javellana. Lorenzo M. Tañada and Associates for petitioners Vidal Tan, et al. Tañada, Salonga, Ordoñez, Rodrigo, Sanidad, Roxas. Gonzales and Arroyo for petitioners Gerardo Roxas, et al. Joker P. Arroyo and Rogelio B. Padilla for petitioner Eddie Monteclaro. Raul M. Gonzales and Associates for petitioners Napoleon V. Dilag, et al. Arturo M. Tolentino for respondents Gil J. Puyat and Jose Roy. 2

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Office of the Solicitor General Estelito P. Mendoza, Solicitor Vicente V. Mendoza and Solicitor Reynato S. Puno for other respondents. RESOLUTION

CONCEPCION, C.J.: The above-entitled five (5) cases are a sequel of cases G.R. Nos. L-35925, L-35929, L-35940, L-35941, L-35942, L-35948, L-35953, L-35961, L-35965 and L-35979, decided on January 22, 1973, to which We will hereafter refer collectively as the plebiscite cases. Background of the Plebiscite Cases. The factual setting thereof is set forth in the decision therein rendered, from which We quote: On March 16, 1967, Congress of the Philippines passed Resolution No. 2, which was amended by Resolution No. 4 of said body, adopted on June 17, 1969, calling a Convention to propose amendments to the Constitution of the Philippines. Said Resolution No. 2, as amended, was implemented by Republic Act No. 6132, approved on August 24, 1970, pursuant to the provisions of which the election of delegates to said Convention was held on November 10, 1970, and the 1971 Constitutional Convention began to perform its functions on June 1, 1971. While the Convention was in session on September 21, 1972, the President issued Proclamation No. 1081 placing the entire Philippines under Martial Law. On November 29, 1972, the Convention approved

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. L35925, 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-

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35929) on December 11, 1972, by Gerardo Roxas, et al., against the Commission on Elections, the Director of Printing, the National Treasurer and the Auditor General (Case G.R. L-35940), by Eddie B. Monteclaro against the Commission on Elections and the Treasurer of the Philippines (Case G.R. No. L-35941), and by Sedfrey Ordoñez, et al. against the National Treasurer and the Commission on Elections (Case G.R. No. L-35942); on December 12, 1972, by Vidal Tan, et al., against the Commission on Elections, the Treasurer of the Philippines, the Auditor General and the Director of Printing (Case G.R. No. L-35948) and by Jose W. Diokno and Benigno S. Aquino against the Commission on Elections (Case G.R. No. L-35953); on December 14, 1972, by Jacinto Jimenez against the Commission on Elections, the Auditor General, the Treasurer of the Philippines and the Director of the Bureau of Printing (Case G.R. No. L-35961), and by Raul M. Gonzales against the Commission on Elections, the Budget Commissioner, the National Treasurer and the Auditor General (Case G.R. No. L-35965); and on December 16, 1972, by Ernesto C. Hidalgo against the Commission on Elections, the Secretary of Education, the National Treasurer and the Auditor General (Case G.R. No. L-35979). In all these cases, except the last (G.R. No. L35979), 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

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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].

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"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? COMMENTS ON

[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:

QUESTION No. 1 In order to broaden the

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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,

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speaking on television and over the radio.Constitutional Law I L-36142 Constitutional Law I L-36142 then the new Constitution should be deemed ratified. 15. and therefore state. we are afraid. in the meantime. January 8. That. on January 7. 14. that the question added in the last list of questions to be asked to the Citizens Assemblies. and therefore allege. namely: D o y o u a p p r o v e o in relation to the question following it: D o y o u s 13 14 . 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. is pregnant with ominous possibilities. That petitioners have reason to fear. This. 1973. 1973].

Constitutional Law I L-36142 t i l l w a n t a p l e b i s c i t e t o b e c a l l e d t Constitutional Law I L-36142 o r a t i f y t h e n e w C o n s t i t u t i o n ? " would be an attempt to by-pass and short-circuit this Honorable Court before which the question of 15 16 .

Commission on Elections. et al. it would be announced that the proposed Constitution." The next day. That. or on January 15. 1973. the Court issued a resolution requiring the respondents in said three (3) cases to comment on said "urgent motion" and "manifestation. January 13. has been ratified. and therefore allege. if such event would happen. the Department of Agrarian Reforms and its head. 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. "17. in such a situation the Philippines will be facing a real crisis and there is likelihood of confusion if not chaos. the petitioners in said Case G. with all its defects. Secretary Jose Roño. L-35948 riled a "supplemental motion for issuance of restraining order and inclusion of additional respondents. January 16. The National Treasurer. "18." Prior thereto. "Sedfrey A. v. et al. that on the basis of such supposed expression of the will of the people through the Citizens Assemblies. That petitioners have reason to fear." "not later than Tuesday noon. and they therefore allege. No. 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." praying ". Secretary Conrado Estrella. "21. a similar prayer was made in a "manifestation" filed by the petitioners in L-35949. v.R. petitioners fear. to all intents and purposes. "16. then the case before this Honorable Court could. which was a Saturday. that a restraining order be issued enjoining and restraining respondent Commission on Elections.. "19. Ordoñez." and L-35942. "20. both congenital and otherwise. That the fait accompli would consist in the supposed expression of the people approving the proposed Constitution. et al. 1973." At about the same time. as well as the Department of Local Governments and its head. 1973. the people and their officials will not know which Constitution is in force.. et al. the National Ratification 17 18 . become moot because.Constitutional Law I L-36142 Constitutional Law I L-36142 the validity of the plebiscite on the proposed Constitution is now pending. "Gerardo Roxas. shortly before noon. 73. 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. That. because then. That the crisis mentioned above can only be avoided if this Honorable Court will immediately decide and announce its decision on the present petition.. 3 of Presidential Decree No.

subordinates and/or substitutes. on the two questions quoted in paragraph 1 of this Supplemental Urgent Motion. from collecting. 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. 19 20 . [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. Secretary Jose Roño. certifying. whereas. announcing and reporting to the President the supposed Citizens' Assemblies referendum results allegedly obtained when they were supposed to have met during the period between January 10 and January 15. Guillermo de Vega. from collecting. the National Ratification Coordinating Committee and its Chairman. their deputies. regardless of qualifications or lack thereof. Guillermo de Vega. 1973. and all other officials and persons who may be assigned such task. but votes in the Citizens' Assemblies were open and were cast by raising hands. the Department of Agrarian Reforms and its head. subordinates and substitutes. That petitioners are now before this Honorable Court in order to ask further that this Honorable Court issue a restraining order enjoining herein respondents. "4. particularly respondent Commission on Elections as well as the Department of Local Governments and its head. That the proceedings of the so-called Citizens' Assemblies are illegal. Secretary Conrado Estrella. it was alleged "3. and announcing and reporting to the President or other officials concerned. at which the proposed constitutional amendments are to be submitted for ratification. 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. and their deputies. certifying. are elections at which only qualified and duly registered voters are permitted to vote. the so called Citizens' Assemblies were participated in by persons 15 years of age and older." In support of this prayer. as prescribed in the Election Code. which is one of the safeguards of freedom of action. Article XV. 1973.Constitutional Law I L-36142 Constitutional Law I L-36142 Coordinating Committee and its Chairman. particularly on the two questions quoted in paragraph 1 of this Supplemental Urgent Motion.

as well as the absence of sufficient guidelines for organization.Constitutional Law I L-36142 Constitutional Law I L-36142 out the mechanics in the formation of the Citizens Assemblies and the topics for discussion. "5. orderly and honest elections. [d] It is seriously to be doubted that. 1973) to thresh "It should be recalled that the Citizens' Assemblies were ordered formed only at the beginning of the year [Daily Express. 1973]. 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. 1973. more than a handful of the so called Citizens' Assemblies have been actually formed. January 1. January 10. as noted in the Urgent Motion of January 12. but there were no similar provisions to guide and regulate proceedings of the so called Citizens' Assemblies. But be that as it may." [Bulletin Today. 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. and considering the lack of experience of the local organizers of said assemblies. 1973] [c] The Election Code makes ample provisions for free. and such provisions are a minimum requirement for elections or plebiscites for the ratification of constitutional amendments. for lack of material time. 1973. it is too much to believe that such assemblies could be organized at such a short notice. That for lack of material time. 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 21 22 . the submission of the proposed Constitution to the Citizens' Assemblies was not made known to the public until January 11.

"6. or proclamation in relation to the holding of a plebiscite on January 15. petitioners sought the issuance of a writ of preliminary injunction restraining not only the respondents named in the petition but also their "agents" from implementing not only Presidential Decree No. certifying. proclamation. the cause of freedom an democracy. and finally. viewing the case from all angles. 86. the officials and government agencies mentioned in paragraph 3 of this Supplemental Urgent Motion. together with the officials and government agencies mentioned in paragraph 3 of this Supplemental Urgent Motion are restrained or enjoined from collecting. but also "any other similar decree. implement. or carry out the said Presidential Decree No. 73. can lawfully be reached by the processes of this Honorable Court by reason of this petition.." [Election Code of 1971. that the Commission on Elections has under our laws the power. 86. order or instruction. the Filipino people. furthermore. irreparable damage will be caused to the Republic of the Philippines. 39. [b] In their petition. insofar at least as it attempts to submit the proposed Constitution to a plebiscite by the so-called Citizens' Assemblies. 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 . but also of "any similar decree. provincial. is properly in issue in this case. Petition]. [p..Constitutional Law I L-36142 Constitutional Law I L-36142 Presidential Decree No. of: (a) Direct and immediate supervision and control over national. "Therefore. and the instructions incidental thereto clearly fall within the scope of this petition. That unless the petition at bar is decided immediately and the Commission on Elections. 73. instruction. and the petitioners herein because: [a] After the result of the supposed voting on the questions mentioned in paragraph 1 hereof 23 24 . 1972". so that Presidential Decree No. [c] Petitioners prayed for such other relief which may be just and equitable. Sec. considering. 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. reporting or announcing to the President the results of the alleged voting of the so-called Citizens' Assemblies. 3]. order. and those who enforce. among others. city.

R. 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. 1973. 1102. 3. a conflict will arise between those who maintain that the 1935 Constitution is still in force. Thereupon. Citizens Assemblies were created in barrios. signed said Proclamation No.M. the Secretary of Justice called on the writer of this opinion and said that. has placed Presidential Decree Nos. 1973 the Court passed a resolution requiring the respondents in said case G. and those who will maintain that it has been superseded by the proposed Constitution. "WHEREAS. according to information conveyed by the Secretary of Justice. 73 and 86 beyond the reach and jurisdiction of this Honorable Court. the Constitution proposed by the nineteen hundred seventy-one Constitutional Convention is subject to ratification by the Filipino people. on the other. 1102 which is of the following tenor: "BY THE PRESIDENT OF THE PHILIPPINES "PROCLAMATION NO. on the date last mentioned.Constitutional Law I L-36142 Constitutional Law I L-36142 shall have been announced. earlier that morning. General Order No. 1972. he (the Secretary of Justice) was delivering to him (the writer) a copy of Proclamation No. Tuesday. the writer returned to the Session Hall and announced to the Court. the writer read Proclamation No. "WHEREAS. 86. 1102. which had just been signed by the President. Thereupon. L-35948 inasmuch as the hearing in connection therewith was still going on and the public there present that the President had.m. district 25 26 . which shall also be deemed ratified pursuant to the Transitory Provisions of the proposed Constitution. 1102 "ANNOUNCING THE RATIFICATION BY THE FILIPINO PEOPLE OF THE CONSTITUTION PROPOSED BY THE 1971 CONSTITUTIONAL CONVENTION.R. L-35948 to file "file an answer to the said motion not later than 4 P. upon instructions of the President. at noontime. No." While the case was being heard." and setting the motion for hearing "on January 17. thereby creating confusion. the parties in G. No. at 9:30 a. January 16. dated December 31." On the same date January 15. 1973. in municipalities and in districts/wards in chartered cities pursuant to Presidential Decree No. composed of all persons who are residents of the barrio. on the one hand..

fourteen million two hundred ninety-eight thousand eight hundred fourteen (14. 1973. citizens of the Philippines and who are registered in the list of Citizen Assembly members kept by the barrio. MARCOS. "NOW.298. while on the question as to whether or not the people would still like a plebiscite to be called to ratify the new Constitution. by virtue of the powers in me vested by the Constitution. 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. I. dated January 5. nineteen hundred and seventy-three. in the year of Our Lord.869) who voted for its rejection. fifteen years of age or over. President of the Philippines.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. 27 28 .976. "WHEREAS. I have hereunto set my hand and caused the seal of the Republic of the Philippines to be affixed. district or ward secretary.Constitutional Law I L-36142 Constitutional Law I L-36142 or ward for at least six months. 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. responding to the clamor of the people and pursuant to Presidential Decree No. this 17th day of January. "WHEREAS.561) members of all the Barangays (Citizens Assemblies) voted for the adoption of the proposed Constitution. the Katipunan ng Mga Barangay has strongly recommended that the new Constitution should already be deemed ratified by the Filipino people. FERDINAND E. THEREFORE. as against seven hundred forty-three thousand eight hundred sixty-nine (743. "IN WITNESS WHEREOF. and has thereby come into effect. 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. "Done in the City of Manila. fourteen million nine hundred seventy-six thousand five hundred sixty-one (14. 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. 86-A. "WHEREAS.

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". includes a referendum on the proclamation of Martial Law and purports to exercise judicial power" is "not 29 30 . M A R C O S " P r e s i d e n t o f t h e P Constitutional Law I L-36142 "By the President: "ALEJANDRO MELCHOR "Executive Secretary" Such is the background of the cases submitted determination. respondents therein alleged in their answer thereto. makes an unconstitutional delegation of power.Constitutional Law I L-36142 R D I N A N D E . and 5) that the "argument that the Proposed Constitution is vague and incomplete. by way affirmative defenses: 1) that the "questions raised" in said petition "are political in character". 4) that "there is not an improper submission" and "there can be a plebiscite under Martial Law". 3) that "the President's call for a plebiscite and the appropriation of funds for this purpose are valid". After admitting some of the allegations made in the petition in L-35948 and denying the other allegations thereof.

On the question whether the proclamation of Martial Law affected the proper submission of the proposed Constitution to a plebiscite. Justice Fernando is of the opinion that there is a repugnancy between the election contemplated under Art. are of the opinion that the issue has become moot and academic. as follows: 1. Barredo. On the validity of the decree itself. Justices Makalintal. Teehankee and Esguerra opine that the issue has become moot and academic." Identical defenses were set up in the other cases under consideration. the individual views of my brethren in the Court are set forth in the opinions attached hereto. Justices Fernando. Hence. for the purposes contemplated. Teehankee.Constitutional Law I L-36142 Constitutional Law I L-36142 relevant and . 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. the following views were expressed: 31 32 . Antonio and Esguerra are of the opinion that issue involves questions of fact which cannot be predetermined. or six (6) Members of the Court. after extensive discussions on the merits thereof. some Members have preferred to merely concur in the opinion of one of our colleagues. and that Martial Law per se does not necessarily preclude the factual possibility of adequate freedom. Then the writer of said decision expressed his own opinion on the issues involved therein.. 1102. Fernando. Justice Fernando. the Members of the Court have been deliberating on the aforementioned cases and. Makasiar and Antonio hold the same view. XV of the 1935 Constitution and the existence of Martial Law. 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. Makasiar. Antonio and myself have voted to uphold the authority of the Convention. 4. 3. There is unanimity on the justiciable nature of the issue on the legality of Presidential Decree No. after which he recapitulated the views of the Members of the Court. without merit. or since the afternoon of that date. and would. 5. Immediately after the hearing held on January 17. expressed the view that the 1971 Constitutional Convention had authority to continue in the performance of its functions despite the proclamation of Martial Law. insofar as the freedom essential therefor is concerned. whereas Justices Barredo. Justices Barredo. Justices Makalintal. Justices Barredo. instead of writing their separate opinions. except that.. 2. 73. grant the petitions were they not moot and academic. Makasiar and Antonio voted to uphold the validity of said Decree. likewise. Esguerra and myself. therefore. Castro. On Presidential Proclamation No. Castro. 1973. In effect. 6.

based on the referendum among Citizens' Assemblies falls short of being in strict conformity with the requirements of Article XV of the 1935 Constitution." c. for the reasons set forth in their respective opinions. On the question whether or not these cases should be dismissed. Justice Barredo holds that the issue on the constitutionality of Proclamation No. and that the "purported ratification of the Proposed Constitution . as regards all of the cases dismissed the same. Justices Fernando.R. and that. Castro. Makasiar. Barredo. but he believes. 1 with three (3) members dissenting. d. Accordingly. Justices Makalintal. Justice Zaldivar maintains unqualifiedly that the Proposed Constitution has not been ratified in accordance with Article XV of the 1935 Constitution.. "considering all other related relevant circumstances. 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. without special pronouncement as to costs. should not pass upon such question. accordingly. and the writer similarly voted. in effect. . Castro. the Court acting in conformity with the position taken by six (6) of its members. Justice Zaldivar favors the granting of said period to the petitioners in said Case No. which. 7.. Fernando." but that such unfortunate drawback notwithstanding. that the Court should go farther and decide on the merits everyone of the cases under consideration. 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. Makasiar. the new Constitution is legally recognizable and should be recognized as legitimately in force. b. 1102. 2 with respect to G. except as regards Case No.." since the issue "poses a question of fact. L-35948 for the aforementioned purpose.. Justices Makalintal. L-35948. it has no force and effect whatsoever. "in the absence of any judicially discoverable and manageable standards. Antonio and Esguerra voted in the affirmative. only and another member 3 dissenting. Teehankee.Constitutional Law I L-36142 Constitutional Law I L-36142 a. Teehankee. 1102 has been submitted to and should be determined by the Court. accordingly. No. Esguerra and myself are of the opinion that the question of validity of said Proclamation has not been properly raised before the Court. 33 34 .

that "the Senate premise in the Congress of the Philippines Building . is now the civilian agency in Prior thereto." said petitioner "along with their other colleagues. and no one was allowed to enter and have access to said premises". is without authority to create the Citizens Assemblies".. the Auditor General. and that of the others 9 on December 31. Gerardo Roxas. but unlawfully refrained and continue to refrain from doing so". Javellana alleged that the President had announced "the immediate implementation of the New Constitution. as a "Filipino citizen. et al. and "that the election held to ratify the proposed Constitution was not a free election.Constitutional Law I The Present Cases L-36142 Constitutional Law I L-36142 Secretary of National Defense. the Chief of Staff of the Armed Forces of the Philippines. Jr. 7 Ramon V.. the Auditor General. 1977." and others as "duly elected members" thereof. that. the said day. the first as "duly elected Senator and Minority Floor Leader of the Senate. personally and as President of the National Press Club of the Philippines. that pursuant to our 1935 Constitution. Jr.. Executive Secretary and Chief of Staff. or on January 20. against the Executive Secretary. In their petition as amended on January 26." and that the latter "are acting without. Salvador H. "which is still in force Congress of the Philippines "must convene for its 8th Session on Monday. Gonzales. and Eva Estrada-Kalaw. 1973. the Secretaries of Finance. that the same "are without power to approve the proposed Constitution . and in behalf of all citizens and voters similarly situated. the Budget Commissioner and the Auditor General. the same having been closed by the authorities in physical possession and control the Legislative Building". "that the President is without power to proclaim the ratification by the Filipino people of the proposed Constitution". that "on said day. Tañada.R. by Vidal Tan. filed Case G. After reciting in substance the facts set forth in the decision in the plebiscite cases. Likewise. the Secretary National Defense.. and Raul M. or in excess of jurisdiction in implementing the said proposed Constitution" upon the ground: "that the President. Justice. 1973. as Commander-in-Chief of the Armed Forces of the Philippines. are occupied by and are under the physical control of the elements military organizations under the direction of said respondents". Dilag. Antonio Araneta. Alfredo Salapantan. and National Defense. 1975. the Budget Commissioner. Leonardo Asodisen. L36142 against the Executive Secretary and the Secretaries of National Defense. which is regular customary hour of its opening session". on January 23. Ambrosio Padilla. on January 23. for himself. No. as per "official reports. the Secretary of General Services. 6 against the Executive Secretary. 1973. the President and the President Pro Tempore of the Senate.M. Alejandro Roces. filed by Josue Javellana. hence null and void. the Commission on Elections and the Commissioner of Civil Service 4 on February 3. thru his Cabinet. are preventing petitioners from performing their duties as duly elected Senators of the Philippines".. respondent President Pro Tempore Jose Roy we asked by petitioning Senators to perform their duties under the law and the Rules of the Senate. against the Executive Secretary." Similar actions were filed. 1973. allege.. Land Reform. Emilio de Peralta and Lorenzo M. and a qualified and registered voter" and as "a class suit. against the Executive Secretary. the Treasurer of the Philippines. that the petitioners ready and willing to perform their duties as duly elected members of the Senate of the Philippines. 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. Miranda.. Jr.M. January 22. Josue Javellana filed Case G. J. the Department of General Services . Manuel Crudo. Mitra. respondents including. No. that "(a)t about 5:00 to 6:00 P." but respondent Secretary of National Defense. by Napoleon V. up to the afternoon. L-36165. Antonio U. 1973. Laurel. the Budget Commissioner and the National Treasurer 5 and on February 12. Justice and Finance. 1973. 1973 petitioners Gerardo Roxas. "through their agents and representatives. in his absence.".M. the 35 36 . that "(r)espondent Senate President Gil J. at 10:00 A. by Eddie Monteclaro." was amended on or about January 24. Salonga. the Chairman of the Presidential Commission on Reorganization.R. that the term of office of three of the aforementioned petitioners 8would expire on December 31. the Secretary of Public Information. were unlawfully prevented from using the Senate Session Hall. Puyat and.. Jovito R. 1973. The petition therein. from 10:00 A. inter alia. the premises of the entire Legislative Building were ordered cleared by the same authorities.

a writ of mandamus is warranted in order to compel them to comply with the duties and functions specifically enjoined by law". and continue to so exclude and prevent" the petitioners "from the performance of their sworn duties. the respondents and their "agents. 3) "there substantial compliance with Article XV of the 1 Constitution".. proclamation having the same import and objective. can not have superseded and revoked the 1935 Constitution. 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 because of events supervening the institution of the plebiscite cases... decree. 1973. of the Senate of Philippines. Puyat and Jose Roy directing them to comply with their duties and functions as President and President Pro Tempore.. as stated in and by virtue of Proclamation No." the alleged "improper or inadequate submiss of the proposed constitution.." the "procedure for ratification adopted . to which reference has been made in the preceding pages.." for the reasons specified in the petition as amended. a writ of preliminary mandatory injunction be issued ordering respondents Executive Secretary. and 6) "(t)he 37 38 . a consolidated comment on said petitions and/or amended petitions. the Supreme Court dismissed said cases on January 22. controverting petitioners' allegations concerning the alleged lack impairment of the freedom of the 1971 Constitution Convention to approve the proposed Constitution. and any order. through the Citizens Assemblies". said petitioners prayed that. unconstitutional and void and . as well as all their agents. Puyat and Jose Roy have unlawfully refrained from convening the Senate for its 8th session. 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. assuming general jurisdiction over the Session Hall and the premises of the Senate and . with the leave Court first had and obtained. and the . is conclusive upon the courts". 1102 . and that "against the above mentioned unlawful acts of the respondents. that. upon the ground that the petitions therein had become moot and academic. certifying the results of the election. issuing writs of prohibition and mandamus.. "pending hearing on the merits. orderly and honest election. 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 the alleged ratification of the 1972 (1973) Constitution "is illegal. 1973 to January 15. and that a writ of mandamus be issued against the respondents Gil J..have excluded the petitioners from an office to which" they "are lawfully entitled". judgment be rendered declaring null and Proclamation No. 2) the questions raised therein are "political in character and therefore nonjusticiable"." Premised upon the foregoing allegations. its alleged lack of authority to incorporate certain contested provisions thereof.. 1973. 1102. by acting as they did. 1102 signed and issued by the President of the Philippines"." Required to comment on the above-mentioned petitions and/or amended petitions. 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". continue such inaction up to this time and . the Secretary of National Defense... that "respondents Gil J. as prayed for against above-mentioned respondents. invoking the alleged approval of the 1972 (1973) Constitution of the Philippines by action of the so-called Citizens' Assemblies on January 10. 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. 4) "(t)he Constitution was properly submitted the people in a free. Secretary of General Service. respectively. alleging that the same ought to have been dismissed outright.. as provided by law and the Rules of the Senate. that respondents "have unlawfully excluded and prevented.. and that hearing. by a majority vote. and making the writ injunction permanent.Constitutional Law I L-36142 Constitutional Law I L-36142 custody of the premises of the Legislative Building". a maintaining that: 1) "(t)he Court is without jurisdiction to act on these petitions". respondents filed. 5) "Proclamation No. the Chief of Staff of the Armed Forces of the Philippines. representatives and subordinates .

Writer's Personal Opinion I. about the circumstances attending 39 40 . on February 13. 1973. Justice Esguerra had postulated that "(w)ithout any competent evidence . noon. in said Case G. was continued not only that afternoon. morning and afternoon.m. but. 1102. L-36165. and. to reply to the notes filed by their respective opponents. shortly after 9:30 a. The same resolution granted the parties until March 1. Counsel for the petitioners in G. L-36164 and L-36165 filed their aforementioned notes on February 24." On February 5. Mr.R. as it was. 1973. Mr." 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. and this they did.R. moved and were granted an extension of time.. 1973.R. concurrently with his colleagues in the Court. "further proceedings in this case may only be an academic exercise in futility. their notes in reply to those submitted by the Solicitor General on March 3. No. After the exposition his aforesaid opinion. in effect upholding the validity of Proclamation No. L-36165 and L-36236. Nos. On March 21. Puyat and Jose Roy in G. under the circumstances. heard jointly with the aforementioned cases G. the members of the Court agreed that each would write his own opinion and serve a copy thereof on his colleagues. this Court resolved to consider the comments of the respondents in cases G. after which the parties were granted up to February 24. in fact. the Court discussed said opinions and votes were cast thereon. 1102 .Constitutional Law I L-36142 Constitutional Law I L-36142 amending process outlined in Article XV of the 1935 Constitution is not exclusive of other modes of amendment." Respondents Puyat and Roy. L-36164 a L-36165.Court would not be in a position to act upon judicially. likewise. The hearing. which was granted. L36164. Alleged academic futility of further proceedings in G.. with the understanding that said notes shall include his reply to the notes already filed by the petitioners in G. 1973. 1973. alleging that "(t)he subject matter" of said case "is a highly political question which. By resolution dated February 7. 1973. 1973.". likewise. 1973. the writer will first express his person opinion on the issues before the Court. 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. the Court issued a resolution requiring respondents in L-36236 to comment on the petition therein not later than Saturday. a resume of summary of the votes cast by them in these cases. 15 and 16. within which to submit their notes of oral arguments and additional arguments.m. Subsequently.. within which to file his notes..R. to expire on March 10. Nos. within which to file. petitioners in L-36165 filed a "Manifestation a Supplemental Rejoinder.R. Such individual opinions are appended hereto. heard. This defense or theory. by the Solicitor General. February 10. in Our decision in the plebiscite cases.. No. On that date.R. in view of the opinions expressed by three members of this Court in its decision in the plebiscite cases. 1973. and setting the case for hearing on February 12. Nos.. No. Counsel for the petitioners. 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. also. 14. Accordingly. this . L-36164. 1973. filed their separate comment therein. the parties in G. as they did.." and that. L-36165. at 9:30 a. as motions to dismiss the petitions therein. whereas. the writer will make. that Mr. set up by counsel for respondents Gil J. L36142." After deliberating on these cases. Nos. as well as the documents required of them or whose presentation was reserved by them.R. and to set said cases for hearing on the same date and time as L-36236. is predicated upon the fact that. L-36142. and L-36165. also. L-36165. 1973. 1973." whereas the Office of the Solicitor General submitted in all these cases a "Rejoinder Petitioners' Replies. L-36283 10 agreed that the same be.R. on which date the Solicitor General sought an extension of time up to March 3. which began on February 12.

under the 1935 Constitution. whose disapproval cannot be overridden except by the vote of two-thirds (2/3) of all members of each House of Congress. pp. In effect. "it seems remote or improbable that the necessary eight (8) votes under the 1935 Constitution. eight (8) votes are necessary to declare invalid the contested Proclamation No. has been duly ratified. "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. The Framing of the Philippine Constitution. 1949. No. in open court. the participation of the two other departments of the government the Executive and the Legislative is present. Pursuant to this section. postulated: . It is very significant that in the previous drafts of section 10. accordingly. heassumed "that what the proclamation (No. voicing the unanimous view of the Members of this Court. and no treaty or law may be declared unconstitutional without the concurrence of two thirds of all the members of the Court.R. under these circumstances. regulations or executive orders which are exclusive acts of the President. indeed. 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. was made to apply only to treaty and law. the concurrence of two-thirds of all the Members of the Supreme Court is required only to declare "treaty or law" unconstitutional. during the hearing of these cases. 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. I am unable to share this view. Secondly. because. I. a lesser number of votes is necessary in the Supreme Court than that required to invalidate a law or treaty. counsel for the aforesaid respondents had apparently assumed that.. Counsel for respondents Gil J. to nullify the same. can be obtained for the relief sought in the Amended Petition" in G. in these cases. 1972. 1102. Puyat and Jose Roy goes on to say that. Vol. and much less the ten (10) votes required by the 1972 (1973) Constitution. that he was and is willing to be convinced that his aforementioned opinion in the plebiscite cases should be reconsidered and changed. Article VIII of the Constitution. 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 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. To begin with. Justice Barredo announced publicly. Mr. he thus declared that he had an open mind in connection with the cases at bar. 495. a law (statute) passed by Congress is subject to the approval or veto of the President. 11 The distinction is not without reasonable foundation. Hence. regulations and executive orders.Constitutional Law I L-36142 Constitutional Law I L-36142 the holding" of the "referendum or plebiscite" thru the Citizens' Assemblies. and thus a mere majority of six members of this Court is enough to nullify them. 41 42 . he "cannot say that it was not lawfully held" and that. 12 A treaty is entered into by the President with the concurrence of the Senate. L-36165. 496). Construing said provision. 13 which is not required in the case of rules. in a resolution dated September 16. which circumstance is absent in the case of rules. and that he accepted "as a fait accompli that the Constitution adopted (by the 1971 Constitutional Convention) on November 30. then Chief Justice Moran. Indeed. I do not believe that this assumption is borne out by any provision of said Constitution.. But "executive order" and "regulation" were later deleted from the final draft (Aruego. The two thirds vote (eight [8] votes) requirement.

hence. especially that they have done so in accordance with Article XV of the 1935 Constitution. it is obvious to me that We are not being asked to "declare" the new Constitution invalid. upon the authority of which said Constitutional Convention was called and approved the proposed Constitution. approved by the 1971 Constitutional Convention.Constitutional Law I L-36142 Constitutional Law I L-36142 Although the foregoing refers to rules. or the old Constitution. or orders are to have or cease to (have) effect and any information concerning matters of public moment determined by law. the government has been recognized in accordance with the New Constitution". that "in the case of the New Constitution. that "foreign governments have taken note of it". an executive proclamation has no more than "the force of an executive order.R. 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. in the determination of the question whether or not it is now in force. resolution. that "the country's foreign relations are now being conducted in accordance with the new charter". executive proclamations are mainly informative and declaratory in character. and that "to abstain from judgment on the ultimate issue of constitutionality is not to abdicate duty. and so does counsel for respondents Gil J. inasmuch as the authority to issue the same is governed by section 63 of the Revised Administrative Code. 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. while executive order embody administrative acts or commands of the President. regulations and executive orders issued by the President. No. under the 1935 Constitution. that "nearly 15 million of our body politic from the age of 15 years have mandated this Constitution to be the New Constitution and the prospect of unsettling acts done in reliance on it caution against interposition of the power of judicial review". resolutions. The petitioners In fact. that the "plebiscite cases" are "not precedents for holding questions regarding proposal and ratification justiciable". divisions. Puyat and Jose Roy maintain in G. non-justiciable question? The Solicitor General maintains in his comment the affirmative view and this is his main defense. six (6) votes would suffice. 1102. 15 As consequence. What petitioners dispute is the theory that it has been validly ratified by the people." so that. It is well settled that the matter of ratification of an amendment to the Constitution should be settled byapplying the provisions of the Constitution in force at the time of the alleged ratification. with all the force of an executive order." At the outset. like said Proclamation No. the dictum applies with equal force to executive proclamation. and. 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. rule or regulation namely. 43 44 . 14 As regards the applicability of the provisions of the proposed new Constitution. In support thereof. may be promulgated in an executive proclamation. 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". 1102 partake of the nature of a political. the same number of votes needed to invalidate an executive order. 16 II Does the issue on the validity of Proclamation No. for the Supreme Court to declare such proclamation unconstitutional. Executive orders fixing the dates when specific laws. L-36165. or executive orders.

it partook of a political nature. abandoned and refused to apply. as the predicates from which said conclusion was drawn. Besides. they claimed.Constitutional Law I L-36142 Constitutional Law I L-36142 maintain that the conclusion reached by the Chief Executive in the dispositive portion of Proclamation No. Indeed. For the same reason. in the aforementioned plebiscite cases. We overruled the respondents' contention in the 1971 habeas corpus cases. Commission on Elections. consistently with the form of government established under said Constitution. in any event. 22 the political-question theory adopted in Mabanag v. and because the existence of Martial Law and General Order No. however. Lopez Vito. despite the opposite view taken by this Court in Barcelona v. As a consequence. that the proceedings before the Citizens' Assemblies did not constitute and may not be considered as such plebiscite. and that. impaired the people's freedom in voting thereon. for the ratification or rejection of the proposed new Constitution. which view We. that the plebiscite or "election" required in said Article XV has not been held. Baker and Mabanag v. too long to leave any room for possible doubt that said issue is inherently and essentially justiciable. as it was done in many instances. Lopez Vito. because the same were not held under the supervision of the Commission on Elections. no plausible reason has. particularly a viva voce. because the provisions of our Election Code were not observed in said Assemblies. Thus. under the 1935 Constitution. such is the position taken by this Court. 1973. Our decision in the aforementioned habeas corpus cases partakes of the nature and effect of a stare decisis. 1973. accordingly. the proceedings in said Assemblies are null and void as an alleged ratification of the new Constitution proposed by the 1971 Constitutional Convention. has been the consistent position of the courts of the United States of America. but. 1102 is not borne out by the whereases preceding the same. in Gonzales v. that the Chief Executive has no authority. 21 insofar as it adhered to the former case. to dispense with said election or plebiscite. We did not apply and expressly modified. whose decisions have a persuasive effect in this jurisdiction. 1971. was valid or not. 17 in an endless line of decisions. With identical unanimity. 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. also. which gained added weight by its virtual reiteration in the plebiscite cases. I do not hesitate to state that the answer must be in the negative. 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. which were carefully considered by this Court and found by it to be legally unsound and constitutionally untenable. to my mind. 73 calling a plebiscite to be held on January 15. 18 We rejected the theory of the respondents therein that the question whether Presidential Decree No. 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 45 46 . withdrawing or suspending the limited freedom to discuss the merits and demerits of said proposed Constitution. been advanced to warrant a departure from said position. 24 The reasons adduced in support thereof are. because persons disqualified to vote under Article V of the Constitution were allowed to participate therein. our constitutional system in the 1935 Constitution being patterned after that of the United States. The reason why the issue under consideration and other issues of similar character are justiciable. Castañeda. and We unanimously declared that the issue was a justiciable one. was not a proper subject of judicial inquiry because. is plain and simple. not political. 20. Baker 20and Montenegro v. 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. in violation of section 2 of Article X of the 1935 Constitution. 23 Hence. also. Such. 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. substantially the same as those given in support of the political-question theory advanced in said habeas corpus and plebiscite cases.. not only because of the circumstances under which said Assemblies had been created and held. 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.

and not judicial.R. 16 C. and. which belong to the executive department.A. the court has no jurisdiction as the certificate of the state canvassing board would then be final. disputes or conflicts between a private individual or entity. 32 Pac. 69 Fed.R.. duties or prerogatives that are legally demandable and enforceable. on the one hand. measures taken or decisions made by the other departments provided that such acts. Rep. restrain or arrest a possible or actual misuse or abuse of powers by the other departments. And so. and apportion the jurisdiction of the various courts. to inquire into or pass upon the advisability or wisdom of the acts performed." may settle or decide with finality. Green vs. 42 Am. xxx xxx xxx ". regardless of the actual vote upon the amendment. See State vs. the appointing power of the Executive. on the other. not only justiciable controversies between private individuals or entities. the "Supreme Court and . under the judicial power vested by the Constitution. but. 50 Kan. or between two (2) officers or branches of service. 26 this Court quoted with approval from In re McConaughy. 220. Mills. in Tañada v. and an officer or branch of the government. 497. 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. to "define. 27 the following: "At the threshold of the case we are met with the assertion that the questions involved are political. Within its own sphere but only within such sphere each department is supreme and independent of the others. 90. 561. 2) those concerned mainly with the enforcement of such laws and of judicial decisions applying and/or interpreting the same. 25 This principle of separation of powers under the presidential system goes hand in hand with the system of checks and balances. prescribe. If this is correct. with discretionary power to act.A.Fletcher vs. into three (3) categories. his veto power. 683. 155. 81 Wis. Otherwise. N.. 25 L. In re Gunn. is that it is a matter which is to be exercised by the people in their primary political capacity.A. under which each department is vested by the Fundamental Law with some powers to forestall. when a power vested in said officer or branch of the government is absolute or unqualified. Thus the Legislature may in its discretion determine 47 48 . also.R. or that it has been specifically delegated to some other department or particular officer of the government. which are allocated to the legislative department." as well as that of impeachment. 30 L. measures or decisions are within the area allocated thereto by the Constitution.W. non-justiciable or beyond judicial review. the acts in the exercise of such power are said to bepolitical in nature.Constitutional Law I L-36142 Constitutional Law I L-36142 system of government the functions of which are classified or divided. when the latter officer or branch is charged with acting without jurisdiction or in excess thereof or in violation of law. Hence..A. What is generally meant. also. 852. and not judicial. also. etc. and each is devoid of authority. 516. not only to encroach upon the powers or field of action assigned to any of the other departments. 19 L. Tuttle 151 Ill. 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. when it is said that a question is political. Hence. consequently. has the power of appropriation. but. 724.R. 948. Cunningham. 15 L.. 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.C. 41. Cuenco. namely: 1) those involving the making of laws. It. and 3) those dealing with the settlement of disputes. Conversely. St.E. his pardoning power. such inferior courts as may be established by law. 470. controversies or conflicts involving rights. 37 N.A. by reason of their nature. The question thus raised is a fundamental one. which are apportioned to courts of justice. Upon the other hand. 519. Congress or an agency or arm thereof such as the commission on Appointments may approve or disapprove some appointments made by the President. 143.

and every departure therefrom or disregard thereof must subject him to that restraining and controlling power of the people. but because they are matters which the people have by the Constitution delegated to the Legislature. or the limitations respected. and the system of checks and balances. the issue on whether or not the prescribed qualifications or conditions have been met." (Emphasis supplied. rather than a power". namely. the judiciary as the interpreter of that constitution. free from judicial control. understandable to the laymen. One department is just as representative as the other. unknown except in Great Britain and America. this very Court speaking through Justice Laurel. not its wisdom. not primarily because they are of a politics nature. the term "political question" connotes. the crux of the problem being one of legality or validity of the contested act. to support and defend the Constitution to settle it. "In other words. what it means in ordinary parlance. as members of the highest Court of the land.. not merely because they involve political questions. as a body politic. What is more. to determine whether another branch of the government has "kept within constitutional limits. Johnson. acting through the agency of the judiciary. We have neither the authority nor the discretion to decline passing upon said issue. in the language of Corpus Juris Secundum (supra)." Not satisfied with this postulate.unless the manner is followed. The courts have no judicial control over such matters. His discretionary acts cannot be controllable. thejudicial department is the only constitutional organ which can 49 50 . in legal parlance. the great landmarks of the Constitution are apt to be forgotten or marred. but because the Constitution and laws have placed the particular matter under his control. of a particular measure. as well as one of the highly respected and foremost leaders of the Convention that drafted the 1935 Constitution declared. The recognition of this principle. an outstanding authority on Philippine Constitutional Law. the judicial inquiry into such issue and the settlement thereof are the main functions of courts of justice under the Presidential form of government adopted in our 1935 Constitution. conditions or limitations particularly those prescribed or imposed by the Constitution would be set at naught. as early as July 15. is necessary. Otherwise. will declare the amendment invalid. one of its basic predicates. The Governor may exercise the powers delegated him. 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. said qualifications." It is concerned with issues dependent upon thewisdom.Constitutional Law I L-36142 Constitutional Law I L-36142 whether it will pass law or submit a proposed constitutional amendment to the people. in Miller v. the court went farther and stressed that.. if not entirely obliterated. As a consequence. if the Constitution provides how it may be amended as it is in our 1935 Constitution "then. so long as he observes the laws act within the limits of the power conferred. is justiciable or non-political. not legality. it refers to "those questions which. but are under the ineluctable obligation made particularly more exacting and peremptory by our oath. We added that ". conditional or subject to limitations. that "(i)n times of social disquietude or political excitement. a question of policy" in matters concerning the government of a State. or in regard to which full discretionary authority has been delegated to the Legislature or executive branch of the government. as well as through the executive or the Legislature. and the judiciary is the department which is charged with the special duty of determining the limitations which the law places upon all official action. in an attempt to describe the nature of a political question in terms. In cases of conflict." 29 In fact. 1936. 28 it was held that courts have a "duty. when the grant of power is qualified. But every officer under constitutional government must act accordingly to law and subject its restrictions.) and. it was hoped. under the Constitution. for it must be remembered that the people act through courts. are to bedecided by the people in their sovereign capacity. This explains why." Accordingly.

This notwithstanding. one Thomas W. it adopted a new Constitution. Thereupon. The charter government. or in May 1842. became a member of the Union. for unlike other states which adopted a new Constitution upon secession from England Rhode Island retained its form of government under a British Charter. established under its authority. the persons who were to receive and return them. but he was repulsed. in May 1843. the charter 51 52 .Constitutional Law I L-36142 Constitutional Law I L-36142 be called upon to determine the proper allocation of powers between the several departments" of the government. a new constitution was drafted by a convention held under the authority of the charter government. The delegates to such convention framed a new Constitution which was submitted to the people. until the Constitution of 1843" adopted under the auspices of the charter government "went into operation. however. 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 defendants who were in the military service of said former colony of England. who were in the military service of the charter government and were to arrest Luther. In 1843. 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. ". alleged in their defense that they had acted in obedience to the commands of a superior officer. sometime in 1842. the charter government had taken measures to call its own convention to revise the existing form of government. Eventually. The convention was notauthorized by any law of the existing government. Prior thereto. no further effort was made to establish" his government. by subsequently ratifying the Constitution of the United States. in Rhode Island. Luther v. contested. Dorr. and thereafter was adopted and ratified by the people. 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. and the qualifications of the voters having all been previously authorized and provided for by law passed by the charter government. Memorials addressed by them to the Legislature having failed to bring about the desired effect. 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. the charter government passed an Act declaring the state under Martial Law and adopted measures to repel the threatened attack and subdue the rebels.. prepared to assert authority by force of arms. Upon the return of the votes cast by them. however. and many citizens assembled to support him. after an "assemblage of some hundreds of armed men under his command at Chepatchet in the June following. It was under this form of government when Rhode Island joined other American states in the Declaration of Independence and. 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. Meanwhile. Borden 31 in support of his stand that the issue under consideration is non-justiciable in nature. 30 The Solicitor General has invoked Luther v. which was supported by a large number of citizens of the state. and. the validity of said proceedings. by acts of the Legislature. "(T)he times and places at which the votes were to be given.." the latter formally surrendered all of its powers to the new government. About a year before. for engaging in the support of the rebel government which was never able to exercise any authority in the state broke into his house. many citizens had become dissatisfied with the charter government. at the head of a military force. had made an unsuccessful attempt to take possession of the state arsenal in Providence. which had been in operationuninterruptedly since then. Dorr. which dispersed upon approach of the troops of the old government. This was the state of affairs when the defendants. as were necessary to adapt it to its subsequent condition as an independent state. making only such alterations. who had been elected governor under the new Constitution of the rebels.

but one purely municipal in nature.. and the well settled rule in this court is. when we are referring to the authority of State decisions. stating: It is worthy of remark. and is the lawful and established government. . and there is a fundamental difference between these two (2) types of recognition. of a State court. the case of Luther v. apart from rendering judgment for the defendants. Dorr took place after the constitution of 1843 went into operation. Borden was decided is basically and fundamentally different from that of the cases at bar. too. 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. 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. to the constitution and laws of that State." Having offered to introduce evidence to prove that the constitution of the rebels had been ratified by the majority of the people. therefore. Whatever else was said in that case constitutes. whereas ours is a unitary form of government. which the Circuit Court rejected. altogether. the first being generally conceded to be a political question. Secondly. the case did not involve a federal question. Upon what ground could the Circuit Court of the United States which tried this case have departed from this rule. the plaintiff took the case for review to the Federal Supreme Court which affirmed the action of the Circuit Court. which the courts of the State disown and repudiate. 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 53 54 . Upon such a question the courts of the United States are bound to follow the decisions of the State tribunals. Again. although the government under which it acted was framed and adopted under the sanction and laws of the charter government. then. and must therefore regard the charter government as the lawful and established government during the time of this contest. the states of the Union have a measure of internal sovereignty upon which the Federal Government may not encroach. Borden hinged more on the question of recognition of government. The question relates. It is the decision. Then. But the power of determining that a State government has been lawfully established. that the trial of Thomas W. whose judicial authority to decide upon the constitution and laws of Rhode Island is not questioned by either party to this controversy.Constitutional Law I L-36142 Constitutional Law I L-36142 government continued to assert its authority and exercise its powers and to enforce obedience throughout the state . however. 32 It is thus apparent that the context within which the case of Luther v. is not one of them. 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. whereas the nature of the latter depends upon a number of factors. raised here has been already decided by the courts of Rhode Island. Hence. Besides. therefore. no decision analogous to that rendered by the State Court of Rhode Island exists in the cases at bar. than on recognition of constitution. procedure or conditions for its amendment.. the charter or organic law of Rhode Island contained no provision on the manner. The point. under which our local governments derive their authority from the national government. To begin with. unlike our 1935 Constitution. 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. an obiter dictum.

35 the same Court. which is essentially a justiciable question. It is interesting historically. 12 L. 1. (d)eciding whether a matter 55 56 .. is itself a delicate exercise in constitutional interpretation.. but it has not the slightest application to the case at bar. inasmuch as:". inter alia. 33 has in any measure been committed by the Constitution to another branch of government. and is a responsibility of this Court as ultimate interpreter of the Constitution .. Borden. .Constitutional Law I L-36142 Constitutional Law I L-36142 former.. on matters otherthan those referring to its power to review decisions of a state court concerning the constitution and government of thatstate. 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. antagonistic to each other. the views expressed by the Federal Supreme Court in Luther v.. that the issue was a political one. A district court dismissed the case upon the ground. decided in 1849. ..S. We append the same to this opinion as Annex A thereof. 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. reversed a decision of the Court of Appeals of New York affirming that of a Federal District Court. 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. The Supreme Court of Minnessota undertook a careful review of American jurisprudence on the matter. 581. that the issue was political. In fact. in Powell v. 36 Baker v. McCormack. 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. controlling. unless a special tribunal has been created to determine the question.. the Supreme Court of Minnessota had the following to say: Luther v. a conflict between two (2) rival governments. exhaustive analysis of the cases on this subject. but. There was. . the Federal Supreme Court reversed the appealed decision and held that said issue was justiciable and non-political. Borden. in Luther v. Owing to the lucidity of its appraisal thereof. Here. 7 How. not the Federal Constitution or Government. Carr. . after a painstaking review of the jurisprudence on the matter. Said dismissal was predicated upon the ground. In short. which is absent in the present cases.. Ed." Similarly. but the Federal Supreme Court held that it was clearly a justiciable one. having as the Federal Supreme Court admitted no authority whatsoever to pass upon such matters or to review decisions of said state court thereon. or whether the action of that branchexceeds whatever authority has been committed. 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. 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. is always cited by those who assert that the courts have no power to determine questions of a political character. among others. upon the theory that the legislation violated the equal protection clause. are manifestly neither. When carefully analyzed. Borden. After an. nor even persuasive in the present cases. and even then many of the courts hold that the tribunal cannot be permitted to illegally amend the organic law. speaking through then Chief Justice Warren. referring to that case.

1. 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. and considering that Art. XV of our 1935 Constitution prescribes the method or procedure for its amendment. worse still. hence null and void. What is the procedure prescribed by the 1935 Constitution for its amendment? Under section 1 of Art. 2) that the proposed new or revised Constitution "is vague and incomplete. the proposed new Constitution has been ratified. "was too short. 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. and 4) that "the election held (in the Citizens' Assemblies) to ratify the proposed Constitution was not a free election." Petitioner in L-36236 added. 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 of said Constitution. namely: 57 58 ." 3) that "(t)he period of time between November 1972 when the 1972 draft was approved and January 11-15. on behalf of the other respondents in that case and the respondents in the other cases. XV of the 1935 Constitution? Petitioners in L-36142 maintain the negative view. 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. that said Assemblies "are without power to approve the proposed Constitution". upon ground: 1) that the President "is without authority to create the Citizens' Assemblies" through which. So it is. submission the people." Apart from substantially reiterating these grounds support of said negative view. as arguments in support of the negative view. also." 37 III Has the proposed new or revised Constitution been ratified conformably to said Art. 1973." Besides adopting substantially some of the grounds relied upon by the petitioners in the above-mentioned cases.. Hence.Constitutional Law I L-36142 Constitutional Law I L-36142 In the light of the foregoing. 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 2) Proclamation No." as well as "contains provisions which are beyond the powers of the 1971 Convention to enact." thereby rendering it "unfit for ." when the Citizens' Assemblies supposedly ratified said draft. 3) that the President "is without power to proclaim the ratification by the Filipino people of the proposed Constitution". 1973. there can never be a fair and proper submission of the proposed Constitution to the people". that it is the Court's bounden duty to decide such question.. XV is a justiciable one and non-political in nature. 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". 1973 plebiscite to either February 19 or March 5. 1102 is null and void "(i)nasmuch as the ratification process" prescribed "in the 1935 Constitution was not followed." 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. respondents maintain. but. it is unnecessary to reproduce them here. that : 1) "(w)ith a government-controlled press. Puyat and Jose Roy although more will be said later about them and by the Solicitor General. three (3) steps are essential. and that it is not only subject to judicial inquiry. with respect to the positions taken in L-36165 by counsel for therein respondents Gil J.

be taken into account. shall act as its deputies for the purpose of insuring fee. That such amendments be "submitted to the people for their ratification" at an "election". 2. when so required by the Commission. That such amendments be "approved by a majority of the votes cast" in said election. V and Art. save those involving the right to vote. The National Assembly shall extend the right of suffrage to women. That the amendments to the Constitution be proposed either by Congress or by a convention called for that purpose. also. affecting elections. orderly. xxx xxx xxx 39 59 60 . Has the contested draft of the new or revised Constitution been submitted to the people for their ratification conformably to Art. Suffrage may be exercised by male citizens of the Philippines not otherwise disqualified by law. Sections 1 and 2 of Art. therefore. Compliance with the first requirement is virtually conceded. and the appointment of election inspectors and of other election officials..Constitutional Law I L-36142 Constitutional Law I L-36142 1. 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. 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. 2. namely. . 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. and rulings of the Commission shall be subject to review by the Supreme Court. 2.. X of said Constitution." but "in joint session assembled". It shall decide. not less than three hundred thousand women possessing the necessary qualifications shall vote affirmatively on the question. other provisions of the 1935 Constitution concerning "elections" must. All law enforcement agencies and instrumentalities of the Government. "by a vote of threefourths of all the Members of the Senate and the House of Representatives voting separately. X of the Constitution ordain in part: Section 1. orders. on whether or not the last two (2) requirements have been complied with. XV of the Constitution? In this connection. who are twenty-one years of age or over and are able to read and write. 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. all administrative questions. section I of Art. who shall hold office for a term of nine years and may not be reappointed. including the determination of the number and location of polling places. and honest elections. xxx xxx xxx Sec. The main issue in these five (5) cases hinges. The former reads: Section 1. The decisions. and 3. 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.Constitutional Law I L-36142 Constitutional Law I L-36142 a. constitute a limitation of or restriction to said right. Art. and the provisions of the Revised Barrio Charter.. 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. Upon the other hand." 41 The third recommendation on "compulsory" voting was. which were rejected. prescribed by law. Jose M. Republic Act No. 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. V of the Constitution declares who may exercise the right of suffrage. for the permissive language used in the first sentence of said Art." 2) "That should be limited to those who could read and write. particularly sections 4 and 6 thereof. 42 This accounts. except by constitutional amendment. Indeed. Despite some debates on the age qualification amendment having been proposed to reduce the same to 18 or 20. be dispensed with. after which it was rejected by the Convention. this does not imply not even remotely. V of the Constitution. who are twenty-one years of age or over and are able to read and write. Aruego. be held for that purpose within two years after the adoption of this Constitution. and the residence qualification. 3590. and cannot. which in turn. 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. that the Fundamental Law allows Congress or anybody else to vest in those lacking the qualifications and 61 62 . shall be members thereof and may participate as such in the plebiscites prescribed in said Act. 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. and that." 3) "That the duty to vote should be madeobligatory. "strongly influenced by the election laws then in force in the Philippines . V of the Constitution. by way of compromise. which was decided in the negative. if in a plebiscite to." may exercise the right of suffrage in the Philippines. so that those lacking the qualifications therein prescribed may not exercise such right. one of the Delegates to said Convention "readily approved in the Convention without any dissenting vote. may the same partake of the nature of a guarantee. the Solicitor General contends that said provision merely guaranteesthe right of suffrage to persons possessing the aforementioned qualifications and none of the disqualifications. in my opinion.. accordingly. Who may vote in a plebiscite under Art. They claim that no other persons than "citizens of the Philippines not otherwise disqualified by law. V. I cannot accept the Solicitor General's theory. This view is borne out by the records of the Constitutional Convention that drafted the 1935 Constitution. in section 1 of Art. section 1 of Art. Obviously. . it was eventually agreed to include. 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. providing that citizens of the Philippines "eighteen years of age or over. V of the Constitution? Petitioners maintain that section 1 of Art. in this sense only. In support of this view." although there was some debate on whether the Fundamental Law should specify the language or dialect that the voter could read and write. in turn. also debated upon rather extensively." 40 " Said committee had recommended: 1) "That the right of suffrage should exercised only by male citizens of the Philippines. 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. he invokes the permissive nature of the language "(s)uffrage may be exercised" used in section 1 of Art. V of the Constitution is a limitation upon the exercise of the right of suffrage. and who shall have resided in the Philippines for one year and in the municipality wherein they propose to vote for at least six months preceding the election." It appears that the first recommendation was discussed extensively in the Convention. But." who are registered in the list of barrio assembly members.

approved on December 3. In short. twenty-one years of age or over. did not materialize on account of the decision of this Court inTolentino v. Upon the other hand. Art. according to the paragraph preceding the penultimate one of said section. must be citizens "of the Philippines. Commission on Elections." Our first Election Law was Act 1582.Constitutional Law I L-36142 Constitutional Law I L-36142 having the disqualifications mentioned in the Constitution the right of suffrage. not separately or in several or distinct elections. in turn. believe that Republic Act No. which is not so as regards said Art. 1726 and 1768. however. for the most important measures for which it demands in addition to favorable action of the barrio council the approval of barrio assembly through 63 64 ." and residents the barrio "during the six months immediately preceding election. 47 "(a)ll duly registered barrio assembly members qualified to vote" who. after its ratification. it would be illogical. under the 1935 Constitution. to say the least. upon the ground that. that the apparent conflict should resolved in favor of the 21-year-old members of the assembly. a debatable one. the qualifications for and disqualifications from voting. 1709. not only because this interpretation is in accord with Art. necessary implication. the provisions concerning the qualifications of voters partook of the nature of a grant or recognition of the right of suffrage. which. it is noteworthy that the committee on suffrage responsible for the adoption of section 1 of Art. all of the amendments adopted by the Convention should be submitted in "an election" or a single election. V for otherwise they would not have been considered sufficiently important to be included in the Fundamental Law of the land. and that the proposed amendment sought to be submitted to a plebiscite was not even a complete amendment. but. 1907. 3590. if not absurd. the history of section 1. Said partial amendment was predicated upon the generally accepted contemporary construction that. duly registered in the list of barrio assembly members) is necessary for the approval. and incorporated into the Administrative Code of 1916 Act 2657 as chapter 20 thereof. supplemental appropriations or special tax ordinances. V of the 1935 Constitution "may vote in the plebiscite." whereas. 48 Besides. however. 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. and then in the Administrative Code of 1917 Act 2711 as chapter 18 thereof. under the Constitution. Sections 431 and 432 of said Code of 1917. no more than a provisional or temporary amendment. able to read and write. At this juncture." I believe. by reducing the voting age from twenty-one (21) years to eighteen (18) years. because provisions of a Constitution particularly of a written and rigid one.. V the Constitution. and. but a "partial amendment" of said section 1. respectively. whether 18-year-old members of barrio assemblies may vote in barrio assembly plebiscites is. of "any budgetary. 1927. of prohibition and injunction therein applied for. Act No. hence. 46 pursuant to which the "majority vote of all the barrio assembly members" (which include all barrio residents 18 years of age or over. had the same taken place. prescribing. like ours generally accorded a mandatory status unless the intention to the contrary is manifest. also. V of the Constitution. 44 In all of these legislative acts. for legal purposes. in an assembly plebiscite. are quoted below. duly registered in the list of voters" and " otherwise disqualified . of a denialthereof to those who lacked the requisite qualification and possessed any of the statutory disqualifications. which was partly amended by Acts 1669. or having any of the aforementioned disqualifications. there seems to be a conflict between the last paragraph of said section 6 of Rep. which. pursuant to section 10 of the same Act. passed on January 9. Indeed. persons below twenty-one (21) years of age could not exercise the right of suffrage." just like the provisions of present and past election codes of the Philippines and Art. 45 granting the writs. V of the Constitution was "strongly influenced by the election laws then in force in the Philippines. the question. so that the aforementioned partial amendment was. was amended by Act 3387. which could be amended further. V of the 1935 Constitution. 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. 3590 requires. without a previous amendment of the Constitution. denied such right to those lacking any said qualifications..

.56 "members of all the Barangays (Citizens Assemblies) voted for the adoption of the proposed Constitution. and the term "votes cast" has a well-settled meaning.976. Commission on Elections. or of an entirely new Constitution. in that persons lacking the qualifications prescribed in section 1 of Art. which a intended to be in force permanently.. of unreliability. 65 66 . In fact. such circumstances as alleged by the affected or interested parties. 1102 states that 14. stamp the election returns with the indelible mark of falsity and irregularity. . 53 It has been held that "(t)he power to reject an entire poll . Then. It is similarly inconceivable that those who drafted the 1935 Constitution intended section 1 of Art." 54 In Usman v. and to affect the way of life of the nation and. Yet. 52 have participated and voted in the Citizens' Assemblies that have allegedly ratified the new or revised Constitution drafted by the 1971 Constitutional Convention.. and. If satisfactorily proven.Constitutional Law I L-36142 Constitutional Law I L-36142 a plebiscite. for many decades..." In other words. And. 50 and of whether or not they are disqualified under the provisions of said Constitution and Code. on the question whether or not the people still wanted a plebiscite to be called to ratify the new Constitution. V thereof to applyonly to elections of public officers. but below 21 years. was less than 12 million. as against . 14. V of the Constitution were allowed to vote in said Assemblies. although in a summary proceeding. 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. according to the latest official data.. regardless of whether or not they possessed the other qualifications laid down in both the Constitution and the present Election Code. defying exact description and dependent mainly on the factual milieu of the particular controversy.. 55 We held: Several circumstances." as where "it is impossible to separate the legal votes from the illegal or spurious . lesser qualifications than those prescribed in dealing with ordinary measures for which such plebiscite need not be held. Proclamation No. the 1935 Constitution requires "a majority of the votes cast" for a proposed amendment to the Fundamental Law to be "valid" as part thereof.. 3590. the total number of registered voters 21 years of age or over in the entire Philippines. the proceedings in the Citizens' Assemblies must be considered null and void.. 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. available in January 1973. It is admitted that persons 15 years of age or over." whereas.298.. or. 51 or those of Republic Act No. not to plebiscites for the ratification of amendments to the Fundamental Law or revision thereof. have the effect of destroying the integrity and authenticity of disputed election returns and of avoiding their prima facie value and character. should be exercised . 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 a case where it is impossible to ascertain with reasonable certainty the true vote.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. and justify their exclusion from the canvass.. and permit the legislature to require lesser qualifications for such ratification. 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. et al. at least. too. notwithstanding the fact that the object thereof much more important if not fundamental.869 who voted for its rejection. 743. consequently. such as the basic changes introduced in the draft of the revised Constitution adopted by the 1971 Constitutional Convention.

Under the provisions thereof. by inserting therein said Art. To forestall this possibility. and." Indeed.. if Art. and had been until the abolition of said Department.." The point to be stressed here is the term "independent. paragraph (1) of Art. in amending the original 1935 Constitution. obvious. How should the plebiscite be held? (COMELEC supervision indispensable. with its major characteristics. And the reason therefor is. into the accuracy of the election returns. 956. in effect. And the 1935 Constitution has been consistently interpreted in all plebiscites for the ratification rejection of proposed amendments thereto. Renville County Commissioners. Indeed. was held in Smith v. under the control of the Chief Executive.. to enable the same to perpetuate itself therein.. why was the term used? 67 68 . uniform official ballotsprepared and furnished by the Government and secrecy in the voting. namely. Prior to the creation of the Commission on Elections as a constitutional organ. sometime ago under the control of the President of the Philippines. hence. 65 N. beyond the field allocated to either Congress or courts of justice." 56 The word "cast" is defined as "to deposit formally or officially. for which reason. section 1 provides that "(t)here shall be an independent Commission on Elections . to have been used as an equivalent of "ballots cast. election laws in the Philippines were enforced by the then Department of the Interior. This is but natural and logical.. pursuant to section 10. X thereof. . . ..W. through its Executive Bureau. we had adopted the Australian Ballot System. 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. from 1935 to 1967.. X. and. In simple words. The same like other departments of the Executive Branch of the Government was. since the early years of the American regime. The independence of the Commission was sought to be strengthened by the long term of office of its members nine (9) years. essential requisites) Just as essential as compliance with said Art. would it have been depends upon either Congress or the Judiciary? The answer must be the negative. b. hence. disadvantage. except those first appointed 59 the longest under the Constitution. before the adoption of the 1935 Constitution. by providing that they may not be removed from In short. Hence. because the functions of the Commission "enforcement and administration" of election laws are neither legislative nor judicial in nature.. the viva voce voting in the Citizens' Assemblies was and is null and void ab initio. as to deprive it. on the Commission on Elections. X thereof did not explicitly declare that it (the Commission) is an "independent" body. 58 In the absence of said constitutional provision as to the independence of the Commission. Said functions are by their nature essentially executive. In other words.. said Art. V of the 19 Constitution is that of Art.. also. in turn. if not decisive." 57 It seems to us that a vote is cast when a ballot is deposited indicating a "choice. one of the offices under the supervision and control of said Department. 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 word "cast" means "deposit (a ballot) formally or officially . of the opportunity to defeat the political party in power." . when necessary. we would define a "vote cast" as the exercise on a ballot of the choice of the voter on the measure proposed. with the advantage of keeping records that permit judicial inquiry. XV envisages with the term "votes cast" choices made on ballots not orally or by raising by the persons taking part in plebiscites. the purpose was to make said Commission independent principally of the Chief Executive. 16. for. second only to that of the Auditor General 60. particularly its sections 1 and 2. 64 Minn. the Commission would be under the "control" of the President.Constitutional Law I L-36142 Constitutional Law I L-36142 The term "votes cast" . since the effectivity of said Fundamental Law. VII of the Constitution.

when so required by the Commission. on the other. the proclamation of the results. 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. that the decisions the Commission "shall be subject to review by the Supreme Court" only 61. or exclusion or cancellation from said list and the publication thereof. 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. the proceedings therefor. In many. the Vice-President. save those involving the right to vote. section 2 of said Art. the designation and arrangement of polling places. provincial and files of registered voters. the identification and registration of voters. fundamental and critical features of our election laws from time immemorial particularly at a time when the same was of utmost importance. and. that its chairman and members "shall not. and the jurisdiction of courts of justice in cases of violation of the provisions of said Election Code and the penalties for such violations. provincials and national boards of canvassers." apart from such other "functions which may be conferred upon it by law. or even sought to be given therefor. that "(n)o pardon. 64 Moreover. orders. and the other offices or agencies of the executive department. directly or indirectly. as well as for the inclusion in. owing to the existence of Martial Law." And." It further provides that the Commission "shall decide. In accordance with the letter and spirit of said Art." Not satisfied with this. all administrative question affecting elections. that they may not be reappointed. that their salaries. in the case of election of public officers. be financially interested in any contract with the Government or any subdivision or instrumentality thereof. except by the Supreme Court. orderly. inter alia. on the same plane as the President. if not most. during the continuance in office. And no reasons have been given. the establishment of election precincts. With respect to the functions thereof as a body. none of the foregoing constitutional and statutory provisions was followed by the socalled Barangays or Citizens' Assemblies. Few laws may be found with such meticulous and elaborate set of provisions aimed at "insuring free. including the determination of the number and location of polling places. detailed provisions regulating contributions and other (corrupt) practices. instances. placing them." 63 Thus. the Justices of the Supreme Court and the Auditor General. quoted below. the composition and appointment of board of election inspectors. including. the establishment of municipal. and ruling of the Commission" shall not be subject to review. directly or indirectly. engage in the practice of any profession or intervene. X of the Constitution. and the appointment of election inspectors and of other election officials. otherwise known as the Election Code of 1971. formation of lists of voters. the presentation of the political parties and/or their candidates in each election precinct. some of which are enumerated in sections 5 and 6 of said Act. X of the Constitution. in this respect. and honest election. the counting of votes by boards of inspectors. and honest elections. the rules for the appreciation of ballots and the preparation and disposition of election returns.Constitutional Law I L-36142 Constitutional Law I L-36142 office except by impeachment. Rep. in effect. the election were held a viva voce. on one hand. to forests possible conflicts or frictions between the Commission. parole. shall act as its deputies for the purpose of insuring free. election contests. the particulars of the official ballots to be used and the precautions to be taken to insure authenticity thereof. it declares." as envisaged in section 2 of Art. said Act contains. that "(t)he decisions. in the management or control of any private enterprise which in anyway may affected by the functions of their office. to protect the secrecy of the ballot. orderly. thus depriving the electorate of the right to vote secretly one of the most. nor shall they. the constitution and operation of municipal. including voting booths. the procedure for the casting of votes. 6388. implements the constitutional powers of the Commission on Elections and grants additional powers thereto. Act No. Yet. "shall be neither increased nor diminished during their term of office". or suspension sentence for the violation of any election law may be granted without the favorable recommendation of the Commission" 62. 69 70 . said section 2 postulates that "(a)ll law enforcement agencies and instrumentalities of the Government.

"the plebiscite scheduled to be held on January 15." This specific mention of the portions of the decrees or orders or instructions suspended by General Order No. .." 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. 1973. directing the publication of said proposed Constitution. Gnau." said nothing about the procedure to be followed in plebiscite to take place at such notice. assuming that said Decree is valid. 1972. said General Order No.. at which the proposed Constitution would be submitted to the people for ratification or rejection. that such Citizens' Assemblies "shall consider vital national issues . that the collective views expressed in the Citizens' Assemblies "shall be considered in the formulation of national policies or programs and.Constitutional Law I L-36142 Constitutional Law I L-36142 In Glen v. which shall serve as guide or basis for action or decision by the national government". Presidential Decree No. 73 outlining the procedure to be followed in the plebiscite for ratification or rejection of the proposed Constitution remained in force. 20 necessarily implies that all other portions of said decrees. 20 expressly suspended "the provisions of Section 3 of Presidential Decree No.. . they could with equal propriety dispense with all of them. Upon the other hand. 1973. dated January 7. in the case of bar.. 86 was further amended by Presidential Decree No. and declaring.. 1973 and that the initial referendum include the 71 72 . the provisions of Presidential Decree No. express any opinion) was issued. openly.. 1973. 73 (on the validity of which which was contested in the plebiscite cases. It is claimed that by virtue of Presidential Decree No. 86-A the text of which is quoted below 67 the Executive declared." Indeed. including those specified in paragraph 2 hereof. as well as in the 1972 habeas corpus cases 66 We need not. a referendum on important national issues. 86-A dated January 5. 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. . expressly or impliedly repealing the provisions of Presidential Decree 73. hence. inter alia. 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. temporarily suspending effects of Proclamation No. dated 1973..including the one that the vote shall be by secret ballot.." General Order No. without complying with the requirements of the law pertinent thereto.. and submit the results thereof to the Department of Local Governments and Community Development immediately thereafter." Moreover.. 73 insofar as they allow free public discussion of proposed Constitution . that "(t)he provision of the Election Code of 1971. it was held that the "election officers" involved "cannot be too strongly condemned" therefor and that if they "could legally dispense with such requirement . We are told that Presidential Decree No.. and no other order or decree has been brought to Our attention. ordering "that important national issues shall from time to time. or even by ballot at all . this Decree No. inter alia. orders or instructions and. and others in the future. The provision of Decree No. if the same had been intended to constitute the "election" or Plebiscite required Art. 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. 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. postponing until further notice." As in Presidential Decree No. upon the formal presentation to the Executive of the proposed Constitution drafted by the 1971 Constitutional Convention. 86-B. calling a plebiscite.. shall be translated into concrete and specific decision". or on December 1. 1973. 86-A directing the immediate submission of the result thereof to the Department of Local Governments Community Development is not necessarily inconsistent with. be referred to the Barangays (Citizens Assemblies) for resolution in accordance with Presidential Decree No.. insofar as said procedure is concerned. 86. .. wherever practicable. 1081 for the purposes of free open dabate on the proposed Constitution . like the holding of the plebiscite on the new Constitution . to be held on January 15. 20. and that the Citizens' Assemblies "shall conduct between January 10 and 15. 65 involving the casting of many votes. V of the 1935 Constitution.

And. 1102. The point is that. 207.Constitutional Law I L-36142 Constitutional Law I L-36142 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. 145.. 1102. of the Constitution which can hardly be sanctioned. for it must be remembered that the people act through courts. X of our Fundamental Law which he does not possess..W. Worse still. because should the Court invalidate the proclamation. 11 L. 1091. Saunders v. 55 Pac. in fact. 732. Boynton. acting through the agency of the judiciary. Baughman. as well as that which is usually and ordinarily understood by the term. 24 N. 73 74 . Respondents claim that said proclamation is "conclusive" upon this Court.. they were held under the supervision of the very officers and agencies of the Executive Department sought to be excluded therefrom by Art. to insure the "free. Lewis v. and which. the foregoing directives do not necessarily exclude exercise of the powers vested by the 1935 Constitution in the Commission on Elections. as amended. the former would. the validity of which is precisely being contested by petitioners herein. also. not only because such question is political in nature. or is. moreover. entitled to full faith and credence. owing to the practical indefinite extension of their respective terms of office in consequence of section 9 of the Transitory Provisions. 125 Ind. since the provisions of this article form part of the fundamental scheme set forth in the 1935 Constitution. relying upon Proclamation No. the very premise on which it is predicated. 13 Cal. 86-B is appended hereto as Annex B hereof. 82 Iowa 216.R. every officer under a constitutional government must act according to law and subject to its restrictions. Copy of Presidential Decree No. ratified. XV of the 1935 Constitution has thus been "substancially" complied with. is contested by the petitioners.R. and every departure therefrom or disregard thereof must subject him to the restraining and controlling of the people. Seaman v. and without complying with the provisions of the Election Code of 1971 or even of those of Presidential Decree No. State v. as an enrolled bill. and honest" expression of the people's will.A. said officers and agencies of the 1935 Constitution would be favored thereby. the aforementioned violation thereof renders null and void the contested proceedings or alleged plebiscite in the Citizens' Assemblies. 73. Haynes. 47 N. orderly. 86 and 86-A. insofar as the same are claimed to have ratified the revised Constitution proposed by the 1971 Constitutional Convention. even if the Executive had the authority to repeal Art. ". 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. XVII of the proposed Constitution. What is more. that the proposed Constitution has been. and that the Court refrain from passing upon the validity of Proclamation No. Bouvier's Law Dictionary. 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. without any elections therefor. 170.A.E. as a fact. (a)ll the authorities agree that the legal definition of an election. at least." As in the case of Presidential Decrees Nos. 25 Colo. 486. veto the action of the people in whom sovereignty resides and from its power are derived. 15 Cyc.. found in Art. This is another patent violation of Art. approved or adopted by the "overwhelming" majority of the people. Hirsh. but. in effect. 9 L. or of the adoption or rejection of any public measure affecting the territory involved. that Art. is a choosing or as election by those having a right to participate (in the selection) of those who shall fill the offices. 354. such of the Barrio Assemblies as were held took place without the intervention of the Commission on Elections. The major flaw in this process of rationalization is that it assumes. X of the 1935 Constitution. As the Supreme Court of Minnessota has aptly put it . 279. 1062.

a true copy of aforementioned report of Mr. it is not claimed that the Chief Executive had personal knowledge of the data he certified in said proclamation. and that one Francisco Cruz from Pasig. nor a copy of any "(p)roclamation. transmitted the results of the voting in the to the Department of Local Governments and Community Development. in turn. Rizal. if any. 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. but neither a copy of alleged report to the President. that the president of each such municipal association formed part of a provincial or city association of presidents of such municipal associations. 1102. as President or acting President of the National Association or Federation. acting in a ceremonial capacity. Cruz to the President and of "(p)roclamation. however. Hence. 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." etc. regulation or circular. In the absence of said report. 1102. reported to the President of the Philippines. Secondly. referred to in said Art." has been submitted to this Court. 1973. Proclamation No. in the morning of January 17. 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. whereupon Mr. that Mr.. accordingly. can not possibly have any legal effect or value. of a municipal association of presidents of barrio or ward citizens' assemblies. The record shows. 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. order. The Solicitor General stated. the issue boils downs to whether or not the Executive acted within the limits of his authority when he certified in Proclamation No. order.. as President of said National Association or Federation. the Solicitor General was asked to submit. decree. Accordingly. 1973. instruction. reported said results (tabulated by the Department of Governments and Community Development) to the Chief Executive. decree. creating or directing or authorizing creation. XV as "elections". Cruz. establishment or organization" of said municipal. who. issued Proclamation No. "(p)roclamation. the total result of the voting in the citizens' assemblies all over the country from January 10 to January 15. so that he could possibly have been a member on January 17. 1102 is devoid of any factual and legalfoundation. Art. since the proceedings for the latter are. 1973. also. or revision of the Fundamental Law. which tabulated the results of the voting in the citizens' assemblies throughout the Philippines and then turned them over to Mr. at the conclusion of the hearing of these cases February 16. together with his notes on his oral argument. whether the elections are for the choice or selection of public officers or for the ratification or rejection of any proposed amendment. the conclusion set forth in the dispositive portion of said Proclamation No. 75 76 . in his argument before this Court. Cruz was not even a member of any barrio council since 1972. City or National Association or Federation of Presidents of any such provincial or city associations. hence. and in the resolution of this Court of same date. One department is just as representative as the other. 1973. instruction. . 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. Franciso Cruz." and. decree. instruction. to the effect that the proposed new or revised Constitution had been ratified by majority of the votes cast by the people. provincial and national associations. 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. Moreover. . much less of a Provincial.. which." In this connection. regulation or circular.Constitutional Law I L-36142 Constitutional Law I L-36142 as well as through the executive or the Legislature.

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. James on Const. 69 is not conclusive upon the courts. if and when authorized by law. Conv. ". 126. 77 78 .A. X of the 1935 Constitution places under the "exclusive" charge of the Commission on Elections.) 1221. 71 If prior to the creation of the Presidential Electoral Tribunal. 1906. 74 Inasmuch as Art. The proclamation of the Governor adds nothing in the way of conclusiveness to the legal effect of the action of the canvassing board. "the enforcement and administration of all laws relative to the conduct of elections. no such protest could be filed. the Court may receive evidence and declare. 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. too. such is not the case.Constitutional Law I L-36142 Constitutional Law I L-36142 The theory that said proclamation is "conclusive upon Court is clearly untenable." independently of the Executive. acts of the Executive and those of Congress could not possibly be annulled or invalidated by courts of justice. it was not because the resolution of Congress declaring who had been elected President or VicePresident was conclusive upon courts of justice. 70 If assailed directly in appropriate proceedings. 1102 apart from the fact that on January 17. It is settled law that the decisions of election officers. and the latter statute. "The district court found that the amendment had no in fact been adopted. The correctness of the conclusion of the state board rests upon the correctness of the returns made by the county boards and it isinconceivable that it was intended that this statement of result should be final and conclusive regardless of the actual facts. "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. 523. (4th Ed. 234. upon the same theory.' 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. State v. 45 Wash. 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. Wartz. the Legislature enacted statutes providing for a State Tax Commission and a mortgage registry tax. such as an election protest.. Acting upon the assumption that the amendment had become a part of the Constitution. in order that the true results could be judicially determined. Palmer..) sec. 88 Pac. And so did the court in Rice v. may be duly assailed in court and be the object of judicial inquiry." 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. who was duly elected to the office involved. but because there was no lawpermitting the filing of such protest and declaring what court or body would hear and decide the same." In Bott v. In fact. was held constitutional" by said Court. unless the law declares that the decisions of the board shall be final" and there is no such law in the cases at bar. 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. If it were. This proposed amendment was submitted at the general election held in November. Yet. as it is in the Philippines. It is no more than prima facieevidence of what is attested to by said resolution. 9 L. The case of In re McConaughy 72 is squarely in point. and canvassing boards are not conclusive and that the final decision must rest with the courts. and in due time it was certified by the state canvassing board and proclaimed by the Governor as having been legally adopted. (U. Its purpose is to formally notify the people of the state of the result of the voting as found by the canvassing board. andthere is not even a certification by the Commission in support of the alleged results of the citizens' assemblies relied upon in Proclamation No.R. and on this appeal" the Supreme Court was "required to determine the correctness of that conclusion. Mason. in directproceedings therefor such as the cases at bar and the issue raised therein may and should be decided in accordance with the evidence presented.S. in accordance therewith. 73 the Court reviewed the statement of results of the election made by the canvassing board. So.

On December 23. or on December 17. 1973. Accordingly. Otherwise. VI of the proposed Constitution requires "secret" voting. directing "that the plebiscite scheduled to be held on January 15. 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. 73 was that the President does not have the 79 80 . of the people did not know that the Citizens' Assemblies were. plebiscites for the ratification or rejection of the proposed Constitution. moreover. 1081. 1972. Hence. from deciding the aforementioned cases. temporarily suspending the effects of Proclamation No. require the respondents to file their answers. if not most. for the purpose of free and open debate on the Proposed Constitution. the new or revised Constitution proposed by the 1971 Constitutional Convention was not ratified in accordance with the provisions of the 1935 Constitution. apart from the fact that Art. 1102 is not even prima facie evidence of the alleged ratification of the proposed Constitution. No formal action to this effect was taken until January 7. Congress was. and the plaintiffs their reply." Said General Order No. XV of the Constitution has not been complied with. Besides. should be within their peculiar knowledge is clearly on such respondents. We said. ratified in accordance with said proposed Constitution. the minimum age requirement therein for the exercise of the right of suffrage being eighteen (18) years. for the time being. the burden of proving such defense which. the President had issued an order temporarily suspending the effects of Proclamation No. 1973. Even more important. the logical step would be to give due course to these cases. Citizens' Assemblies. Proclamation No. 20 was issued. "suspended in the meantime" the "order of December 17. if despite the extensive notes and documents submitted by the parties herein. 75 Even counsel for Gil J. 1972. as it was in many Citizens' Assemblies. Referring particularly to the cases before Us. in Our decision in the plebiscite cases. it has not even been. and. Then again. 20. Puyat and Jose Roy. it will be noted that. which was not observed in many. In fact. at the time they were held. to receive the pertinent evidence and then proceed to the determination of the issues raised thereby. thereafter. the President announced the postponement of the plebiscite for the ratification or rejection of the Proposed Constitution. for neither the date nor the conditions under which said plebiscite would be held were known or announced officially.Constitutional Law I L-36142 Constitutional Law I L-36142 from a constitutional and legal viewpoint. who have not so far established the truth of such defense. than the foregoing is the circumstance that there is ample reason to believe that many. we would be placing upon the petitioners the burden of disproving a defense set up by the respondents. if not most. be postponed until further notice. and since the main objection to Presidential Decree No. 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 Court deemed it fit to refrain. when General Order No. as respondents in L-36165. pursuant to the 1935 Constitution. and decisive. 1973. In view of these events relative to the postponement of the aforementioned plebiscite. if true. asserts openly that Art. scheduled to meet in regular session on January 22. 1081 for purposes of free and open debate on the proposed Constitution. 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. and the phrase "votes cast" has been construed to mean "votes made in writing not orally. as pointed out in the discussion of the preceding topic.inter alia: Meanwhile.

among others.] [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. 3. January 11. 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. 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. postponing said plebiscite "until further notice. 2. then. emphasis an additional question. particularly in view of the formal postponement of the plebiscite by the President reportedly after consultation with. 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. this belief is further bolstered up by the questions propounded in the Citizens' Assemblies. Secondly. wise satisfactory. 1973 in accordance with the provisions of the 1935 Constitution? [10] If the elections would not be held. the parties in said cases entertained the same belief. 20 was issued formally. The 82 81 . 1973. 1973. were "plebiscites. according to the theory of the Solicitor General. which Congress unquestionably could do. questions nos. on December 23. apparently. 9." How can saidpostponement be reconciled with the theory that the proceedings in the Citizens' Assemblies scheduled to be held from January 10 to January 15. 73 to be held on January 15. And. neither is the language of question No. as well as to afford the people a reasonable opportunity to be posted on the contents and implications of said transcendental document. the leaders of Congress and the Commission on Elections the Court deemed it more imperative to defer its final action on these cases.Constitutional Law I L-36142 Constitutional Law I L-36142 legislative authority to call a plebiscite and appropriate funds therefor. XV of the Constitution. 1973] To begin with. 1. which the first person. 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. 6. January 10. accelerated. was the "plebiscite" postponed by General Order No." in effect. General Order No. for the ratification of the proposed Constitution? If said Assemblies were meant to be the plebiscites or elections envisaged in Art. 5. 20? Under these circumstances. 1973. 1973. for. And. 10 and 11 are not proper in a plebiscite for the ratification of a proposed Constitution or of a proposed amendment thereto. finds to be good. 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. 4. when do you want the next elections to be called? [11] Do you want martial law to continue? [Bulletin Today. On January 7. after consultation with the Commission on Elections and the leaders of Congress. what. however.

a matter of judicial knowledge that there have been no such citizens' assemblies in many parts of Manila and suburbs. As to our people. Aside from the coordinators we had from the Office of the Governor. In a letter of Governor Efren B. in good conscience. . provided us with enough hands to trouble shoot and implement sudden changes in the instructions anytime and anywhere needed. not to say. in general.. In short..Constitutional Law I L-36142 Constitutional Law I L-36142 approval of the majority of the votes cast in plebiscite is. If the majority of the answers to question No.. particularly of the Department of Education. 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. dealt only on the original five questions. the former reported: . Chiefs of Offices and other government officials to another conference to discuss with them the new set of guidelines and materials to be used. xxx xxx xxx . neither may another plebiscite be held. In either case. the proposed Constitution would have become effective and no other plebiscite could be held thereafter in connection therewith. Indeed.. declare that the proposed Constitution has been approved or adopted by the people in the citizens' assemblies all over the Philippines. their enthusiastic participation showed their preference and readiness to accept this new method of government to people consultation in shaping up government policies.. however. 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. in other parts of the Philippines. the splendid cooperation and support extended by almost all government officials and employees in the province. when we received an instruction on January 10 to change the questions.. Thirdly. to discuss with them the new set of guidelines and 83 84 . Pascual of Bataan. 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.. Thus. 8 were. the Bataan officials had to suspend "all scheduled Citizens' Assembly meetings .. essential for an amendment to the Constitution to be valid as part thereof. also. also." and call all available officials ".. when it is. 7 were in the affirmative. Consequently. With this latest order. to my mind. as late as January 10. we urgently suspended all scheduled Citizens Assembly meetings on that day and called all Mayors. in the affirmative. 1973. I can not. PC and PACD personnel. If the majority of the answers to question No. . . .. even if the majority of the answers to question No. if the proceedings in the Citizens' Assemblies constituted a plebiscite question No.. 1973. On January 11. to the Chief Executive. 7 were in the negative. Our initial plans and preparations.. however. even if the majority of the answers to question No. 8 would have been unnecessary and improper. 8 were in the affirmative.. dated January 15. regardless of whether question No.. not more than one plebiscite could be held for the ratification or rejection of the proposed Constitution.. 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.. 7 were answered affirmatively or negatively.

have. 78 that "a court is not at liberty to shut its eyes to an obvious mistake." In the light of the foregoing. another instruction from the top was received to include the original five questions among those bediscussed and asked in the Citizens' Assembly meetings. 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. by their acts or omissions. As to our people. rigid Constitution with a republican system of Government like ours the role of that Department is inherently. expressly or impliedly. one can easily imagine the predicament of the local officials and people in the remote barrios in northern and southern Luzon. under the Constitution drafted by the 1971 Constitutional Convention.Constitutional Law I L-36142 Constitutional Law I L-36142 materials to be used . gather that respondents refer mainly to the offices under the Executive Department. that the political department of the Government has recognized said revised Constitution. . the latter performs some functions which. such as in recognizing a new state or government. but are either imprecise or silent on the particular measures to be resorted to in order to achieve the said goals or delegate the power to do so. in general. indicated their conformity thereto. including those of their immediate families and their household. 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 . 2) that the assemblies would involve no more than consultations or dialogues between people and government notdecisions be made by the people. as a nation. 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. were not even notified that citizens' assemblies would be held in the places where their respective residences were located. With this latest order." In line with its own pronouncement in another case. 1973. the Federal Supreme Court of the United States stressed. . although duly registered voters in the area of Greater Manila. "on January 11 . when the validity of the law depends upon the truth of what is declared. that our foreign relations are being conducted under such new or revised Constitution. 1973. once the proposed Constitution shall have been ratified. their enthusiastic participation showed their preference and readiness to accept the new method of government to people consultation in shaping up government policies. and 3) that said consultations were aimed only at "shaping up government policies" and. 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. basically and fundamentally executive in 85 86 .. in general..." This communication manifestly shows: 1) that. notwithstanding. from a constitutional viewpoint. . In a sense. they wish to have. but the making of decision by the people on the new way of life. In fact. since January 17. to the Executive. If this was the situation in Bataan one of the provinces nearest to Manila as late as January 11. in accepting diplomatic representatives accredited to our Government. In the Prohibition and Amendment case. are politics in nature. in the Visayan Islands and Mindanao... Acts of Congress which define the goals or objectives thereof. and even in devising administrative means and ways to better carry into effect.. in the Bicol region. we again had to make modifications in our instructions to all those managing and supervising holding of the Citizens' Assembly meetings throughout province. Carr. what to do therein and even what questions or topics to propound or touch in said assemblies." Then. Whatever may be the functions allocated to the Executive Department specially under a written. as late a January 11.. and that the people. As regards the so-called political organs of the Government. and did not. 1971.. I cannot see how the question under consideration can be answered or resolved otherwise than in the negative. the political organ of a government that purports to be republican is essentially the Congress or Legislative Department. hence could not. that the Legislative Department has recognized the same. This. several members of the Court. in Baker v.

1902. this Court having preferred to maintain the status quo in connection therewith pending final determination of these cases. again. by virtue of the very decrees. pursuant to the 1935 Constitution.. orders and instructions issued by the President thereafter.". in which the effectivity of the aforementioned Constitution is disputed. under its provisions. the case of Taylor v.. under whose supervision and control he or it is. except the power of supervision over inferior courts and its personnel. 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. but by other sectors of the Government. as directed thereby".. the former merely obeys the latter.". much less necessarily or even normally. The "individual oaths of its members to support it. was not submitted to the people for ratification or rejection thereof. 1081 placing the Philippines under Martial Law. if he or it acted otherwise. Then. not by the convention itself." Note that the New Constitution of Virginia. I am not prepared to concede that the acts the officers and offices of the Executive Department. the Legislature not merely by individual acts of its members. which said proposed Constitution would place under the Supreme Court. But. July 15. Whether they recognized the proposed Constitution or acquiesce thereto or not is something that cannot legally.. since September 21. recognizing the Constitution ordained by the Convention . for instance. 4. and by voting.". 1102. 1102. because the are bound to obey and act in conformity with the orders of the President. under whose "control" they are. consequently.Constitutional Law I L-36142 Constitutional Law I L-36142 nature to "take care that the laws be faithfully executed. at a general election for their representatives in the Congress of the United States. Strictly speaking. he had assumed all powers of Government although some question his authority to do so and. The "judiciary in taking the oath prescribed thereby to support it and by enforcing its provisions . be deduced from their acts in accordance therewith. and 5. The result of the work of that Convention has been recognized. The "people in their primary capacity by peacefully accepting it and acquiescing in it. Thus. 79 Consequently. and from a legal and constitutional viewpoint. there is hardly anything he has done since the issuance of Proclamation No. 3. The "Legislature in its formal official act adopting a joint resolution. in legislating under it and putting its provisions into operation . except as to some minor routine matters. would just be guilty of insubordination. Besides. Accordingly. it was recognized.. when a subordinate officer or office of the Government complies with the commands of a superior officer or office. a given department of the Government cannot generally be said to have "recognized" its own acts. 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. which the Department of Justice has continued to handle. drafted by a convention whose members were elected directly by the people. and by its having been engaged for nearly a year. the Governor. Recognition normally connotes the acknowledgment by a party of the acts of another. and which the President has not ostensibly exercised." in the language of our 1935 Constitution. Indeed. They have absolutely no other choice. the lower officer or office. there is no act of recognition involved therein. 1972. specially in view of Proclamation No. on January 17. namely. in line with Proclamation No. connote a recognition thereof o an acquiescence thereto. The "Governor of the State in swearing fidelity to it and proclaiming it. 2. accepted and acted upon as the only valid Constitution of the State" by 1.. 87 88 . by registering as voters under it to the extent of thousands throughout the State.

1973. Under these conditions. and there is no such law in the Philippines. What is more. by filing written statements opting to serve in the Ad Interim Assembly established in the Transitory Provisions of said Constitution. and members of Congress. are invalid as acts of said legislature or bodies. 1972. placing the entire Philippines under Martial Law. 1102 declaring on January 17. none of the foregoing acts of acquiescence was present. offset or dissipated by the fact that. which may result in the exercise by me of authority I have not exercised. acquiescence in or conformity with the provisions of the aforementioned Constitution. 1102. constitutes or attests to a ratification. if bent on discharging their functions under said Constitution. and their compliance with a number of Presidential orders. there is martial law. neither am I prepared to declare that the people's inaction as regards Proclamation No. 81 Indeed. or three (3) days after the issuance of Proclamation No. 82 likewise. that the proposed Constitution had been ratified despite General Order No. when L-36142 was filed. especially because of Proclamation No. 1081. if the members of Congress were generally agreeable to the proposed Constitution. the same paper imputed to the Executive an appeal "to diverse groups involved in aconspiracy to undermine" his powers" under martial law to desist from provoking a constitutional crisis . Worse still. theoretically. 73 calling a plebiscite to be held on January 15. as well as of other collegiate bodies under the government. 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. 1973. 20. the idea implied therein was too clear anominous for any member of Congress who thought of organizing. by the judiciary. on its front page. or unless the law provides otherwise. on the other. in the various ways specified above. was impugned as early as December 7." The Daily Express of that date. on the one hand. immediately after a conference between the Executive. Individual acts of recognition by members of our legislature. the members of Congress. For the same reasons.. headlined. I do not feel justified in holding that the failure of the members of Congress to meet since January 22.. 1973. not to get the impression that he could hardly do so without inviting or risking the application of Martial Law to him. whereas the validity of Proclamation No. 1973. The force of this argument is. In the cases under consideration. adoption or approval of said Proclamation No. 1973. some of whom expressed the wish to meet in session on January 22. 1102. and complied with by the people who participated in the elections held pursuant to the provisions of the new Constitution. 1973. a "Senatorial Plot Against 'Martial Law Government' Disclosed". 1972. 1102. the legality of Presidential Decree No. or its alleged ratification. in the Taylor case. could have met in any other place. In the 89 90 . unless its members have performed said acts in session duly assembled.Constitutional Law I L-36142 Constitutional Law I L-36142 but by formal joint resolution of its two (2) chambers. however. as provided in the 1935 Constitution. 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. 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 building in which they perform their duties being immaterial to the legality of their official acts. and no plausible reason has been adduced to warrant departure therefrom. on or about December 27. Then. To top it all. This is a well-established principle of Administrative Law and of the Law of Public Officers. issued on January 7. and thereafter as provided in the 1935 Constitution? It is true that. why did it become necessary to padlock its premises to prevent its meeting in session on January 22. the strict enforcement of which was announced shortly before the alleged citizens' assemblies. in its issue of December 29. In the present cases. decrees and/or instructions some or many of which have admittedly had salutary effects issued subsequently thereto amounts. there was no martial law. 1972. was due to their recognition. holding or taking part in a session of Congress." No matter how good the intention behind these statement may have been. or five (5) weeks before the scheduled plebiscite. and by the people. 1972. formally and officially suspending the plebiscite until further notice was impugned as early as January 20.

to this extent. 1102 merit less consideration than in enrolled bill? Before answering this question. as good as non-existent. a certification. for which reason the officers of the Association. This is specially so when we consider that the masses are. instead of being certified by the aforementioned officers of Congress. hence. but not without warning that he may or would use it if he deemed it necessary. 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. After citing approvingly its ruling in United States v. according to Article X of the Constitution. be worth the paper on which it is written. reasonable and wholesome attitude of the person who has the gun. Worse still. meantcoercion by the military. which even prepared the draft of said legislation. its aforementioned president whose honesty and integrity are unquestionable were present at the deliberations in Congress when the same approved the proposed legislation. and inaction or obedience of the people. if any. VI Are the Parties entitled to any relief? 91 92 . is not necessarily an act of conformity or acquiescence. As regards the applicability to these cases of the "enrolled bill" rule. the so-called enrolled bill were certified by. particularly. 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. the President of the Association of Sugar Planters and/or Millers of the Philippines. that the people impliedly or expressly indicated their conformity to the proposed Constitution. "martial law connotes power of the gun. Why? Simply. this: If the enrolled bill is entitled to full faith and credence and. why should Proclamation No. the new form of government introduced in the proposed Constitution. roughly. the answer would have to be in the negative. Similarly. and that even experienced lawyers and social scientists find it difficult to grasp the full implications of some provisions incorporated therein. 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. therefore. would the enrolled bill rule apply thereto? Surely. and attested to by the Secretary of the Senate and the Secretary of the House of Representatives. by and large. and the measure in question were a proposed legislation concerning Sugar Plantations and Mills sponsored by said Association. The argument of the Solicitor General is. say. either pointed at others. to tabulate the results thereof. unfamiliar with the parliamentary system. and compulsion and intimidation. his certification is legally. 84 the Highest Court of the United States that courts "willnot stand impotent before an obvious instance of a manifestly unauthorized exercise of power. should not and must not be all participate in said plebiscite if plebiscite there was. hence.Constitutional Law I L-36142 Constitutional Law I L-36142 words of the Chief Executive. it is the department which. the intimidation is there. I would like to ask the following: If. without pulling the trigger. as well as lobbied actually for its approval. under these conditions." 83 The failure to use the gun against those who complywith the orders of the party wielding the weapon does not detract from the intimidation that Martial Law necessarily connotes. concerning legislative measures approved by the two Houses of Congress. legally and constitutionally. it is conclusive upon the President and the judicial branch of the Government. or merely kept in its holster. Still. 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." 85 I cannot honestly say. It may reflect the good. Sandoval. and. with the particularity that it is not even identical to that existing in England and other parts of the world. because said Association President has absolutely no official authority to perform in connection therewith.

respondents had cautioned against a judicial inquiry into the merits of the issues posed on account of the magnitude of the evil consequences. for all intents and purposes. namely. 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 the documents filed in support thereof so numerous and bulky. This was due to the transcendental nature of the main issue raised. either view. submitted have been so extensive and exhaustive. beyond the ambit of judicial inquiry and determination. despite the fact that technically the Court has not. Accordingly. that. Hence. The parties in the cases at bar were accordingly given every possible opportunity to do so and to elucidate on and discuss said question. Antonio and Esguerra filed separate opinions favorable to the respondents in the plebiscite cases. the situation is as if disregarding forms the petitions had been given due course and the cases had been submitted for decision. If this defense was sustained. which would result from a decision thereon. however. Still one of the members of the Court (Justice Zaldivar) was of the opinion that the aforementioned issues should be settled in said cases. President and President Pro Tempore respectively of the Senate. and the main defense set up by respondents herein. and they have done so in their individual opinion attached hereto. formally given due course to the petitions herein. L-36236 and L-36283. my vote is that the petitions therein should be given due course. that the judiciary will not issue such writ to the head of a co-equal department. L-36164. consequently. placing the same. three (3) members of the Court Justices Barredo. the necessity of deciding the same with utmost dispatch. a reasoned resolution was demanded by public interest. apart from hearing the parties in oral argument for five (5) consecutive days morning and afternoon. At the same time. a few words be said about the procedure followed in these five (5) cases. like the aforementioned officers of the Senate." 86 When the petitions at bar were filed. as yet. it is clear that we should not issue the writ of mandamus prayed for against Gil J. which were dismissed as moot and academic. As a matter of fact. although before the rendition of judgment therein. there being more 93 94 . the same three (3) members of the Court. the cases could readily be dismissed. The majority of the members of the Court did not share. voted for the dismissal of said petitions. oral and written. here are my views on the reliefs sought by the parties. or a total of exactly 26 hours and 31 minutes the respective counsel filed extensive notes on their or arguments. 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. it being settled in our jurisdiction. and he. Instead. Puyat and Jose Roy. as well as set the same for hearing.Constitutional Law I L-36142 Constitutional Law I L-36142 Before attempting to answer this question. 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. In L-36165. and reply notes or memoranda. In this connection. some of those issues had been raised in the plebiscite cases. 1102 subsequently to the filing of said cases. And. or as required by the Court. in addition to rejoinders thereto. the alleged political nature of said issue. owing to the importance of the questions involved. In all other respects and with regard to the other respondent in said case. as well as in cases L-36142. filed an opinion passing upon the merits thereof. accordingly. 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. now. aside from a sizeable number of document in support of their respective contentions. but. the resume of the votes cast and the tenor of the resolution. The arguments. owing to the issuance of Proclamation No. On the other hand. as well as on such additional arguments as they wished to submit. in the last pages hereof. Thus. based upon the theory of separation of powers. it was claimed. if adverse to the Government. 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. according to respondents.

Has the aforementioned proposed Constitution acquiesced in (with or without valid ratification) by the people? 4. statesmanship should not prevail over the Rule of Law. cannot prevail over the latter. X and XV of the 1935 Constitution and the provisions of the Revised Election Code in force at the time of such plebiscite. it was agreed to synthesize the basic issues at bar in broad general terms in five questions for purposes of taking the votes. to accomplish under the old dispensation. Justices Makalintal and Castro did not vote squarely on this question. stating that "inasmuch as it is claimed there has been approval by the people. in the affirmative. qualifications and modifications as he may deem proper. only inferentially. substantially. if not probability. Zaldivar. or has been acquiesced in by the people or majority thereof. Is the aforementioned proposed Constitution in force? The results of the voting. Indeed. but. Castro. with the concurrence of his colleagues. in 95 96 . Are petitioners entitled to relief? and 5. It should be stated that by virtue of the various approaches and views expressed during the deliberations. question? 2." though consistent with Rule of Law. Teehankee and myself. after the submittal by the members of the Court of their individual opinions and/or concurrences as appended hereto. Among consistent ends or consistent values.Constitutional Law I L-36142 Constitutional Law I L-36142 than prima facie showing that the proposed Constitution has not been ratified in accordance with Article XV of the 1935 Constitution. Is the issue of the validity of Proclamation No. premised on the individual views expressed by the members of the Court in their respect opinions and/or concurrences." whatever may be the meaning of such phrase. I am aware of this possibility. either strictly. or six (6) members of the Court. 1102 a justiciable. and that the 1935 Constitution is still the Fundamental Law of the Land. as well as discuss thereon other related issues which he may consider vital and relevant to the cases at bar. but "judicial statesmanship. or political and therefore non-justiciable. The five questions thus agreed upon as reflecting the basic issues herein involved are the following: 1. the Court should keep hands-off out of respect to the people's will. are as follows: 1. Justice Barredo qualified his vote. But. We must realize that the New Society has many achievements which would have been very difficult. Perhaps others would feel that my position in these cases overlooks what they might consider to be the demands of "judicial statesmanship. Resume of the Votes Cast and the Court's Resolution As earlier stated. 1102 presents a justiciable and non-political question. but. the Court may inquire into the question of whether or not there has actually been such an approval. and. a resume or summary of the votes cast by each of them. there always is a hierarchy. if not strict. hold that the issue of the validity of Proclamation No. Has the Constitution proposed by the 1971 Constitutional Convention been ratified validly (with substantial. that said proposed Constitution is not in force and effect. if not impossible. the writer will now make. a rule of priority. Fernando. fundamental and essential parts of statesmanship itself. 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. in and for the judiciary. compliance) conformably to the applicable constitutional and statutory provisions? 3. 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. On the first issue involving the political-question doctrine Justices Makalintal. in their discussion of the second question. the primacy of the law or of the Rule of Law and faithful adherence thereto are basic.

is the basic and ultimate question posed by these cases to resolve which considerations other than judicial. On the second question of validity of the ratification. Antonio and Esguerra hold that "the people have already accepted the 1973 Constitution. I am constrained to hold that. Justice Makalintal and Castro so voted on the strength of their view that "(T)he effectivity of the said Constitution." 91 97 98 . Makasiar. On the fourth question of relief. Justices Makalintal and Castro are joined by Justice Teehankee in their statement that "Under a regime of martial law. in the final analysis. 3. On the third question of acquiescence by the Filipino people in the aforementioned proposed Constitution. the people may be deemed to have cast their favorable votes in the belief that in doing so they did the part required of them by Article XV. i.Constitutional Law I L-36142 Constitutional Law I L-36142 negative. Zaldivar." 88 Three (3) members of the Court express their lack of knowledge and/or competence to rule on the question. no majority vote has been reached by the Court. 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. the Court may determine from both factual and legal angles whether or not Article XV of the 1935 Constitution been complied with. namely. which provides only one way for ratification. an therefore beyond the competence of this Court.e. namely. 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. specially in the manner the votes therein were cast. by the people qualified to vote all over the Philippines. Antonio. "in an election or plebiscite held in accordance with law and participated in only by qualified and duly registered voters." Justices Makasiar. namely. 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. after all. which is what counts most. Castro. six (6) members of the Court. Antonio and Esguerra. and. Antonio and Esguerra voted to DISMISS the petition. Justices Makalintal. with the free expression of opinions through the usual media vehicle restricted. section 1 of the 1935 Constitution. in effect. it may be said that in its political aspect. reported and canvassed. Four (4) of its members. or three (3) members of the Court hold that the issue is political and "beyond the ambit of judicial inquiry." 89 4. the referendum in the Citizens' Assemblies. Makasiar. Fernando." 2. hence. a new Constitution once accepted acquiesced in by the people must be accorded recognition by the Court. Teehankee and myself. if not in the orthodox legal sense. of their acceptance or repudiation of the proposed Constitution under Martial Law. Castro. 87 Justice Barredo qualified his vote. to the point of judicial certainty. whether the people have accepted the Constitution. and there has even been no expression. falls short of the requirements thereof. Barredo. I still maintain that in the light of traditional concepts regarding the meaning and intent of said Article. 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.90 are relevant and unavoidable. Esguerra. in the political sense.. said Article has been substantially complied with. Justices Makalintal." Two (2) members of the Court. (they) have no means of knowing. stating that "(A)s to whether or not the 1973 Constitution has been validly ratified pursuant to Article XV. however. 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. In view." Justices Makasiar. Justice Zaldivar and myself hold that there can be no free expression. the 1973 Constitution has been constitutionally ratified. Justices Barredo.

259. Wurtz. Justices Barredo. 10 L.W. Tecumseh National Bank V. R. Four (4) members of the Court. State v. 423). 34 Mont. 102 Am. namely. 543. Timme.R. Hill. 51 Neb. Law. 801. State v. 677. 779. [N.A. 738. Cook. On the fifth question of whether the new Constitution of 1973 is in force: Four (4) members of the Court. 34. Castro. 45 L. 169. Makalintal. 59 N. 87 Pac. 104. 422. 77 Miss.A. 104. concur. 51 L. Winnett [Neb. In re Denny.14 N. 23 N. Antonio and Esguerra with the four (4) dissenting votes of the Chief Justice and Justices Zaldivar.S. Castro. 22 Minn. 400.E.R.R. 722. 130.. Lobaugh v.E. 96 S. 722. Justices Makalintal.. 450. Makasiar. 396. In re Denny. 927. State v.] 110 N. Teehankee and myself voted to deny respondents' motion to dismiss and to give due course to the petitions. 426. Green v.R. Knight v.J. 891. 74 Pac. 99 100 . It is so ordered. with the result that there are not enough votes to declare that the new Constitution is not in force. 359. 59 N. Palmer.Constitutional Law I L-36142 Constitutional Law I L-36142 Four (4) members of the Court. Fernando. 359. within the constitutional requirement that every amendment must be separately submitted (State v.A. 54 Wis. 432.W. 84. 63 N. JJ. 46 Ohio St. namely. 785. 369. St. 181. Justice Zaldivar and myself voted that the Constitution proposed by the 1971 Constitutional Convention is not in force. 5 Idaho. 609. 171 Mo. 49l.W. This being the vote of the majority. Foraker. 6 L. Board. 102 N. 127 Iowa.W. Makasiar.A. Bott v. 289. 543.A. Antonio and Esguerra hold that it is in force by virtue of the people's acceptance thereof. Saunders. Makasiar.R. all the aforementioned cases are hereby dismissed. and Two (2) members of the Court. ACCORDINGLY. submission. It has been judicially determined whether a proposed amendment received the constitutional majority of votes (Dayton v. Barredo. or ratification of constitutional amendments. 5. whether a proposed amendment is a single amendment. Rep. Powell. Chicago. Paul. 27 South. Antonio and Esguerra. Justices Zaldivar. State Board. 95 Am. 31 Colo. 167. Castro. 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. 744.] 134 Fed. 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. 318. etc. namely. 47 Pac. 11 N. Gabbert v.W. St. Co. Barredo.C. 43 Atl.W. Rice v. 78 Ark. People v. Sours. 1121. 71 N.W. 156 Ind. 70 S. namely. Fernando and Teehankee.W.] 149). 1113. 251.E.15 N.. by virtue of the majority of six (6) votes of Justices Makalintal. 156 Ind. 60 Iowa. 881. whether the failure to enter the resolution of submission upon the legislative journals invalidates the amendment (Koehler v. there is no further judicial obstacle to the new Constitution being considered in force and effect. 51 L. Rep. State v. Shelton [C. St.

or whether the Legislature. and that the action cannot be questioned by the judiciary. v. 1113. 78.' "In State v. 4 Mo. 50 L. 354. 765. or these requisitions enjoined. 69. 849. Edward Lesueur. 19 Nev. it was held that a Constitution can be changes only by the people in convention or in a mode described by the Constitution itself. by the authority of legislation to a Constitution already in existence. at what election the amendment be submitted (People v. except the Constitution of the United States. 3. L. at any time. In re State v. 132 Mo. 62 Pac. 196 Pa.R. Dec. 835. 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.W. Winnett [ Neb. 396. 24 Ala. and not judicial. 410.S. 47 Pac. Attorney General [Mich. and that it was the duty of the court to determine whether all prerequisites had been complied with. they can do it only by the method pointed out by the Constitution to which the amendment is added. 303. InCollier v. 505. 154. 505." says the court.. 396. Frierson. whether the submission may be well by resolution as by a legislative act approved by the executive (Com..R. The amendment must first receive the requisite majority in the Legislature.A. and that if the latter mode is adopted every requisite of the Constitution must be observed. before a change can be effected. The power to amend a Constitution by legislative action does not confer the power to break it. whether the description of the amendment and the form of the ballot are sufficient (Russell v. if the Legislature or any other department of the government can dispense with them. 33 S. 69 Ind. Griest.W. In Rich v. it was held that the General Assembly. or abrogate an old one and form a new one. but if they undertake to add an amendment. Croy. To do so would be to violate the instrument which they are sworn to support. 50 L. v. that it is within the power of the judiciary to inquire into the question. with reference to the conditions precedent to submitting a proposed amendment to a vote of the people. it was held that noamendments can be made to the Constitution of the state without a compliance with the provisions thereof. 636.' So. 130 Cal. Croy. could change the Constitution only in the manner prescribed by it. West v. it was said that: 'The people of a state may form an original Constitution. 50 Fla. Croy. 412. 183. 391. by courts of the highest respectability. but. Russell v. 81. v. 6 N. Curry. 63 S. Hays v. 1130. [N. 318. 418. 39 South. 69. without any political restriction. 505. 101 Md. State v. 34 L. Dahl. 101 102 ." "In considering the cases it is necessary to note whether in the particular case the court was called upon to determine between rival governments. One prerequisite is equally as essential as the other. 10 S. 479. The courts have not all agreed as to the strictness of compliance which should be required. 458..W. 63 S.A. Harper. Swift.W. 44. 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. 71 N. 164 Mo. . it follows that the promulgation of any purported amendment by the executive or any executive department is final.] 110 N.W. 849). 82.W. 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. 516). 127). 31 L. had legally performed the duty imposed by the Constitution or statutes. power. State v. State. 63 S. Ferguson. 164 Mo.D. . 815. 785. 97).] 112 N. 164 M 69. 6 N. If this be so.. 60 Atl. 154. 732.W.] 149. 69 Cal. Hilton. Durfee v. Timme.D.A. McBride. 100. Warfield vi Vandiver. 56 Pac.Constitutional Law I L-36142 Constitutional Law I L-36142 Oakland Paving Co. 11 Pac. 'It has been said.R.W. St. it has been repeatedly held. Rep. or some board or official. 46 Atl.A.W. but to what purpose are these acts required. It is the fact of a majority vote which makes the amendment a part of the Constitution. even in a collateral proceeding. 22 Mont. "that certain acts are to be done. 196 Pa. Board of Canvassers. Murphy Chair Co. Tufly. 538. whether the method of submission sufficient (Lovett v. 100 Mich. whether the publication of the amendment or of a notice relative to it is sufficient (Com. in State v. Griest. 895). State v.R.W. 11 N. 3 Am. Hays. under the power granted by the Constitution. 12 Pac. 56. v. 54 Wis. certain requisitions are to be observed. and afterwards be adopted by the requisite vote. 849). Russell v. 5 Idaho. any more than it confers the power to legislate on any other subject contrary to its prohibitions. 59 N. 568. both in the passage of such amendment by the Legislature and the manner of submitting it to the people..R. 568. 46 Atl. 29 Am.

This liberal view was approved in State v. to change the Constitution in an other mode than by a convention. After approving the statement quoted from Collier v. the universal prior acquiescence in the same forms of procedure and the popular and unchallenged acceptance of the legal pendency before the people of the question of the amendment for decision. 167. to inquirewhether. But it has not been universally accepted.S.W. 15 N. an amendment thereto. and based on premises which are without any sound foundation. The Supreme Court of Colorado. "In Oakland Paving Co. Hilton. and the result declared as fully as though it had been in terms so ordered. the provisions of the existing Constitution have been observed. 36 Pac.A. 700. 369. in People v. 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. where the existing Constitution prescribes a method for its own amendment. to be valid. As to the claim that the question was political. Winnett (Neb. 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. count.W. 1064. every requisite which is demanded by the instrument itself must be observed. St. and canvassed.' 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. and was held that. This case was followed in State v. v. 312. restrained the Secretary of State from taking steps to submit to the people a proposed amendment to the Constitution agreed to by the Legislature on the ground that the Legislature had not acted in conformity with the Constitution and that the proposed amendment was of such a character that it could not properly become a part of the Constitution. 75 Pac. and not judicial. Frierson. (N. 543. and it is theduty of the courts in a proper case. 250. supra. it was said that. that 'we entertain no doubt that. All these casesconcede the jurisdiction of the court to determine whether.Constitutional Law I L-36142 Constitutional Law I L-36142 "In the Prohibition and Amendment Case. and rests merely on assumption. become a part of the Constitution. Sours. 102 Am. which concededly had been adopted by the people. 11 Pac. 1113. But the existing election machinery was adequate. 479. Waite. and. 31 Colo. conceding the irregularity of the proceedings the Legislature and the doubtful scope of the provisions for the election. 69 Cal. the court determined judicially whether an amendment to the Constitution had been legally adopted. Neither the argument nor the conclusion can command our assent or approval. 60 Iowa. 3.W. It did not declare that the machinery of the general election law should control. as required by the Constitution. 738. 424. before its submission. and it was held that this was a material variance in both form and substance from the constitutional requirements. Rep. "The entire question received elaborate consideration in Koehler v.) 110 N. 113 Iowa. Brookhart. also.R. the court. had not.' See. Portland. 84 N. it must be adjudged that the proposed amendment became part of the Constitution. 113. yet in view of the very uncertainty of such provision the past legislative history of similar propositions. refused to exercise this authority. These methods had been followed in the adoption of previous amendments. in the adoption of the amendment. been entered in full upon the legislative journals. The argument isillogical. Hill. 34. counted. 103 104 . 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. butcontrary to them. 74 Pac. in submitting a proposed amendment to the people. when an amendment does not relate to their own power or functions. 14 N. if not. 609. the court. 24 Kan. therefore. and the votes were received. or that any particular officers or board would receive. In Livermore v.) 149. and the omission of any one is fatal to the amendment. 102 Cal. yet.A.R. 222. 10 L. 'as substance of right is grander and more potent than methods of form.' the court held that. Sours. supra. 44 Or. must be adopted in strict conformity to that method. Pac. and not mandatory. to declare the amendment invalid and of no force. 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. 25 L. and that the amendment did not. the well-considered case of Kadderly v. and from which they derive their powers. the Legislature legally observed the constitutional provisions as to the manner of procedure. 118. 710. The amendment. 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. at the instance of a citizen and a taxpayer. or canvass the votes cast. and People v.

27 South. but. that 21. as it appeared from the returns made to the Secretary of State. 43 Atl. judiciary. or any of them. the amendment. as the people had spoken and ratified the amendments. if they had been voted upon the second in the form adopted by the first body.W. Wurtz. this section of rules. People. imposed on us a most difficult and embarrassing duty. questions. and certainly a legislative one. The next Legislature rejected 9 and adopted 8 of the amendments. 77 Miss. Powell. and when the matter is thus concluded it is closed.J. In the particular instance in which we are now acting. to be determined by the courts. and not political. and it did not receive a majority of all the qualified voters voting at the election. as required by the Constitution. 289. and not political. McIver. escape the exercise of that jurisdiction which the Constitution has imposed upon us. if we would. they became a part of the Constitution. 744. "If it shall appear" to the Legislature that its question has been answered in the affirmative.whether the submission was according to the requirements of the Constitution.' But it was held that the question whether the proposition submitted to the voters constituted one. according to the letter and spirit of the Constitution.Constitutional Law I L-36142 Constitutional Law I L-36142 "In University v.C." "In Bott v. it was held that it was the duty of the judicial department of the government to 105 106 . inserted into the Constitution of the state of Mississippi as a part of the Constitution. 6 N. The court held that the power of the Legislature in submitting amendments could not be distinguished from the powers of convention. 881. and in accordance with our oaths to support and maintain it in its integrity. it had been legally submitted and adopted. The amendment under consideration changed the Constitution by providing for an elective. as the amendment under consideration had been submitted after the Constitution been changed. but of final judgment as well. Whether the question be political. The substance of the contention was that there had not been a concurrence of the two Legislatures on the same amendments. "In Westinghausen v. 251. 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. 45 L. 'We do not. the question whether a proposed amendment to the Constitution had been legally adopted was treated as a judicial question.A. and whether the proposition was in fact adopted. instead of an appointive. Thequalified electors answer back to the Legislature. were all judicial. The Governor and the courts have no authority to speak at any stage of the proceedings between the sovereign and the Legislature. consider. By the Constitution a proposed amendment was required to be approved by Legislatures before its submission to the people. the amendment was not submitted in the manner prescribed by the Constitution. 44 Mich. "In State v. 'seek a jurisdiction not imposed upon us by the Constitution. and 8. In this instance a bill was passed which contained 17 amendments.R. and the judiciary is as powerless to interfere as the executive. Law. it would have adopted the 17. in its nature. 543. It was contented that the amendments had been improperly submitted and adopted by a majority of the qualified voters voting at election. 76. We could not. our duty to know what the Constitution of the state is. confides to the separate magistracy of the legislative department fullpower to hear. but one which. It was argued that the rules prescribed by the Constitution "are all for the guidance of the Legislature. the question whether an amendment to the Constitution had been legally submitted and adopted by the people was held to be judicial.' said Chief Justice Whitfield.' In fact. The Legislature puts the question to the qualified electors. or judicial. and that. The law did direct how the result of the election should be determined. should approved by both Legislatures. 641. one which we have not sought. and submitted them to the people. and hereby is.643 votes against. The Legislature by joint resolution recited that the election had been duly held throughout the state. and. and adjudge that question.169 votes were cast in favor of. 72 N. 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 it was contended that the Constitution contemplated and required that the same bill and the same amendments. 265. The majority of the people voted for their adoption. the amendment is inserted and made a part of the Constitution. amendment. or more than one. must be discharged. 63 N. like all others. 927. it resolved 'that said amendment be. without change. not only of procedure. and that it did not follow because the second Legislature adopted separately 8 out of 17 amendments adopted by the first Legislature.

and not judicial. unless it be true. and it is found in many dissenting opinions. 396." ANNEX B MALACAÑANG MANILA BY THE PRESIDENT OF THE PHILIPPINES PRESIDENTIAL DECREE NO. 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. it was held that the constitutional requirement of publication of a proposed constitutional provision for three months prior to the election at which it is to be submitted to the people is mandatory and that noncompliance therewith renders the adoption of an amendment of no effect. and made it the duty of the Governor at the designated time summon four or more Senators. the court observed: "The argument has often been made in similar cases to the courts. it is not found in any prevailing opinion. 8. Palmer. reversed this decision. The Supreme Court decided that the concurrence of the board of state canvassers and the executive department of the government in their respective official functions placed the subject-matter beyond the cognizance of the judicial department of the state. Tooker. should constitute a board of state canvassers to canvass and estimate the votes for and against each amendment. after considering the case on the merits. who. Justice Dixon. with probably a few exceptions. That such a proposition is not true seems to be indicated by the whole history of jurisprudence in this country. 86-B 108 . but did not provide a method for canvassing the votes. 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. but. after a full review of the authorities. and held that the questions were of a judicial nature. and to annul their acts if they had not done so. presented the identical question which we have under consideration. every element tending to maintain jurisdiction over the subject-matter. as insisted. and it shall be the duty of the Governor of the state forthwith. 78 Ark. Mr. 432.W. with the Governor. said: 'It thus becomes manifest that 107 there was present in the Supreme Court. 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. and that the amendment in question was legally submitted and adopted. and is now pending in this court. 37 Pac. 96 S. 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. The case is an interesting and well-considered one. 25 L. The Court of Appeals. 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 the Governor to issue his proclamation declaring that the amendment had been adopted and become a part of the Constitution. "The recent case of Rice v. The Constitution provided the manner in which proposed amendments should be submitted to the people. 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. The Legislature having agreed to certain proposed amendments. 560.A. 15 Mont. and properly determinable by the court on their merits." This board was required to file a statement of the result of the election.R. after such a determination." "In State v.' The court. to issue a proclamation declaring which of the said proposed amendments have been adopted by the people. 840.Constitutional Law I L-36142 Constitutional Law I L-36142 determine whether the legislative department or its officers had observed the constitutional injunctions in attempting to amend the Constitution. and to annul their acts in case that they have not done so. shall from the time of filing such certificate be and become an amendment to and a part of the Constitution of the state. 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 "any proposed amendment. held that the proper conclusion had been drawn therefrom. after stating the facts. and that the question was political.

FERDINAND E. economic and social fields. one of the questions persistently mention refers to the ratification of the Constitution proposed by the 1971 Constitutional Convention. MARCOS. The Secretary of the Department of Local Government and Community Development shall insure the implementation of this Order. 1972. WHEREAS. 1973 an that the initial referendum shall include the matter of ratification of the Constitution proposed by the 1971 Constitutional Convention. on the basis of the said petitions. WHEREAS. 86-A dated January 5. 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. NOW.Constitutional Law I Defining Further the Role of Barangays (Citizens Assemblies) L-36142 Constitutional Law I L-36142 WHEREAS. since their creation pursuant to Presidential Decree No. 86 dated December 31. ( S D 109 110 . by virtue of the powers in me vested by the Constitution. this 7th day of January in the year of Our Lord. and that it is now necessary to bring this down to the level of the people themselves through the Barangays or Citizens Assemblies. President of the Philippines. nineteen hundred and seventy-three. the Barangays (Citizens Assemblies) have petitioned the Office of the President to submit to them for resolution important national issues. 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. THEREFORE. I. Done in the City of Manila.

It was in this sense that word was used by the framers in Article XV (also in Articles VI and VII).. but a procedure prescribed by statute ascertaining the people's choices among candidates for public offices. It was not a vague and amorphous concept. J. for approval. in its Section 2. of the 1935 Constitution on the basis of age (21). eligibility of the President and the Vice President for re election. The major thrust of the petitions is that the act of the Citizens Assemblies as certified and proclaimed by the President on January 17. the actual casting of votes and their subsequent counting by 111 112 ." At the time Constitution was approved by the Constitutional Convention on February 8. states that "all elections of public officers except barrio officials andplebiscites shall be conducted in the manner provided by this Code. Section 99 requires that qualified voters be registered in a permanent list. the qualifications being those set forth in Article V. J. and with specific reference to the term "plebiscites. The Election Code of 1971.) ALEJANDRO MELCHOR Executive Secretary Separate Opinions L-36142 Constitutional Law I L-36142 MAKALINTAL. the procedure for registering voters. let alone a valid one. of the proposed Constitution. or their will on important matters submitted to the pursuant to law. 1973 (Proclamation No.Constitutional Law I (SGD. Section 102 enumerates the classes of persons disqualified to vote. 1102) was not an act of ratification.. We required them to submit their comments on the petitions. thus: in 1939 (Ordinance appended to the Constitution). literacy and residence. because it was not in accordance with the existing Constitution (of 1935) and the Election Code of 1971. After the comments were filed We considered them as motions to dismiss so that they could be orally argued. concurring: CASTRO. Other grounds are relied upon by the petitioners in support of their basic proposition. the word "election" had already a definite meaning in our law and jurisprudence. which suggested the need for hearing the side of the respondents before that preliminary question was resolved. concurring: The preliminary question before this Court was whether or not the petitioners had made out a sufficient prima faciecase in their petitions to justify their being given due course. 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. Article XV. the records. The manner of conducting elections and plebiscites provided by the Code is spelled out in other sections thereof. 1940 (establishment of a bicameral legislature. but to our mind they are merely subordinate and peripheral. 1935. creation of the Commission of Elections). These qualifications are reiterated in Section 101 of the Election Code. to carry out the constitutional mandate relative to the exercise of the right suffrage. and ratified in a plebiscite held on following May 14. As it turned out. Section 1. and could not have been more exhaustive if the petitions had been given due course from the beginning. Section 1. of registration and the custody thereof." This is a statutory requirement designed. 1947 (Parity Amendment)." the provision of Article XV regarding ratification of constitutional amendments. Considering on the one hand the urgency of the matter and on the other hand its transcendental importance. as were the other election laws previously in force. 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. Succeeding sections prescribe the election paraphernalia to be used. morning and afternoon. 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 hearing lasted five days. the description and printing of official ballots.

with the Commission on Elections exercising its constitutional and statutory powers of supervision of the entire process. (b) freedom of information and discussion. rendition of the word "election" was considered a sufficient ground to rule out the plebiscite which had been 113 114 . (f) manner of voting to insure freedom and secrecy thereof. 16. Commission on Elections. 2 passed by Congress on March 16. Marcos that a decree be issued calling aplebiscite for the ratification of the proposed New Constitution on such appropriate date as he shall determine and providing for the necessary funds therefor. prescribing in detail the different steps to be taken to carry out the process of ratification. (c) registration of voters: (d) appointment of boards of election inspectors and designation of watchers in each precinct. 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. 5843. which provides: Sec. at which the proposed Constitution "shall be submitted to the people for ratification or rejection. (e) printing of official ballots. 73 on the same day. 1967. No. instead of plural. With specific reference to the ratification of the 1972 draft Constitution." * Thus a grammatical construction based on a singular. and (h) in general. (2) Article XVII. 1973. that is. compliance with the provisions of the Election Code of 1971. (3) After the draft Constitution was approved by the Constitutional Convention on November 30. 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. so as to enable the youth to be thus enfranchised to participate in the plebiscite for the ratification of such other amendments later. and then the canvass and proclamation of the results.Constitutional Law I L-36142 Constitutional Law I L-36142 the boards of inspectors. several additional circumstances should be considered: (1) This draft was prepared and approved by a Convention which had been convened pursuant to Resolution No. This Court held that such separate submission was violative of Article XV. of the draft itself states: Sec. of the Constitution. Section 2. (g) canvass of plebiscite returns." The Decree had eighteen (18) sections in all. 1972 the said body adopted Resolution No. Indeed. such as: (a) publication of the proposed Constitution in English and Pilipino. 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. except as herein provided. October 16. Section 16. 1971 (41 SCRA 702). This Constitution shall take effect immediately upon its ratification by a majority of the votes cast in a plebiscite called for the purpose and. in an election or plebiscite held in accordance with law and participated in only by qualified and duly registered voters. The same procedure is prescribed in Article XVI." Pursuant to said Resolution the President issued Decree No. shall supersede the Constitution of nineteen hundred and thirty-five and all amendments thereto. calling a plebiscite to be held on January 15. 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. Section 1. 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. proposing "to President Ferdinand E. L-34150. 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. the rules for appreciation of ballots. for the ratification of any future amendment to or revision of the said Constitution.

citizens of the Philippines and who are registered in the lists of Citizen Assembly members kept by the barrio. like the holding of the plebiscite on the new Constitution. emphasis supplied]. the Assemblies were convened for a referendum between January 10 and 15. dated January 5. that he had ordered that the registration of voters (pursuant to Decree No. district or ward secretary.Constitutional Law I L-36142 Constitutional Law I L-36142 called to ratify a proposed amendment in accordance with the procedure and under all the safeguards provided in the Election Law. 86 dated December 31. COMELEC." By Presidential Decree No. and that copies of the new Constitution would be distributed in eight dialects the people. (Bulletin Today. Appended to the six additional questions above quoted were the suggested answers. 1973 (Presidential Decree No. the continuation of martial rule. 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.) On January 10. was that the Assemblies should express their views as to the plebiscite should be held. fifteen years of age or over. it was reported that six additional questions would be submitted. and that he was considering two new dates for the purpose February 19 or March 5. In the cases now before Us what is at issue is not merely the ratification of just one amendment. 73) be extended to accommodate new voters. 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. 1972. 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. but the ratification of an entire charter setting up a new form of government. when do you want the next elections to be called? (6) Do you want martial law to continue? [Bulletin Today. to "consider vital national issues now confronting the country. 1972. 1973. "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. January 11. 1973 the newspapers came out with a list of four questions to be submitted to the Citizens Assemblies. the convening of Congress on January 22. 1973 it was reported that one more question would be added to the original four which were to be submitted to the Citizens Assemblies. December 24. 1973 accordance with the provisions of the 1935 Constitution? (5) If the elections would not be held." On January 5. it may likewise be noted. not as to whether or not it should be held at all. 1973. January 11. 86-A. The next day. and the holding of elections in November 1973. as in Tolentino vs. 1973. The question concerning plebiscite was reworded as follows: "Do you like the plebiscite to be held later?" The implication. 73) for the ratification of the Constitution. thus: 115 116 . district or ward for at least six months." The Assemblies "shall consist of all persons who are residents of the barrio.

Constitutional Law I COMMENTS ON QUESTION No. the suggestion was broached. QUESTION No. The vote of the Citizens Assemblies should already be considered the plebiscite on the New Constitution. for the first time. We want him to exercise his powers with more authority. not in the questionnaire itself. that the plebiscite should be done away with and a favorable vote by the Assemblies deemed equivalent ratification. QUESTION No. Strangely. 4 We are sick and tired of too frequent elections. This was done. for reforms to take root and normalcy to return. then the new Constitution should be deemed ratified. 1 L-36142 Constitutional Law I L-36142 with politics. We are fed up Probably a period of at least seven (7) years moratorium on elections will be enough for stability to be established in the country. but in the suggested answer to question No. 1973. QUESTION No. 117 118 . 3. 5 In order to broaden the base of citizens' participation in government. So it was that on January 11. of so many debates and so much expenses. We want him to be strong and firm so that he can accomplish all his reform program and establish normalcy in the country. 3 If the Citizens Assemblies approve of the New Constitution. QUESTION No. the second day of the purported referendum. 2 But we do not want the Ad Interim Assembly to be convoked. it should not be done so until after at least seven (7) years from the approval of the New Constitution by the Citizens Assemblies. however. 6 We want President Marcos to continue with Martial Law. we want President Marcos to declare a revolutionary government along the lines of the new Constitution without the ad interim Assembly. Or if it is to be convened at all. QUESTION No. it was not similarly suggested that an unfavorable vote be considered as rejection. If all other measures fail.

in our opinion. Several theories have been advanced respectively by the parties. that is. whose theory may be taken as the official position of the Government. No question of wisdom or of policy is involved. was not within the intendment of Article XV. Senator Arturo Tolentino. Section 16. or ex convicts * these being the classes of persons expressly disqualified from voting by Section 102 of the Election Code. The effectivity of the said Constitution. and through their counsel. 2 on March 16. either by way of supervision or in the assessment of the results. is the basic and ultimate question posed by these cases. The suggestion misses the point entirely. or as the election intended by Congress when it passed Resolution No. of the Election Code and of other related laws and official acts. of the 1935 Constitution and with the Election Code of 1971. was not therefore observed. in their respective capacities as President and President Pro Tempore of the Senate of the Philippines. Section 1. as certified by the President in Proclamation No. and to conclude that it exists even if it has not been ascertained according to law is simply to beg the issue. 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. the constitutional and statutory qualifications were not considered in the determination of who should participate. it was done mostly by acclamation or open show of hands. in the final analysis. challenge the jurisdiction of this Court on the ground that the questions raised in the petitions are political and therefore non-justiciable. Such a finding. 119 120 . The Citizens Assemblies were not limited to qualified. 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. 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. 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. 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. assuming that such voting was held. Section 1. which is one of the essential features of the election process. Secrecy. which is the constitutional body charged with the enforcement and administration of all laws relative to the conduct of elections. The referendum can by no means be considered as the plebiscite contemplated in Section 2 of said Code and in Article XVII. 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. 1967 calling a Convention for the revision of the 1935 Constitution. and for that reason give due course to these petitions or grant the writs herein prayed for. of the draft Constitution itself. It has been suggested that since according to Proclamation No. No set of rules for counting the votes or of tabulating them and reporting the figures was prescribed or followed. The Commission on Elections. of the 1935 Constitution nor in accordance with the Election Code of 1971. are relevant and unavoidable. namely. a finding that the ratification of the draft Constitution by the Citizens Assemblies. but included all citizens from the age of fifteen.Constitutional Law I L-36142 Constitutional Law I L-36142 There should be no serious dispute as to the fact that the manner in which the voting was conducted in the Citizen Assemblies. Respondents Gil J. likewise invoke the political question doctrine. took no part at all. No official ballots were used in the voting. to resolve which considerations other than judicial. Puyat and Jose Roy (in L-36165). But from this finding it does not necessarily follow that this Court may justifiably declare that the Constitution has not become effective. and regardless of whether or not they were illiterates. 1102. and therefore beyond the competence of this Court. 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. feeble-minded. The respondents represented by the Solicitor General. but on a ground not concurred in by the Solicitor General. or to assume the very fact to be established. In other words the very existence of such majority or plurality depends upon the manner of its ascertainment. In short. However. let alone registered voters. is on a matter which is essentially justiciable.

3 as amended by General Order No. such as "those involving the validity. if no force had been resorted to and the people. 1972. the Commander-in-Chief of the Armed Forces assumed all the powers of government executive. 3-A. or of any decree. it is pointed out. albeit peaceful. Senator Tolentino contends that after President Marcos declared martial law on September 21. in defiance of the existing Constitution but peacefully because of the absence of any appreciable opposition. dated September 24. We do not see that situation would be any different. judicial dictum can prevail against it. 121 122 . If they had risen up in arms and by force deposed the then existing government and set up a new government in its place. that the Constitution was in full force and effect. constitutional disputes which have come before this Court for adjudication proceeded on the assumption. and shall exercise all the powers and prerogatives appurtenant and incident to my position as such Commanderin-Chief of all the Armed Forces of the Philippines. and the latter by not convening on January 22. order or act issued. 1973 or at any time thereafter. 1 the next day. 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." Heretofore. trenched upon the domain of the judiciary. The process employed was one of interpretation and synthesis. conceded by all. 1972 (Proclamation No. wherein he proclaimed "that I shall govern the nation and direct the operation of the entire government. in my capacity." (General Order No. as counsel for respondents Puyat and Roy. and so courts forbear to take cognizance of the question but leave it to be decided through political means. with the power and authority of the entire Government behind it. which was converted by act of the people to the present de jure government under the 1973 Constitution. of the 1973 Constitution. if sustained.Constitutional Law I L-36142 Constitutional Law I L-36142 that approval of the 1973 Constitution by the people was made under a revolutionary government. is political and therefore non-judicial in nature. 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. was the culminating act of the revolution. in the course of a successful political revolution. as ordained by the 1935 Constitution. in some instances. 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. 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 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. may be taken up and restated at same length if only because it would constitute. 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. it is averred. If a new government gains authority and dominance through force. 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. 1081) he established a revolutionary government when he issued General Order No. or constitutionality of Proclamation No. as necessary corollary. which thereupon converted the government into a de jure one under the 1973 Constitution. then the issue of whether or not that Constitution has become effective and. whether or not the government legitimately functions under it instead of under the 1935 Constitution. in the context just set forth. promulgated or performed by me or by my duly designated representative pursuant thereto. Against such a reality there can be no adequate judicial relief. the most convenient ground for the invocation of the political-question doctrine. * The theory advanced by Senator Tolentino. it can be effectively challenged only by a stronger force. including all its agencies and instrumentalities. In support of his theory." By this order. ordained a new Constitution and succeeded in having the government operate under it. 1081. legislative. is based on realities. and judicial. as far as the doctrine of judicial review is concerned. Under such a postulate what the people did in the Citizen Assemblies should be taken as an exercise of the ultimate sovereign power.) The ratification by the Citizens Assemblies. by removing from its jurisdiction certain classes of cases. Section 2. legality.

in proclaiming that the Constitution had been ratified. In the first. Commenting on the ruling thus arrived at.S. for recommendation imports recognition of some higher authority in whom the final decision rests. Indeed. Supreme Court in a case * relied upon. and should come to the conclusion that the government under which it acted had been put aside and displaced by an opposing government. The case involved the issue of which of two opposing governments struggling for supremacy in the State of Rhode Island was the lawful one." In other words. as attributed to the President in the newspapers. 1972). who disagrees with the revolutionary government theory of Senator Tolentino. Dec. In fact the plebiscite planned for January 15. (1) The Citizens Assemblies were created. 123 124 . The more relevant consideration. that he would base his decision (as to the date. and that "the postponement would give us more time to debate on the merits of the Charter. 1973. according to the Daily Express of January 2. that "there was little time to campaign for or against ratification" (Daily Express. But then the President. according to Presidential Decree No. 1972). In this respect subjective factors. the U. curiously enough. we are not prepared to agree that the premise is justified. and incapable of pronouncing a judicial decision upon the question it undertook to try. should be as to what the President had in mind in convening the Citizens Assemblies. it would cease to be a court. 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." (5) There was not enough time for the Citizens Assemblies to really familiarize themselves with the Constitution. as submitted to them on the particular point at issue here. that "the referendum will be in the nature of a loose consultation with the people. It should be noted that the above statement from Luther vs. the Katipunan ng mga Barangay has strongly recommended that the new Constitution should already be deemed ratified by the Filipino people. Dec. place. 86. Dec." (2) The President announced. the question could not be considered proper for judicial determination. "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. 1973 under Presidential Decree No. 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. since the court would have no choice but to decide in one way alone in order to be able to decide at all. are necessarily involved. The issue had previously come up in several other cases before the courts of the State. pursuant to such recommendation.S. 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. was "Do you a approve of the Constitution?" (4) President Marcos. with specific reference to the questioned ratification. 24. which defy judicial analysis and adjudication. 23. 1972." (Bulletin Today." (3) The question. If it decides at all as a court. submitting the Constitution to them and proclaiming that the favorable expression of their views was an act of ratification.Constitutional Law I L-36142 Constitutional Law I L-36142 The logic of the political-question doctrine is illustrated in statement of the U. which uniformly held that the inquiry belonged to the political power and not to the judicial. the reasons for the postponement being. as far as we can see. therefore. 73 had been postponed to an indefinite date. it necessarily affirms the existence and authority of the government under which it is exercising judicial power.) 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. 22. much less with the many other subjects that were submitted to them. several significant circumstances may be noted. 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. by the Solicitor General. Supreme Court said: "And if a State court should enter upon the inquiry proposed in this case. However. did proclaim that the Constitution had been ratified and had come into effect.

.. We can. the President said the following. the following public statements of the President: Speaking about the proclamation of martial law. 1102.. We have burned our bridges behind us.. the Constitution. 1973 the Daily Express published statement of the President made the day before. On the same occasion of the signing of Proclamation No.. On one hand we read. The political questions that were presented to the people are exactly those that refer to the form of government which the people want .) On the occasion of the signing of Proclamation No. The implications of disregarding the people's will are too awesome to be even considered. for instance. . perhaps delimit the power of the people to speak on legal matters. We have pledged to it our future. Let no man misunderstand the strength of our resolution.. they will rise up in arms not in revolt against the Republic but in protection of the Republic which they have installed.. . on justiciable matters. regardless of non-compliance with the pertinent constitutional and statutory provisions prescribing the procedure for ratification. from which the following portion is quoted: . that they mean they will not discard. 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. It is quite clear when the people say. among other things: . Jan.. upon the recommendation of the Katipunan ng mga Barangay. On January 19. was intended to be definite and irrevocable. (A Report to the Nation. our lives... 7. 1973.. 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. our destiny. For if any power in government should even dare to disregard the people's will there would be valid ground for revolt. he said: I reiterate what I have said in the past: there is no turning back for our people. that when all other measures should fail. 1102 on January 17. on matters that may come before the experts and interpreters of the law. our fortunes. 1973. that the President be directed 125 126 . We have committed ourselves to this revolution. The pivotal question is rather whether or not the effectivity of the said Constitution by virtue of Presidential Proclamation No. Let it be known to everybody that the people have spoken and they will no longer tolerate any attempt to undermine the stability of their Republic. we ratify the Constitution.Constitutional Law I L-36142 Constitutional Law I L-36142 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. 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. 1102 the President made pointed reference to "the demand of some of our citizens ..

both explicit and implicit. he would heed the recommendation of the Citizens' Assemblies to establish a revolutionary government. confusion and misery to the masses .. peaceful. therefore. 1972. In his TV address of September 23. In "Today's Revolution: Democracy" he says: I believe. On the other hand. The Government of the Republic of the Philippines which was established by our people in 1946 continues..Constitutional Law I L-36142 Constitutional Law I L-36142 to organize and establish a Revolutionary Government.." "(I)t is my feeling. it is that the step taken in connection with the ratification of the Constitution was meant to be irreversible. 1-12. the matter lies beyond the power of judicial review. And if this is a correct and accurate assessment of the situation. in all fairness and honesty.. confusion and misery.. a return to the 1935 Constitution.. President Marcos has professed fealty to the Constitution. We must now defend the Republic with the stronger powers of the Constitution." The message seems clear: rather than return to such status quo. the following appears: 127 128 .. in the necessity of Revolution as an instrument of individual and social change . and legal. in his opinion. because that would be the only other way to carry out the reforms he had envisioned and initiated reforms which. In the report of an interview granted by the President to the Newsweek Magazine (published in the issue of January 29. for it was thestatus quo under that Constitution that had caused "anarchy. I have had to use this constitutional power in order that we may not completely lose the civil rights and freedom which we cherish. and that nothing anyone could say would make the least difference. President Marcos told the nation: I have proclaimed martial law in accordance with the powers vested in the President by the Constitution of the Philippines. by avowals no less significant if not so emphatic in terms. .. in the foregoing pronouncements. except only in the field of civil liberties. We are against the wall. (Vital Documents. constitutional.. "that the Citizens' Assemblies which submitted this recommendation merely sought articulate their impatience with the status quo that has brought about anarchy. 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.. revolution is of necessity. 1973)." 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. because precisely the Constitution had been ratified. if we do ratify the Constitution. the latter being unnecessary. and certainly unmistakable. The third obvious alternative was entirely ruled out." he said. xxx xxx xxx I repeat. how can we speak of Revolutionary Government? They cannot be compatible ... emphasis supplied). 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. pp. but that in a democratic society. If there is any significance. must be given credit for the improved quality of life in its many aspects.. namely.. this is not a military takeover of civil government functions." but in the next breath added: ".

You must remember this (martial law provision) was lifted from the xxx xxx xxx In the light of this seeming ambivalence. In the deliberations of this Court one of the issues formulated for resolution is whether or not the new Constitution. to our mind. and they are better informed than my contemporaries at that age. has found acceptance among the people. whether adherence to such procedure is weighty enough a consideration. with the free expression of opinions through the usual media vehicles restricted.Constitutional Law I xxx xxx xxx L-36142 Constitutional Law I L-36142 American legislation that was the fundamental law of our country. We have earlier made reference to subjective factors on which this Court. as they were reported to him. we do not find the issue decisive insofar as our vote in these cases is concerned. 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. In articulating our view that the procedure of ratification that was followed was not in accordance with the 1935 Constitution and related statutes. The only thing is that instead of 18-yearolds voting. that what the people recommended through the Citizens Assemblies. such issue being related to the political question theory propounded by the respondents. we have allowed 15year-olds the right to vote. we have discharged our sworn duty as we conceive it to be. I have never gotten off the constitutional track. In any event. The President should now perhaps decide. it is constitutional because the Constitution provides for it in the event of invasion. we have no means of knowing. insurrection. whether the people have accepted the Constitution. rebellion or immediate danger thereof. since its submission to the Citizens Assemblies. if he has not already decided. We have not tarried on the point at all since we find no reliable basis on which to form a judgment. then judicial review is out of the question. Q. demand that the action he took pursuant thereto be final and irrevocable. But the 15-year-olds of today are high-school students. won't you be in serious trouble if you run into critical problems with your programs? R. to the point of judicial certainty. Under a regime of martial law. To interpret the Constitution that is judicial. is in no position to pass judgment. if not graduates. the choice of what course of action to pursue belongs to the President. Now that you have gotten off the constitutional track. On the matter of whether it is constitutional to proclaim martial law. Everything I am doing is in accordance with the 1935 Constitution. If he should decide that there is no turning back. if only to dispel any cloud of doubt that may now and in the future shroud the nation's Charter. 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. That the Constitution should be deemed in 129 130 .

nothing more cogent and compelling than what had already been previously presented by Counsel Tañada is before Us now. but upon the ground that as a political. 1973 in the so called Plebiscite Cases decided by this Court on January 22. 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. 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. on November 10. 1973. that the vote of the people in the referendum in the Citizens Assemblies held on January 10 to 15. to dismiss them. delegates to a constitutional convention to propose amendments to the Constitution of 1935 were elected in accordance with the implementing law. 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. and with due recognition of the sincerety. and by the third quarter of 1972 had finished deliberations and second-reading voting only on an insignificant number of proposals until September 21. I can see now. after further reflection. As I shall elucidate anon. If indeed this explanation may be considered as a modification of my rationalization then. therefore. They revolve around the purported ratification of the Constitution of 1973 declared in Proclamation 1102 issued by the President on January 17. due to bitter rivalries over important positions and committees and an incomprehensible fear of overconcentrating powers in their officers.Constitutional Law I effect because of popular acquiescence beyond the domain of judicial review. namely. I reiterate. I regard the present petitions as no more than mere reiterations of the Supplemental Petitions filed by Counsel Lorenzo M. the vote I cast when these petitions were initially considered by the Court. Of course. Accordingly. the delegates went about their work in comparatively slow pace. I cannot see any reason why I should change the position I took in regard to the earlier cases. Republic Act 6132. brilliance and eloquence of counsels. rejecting the proposed increase in the members of the House of Representatives and eligibility of members of Congress to the Constitutional Convention. they may be taken judicial notice of. more extensive and illuminating arguments were heard by Us. but. Generally. 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.. if only to clarify that apart from the people's right of revolution to which I made pointed reference in my previous opinion. concurring: As far as I am concerned. Tañada on January 15. may be deemed as a valid ratification substantially in compliance with the basic intent of Article XV of the 1935 Constitution. BARREDO. 1973. the assembly began its sessions on June 1. 131 132 . more than as a legal. 1967. I The facts that gave rise to these proceedings are historical and well known. 1937 of women's suffrage. not necessarily as a consequence of the revolutionary concept previously suggested by me. Pursuant to a joint resolution of the Congress sitting as a constituent assembly approved on March 16. In view. After encountering a lot of difficulties. however. act of the people. J. L-36142 Constitutional Law I L-36142 that is political. 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. 1978. 1940 of the re-election of the President. 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. 1947 of the parity amendment and 1967. 1939 of the amendments to the Ordinance Appended to the Constitution. upon the result of which Proclamation 1102 is based. in my estimation. and therefore We therefore vote not to give due course to the instant petitions. the bicameral legislature and the Commission on Elections. 1970. Known as the Constitutional Convention of 1971. the result of the referendum may be construed as a compliance with the substantiality of Article XV of the 1935 Constitution. 1971.

17 was issued ordering and enjoining the authorities to allow and encourage public and free discussions on proposed constitution. before martial law was declared. 1972. 1972 Presidential Decree No. the President issued Presidential Decree No. 1973. on January 5. instead of mere specific amendments of particular portions of the Constitution of 1935. the President issued Presidential Decree. 1972." Acting under this authority. it approved by overwhelming vote the draft of a complete constitution. and not long after the motion of Delegate Kalaw to such effect was turned down. 1972. 86-A STRENGTHENING AND DEFINING THE ROLE OF BARANGAYS (CITIZENS ASSEMBLIES) WHEREAS. 1972. such barangays (citizens assemblies) desire that they be given legal status and due 133 134 . the Convention had Resolution No. In the meantime. be postponed until further notice". yet abruptly. 1973. not altogether unexpectedly. on the basis of preliminary and initial reports from the field as gathered from barangays (citizens assemblies) that have so far been established. subsequently. 1973. December 1. 86-A providing as follows: PRESIDENTIAL DECREE 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. both local and national. These two orders were not. 1973. to last very long. Needless to say. on November 22. 1973. An attempt was made to have the Convention recessed until after the lifting of martial law. WHEREAS. the same order of January 7. the President. the President had issued on December 3. General Order No. public debates and discussions on various aspects of proposed amendments were not uncommon. As if unmindful of the arrest and continued detention of several of its members. however. Not only this. WHEREAS. there was full and unlimited coverage of the workings in the convention by the mass media. when the President. issued Proclamation 1081 declaring martial law throughout the country. the activities within the assembly shifted to high gear. In the meanwhile also. the convention gathered swift momentum in its work. the President ordered. the people would like to decide for themselves questions or issues. under date of December 17. Earlier. 73 submitting the draft constitution for ratification by the people at a plebiscite set for January 15. 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 barangays (citizens assemblies) would like themselves to be the vehicle for expressing the views of the people on important national issues. 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. and on November 30. No. withdrew said orders and enjoined full and stricter implementation of martial law. 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. affecting their day-to-day lives and their future. 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. General Order No. In connection with the plebiscite thus contemplated. 20. At the same time. On January 7.Constitutional Law I L-36142 Constitutional Law I L-36142 1972. "that the plebiscite scheduled to be held January 15.

the convening of Congress on January 22. which shall serve as guide or basis for action or decision by the national government. a referendum on important national issues. FERDINAND E. this 5th day of January. shall be translated into concrete and specific decision. 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. This Decree shall take effect immediately. President of the Philippines. 86 dated December 31. 1972. Done in the City of Manila. Such barangays (citizens assemblies) shall consider vital national issues now confronting the country. I. and the elections in November 1973 pursuant to the 1935 Constitution. NOW. 1973. And on January 7. The barangays (citizens assemblies) shall conduct between January 10 and 15. the Barangays (Citizens Assemblies) have petitioned the Office of the President to submit them for resolution important national issues. 1973. the people would like the citizens assemblies to conduct immediately a referendum on certain specified questions such as the ratification of the new Constitution. and submit results thereof to the Department of Local Governments Community Development immediately thereafter. wherever practicable. legitimate and valid expression of the popular will. this was followed by Presidential Decree No. the continuation of martial rule.Constitutional Law I L-36142 Constitutional Law I L-36142 recognition as constituting the genuine. including those specified in paragraph 2 hereof. by virtue of the powers vested in me by the Constitution as Commander-in-Chief of all Armed Forces of the Philippines. MARCOS. 135 136 . one of the questions persistently mentioned refers to the ratification of the Constitution proposed by the 1971 Constitutional Convention. do hereby declare as part of the law of the land the following: 1. THEREFORE. 86-B DEFINING FURTHER THE ROLE OF BARANGAYS (CITIZENS ASSEMBLIES) WHEREAS. WHEREAS. and others in the future. like the holding of the plebiscite on the new Constitution. and the holding of elections in November 1973. 3. 86-B reading thus: PRESIDENTIAL DECREE NO. since their creation pursuant to Presidential Decree No. 1972. The present barangays (citizens assemblies) are created under Presidential Decree No. the convening of Congress on January 22. 1973. 4. and WHEREAS. in the year of Our Lord. continuance of martial law. 1973. nineteen hundred and seventy three. 2. pursuant to express will of the people as reflected in the reports gathered from the many thousands of barangays (citizens assemblies) throughout the country. 86 dated December 31.

albeit specifically unidentified.Constitutional Law I L-36142 Constitutional Law I L-36142 WHEREAS. President of the Philippines. 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?. economic and social fields. the most relevant of these "comments" were the following: 137 138 . 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. nineteen hundred and seventy-three. FERDINAND E. I. 1973. but on January 11. 1973 in accordance with the provisions of the 1935 Constitution? (5) If the elections would not be held. 1973. The Secretary of the Department of Local Governments and Community Development shall insure the implementation of this Order. this 7th day of January in the year of Our Lord. 86-A dated January 5. when the Citizens Assemblies thus created started the referendum which was held from said date to January 15. 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. 1973 and that the initial referendum shall include the matter of ratification of the Constitution proposed by the 1971 Constitutional Convention. by virtue of the powers in me vested by the Constitution. on the basis of the said petitions. It may assumed that the said "comments" came from official sources. Done in the City of Manila. 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. and that it is now necessary to bring this down to the level of the people themselves through the Barangays or Citizens Assemblies. 1973. 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. MARCOS. NOW THEREFORE. And so it was that by January 10. As petitioners point out.

Said proclamation reads: PROCLAMATION NO. WHEREAS. QUESTION No. 3 The vote of the Citizens Assemblies should already be considered the plebiscite on the New Constitution. 1973. the Constitution proposed by the nineteen hundred seventy-one Constitutional 139 140 . the SSB communication of the PACD connecting most provinces. The Solicitor General claims. The certificates of results tallied with the previous figures taken with the exception of few cases of clerical errors. 1973 and were then communicated to the President by the Department of Local Governments. If the Citizens Assemblies approve of the new Constitution then the new Constitution should be deemed ratified. Or if it is to be convened at all. the provincial government SSB System in each province connecting all towns. The development culminated in the issuance by the President of Proclamation 1102 on January 17. telephone. the 11 regions submitted the figures they received from the field to the central committee to tabulate the returns. the results of the voting were collated and sent to the Department of Local Governments. 1102 ANNOUNCING THE RATIFICATION BY THE FILIPINO PEOPLE OF THE CONSTITUTION PROPOSED BY THE 1971 CONSTITUTIONAL CONVENTION. Every afternoon at 2:00 o'clock. The transmission of the results was made by telegram. The last figures were tabulated at 12 midnight of January 16. 1973 and early morning of January 17. 2 L-36142 Constitutional Law I L-36142 But we do not want the Ad Interim Assembly to be convoke.Constitutional Law I COMMENTS ON xxx xxx xxx QUESTION No. and there seems to be showing otherwise. it should not be done so until after at least seven (7) years from the approval of the New Constitution by the Citizens Assemblies. The certificates of results were then flown to Manila to confirm the previous figures received by the aforementioned means of transmission. the Weather Bureau Communication System connecting all provincial capitals and the National Civil Defense Network connecting all provincial capitals. that the results of the referendum were determined in the following manner: Thereafter. 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. the Department of Public Information Network System.

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. citizens of the Philippines and who are registered in the list of Citizen Assembly members kept by the barrio.Constitutional Law I L-36142 Constitutional Law I L-36142 Convention is subject to ratification by the Filipino people.869) who voted for its rejection. President of the Philippines.561) members of all the Barangays (Citizens Assemblies) voted for the adoption of the proposed Constitution. district or ward secretary. WHEREAS.976. MARCOS. fourteen million nine hundred seventysix thousand five hundred sixty one (14. 6. in the year of Our Lord. 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 ninetyeight thousand eight hundred fourteen (14. IN WITNESS WHEREOF. WHEREAS. WHEREAS. 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. WHEREAS. by virtue of the powers in me vested by the Constitution.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. Done in the City of Manila. dated January 5. composed of all persons who are residents of the barrio. fifteen years of age or over. The first attempt to question the steps just enumerated taken by the President was in the so-called Plebiscite Cases. I. nineteen hundred and seventy-three.298. as against seven hundred forty-three thousand eight hundred sixty nine (743. 86-A. which were 141 142 . this 17th day of January. NOW. district or ward for at least six months. ten in number. 1972. dated December 31. responding to the clamor of the people an pursuant to Presidential Decree No. the Katipunan ng Mga Barangay has strongly recommended that the new Constitution should already be deemed ratified by the Filipino people. THEREFORE. FERDINAND E. 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. 1973. 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. Citizens Assemblies were created in barrios in municipalities and in districts/wards in chartered cities pursuant to Presidential Decree No. and has thereby come into effect. I have hereunto set my hand and caused the seal of the Republic of the Philippines to be affixed.

to the effect that change in the composition of the Supreme Court provided for the 1973 Constitution. much less lacking in courage or wisdom to resolve an issue that relates directly to its own composition. I find myself confronted by a matter which. was issued and the six additional questions which were first publicized on January 11. political nature and beyond our jurisdiction. Reacting swiftly. 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. 1973 and need not be repeated here. While I agree that the problem is at first blush rather involved. 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. I strongly feel needs special attention. 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. although believed to be inconsequential by my learned brethren. II At the threshold. hence Counsel Tañada. and. together with the "comments". not being satisfied with the fate of his urgent motion for early decision of the above ten cases dated January 12. in which event. 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.Constitutional Law I L-36142 Constitutional Law I L-36142 filed by different petitioners during the first half of December 1972. quoted above. evidently. I feel very strongly that the issue should not be ignored or dodged. to consider the supplemental motion as a supplemental petition and to require the respondents to answer the same the next Wednesday. from the 11-man tribunal under the 1935 Constitution to a 15-man Court. 1973 were known. for lack. before the hour of the hearing of the petition which set for 9:30 o'clock in the morning of that day. What a disgrace it would 144 . and in the mind of the majority of the members of the Court. it would be choosing between two constitutions. the Court resolved on the same day. 86-B. it would be prejudging the very matter in issue one way or the other. 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. 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. Suffice it to state no that before the hearing could be closed and while Counsel Tañada was still insisting on his prayer for preliminary injunction or restraining order. his supplemental motion seeking the prohibition against and injunction of the proceedings going on. 1973. January 15. 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. makes of these cases which were filed after January 17. declaring that the new Constitution had been ratified. 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. 86-A. order or decree. and so. Antonio and Esguerra also believed. which is a political determination not within the Court's competence. Puyat and Jose Roy. of full ventilation. the cases had become academic. And when Presidential Decree No. as Justices Zaldivar. 1973. January 17th. 73. the present ones. 1973 the date when Proclamation 1102 declared the new Constitution as ratified. I refer to the point raised by Counsel Arturo M. filed on January 15. 1 Their common target then was Presidential Decree No. also above quoted. inasmuch as Counsel Tañada's pleading 143 and argument had anticipated its issuance. Tolentino for respondent Gil J. it would be faced with the dilemma that if it acts either as the former or as the latter. in effect. executive agreement 2 or law. petitioners sensed that a new and unorthodox procedure was being adopted to secure approval by the people of the new Constitution. the valiant and persistent efforts of petitioners and their counsels were overtaken by adverse developments. according them. For my part. In other words. the decision reserved petitioners the filing of the "appropriate" cases. which was Monday. but before the said cases could be decided. but the majority felt it was not ready to resolve the matter. 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. who have been sued as President and President Pro Tempore of the Senate.

presidential orders and decrees of the most legislative character affecting practically every aspect of governmental and private activity as well as the relations between the government and the citizenry are pouring out from Malacañang under the authority of said Constitution. Stated differently. I am against leaving such an important point open to speculation. no matter how desirable we might believe the idea to be. 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. 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. doubts may arise as to whether or not. 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.Constitutional Law I L-36142 Constitutional Law I L-36142 be to admit that this Supreme Court does not know. because the courts must at the first instance accord due respect to the acts of the other departments. unless it is assumed that only the judges have the exclusive prerogative of making and enforcing the law. not only because if that were to be the rule. even if we have it understood that by the vote of justices in favor of such dismissal. Be that as it may. The truth of matter is simply that in the normal and logical conduct governmental activities. indeed. By nature I am averse to ambiguity and equivocation and as a member of the Supreme Court. which is contrary to all norms of juridical and political thinking. 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. it may be argued that the present cases do not involve an issue of unconstitutionality. 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. there is yet no country in the world that has recognized judicial supremacy as its basic governmental principle. from very nature of things. To my knowledge. despite the general result we might announce. We intended to mean the implementation or enforcement of the new Constitution now being done could continue. Indeed. the same is allowed to have effect until the Supreme Court rules that it is unconstitutional. in like manner that it is inconceivable that the 1935 and 1973 Constitution can be considered by Us both in force. according to what law and other considerations inherent to our function dictate. the functioning of government would correspondingly be undesirably hesitative and cumbersome. it is neither practical nor wise to defer the course of any action until after the courts have ascertained their legality. is operating under the 1973 Constitution. hence. Our inescapable duty is to make a choice between them. municipal and barrio units and not excluding the lower courts up to the Court of Appeals. including the provincial. It is undeniable that the whole government. Withal. to use a common apt expression. Almost daily. Besides. Accordingly. and. For instance. which is hardly possible. if we are acting as the 11-man Court. only six votes would suffice to declare Proclamation 1102 ineffective. On the other hand. as otherwise. whether it is fish or fowl. taxes are being exacted and penalties in connection therewith are 145 146 . 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. 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. there had been the requisite number of votes for a valid collegiate action. 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. the smooth running of the government would have to depend entirely on the unanimity of opinions among all its departments. but more importantly. a cloud would exist as to efficacy of the dispositive portion of Our decision dismiss these cases. aside from being its sole interpreter. 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.

the institutional changes introduced thereby are rather radical and its social orientation is decidedly more socialistic. the transitory provisions notably depart from traditional and orthodox views in that. It is. in general. since January 18. A cursory perusal of the former should convince anyone that it is in essence a new one. the express ratification of all proclamations. let alone the absurd and complicated consequences such a position entails in the internal workings within the judiciary amount its different components. it does necessarily follow that by this attitude of the President. even imperative. One cannot but note that the change embraces practically every part of the old charter. which even unreasoning obstinacy cannot ignore. to mind. For the ten justices of the Supreme Court to constitute an island of resistance in the midst of these developments. not to mention the distinctive features of the general provisions. on the other hand. to the extent that the continuation or discontinuance of what is now practically a oneman-rule. While it does retain republicanism as the basic governmental tenet.Constitutional Law I L-36142 Constitutional Law I by any standard be expected to vote against legality of the very Constitution under which they would be appointed. the citizenship and suffrage qualifications. the votes of the justices to added would only be committed to upholding the same. What is more. 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. the new constitution unlike any other constitution countenances the institution by the executive of reforms which normally is the exclusive attribute of the legislature. with a few improvements. the Secretary of Justice. fundamentally. 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. is unimaginable. and the addition of new justices cannot in anyway affect the voting on the constitutional questions now before Us because. 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. from its preamble down to its amending and effectivity clauses. unrealistic to insist on that. Notably. 1973. It is suggested that the President. Displacements of public officials and employees in big numbers are going on in obedience to them. since they cannot Moreover. what makes the premise of presumptive valid preferable and. is a commitment to the concept of martial law powers being implemented by President Marcos. of no consequence considering that with the presence of ten justices who are the Court now. L-36142 being imposed under said orders and decrees. the judiciary provisions. 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. while there sufficient justices to declare by their unanimous vote illegality of Proclamation 1102. obviously meant to encompass those issued during martial law. and if the Court feels that it cannot in the meantime consider the enforcement of the new Constitution. Accepting the truth of this assertion. decrees and acts previously issued or done by the President. he can wait for its decision. the powers of government during the interim period are more or less concentrated in the President. has been shoving this Court. in my appraisal. is even left to his discretion. there is a working quorum. and as far as I know. just as its nationalistic features are somewhat different in certain respects. In other words. as it were. That. committed to abide by the decision of the Supreme Court. involving as they do the statement of general principles. President has not countermanded the Secretary's steps in that direction. 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. whereas the Supreme Court is holding. being a man of law. the 1973 Constitution is the same 1935 Constitution. much less impede. Not only that. the President has not augmented the justices of the Court to complete the prescribed number of fifteen is. their effectivity at bay if it is not being indifferent to or ignoring them. Obligations have been contracted and business and industrial plans have been and are being projected pursuant to them. 147 148 . 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. orders. official alter ego. considers the Supreme Court as still operating under the Constitution. Quite on the contrary. the articles on the form of government. in defiance of traditional views and prevailing jurisprudence.

which would have been unnecessary if the old constitution were being merely amended. inasmuch as. it would be problematical for any dissenting justice to consider himself as included automatically in the 15-man-Court. tabulate and canvass the 15 million votes allegedly reported within the short period of time employed. 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. More specifically. and. which served as basis for Proclamation 1102. III In brief. the main contention of the petitioners is that Proclamation 1102 is invalid because the ratification of the 1973 Constitution it purports to declare as having taken place as a result of the referendum above-referred to is ineffective since it cannot be said on the basis of the said referendum that said Constitution has been "approved by a majority of the votes cast at an election" in the manner prescribed by Article XV the Constitution of 1935. On the other hand. the undeniable fact is that the voting in the referendum resulted in the approval by the people of the New Constitution. 1946 and 1967. anyway. 1940. considering that Mr. 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. otherwise. ceased in the meanwhile to be members of the 11-manCourt in the 1935 Constitution. the Constitution of 1973 is already in force. albeit I held that nonetheless. On the other hand. there was neither time nor opportunity for real debate before they voted. disregarding unessential matters of form. offices and courts as well as the tenure of all incumbent officials.Court." By virtue of the presumptive validity of the new charter. and accordingly. etc. 1937. 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. had no official authority to render the same. in its Section 10. the Constitution of 1973 is a new one. and it is inconceivable and humanly impossible for anyone to have been able to gather. We would just continue to be in our membership in the 15-man-Court. there has been a substantial compliance with Article XV of the 1935 Constitution. the best proofs that by its expressed and implied intent. In order. unless We feel We cannot in conscience accept the legality of existence. Should the Court finally decide that the Constitution is invalid. 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. I cannot say that Article XV of the Old Constitution has been complied with.Constitutional Law I L-36142 Constitutional Law I L-36142 Withal. no other form of ratification can be considered contemplated by the framers of the Old Constitution than that which had been followed 1935. according to them the referendum was a farce and its results were manufactured or prefabricated. the last three or four which were held under the supervision of the Commission on Elections. they also contend that in any event. 1939. then We would automatically revert to our positions in the 11-man. however. 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. who is supposed to have submitted the final report to the President. The new Constitution. Article XVII. I need not dwell at length on these variant positions of the parties. they emphatically deny the veracity of the proclaimed results of the referendum because. In my separate opinion in the Plebiscite Cases. We have in legal contemplation. Furthermore. since that would tantamount to accepting a position he does not honestly believe exists. Of course. there was no proper submission because martial law per secreates constructive duress which deprives the voters of the complete freedom needed for the exercise of their right of choice and actually. not adversely affected by it. 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. Francisco Cruz. to make myself clearer on some 149 150 . all of form part of the 15-manCourt provided for therein correspondingly.

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. It is contended. if brief and inadequate for those who are abreast of current events and general occurrences. (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. It came from Mr. Accordingly. 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. it must have been thought that if the holding of a plebiscite was to be abandoned. in decisionmaking regarding matters of vital national interest. I can see that at the outset. however. in my estimate. the logical consequence would have been the complete abandonment of the idea of holding any plebiscite at all. It must not be lost sight of. the "comments" accompanying the questions do strongly suggest this view. the real figure. In my opinion in those cases. how could anyone expect the millions of unlettered members of the Citizens Assemblies to have noticed the point brought out by Justice 151 152 . Do you approve of the New Constitution? capital is being made of the point that as so framed. it is very plain to see that since the majority has already approved the new Constitution. Thus. such may have been the idea. I can believe that the figures referred to in the proclamation may not accurate. simply because I saw with own eyes that people did actually gather and listen discussions. the thrust of the said question does not seek an answer of fact but of opinion. And as it turned out. If in fact there were substantially less than 14 million votes of approval. On the other hand. 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. 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. thru the Citizens Assemblies. None of the other members of the Court. or if anyone of Us did. as far as I can recall. could still be significant enough and legally sufficient to serve as basis for a valid ratification. I am not aware that he gave it more than passing attention. I am in no position to deny that the result of the referendum was as the President had stated. which honestly. when the first set of questions was released. Justice Fred Ruiz Castro whose mastery of the English language can rightly be the cause of envy of even professors of English. 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. 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. I would like to add a few considerations to what I have already said in the former cases. Clear as these rationalizations may be. 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. of the new Constitution. ever noticed how the said question is phrased. there should be a direct and expressed desire of the people to such effect in order to forestall as much as possible any serious controversy regarding the non-holding of the plebiscite required by the letter of Section 16 of Article XVII. the majority found no necessity in holding a plebiscite. and that they did vote. I do not believe to be possible. Oddly enough. however. the effectivity clause. looking at things more understandingly and realistically the two questions emphasized by counsel. but I cannot say in conscience that all of them are manufactured or prefabricated. I take it that if the majority had expressed disapproval of the new Constitution. and I say this only because petitioners would consider the newspapers as the official gazettes of the administration.Constitutional Law I L-36142 Constitutional Law I L-36142 relevant points. In connection with the question. namely. 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. that if the newspaper reports are to be believed. a plebiscite would be superfluous. 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.

two or three specific proposed amendments. it is not fair to condemn and disregard the result of the referendum barely because of martial law per se. 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. As I intimated. the intention is no more than a suggestion or a wish. 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. no matter how substantial. however. it is not fair to ascribe to it the imposition of a condition. private armies. it must be considered that a martial law was declared. one has to take the good together with the bad in it. particularly. which no one can contend are per se means of coercion. Definitely. deteriorating conditions of peace and order. the remedy was far from using bullets alone. for necessarily. As regards said "comments". there was need to indicate to the people the paths open to them in their quest for the betterment of their conditions. considering." On the assumption that the actual answer. from the realistic viewpoint. it had to be approved without loss of time and sans the cumbersome processes that. 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. the additional answer proposed in pertinent "comment" reads as follows: "But we do not want Ad Interim Assembly to be convoked etc. 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. considering the need for faster decisions and more resolute action. At most. 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. the former calls for nothing more than a collective view of all the provisions of the whole charter. in the context of actualities. have in the past obstructed rather than hastened the progress of the people. Only by bearing these considerations in mind can the "comments" already referred to be properly appreciated. and prolonged dialogue and exchange of ideas are not generally possible. Besides. he approves the New Constitution. In interest of accuracy. 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. affirmative answer must be taken as a categorical vote of approval thereof. the said answer is at best a conditional approval not proper nor acceptable for purposes of ratification plebiscite. the circumstances surrounding making of the Constitution acquired a different and more meaningful aspect. From the point of view of the President and on the basis of intelligence reports available to him. oligarchic political practices. if only because the implementation of martial law since its inception has been generally 153 154 . but actually. The contention has no basis. they may also be viewed in the same light as the sample ballots commonly resorted to in the elections of officials. For one thing. nor practical. 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. considering the ever present possibility that after all it may be cured by subsequent amendment. and naturally. namely. as reported.Constitutional Law I L-36142 Constitutional Law I L-36142 Castro? Truth to tell. anarchy. It is also contended that because of this reference in answer to that question to the deferment of the convening of the interim assembly. was of similar tenor. If a constitution was to be approved as an effective instrument towards the eradication of such grave problems. reading the question in the light of the accompanying "comment" corresponding to it in particular. many of the objectionable features of martial law have not actually materialized. It is rare for anyone to reject a constitution only because of a few specific objectionable features. as a matter of fact. Stated otherwise. I myself did not realize the difference until Justice Castro gave it emphasis. in my former opinion. and many other deplorable long standing maladies crying for early relief and solution. After all voting on a whole new constitution is different from voting on one. influence peddling. Accordingly. the so inequalities widening the gap between the rich and the poor. the formation of a new society. Let us not forget that the times are abnormal. as in the case of rebellious movement that threatened the Quirino Administration. To others said "comments" may appear as evidence of corruption of the will of those who attended the assemblies.

if I may. cases of excess votes may be found. although the restrictions on the freedom of speech. thanks to the expressed wishes of the President that the same be made "Philippine style". 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. however. I find neither strict nor substantial compliance. that in the Philippines. 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. to find out with absolute precision the veracity of the total number of votes actually cast. The ruling in the decided cases relied upon by petitioners are to this effect. The main basis of my opinion in the previous cases was acceptance by the people. 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. because the other side is exclusively political territory reserved for their own dominion by the people. I reiterate that in point of law. I am persuaded that there should be a boundary beyond which the competence of the courts no longer has any reason for being. it is necessary for me to point out that when it comes to ratification. Factors which are non-legal but nevertheless ponderous and compelling cannot be ignored. my considered opinion is that the Court may no longer decide these cases on the basis of purely legal considerations. of the factual background of the cases at bar which include ratification itself. have any cause for apprehension in regard to the conduct by them of the normal activities of life. 73 is justiciable. 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. which means without the rigor that has attended it in other lands and other times. it is not for me to resort. Moreover. In view. At this juncture. that is something else which may actually cause him to cast a captive vote. For my part. 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. saving inconsequential instances. I consider it unnecessary to be strictly judicial in inquiring into such fact. It is a fact. IV It is my sincere conviction that the Constitution of 1973 has been accepted or adopted by the people. I joined my colleagues in holding that the question of whether or not there was proper submission under Presidential Decree No. And so it is recorded that in the elections 1951 and 1971. the claims that upon a comparison of conflicting reports. Being personally aware. 155 156 . to judicial tape and measure.Constitutional Law I L-36142 Constitutional Law I L-36142 characterized by restraint and consideration. And on this premise. held while the privilege of writ ofhabeas corpus was under suspension. even if extrapolated will not. After all. 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. since it is known by all that only those who run afoul the law. 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 suspension of the privilege of the writ habeas corpus has never produced any chilling effect upon the voters. 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. for their relevancy is inherent in the issue itself to be resolved. In my opinion in the Plebiscite Cases. as I have already stated. 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. that the Citizens Assemblies did meet and vote. the Filipino voters gave the then opposition parties overwhelming if not sweeping victories. in defiance of the respective administrations that ordered the suspensions. however. The foregoing discussion is only to counter. if irregularly and crudely. borne by history and actual experience. but when he is subject to arrest and detention without investigation and without being informed of the cause thereof. for the purposes of these cases.

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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 selfborn, they very rarely, if at all, come into being, by virtue of any provision

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of another constitution. 3 This must be the reason why every constitution has its own effectivity clause, so that if, the Constitutional Convention had only anticipated the idea of the referendum and provided for such a method to be used in the ratification of the New Constitution, I would have had serious doubts as to whether Article XV could have had priority of application. 2. When an entirely new constitution is proposed to supersede the existing one, we cannot but take into consideration the forces and the circumstances dictating the replacement. From the very nature of things, the proposal to ordain a new constitution must be viewed as the most eloquent expression of a people's resolute determination to bring about a massive change of the existing order, a meaningful transformation of the old society and a responsive reformation of the contemporary institutions and principles. Accordingly, should any question arise as to its effectivity and there is some reasonable indication that the new charter has already received in one way or another the sanction of the people, I would hold that the better rule is for the courts to defer to the people's judgment, so long as they are convinced of the fact of their approval, regardless of the form by which it is expressed provided it be reasonably feasible and reliable. Otherwise stated, in such instances, the courts should not bother about inquiring into compliance with technical requisites, and as a matter of policy should consider the matter non-justiciable. 3. There is still another circumstance which I consider to be of great relevancy. I refer to the ostensible reaction of the component elements, both collective and individual, of the Congress of the Philippines. Neither the Senate nor the House of Representatives has been reported to have even made any appreciable effort or attempt to convene as they were supposed to do under the Constitution of 1935 on January 22, 1973 for the regular session. It must be assumed that being composed of experienced, knowledgeable and courageous members, it would not have been difficult for said parliamentary bodies to have conceived some ingenious way of giving evidence of their determined adherence to the Constitution under which they were elected. Frankly, much as I admire the efforts of the handful of senators who had their picture taken in front of the padlocked

portals of the Senate chamber, I do not feel warranted to accord such act as enough token of resistance. As counsel Tolentino has informed the court, there was noting to stop the senators and the congressmen to meet in any other convenient place and somehow officially organize themselves in a way that can logically be considered as a session, even if nothing were done than to merely call the roll and disperse. Counsel Tolentino even pointed out that if there were not enough members to form a quorum, any smaller group could have ordered the arrest of the absent members. And with particular relevance to the present cases, it was not constitutionally indispensable for the presiding officers to issue any call to the members to convene, hence the present prayers formandamus have no legal and factual bases. And to top it all, quite to the contrary, the records of the Commission on Elections show that at least 15 of 24 senators and over 95 out of less than 120 members of the House of Representatives, have officially and in writing exercised the option given to them to join the Interim National Assembly under the New Constitution, thereby manifesting their acceptance of the new charter. Now, having these facts in mind, and it being obvious that of the three great departments of the government under the 1935 Constitution, two, the Executive and the Legislative, have already accepted the New Constitution and recognized its enforceability and enforcement, I cannot see how this Supreme Court can by judicial fiat hold back the political developments taking place and for the sake of being the guardian of the Constitution and the defender of its integrity and supremacy make its judicial power prevail against the decision of those who were duly chosen by the people to be their authorized spokesmen and representatives. It is not alone the physical futility of such a gesture that concerns me. More than that, there is the stark reality that the Senators and the Congressmen, no less than the President, have taken the same oath of loyalty to the Constitution that we, the Justices, have taken and they are, therefore, equally bound with Us to preserve and protect the Constitution. If as the representatives of the people, they have already opted to accept the New Constitution as the more effective instrument for fulfillment of the national destiny, I really wonder if there is even any idealistic worth in our desperately clinging by Ourselves alone to Our sworn duty vis-a-vis the

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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

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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 Tañada and Salonga that these cases be decided on the basis of conscience. That is exactly what I am doing. But if counsel mean that only by granting their petitions can this Court be worthily the bulwark of the people's faith in the government, I cannot agree, albeit my admiration and respect are all theirs for their zeal and tenacity, their industry and wisdom, their patriotism and devotion to principle. Verily, they have brought out everything in the Filipino that these cases demand. In times of national emergencies and crises, not arising from foreign invasion, we need not fear playing opposite roles, as long as we are all animated by sincere love of country and aim exclusively at the attainment of the national destiny. Our heroes of the past, Rizal, Bonifacio, Aguinaldo, Antonio Luna, Mabini and so also with our patriots of the recent generations, Quezon, Osmeña, Roxas, Laurel and Recto, to mention only some of them, had their differences of views and they did not hesitate to take diametrically opposing sides that even reached tragic proportions, but all of them are admired and venerated. It is my faith that to act with absolute loyalty to our country and people is more important than loyalty to any particular precept or provision of the Constitution or to the Constitution itself. My oath to abide by the Constitution binds me to whatever course of action I feel sincerely is demanded by the welfare and best interests of the people. In this momentous juncture of our history, what is imperative is national unity. May God grant that the controversies the events leading to these 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:

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Assuming, without conceding, that Article XV of the 1935 Constitution prescribes a procedure for the ratification of constitutional amendments or of a new Constitution and that such procedure was no complied with, the validity of Presidential Proclamation No. 1102 is a political, not a justiciable, issue; for it is inseparably or inextricably link with and strikes at, because it is decisive of, the validity of ratification and adoption of, as well as acquiescence of people in, the 1973 Constitution and the legitimacy of the government organized and operating thereunder. And being political, it is beyond the ambit of judicial inquiry, tested by the definition of a political question enunciated in Tañada, et. al. vs. Cuenco, et al. (103 Phil. 1051), aside from the fact the this view will not do violence to rights vested under the new Constitution, to international commitments forged pursuant thereto and to decisions rendered by the judicial as well as quasi-judicial tribunals organized and functioning or whose jurisdiction has been altered by the 1973 Constitution and the government established thereunder, and will dissipate any confusion in the minds of the citizenry, who have been obeying the mandates of the new Constitution, as well as exercising the rights and performing the obligations defined by the new Constitution, and decrees and orders issued in implementation of the same and cooperating with the administration in the renovation of our social, economic and political system as re-structured by the 1973 Constitution and by the implementing decrees and orders (see Miller vs. Johnson, 18 SW 522, 522526, 1892). In 1957, Mr. Chief Justice Roberto Concepcion, then Associate Justice, in behalf of the Court, defined a political question as one which, under the Constitution, is "to be decided by the people in their sovereign capacity, or in regard to which full discretionary authority had been delegated to the Legislature or Executive branch of the government." (Tañada, et al. vs. Cuenco, et al., supra). Article XV of the 1935 Constitution provides: "Such amendments shall be valid as part of this Constitution when approved by a majority of the votes cast at an election at which the amendments are submitted to the people for ratification." Under Article XV of the 1935 Constitution, the power to propose constitutional amendments is vested in Congress or in a

constitutional convention; while the power to ratify or reject such proposed amendments or new Constitution is reserved by the sovereign people. The 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).

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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

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we declared unconstitutional an act of Congress purporting to apportion the representative districts for the House of Representatives. unlike the people. Chief Accountant of the Senate. we held the officers and employees of the Senate Electoral Tribunal are supervision and control. claimed by the latter. WE merely stated therein that the force of the ruling in the said case of Mabanag vs. Commission on Elections. When acting as such. 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. Cuenco and Macias vs. in the third we nullified the election. Lopez Vito (78 Phil. such as ours to make. (21 SCRA 787) We did not categorically and entirely overturn the doctrine in Mabanag vs.Constitutional Law I L-36142 Constitutional Law I L-36142 adoption thru acquiescence by the sovereign people. this Court characterizing the issue submitted thereto as a political one. it is said that Senators and Members of the House of Representatives act. of two (2) Senators belonging to the first party. 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. (21 SCRA pp. however. to amend their own Fundamental Law. Thus we rejected the theory advanced in these four (4) cases. notas members. Thus. the power to amend the Constitution or to propose amendments thereto is not included in the general grant of legislative powers to Congress. Lopez Vito. Tañada vs. 169 170 . In the first. this Court proceeded to determine the number of Senators necessary for a quorum in the Senate. in the second. the members of Congress derive their authority from the Constitution. It is part of the inherent powers of the people as the repository of sovereignty in a republican state. 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. 785-786). Cuenco. We held that: Indeed. upon the ground that the apportionment had not been made as may be possible according to the number of inhabitants of each province. We pronounced therein: It is true that in Mabanag vs. supra. The force of this precedent has been weakened. that the issues therein raised were political questions the determination of which is beyond judicial review. including the Constitution itself. Avelino vs. when exercising the same. Lopez Vito has been weakened by subsequent cases. Hence. for the second party. as members. and hence. It should be stressed that even in the Gonzales case. but as component elements of a constituent assembly. and in the fourth. not of that of the Senate President. As heretofore stated. 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. by Suanes vs. of the Senate Electoral Tribunal. Congress may propose amendments to the same explicitly grants such power. for their authority does not emanate from the Constitution they are the very source of all powers of government. when performing the same function.

Modern Library ed. p. Both primarily stressed on the impropriety of the submission of a proposed constitutional amendment. 1781(Encyclopedia Brit. the latter should be deemed modified accordingly. emphasis supplied). on October 19. p. the Congress of the Confederation passed a resolution on February 21. One more word about the Gonzales and Tolentino cases. emphasis supplied. 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. 1775 with the skirmish at Lexington. 1787. history Professor Edward Earle Mead of Princeton University recorded that: 171 172 . Virginia.. hence. Vol.. 776) adopted their Articles of Confederation and Perpetual Union. constitutionality or unconstitutionality of an act: it inquires into the existence of power or lack of it. Courts do not deal with propriety or wisdom or absence of either of an official act or of a law.Constitutional Law I for which reason We concluded L-36142 Constitutional Law I L-36142 In short. (See the Federalist. Judicial wisdom is not to be pitted against the wisdom of the political department of the government. and. Judicial power concerns only with the legality or illegality. 584. Lopez Vito. The Convention convened at Philadelphia on May 14.. 525). and the union shall be perpetual. 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. (p. supra. Article XIII of the Articles of Confederation and Perpetual Union stated specifically: The articles of this confederation shall be inviolably observed in every state. 577. . 1937. 787. the issue whether or not a resolution of Congress before acting as a constituent assembly violates the Constitution is essentially justiciable. 1787 calling for a Federal Constitutional Convention "for the sole and express purpose of revising the articles of confederation . Thus. Appendix II. Federalist.. and be afterwards confirmed by the legislatures of every state. p. I.) 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. Vol." (Appendix I.. 1933 Ed. unless such alteration be agreed to in a congress 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. Fearful the said Federal Constitution would not be ratified by the legislatures as prescribed.. p. not necessarily in all thirteen (13) states. Modern Library Ed. II. 1781 (Encyclopedia Brit. remains a political issue removed from the jurisdiction of this Court to review. 1966 Ed. 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. subject to judicial review. nor shall any alterations at any time hereafter be made in any of them. not political. About six thereafter. the said Constitution shall take effect. and to the extent that this view may be inconsistent with the stand taken in Mabanag vs. that was written from 1776 to 1777 and ratified on March 1. Massachusetts and ended with the surrender of General Cornwallis at Yorktown.) In the Tolentino case. emphasis supplied.

But the Congress of the Confederation. (The Oxford History of the Am. nor against the legitimacy of the government organized and functioning thereunder. Modern Library Ed. namely.. 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.S. and others ineligible to state legislatures. provided for ratification of the Constitution by popularly elected conventions in each state. still sitting in New York to carry on federal government until relieved. 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. Madison (1803. Experience clearly indicated that ratification then would have had the same chance as the scriptural camel passing through the eye of a needle. The convention method had the further advantage that judges. anticipating that the influence of many state politicians would be Antifederalist. 1788 and by the last four states on May 29.. viii-ix. could be elected to a convention. Board of Trustees (37 SE 2nd 322. Suspecting that Rhode Island. 1937. 1790 (12 C. by Samuel Eliot Morison.Constitutional Law I L-36142 Constitutional Law I L-36142 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. Until this date. 326-330). We think that the principle which we apply in the instant case was very clearly applied in the creation of the 173 174 . pp. 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. thus: No case identical in its facts with the case now under consideration has been called to our attention. . The liberties of the American people were guaranteed by subsequent amendments to the Federal Constitution. p. emphasis supplied) Historian Samuel Eliot Morison similarly recounted: The Convention. the Court cited precisely the case of the irregular revision and ratification by state conventions of the Federal Constitution. And so the American Constitution was ratified by nine (9) states on June 21. furthermore. formally submitted the new constitution to the states and politely faded out before the first presidential inauguration. People.J. it declared that the Constitution would go into effect as soon as nine states ratified. and we have found none. 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. 27. In the 1946 case of Wheeler vs. 1965 ed. the new government should go into effect if and when it should be ratified by nine of the thirteen states . at least. 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.. p.. 1 Cranch 137). (The Federalist. no challenge has been launched against the validity of the ratification of the American Constitution. ministers.J. The nine-state provision was. the absence of a bill of Rights and of a provision affirming the power of judicial review. mildly revolutionary. would prove recalcitrant. 16 C. Introduction by Edward Earle Mead.. 312). 679 footnote. of course.

this proposal. amend the articles of confederation. and one only.) In the 1903 case of Weston vs. to be submitted to and passed by the Congress. and that the national idea must be reestablished at the center of their political society. that the disease was too deeply seated to be reached such tentative means. Ryan. the Indiana Supreme Court said: "The people of a State may form an original constitution. had a right to propose a plan of government to the people for their adoption. and no authority whatsoever. xxx xxx xxx . and did accomplish. no authority. They were. the framing or submission of the instrument is not what gives it binding force and effect. In State v. and afterwards ratified by all the State legislatures. and the people might have done the same with a constitution submitted to them by a single citizen. . what they were not authorized to do by a resolution of Congress that called them together. 69 Ind.Constitutional Law I L-36142 Constitutional Law I L-36142 constitution of the United States. without any political restriction except the constitution of the United States. if their decisions were to be final. and their work had no more binding sanction than a constitution drafted by Mr. But the convention soon became convinced that any amendments were powerless to effect a cure. p.. into an organic law. that they had no power. and that they as well as any private individuals. We do not hesitate to say that a court is never justified in placing by implication a limitation upon the sovereign. That resolution plainly contemplated amendments to the articles of confederation. 55. at any time. Swift. It was objected by some members. or abrogate an old one and form a new one. to adopt the course they did. a new constitution. discussing the convention that formulated the constitution of the United States.." xxx xxx xxx . in fact. and any private individuals as well as they.. This would be an authorized exercise of sovereign power by the court. 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. 519. This they did not do.. But they knew that their labors were only to be suggestions. They saw that the system they were called to improve must be totally abandoned. has this to say: "The convention proceeded to do. by their expressed will. the Court held: 175 176 . 505. emphasis supplied.. to wit. but submitted to the sovereign power. . The people. transformed this suggestion. When the people adopt a completely revised or new constitution. under the articles of confederation. to construct a new government. the people.. 329. The fiat of the people and only the fiat of the people." (37 SE 327-328. They had no authority. a mere assemblage of private citizens. in the manner pointed out by the existing organic law. Hamilton in his office would have had. can breathe life into a constitution. The convention created by a resolution of Congress had authority to do one thing.

. CJS. and being in force without opposition. in our opinion. emphasis supplied). 270-316 of the Oxford History of the American People. No. However.. 1965 ed. . The Federal Constitution was a "creation of the brain and purpose of man" in an era of peace. 754." Professor Morison delineates the genesis of the Federal Constitution. Petitioners pray for a declaration that the 1973 Constitution is inoperative (L-36164). but does not refer to it even implicitly as revolutionary constitution (pp. The Web of Government. by Samuel Eliot Morison. it would not. 12. This opinion does not cite any decided case. MacIver. the Supreme Court of Virginia hold that their state Constitution of 1902. 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. L-36165 dismissed this most significant historical fact by calling the Federal Constitution of the United States as a revolutionary one..E. 2 Neb. 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. It is rather ridiculous to refer to the American Constitution as a revolutionary constitution.R. p. 1965 Ed. Against the decision in the Wheeler case. Corpus Juris Secundum. 16. is a similar holding as to certain provisions of the Nebraska Constitution of 1886." (97 NW 349350. People. In Brittle v. petitioners in G. is unconstitutional and void. on p. by any means follow that the amendment is not a part of our state Constitution. 1102 strikes at the validity and enforceability of the 1973 Constitution and of the government established and operating thereunder. 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. 270-281). 203). p. Commonwealth (Va. As heretofore stated. but merely refers to the footnotes on the brief historic account of the United States Constitution on p. and by the people. 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. The Articles of Confederation and Perpetual Union that was in force from July 12. invoking the opinion expressed in Vol. who discusses the Articles of Confederation and Perpetual Union in Chapter XVIII captioned "Revolutionary Constitution Making. 1887.. even though they do not involve the violent overthrow of an established order. the issue as to the validity of Proclamation No.M.Constitutional Law I L-36142 Constitutional Law I L-36142 It remains to be said that if we felt at liberty to pass upon this question. If 177 178 . 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. Petitioners. confirming the validity of the ratification and adoption of the American Constitution. 27. 1775 1781" (pp. supra. 1776 to 1788. In the recent case of Taylor vs. though never submitted to the people for their approval. which were added by the Legislature at the requirement of Congress. forged as it was during the war of independence was a revolutionary constitution of the thirteen (13) states." (R. 18 of their main Notes. 1785-1788. 679 of Vol. 198. 297-316). It can only be considered revolutionary in the sense that it is a radical departure from its predecessor. In Chapter XX on "The Creative Period in Politics. and were compelled to hold that the act of February 23.) 44 S. 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 Articles of Confederation and Perpetual Union. having been acknowledged and accepted by the officers administering the state government. The fallacy of the statement is so obvious that no further refutation is needed. refer US to pp.

For.S. suggested by the argument as to the full significance of the previous doctrine. 7 How. we do not content ourselves with a mere citation of the cases. Chief Justice White. affirmed in the 1900 case of Taylor vs. it is sufficient for us to quote the decision in Pacific States Telephone and Telegraph Co. is recognized by the proper constitutional authority." 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. 548. It is true that the contest in this case did not last 179 180 . but state more at length than we otherwise would the issues and the doctrine expounded in the leading and absolutely controlling case Luther v. and it should be decided that the character government had no legal existence during the period of time above mentioned. Borden. Oregon (223 U.. 44 L. 12 L. "Under this article of the Constitution it rests with Congress to decide what government is established one in a state. Beckham(178 U. 1. had long been decided as early as the 1849 case of Luther vs. Because it reaffirmed the pronouncements in both Borden and Beckham cases. penned by Mr. and shall protect each of them against invasion. 38): "For if this court is authorized to enter upon this inquiry. Congress must necessarily decide what government is established in the state before it can determine whether it is republican or not. 133-151. And its decision is binding on every other department of the government... On this subject it was said (p. if it had been annulled by the adoption of the opposing government. its public accounts improperly settled and the judgments and sentences of its courts in civil and criminal cases null and void. if not in some cases as criminals. 1102 is nullified. xxx xxx xxx . then the laws passed by its legislature during that time were nullities. and on the application of the Legislature or of the Executive (when the legislature cannot be convened) against domestic violence.Constitutional Law I L-36142 Constitutional Law I L-36142 Proclamation No. and could not be questioned in a judicial tribunal. who re-stated: In view of the importance of the subject. the apparent misapprehension on one side and seeming misconception on the other.ed. 118. That the issue of the legitimacy of a government is likewise political and not justiciable. 1187) and re-enunciated in 1912 in the case of Pacific States Telephone and Telegraph Company vs. 581). as well as its republican character. proposed by the plaintiff. 56 L.ed.supra. the authority of the government under which they were appointed. And when the senators and representatives of a state are admitted into the Councils of the Union. 377-386). 1.ed.. its taxes wrongfully collected. 12 L. its salaries and compensations to its officers illegally paid .ed. as the United State guarantee to each state a republican government. 581. 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.S. and the officers who carried their decisions into operation answerable as trespassers. Borden (7 How.

speaking through Mr. after disposing of a contention made concerning the 14th Amendment. 20 Sup. In that case it was held that the question. 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. which of the two opposing governments of Rhode Island. 181 182 . 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. We do not stop to cite other cases which indirectly or incidentally refer to the subject. Beckham. Yet the right to decide is placed there and not in the courts. Luther v. and not. Ct. and on application of the legislature. as well as by the people. are." xxx xxx xxx As the issues presented. the charter government or the government established by a voluntary convention. of the Constitution. becomes valid.Constitutional Law I L-36142 Constitutional Law I L-36142 long enough to bring the matter to this issue. against domestic violence. 1. Congress was not called upon to decide the controversy.ed. and when that department had decided. where. it follows that the case presented is not within our jurisdiction. Rep. 890. Commonwealth (44 SE 754-755)." xxx xxx xxx "It was long ago settled that the enforcement of this guaranty belonged to the political department.. it was said (p. (223 U. pp. 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. dismissed for want of jurisdiction. Chief Justice Fuller. 7 How. Borden. and embraced within the scope of the scope of the powers conferred upon Congress. therefore within the reach of judicial power.ed. in their very essence. 1009. was a question for the determination of the political department. In the 1903 case of Taylor vs.S. 1187.. and it is. namely. or the Executive (when the legislature cannot be convened). emphasis supplied). was the legitimate one. definitely determined to be political and governmental. and as no senators or representatives were elected under the authority of the government of which Mr. providing that the United States shall guarantee to every state in this Union a republican form of government." xxx xxx xxx . and shall protect each of them against invasion. accepted and acted upon the by Chief of State and other government functionaries.S. Dorr was the head. 548. the courts were bound to take notice of the decision and follow it. 12 L. and the writ of error must therefore be. when recognized. 142-151. but conclude by directing attention to the statement by the court. 581. 578): "But it is said that the 14th Amendment must be read with S 4 of article 4. 178 U. in Taylor vs. and have long since by this Court been. 44 L.

Armstrong v.Constitutional Law I L-36142 Constitutional Law I L-36142 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. if followed. 281 Pa. 755). unless satisfied that the Constitution was violated in submitting the proposal. accepted. July 15." It has likewise been held that it is not necessary that voters ratifying the new Constitution are registered in the book of voters. 40 A 740 [1899].. or in its advertisement. such act becomes valid upon ratification or adoption or acquiescence by the people. Company (42 SO pp. 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. (130 A 409). In the 1925 case of Taylor vs. under its provisions. 408 410). Thus. it is effective for all purposes when accepted by the majority. by the individual oaths of members to support it. Wurts. 45 LRA 251. as directed thereby. by the Legislature in its formal official act adopting a joint resolution.. if once sanctioned. the Court stated: There may be technical error in the manner in which a proposed amendment is adopted. King (130 A 407. 126 A. Even though it be submitted at an improper time. it becomes part of the Constitution. as the Constitution of Virginia. either directly or collaterally. (p. and acted upon as the only valid Constitution of the state by the Governor in swearing fidelity to it and proclaiming it. by approval of the electors. 263. because of any mistake antecedent thereto. In the 1956 case of Thomson vs. yet. but. 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.R." 183 184 . . King. without omitting any requisite steps. at a general election for their representatives in the Congress of the United States. Legal complaints to the submission may be made prior to taking the vote. 207. 1902. and cannot be attacked. and by voting. The result of the work that the convention has been recognized. 375). 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. and by the people in their primary capacity by peacefully accepting it and acquiescing in it. recognizing the Constitution ordained by the convention which assembled in the city of Richmond on the 12th day of June 1901. 118 & 123). emphasis supplied). 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. (Bott vs. it is enough that they are electors voting on the new Constitution. Even if the act of the Constitutional Convention is beyond its authority. unobjected to. courts should uphold amendment. Substance more than form must be regarded in considering whether the complete constitutional system for submitting the proposal to amend the constitution was observed. Peoples State Bank (75 NW 2nd 370. registering as voters under it to the extent of thousands through the state. in the 1905 case of Ex parte Birmingham and A. the amendment is embodied therein.

Code of 1942. The civil courts. 17. to be used in the holding of the special election on the constitutional amendment. et al. 1971 until martial law was proclaimed on Sept. the salient reforms contained in the 1973 Constitution which have long been desired by the people. The irregularities complained of. which suspension implies constraint on individual freedom as the proclamation of martial law. 22. 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. Copies of the 1973 Constitution had been furnished the United Nations Organization and practically all the 185 186 . The foreign ambassadors who were accredited to the Republic of the Philippines before martial law continue to serve as such in our country. 1973 (Annex Rejoinder-3 to Consolidated Rejoinder of petitioners in L-36165)." The same principle was reiterated in 1961 by the Mississippi Supreme Court in Barnes. even if proved. 1971. according to the certification of the Commission on Elections dated February 19. 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. see also Sylvester vs. 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. Rec. et al. military tribunals and quasi-judicial bodies created by presidential decrees have decided some criminal. Garcia. 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. v. Free election is not inevitably incompatible with martial law." (Emphasis supplied. 3(2) of Article XVII of the 1973 Constitution. 42 SCRA 448).Constitutional Law I L-36142 Constitutional Law I L-36142 Again. aside from the fact of its ratification by the sovereign people through the Citizens Assemblies. 1973. did not invalidate the amendment which was ratified by the people. Ilarde and John Osmeña opted to serve in the Interim Assembly. 1970 of delegates of the Constitutional Convention and during the deliberations of the Constitutional Convention from June 1. 663).' as provided by Section 3249. All the local governments. while two new ambassadors have been accepted by the Philippines after the ratification of the 1973 Constitution on January 17. 1973 implement some of the reforms and had been ratified in Sec. 154 Fla. 21.. 1972 to Jan. 8 SO 2nd 892. on the floor of the Convention itself. Ladner (131) SO 2nd 45 462). had been thoroughly discussed in the various committees of the Constitutional Convention. 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. 14. Only the five (5) petitioners in L-36165 close their eyes to a fait accompli. there is no total blackout of human rights and civil liberties. civil and administrative cases pursuant to such decrees. and (b) the alleged failure of the State Election Commissioners to comply with the requirements of Code Sections 3204 and 3205 in the appointment of election commissioners in each of the 82 counties. in the 1958 case of Swaim vs. Dec. Many of the decrees promulgated by the Chief Executive from Sept. In both situations. Even prior to the election in November. dominated either by Nacionalistas or Liberals. including the lower courts. Tindall. 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. were not such irregularities would have invalidated the election.. 1972. Tuscaloosa County (103 SO 2nd 769). All the other functionaries recognize the new government and are performing their duties and exercising their powers under the 1973 Constitution. in civic forums and in all the media of information.

the rest of the citizenry are complying with decrees. that. but merely to determine whether they have kept within constitutional limits. secessionists. it would undoubtedly be the duty of the courts declare its work a nullity. one of a judicial character? It is our undoubted duty. The judiciary cannot compel a co-equal department to perform a duty. For instance. The instrument which we are asked to declare invalid as a constitution has been made and promulgated according to the forms of law. 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. It is responsible to the people. This is not. The convention. After the American Revolution the state of Rhode Island retained its colonial character as its constitution. it is usually their last resort. yet it should at the same time be careful to overstep the proper bounds of its power. Of happy relevance on this point is the holding in Miller vs. as being perhaps equally dangerous. when the question is properly presented. and a new government established. orders and circulars issued by the incumbent President implementing the 1973 Constitution. it is the duty of the court to say whether it has conformed to the organic law. however. 1-A(c). not selected by the people according to the forms of law. Is the question. then. to hold the former invalid. and its duty required. in times of great popular excitement. if a provision of the state constitution be in conflict with the federal constitution. and especially where such momentous results might follow as would be likely in this instance. This would be revolution. 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. however. On the contrary. But this is a very different case. and also because. the overthrow of the work of the convention. also. it is a duty rather than a power. While the judiciary should protect the rights of the people with great care and jealousy. therefore. always the case. rebels and subversives as the only possible exceptions. who are qualified electors under the 1973 Constitution (see pars. there should be a remedy in the courts. however. 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. It is a matter of current history that both the executive and legislative branches of the government have recognized its validity as a constitution. because this is its duty. for every violation of or non-compliance with the law.Constitutional Law I L-36142 Constitutional Law I L-36142 other countries with which the Philippines has diplomatic relations. Johnson 18 SW 522: If a set of men. and no law existed providing for the 187 188 . No adverse reaction from the United Nations or from the foreign states has been manifested. It may be said. In brief. (d). but if it does act. were to formulate an instrument and declare it the constitution. and this the courts of the existing government must resist until they are overturned by power. & (e) of Annex A to Notes of respondents Puyat and Roy in L-36165). was the offspring of law. the power of a court as to the acts of the other departments of the government is not an absolute one. if the power of the judiciary permitted. and are now daily doing so. if a statute be unconstitutional to so declare it.

Perhaps the members of the court might differ as to what 189 amendments are material. It called another convention. then the instrument. through error of opinion. The supreme court of the United States. what constitution are we now living under. it can. in Luther v. If a wrong has been done. 543. Great 190 . and then the court might differ as to what amendments are material. making a constitution. submitted it to a vote. Borden. but a political question.W. If the instrument as ratified by the people could not be corrected or altered at all. if this be essential. when it reassembled. another. Hill. 391. was uniformly held by the courts of the state not to be a judicial. or if the court must determine what changes were material.W. and 15 N. without the judiciary being asked to overstep the proper limits of its power. were void. was the legitimate one. and we find the court. as passed upon by the people or as fixed by the court would be lacking a promulgation by the convention. If. unless the manner be followed. Whether the charter government. and in substance says that where the political department has decided such a matter the judiciary should abide by it. which in 1843 formed a new constitution. 12 Pac. and the people are dissatisfied. Then. 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. that the convention had then the implied power to correct palpable errors. in the proper way in which it should be remedied. Let us illustrate the difficulty of a court deciding the question: Suppose this court were to hold that the convention. it was held to be the duty of the judiciary to follow its decision. the judiciary. made without calling a convention. as the interpreter of that constitution. is by the people acting as a body politic. Tuffy. and that such as were made are void by reason of the people having theretofore approved the instrument. 7 How. or the one established by the voluntary convention. this court must determine what amendments were material. This would be arrogating sovereignty to itself. The convention framed one. Rep. Rep. the convention exceeded its power. 738. and the political department having recognized the one. The charter government did not acquiesce in these proceedings. has been adopted. If it provides how it is to be done. then the question would arise. 60 Iowa. Koehler v.Constitutional Law I L-36142 Constitutional Law I L-36142 making of a new one. to be submitted to a popular vote. and declared it adopted. 14 N. as it held the federal court. State v. It is not a question of whether merely an amendment to a constitution. next. they have ample remedy. and. will declare the amendment invalid. The instrument provides for amendment and change. had no power to make any material amendment. while not expressly deciding the principle. Elections were held for state officers. Rep. resulting in the election of a convention to form a new one. and the result would be confusion and anarchy. 1 Nev. One judge might say that all the amendments. then. and finally declared the state under martial law. But it is a case where a new constitution has been formed and promulgated according to the forms of law. yet in the argument approves it. 835. as required by that constitution. who proceeded to organize a new government. material and immaterial. in effect. 609. In 1841 public meetings were held. 1.

We affirmed in Osmeña vs. 1973. unlike the members of this Court.. would be anomalous. who. 1969 ed. 6. Then again. and bring confusion and anarchy upon the state. This dangerous possibility does not obtain in the case of our Republic. Marcos (Pres. The opinion of Judge Thomas McIntire Cooley that the sovereign people cannot violate the procedure for ratification which they themselves define in their Constitution. coordinate and co-equal branch of the government demands adherence to the presumption of correctness of the President's declaration. 1102 and consequently of the adoption of the 1973 Constitution it would be exercising a veto power on the act of the sovereign people. 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. he might have altered his views on the matter. must restrain its enthusiasm to sally forth into the domain of political action expressly and exclusively reserved by the sovereign people themselves. 8. 1102 that the people through their Citizens' Assemblies had overwhelmingly approved the new Constitution due regard to a separate. if not to their liking. of whom this Court is merely an agent. 1973 under the 1935 Constitution. The people in Article XV of the 1935 Constitution did not intend to tie their hands to a specific procedure for popular ratification of their organic law. cannot apply to a unitary state like the Republic of the Philippines."* (Vol. not having a similar mandate by direct fiat from the sovereign people. In this respect. If the making of them was in excess of its powers. which to say the least. who can and properly should remedy the matter. This Court.Constitutional Law I L-36142 Constitutional Law I L-36142 interests have already arisen under it. important rights exist by virtue of it. were he live today. WE cannot presume to know better than the incumbent Chief Executive. 445 446). Judge Cooley advanced the aforesaid opinion in 1868 when he wrote his opus "Constitutional Limitations. it would be equally an abuse of power by the judiciary and violative of the rights of the people. if it were to declare the instrument of a portion invalid. pp. regardless of our notion as to what is the proper method of giving assent to the new Charter. and now the organic law of our commonwealth. in a milieu vastly different from 1868 to 1898. it is our duty to treat and regard it as a valid constitution. yet. The sovereign people have spoken and we must abide by their decision. there is no overriding reason to deny the same to the Chief of State as head of the 191 192 . to execute the law and administer the affairs of government. only last January 8. persons have been convicted of the highest crime known to the law. Election Contest No. Such presumption is accorded under the law and jurisprudence to officials in the lower levels of the Executive branch. Encyclopedia Brit. the political power of the government has in many ways recognized it. according to its provisions. It is possible that. 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). and. That would be incompatible with their sovereign character of which We are reminded by Section 1. as to how the approval of the new Constitution should be manifested or expressed. 3. which states may be jealous of the powers of the Federal government presently granted by the American Constitution. of Article II of both the 1935 and the 1973 Constitutions. as the entire instrument has been recognized as valid in the manner suggested. (emphasis supplied). This Court cannot dictate to our principal. We need not consider the validity of the amendments made after the convention reassembled. under such circumstances. Jan. If this Court inquires into the validity of Proclamation No. His opinion expressed in 1868 may apply to a Federal State like the United States. Even if conclusiveness is to be denied to the truth of the declaration by the President in Proclamation No. the sovereign people.

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. 1102 is not just an ordinary act of the Chief Executive. Congress or the legislative body is presumed to be in possession of the facts upon which such laws are predicated (Justice Fernando. these citizens. 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. because their stake under the new Charter is not any less than the stake of the more fortunate among us. 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. ex convicts and illiterates were allowed to vote in the Citizens' Assemblies.. And have failed to do so. Proclamation No. 1971 Rev. The Power of Judicial Review. much less overthrow the results of the referendum as certified. etc. in the face of the certifications by the Office the Secretary of the Department of Local Government and Community Development. Much less are We justified in reversing the burden of proof by shifting it from the petitioners to the respondents. et al: vs. these sectors of our citizenry. about which no proof was even offered..Constitutional Law I L-36142 Constitutional Law I L-36142 Executive Branch. 1967 Ed. 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. This should suffice to dispose of this point. Even in the absence of such certification. whether literate or illiterate. ex-convicts granted absolute pardon are qualified to vote.. 102. civil interdiction or ignorance deserve more solicitude from the State than the rest of the citizenry. WE cannot reverse the rule on presumptions.. and those who are 21 years of age or above to express their conformity or non conformity to the proposed Constitution. Not all ex-convicts are banned from voting. (Annexes 1. 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. Code). the ex-convicts and the ignorant. 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.S. 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. without being presumptuous. in much the same way that in passing law. 1102 was based." Moreover. Petitioners decry that even 15-year olds. including the localities of petitioners. if not for generations. convicts or ex-convicts. 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. 112-11 citing Lorenzo vs. In the ultimate analysis. [1931] 282 U. 1973). is the prerogative to proclaim the results of the plebiscite or the voting the Citizens' Assemblies. secessionists. This presumption is further strengthened by the fact that the Department of Local Governments. whose juridical personality or capacity to act is limited by age. 595 and O'Gonmore. 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. Included likewise in the delegated authority of the President. Furthermore. whether peaceful citizens. Elec. etc. the Department National Defense and the Philippine Constabulary as well the 193 194 . 251). 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. aside from the fact that such reports are not contained in the record. of both sexes. Under the rules on pleadings. [1927] 50 Phil. Without admitting that ex-convicts voted in the referendum. As a matter of fact. rebels. Dir. are entitled as much as the educated. it should likewise be presumed that the President was in possession of the fact upon which Proclamation No. Petitioners deny the accuracy or correctness of Proclamation No. ex-convicts and imbeciles constitute a very negligible number in any locality or barrio. pp. the law abiding. to 1-E. the inclusion of those from 15 years up to below 21 years old. Hartford. There is nothing in the records that contradicts.

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. Villen vs. This Court did not heed to the principle that the courts are not the fountain of all remedies for all wrongs. 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. and from 1946 to 1952. to apply and interpret the Constitution and the laws for 195 196 . "Now the hopes for the long-awaited reforms to be within a year or to are brighter. 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. "burying their heads in timeless sand. For the last seven (7) decades since the turn of the century. 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. which is a most grievous accusation. Congress and the oligarchs acted like ostriches. As stated in Wheeler vs. and the violent demonstrations of recent memory. Board of Trustees. for the progress and happiness of the people. 67 Phil. is to charge the President with falsification. must the word of the petitioners prevail over that of the Chief Executive. WE cannot determine what is good for the people or ought to be their fundamental law. 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. rules of pleadings and evidence. 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. Gil. "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. because they happen to be former senators and delegates to the Constitutional Convention? More than any of the petitioners herein in all these cases. but the question may be asked as to what exactly they did to support such reforms. They are witness to the frustrations of well-meaning Presidents who wanted to effect the reforms. funded and seriously implemented. WE can only exercise the power delegated to Us by the sovereign people. 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. the incumbent President realizes that he risks the wrath of his people being visited upon him and the adverse or hostile verdict of history. which necessarily entail some degree of sacrifice on the part of the citizenry. 67 Phil. Under the. which offices as his alter ego. 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. inevitable concomitants of martial law. 62. 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. are presumptively acting for and in behalf of the President and their acts are valid until disapproved or reprobated by the President (Planas vs. 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. Secretary of Interior. 1946. no tangible substantial reform had been effected. 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 L36165 belong to the opposition party. 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. 451). justify a discrimination against the President in matters of this nature? Unsupported as their word is by any credible and competent evidence under the rules of evidence. because of the restrictions on the civil liberties of his people.Constitutional Law I L-36142 Constitutional Law I L-36142 Bureau of Posts are all under the President. despite the violent uprisings in the thirties.

even while Chief Justice. who were then demoralized and plotting mutiny. who later appointed him first as Attorney General of the United States. (See Taylor vs.. 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. which may be due to his rhetorical in the Encyclopedia Britannica (Vol.. 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 197 198 . 654-657)..000 of his French soldiers. The choice of heroes should not be expressed indiscriminately just to embellish one's rhetoric. 9487 [1861]). although Marshal Foch has a distinct place in history on his own merits. 508-509) to this effect. His death "went largely unnoticed and unregretted. which animosity to say the least does no befit a judicial mind." Because he himself was a slave owner and a landed aristocrat. least of all of the American nation. He also was a member of the Maryland state legislature for several terms. Chief Justice Taney sympathized with the Southern States and. 1966 ed. Inheriting the traditional conservatism of his parents who belonged to the landed aristocracy. That he had no sympathy for the Negroes was revealed by his decision in Dred Scott vs. On the contrary. 9. Encyclopedia Britannica (Vol. supra). 1966 & 1969 eds. refers to Marshal Henri Philippe Petain as the genuine hero or "Savior of Verdun". 1969 ed. in which position he continued for 28 years until he died on October 21. (pp. not against them nor to prejudice them. Maryland. supra. also a slave owner and landed aristocrat. Unlike in the Borden case. Taney became a lawyer in 1799. Commonwealth. the surviving members of the family of Marshal Petain would not relish the error. so that the historians. briefly recounts that he was born in 1777 in Calvert County. One can therefore discern his hostility towards President Lincoln when he decided Ex parte Merryman. practiced law and was later appointed Attorney General of Maryland. who at any time may directly exercise their sovereign power ratifying a new Constitution in the manner convenient to them. WE cannot perform an act inimical to the interest of Our principal. 17 Encyclopedia Brit. 1973. Distinguished counsel in L-36165 appears to have committed another historical error. There is not even a rebel government duly organized as such even only for domestic purposes.. 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. compelling him to join the Democratic Party of Andrew Jackson. Certainly. which disintegrated after the war of 1812. 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. But who exactly was Chief Justice Roger Brooke Taney? The Editorial Board of Vol. of parents who were landed aristocrats as well as slave owners. 732733). pp. 1864. 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." 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. The foregoing clarification is offered in the interest of true scholarship and historical accuracy. 21 of the Encyclopedia Brit. let alone a rebel government engaged in international negotiations. pp. Such a man could hardly be spoken of as a hero of the American Bar. because he held Verdun against the 1916 offensive of the German army at the cost of 350. As heretofore stated. 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. 778-779. 1969 ed. then Secretary of the Treasury and in 1836 Chief Justice of the United States Supreme Court to succeed Chief Justice John Marshall. hoped that the Southern States would be allowed to secede peacefully from the Union. And neither would the members of the clan of Marshal Foch acknowledge the undeserved accolade. Sandford (19 How..Constitutional Law I L-36142 Constitutional Law I L-36142 the benefit of the people. 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. He was a leader of the Federalist Party. The vice president elected under the 1935 Constitution does not asset any claim to the leadership of the Republic of the Philippines.

69 Ohio St. 211. Rep. we can disagree without being disagreeable. Laylin. is a justiciable question. Mr. State vs. Thompson vs. scholars and liberal thinkers that they are.A. 97 NW 347. Hammond vs. 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. 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.. Sours. because it is not unreasonable to demand or to exact that he who exhorts others to be brave must first demonstrate his own courage. 70 Neb. 70 Mont. The proclaimed conviction of petitioners in L-36165 on this issue would have a ring of credibility. [N. 20 SCRA 849). adopted or acquiesced in by the people since January 18. Pursuant to Our reservation. political leader. 780. pronounced that the presumption of constitutionality must persist in the absence of factual foundation of record to overthrow such presumption (Ermita-Malate Hotel. 78 Neb. 207 Kan. vs. et al." The challenge likewise seems to insinuate that the members of this Court who disagree with petitioners' views are materialistic cowards or mercenary fence-sitters. which We do not find now necessary to deal with in view of Our opinion on the main issue. Winneth. 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. Clark. Justice Enrique M. 81 Ga. J. WE refuse to believe that petitioners and their learned as well as illustrious counsels.] 149. Woodward vs. et al. author of law books. WE reserve the right to prepare an extensive discussion of the other points raised by petitioners. City Mayor. 199 200 . they will not affirm that the mere filing of their petition in L-36165 already made them "heroes and idealists. do not recognize the sincerity of those who entertain opinions that clash with their own. July 31. 34. Fernando. Shanahan. 486 Pac. (Collier vs. if they proceeded first to hold a rump session outside the legislative building. Smith. Corre vs. 369. 8 SE 318. concurring: Constitutional Law I L-36142 eminence as law professor. State. 10 L. As late as 1971. As intimated in the aforecited cases. Cooney. 103 Ga. 2d 506. IN VIEW OF THE FOREGOING. Dig. 1. 1973 until the present. et al. Gray. 102 Am. Weston vs. 225 P 1007. Combs vs. supra).Constitutional Law I L-36142 MAKASIAR. St." which distinguished counsel in L36165 is wont to quote.R. Ryan. [1949] 83 Phil. II EVEN IF ISSUE IS JUSTICIABLE. 17). 355. 68 NE 574. Surely. 496.. 4th Dec. We now discuss the other issues raised by the petitioners. 30 SE 522. PEOPLE'S RATIFICATION. 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. 31 Colo. ALL THE PETITIONS IN THESE FIVE CASES SHOULD BE DISMISSED. even the courts. 379. Rep. Cuenco. 645. 1009). vs. etc.S. 935 [1934]. Such an attitude does not sit well with the dictum that "We can differ without being difficult. 74 Pac. 110 NW 1113. 1967. State. People vs. speaking for the Court. 1. and member of the newly integrated Philippine Bar. L-24698. if they believe most vehemently in the justice and correctness of their position that the 1973 Constitution has not been validly ratified. and the 1956 case of Tipton vs." 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. The Court need not be reminded of its solemn duty and how to perform it. 71 SE 482-483. ADOPTION OR ACQUIESCENCE CREATES STRONG PRESUMPTION OF VALIDITY OF 1973 CONSTITUTION. although there was an illegal or irregular or no submission at all to the people. 167.

namely. 1973 Constitution). is comprehended within the ordinance-making power of the President under Section 63 of the Revised 201 202 . The Constitutional Convention is co-ordinate and co-equal with. it inescapably must have the power to delegate the same to the President. 3[1]. the Convention has the power to fix the date for the plebiscite and to provide funds therefor. for which reason the Convention thru Resolution No. 91 Pac. As a fourth separate and distinct branch. would leave it at the tender mercy of both legislative and executive branches of the Government. to emphasize its independence. 29 approved on November 22. possesses the power to call a plebiscite and to appropriate funds for the purpose.. 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. including the printing of its own journals (Tañada and Fernando. Under the foregoing circumstances. If Congress can legally delegate to the Chief Executive or his subaltern the power to promulgate subordinate rules and regulations to implement the law. for the President contemplated in the new Constitution exercises primarily ceremonial prerogatives. 8 9. Implicit in that independence. 1952 ed. the organization of the Citizens' Assemblies for consultation on national issues.. 193). Apart from the delegation to the Chief Executive of the power to call a plebiscite and to appropriate funds therefor by the Constitutional Convention thru its Resolution No. The fact that Section 2 of the same Article 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.Constitutional Law I III L-36142 Constitutional Law I L-36142 CONSTITUTIONAL CONVENTION CO-EQUAL WITH AND INDEPENDENT OF CONGRESS. Because the Constitutional Convention. affords them little comfort. They will not provide the means for their own liquidation. who. 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. EXECUTIVE AND JUDICIARY. . 22. the three grand departments of the Government. 1975 and 1977) which provides that the new Constitution shall take effect immediately upon its ratification (Sec. 1972. Law. ratification of which means their elimination from the political scene. Constitution of the Philippines. by necessary implication as it is indispensable to its independence and effectiveness. Vol. Autry. 1972. a co-equal body. the executive and the judicial. To deny the Convention such prerogative. Art. It enjoys the same immunity from interference or supervision by any of the aforesaid branches of the Government in its proceedings. would not be disposed to call a plebiscite and appropriate funds therefor to enable the people to pass upon the 1973 Constitution. 1973 Constitution). much less appropriate the necessary funds therefor. 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. Malcolm and Laurel. because the convening of the interim National Assembly depends upon the incumbent President (under Sec. who were elected under the 1935 Constitution. Phil. 1972 that the urgency of instituting reforms rendered imperative the early approval of the new Constitution. pp.. 5843 adopted on November 16. Article XVII. 29. The new Constitution likewise shortened abruptly the terms of the members of the present Congress (whose terms end on December 31. this authority to delegate implementing rules should not be denied to the Constitutional Convention. as well as independent of. I. the legislative. Const. 1973. in estimation of the Convention can better determine appropriate time for such a referendum as well as the amount necessary to effect the same. and that the national and local leaders desire that there be continuity in the immediate transition from the old to the new Constitution. XVII. Frantz vs.. p. An unsympathetic Congress would not be disposed to submit the proposed Constitution drafted by the Constitutional Convention to the people for ratification. for the purpose of maintaining the same unimpaired and in order that its work will not be frustrated. That could have been the fate of the 1973 Constitution. the members of Congress. 16. which superseded Resolution No." after stating in "whereas" clauses that the 1971 Constitutional Convention expected to complete its work by the end of November.

It should be noted that Resolution No. the 1971 Constitutional Convention is expected to complete its work of drafting a proposed new Constitution for the Republic by the end of November. Such delegation. Hence. which superseded Resolution No. or validated Presidential Proclamation No. 86 of December 31. It should be noted that in approving said Resolution No. 1972. the issuance by the President of Presidential Decree No. 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.. the Constitutional Convention itself recognized the validity of. as consultative bodies representing the localities including the barrios. the early approval of the New Constitution has become imperative.. 5843. 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. but not to direct said body to supervise the plebiscite. both issues of national concern is still within the delegated authority reposed in him by the Constitutional Convention as aforesaid. 1972. is a valid exercise of such delegated authority. If that were the intention of the Constitutional Convention in making the delegation. 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 203 204 . 1973 and appropriating funds therefor pursuant to 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. 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. 1081 placing the entire country under martial law by resolving to "propose to President Ferdinand E. The fact that said Resolution No. 29. 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). who.." That the Constitutional Convention omitted such phrase. The calling as well as conduct of the plebiscite was left to the discretion of the President. the same are contained in the "Whereas" clauses of the Constitutional Convention Resolution No. 29. does not need sufficient standards to circumscribe the exercise of the power delegated. Consequently. thus: WHEREAS. WHEREAS. and who can participate in the plebiscite. was in the superior position to decide when the plebiscite shall be held. 73 on December 1.Constitutional Law I L-36142 Constitutional Law I L-36142 Administrative Code. in view of the urgency of instituting reforms. Marcos that a decree be issued calling a plebiscite . WHEREAS. and is beyond the competence of this Court to nullify. But even if adequate criteria should be required." (Emphasis supplied). division or part of the Philippines "or disposing of issues of general concern . 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. their creation by the President thru Presidential Decree No. 1972 setting the plebiscite on January 15." 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. how it shall be conducted and who shall oversee it. unlike the delegation by Congress of the rule-making power to the Chief Executive or to any of his subalterns. cannot be successfully challenged. 29. because he is in possession of all the facts funnelled to him by his intelligence services. 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. . it could have easily included the necessary phrase for the purpose. . 29..

Gray." (Annex "1" of Answer. then such an argument loses force. by the decree under question. (pp. with whom Messrs. emphasis supplied). Justices Barredo. then a legislative body. concurring opinion of J. 104 SO. as well of the errors and prejudices as of the good sense and wisdom. Once this work of drafting has been completed. xx-xxi). stated that: "I never expect to see a perfect work from imperfect man. 1972 on the Plebiscite Cases. etc. of the individuals of whom they are composed. If it were otherwise. 1956-1966). The result of the deliberations of all collective bodies must necessarily be a compound. The President then. As Mr. Here it did not do so. stated: . the appropriating arm of the government. Fernando in L-35925. and alluded to their arguments during the hearings on December 18 and 19. It is understandable why it should be thus. not to say insurmountable.. How can perfection spring from such materials?" (The Federalist.. could be held as not devoid of such competence. Modern Library Ed. answering the critics of the Federal Constitution. pp. If it were done by him in his capacity as President. on pain of being rendered financially distraught. With Congress not being in session.. with the political branches devoid of any discretion as to the holding of an election for that purpose. No. IV VAGUENESS OR AMBIGUITY DOES NOT INVALIDATE THE 1973 CONSTITUTION (1) Petitions challenge the 1973 draft as vague and incomplete. Res. 205 206 . 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. 212219. Nor is the appropriation by him of the amount necessary to be considered as offensive to the Constitution. 29. if performing his role as its agent. call for such a plebiscite? Under such circumstances. such an objection would indeed have been formidable. The compacts which are to embrace thirteen distinct States in a common bond of amity and union. The Convention itself could have done so. 7th Dec. must necessarily be a compromise of as many dissimilar interests and inclinations. could conceivably make use of such authority to compel the Convention to submit to its wishes. Section 15 of Article XIV and Sections 3(2) and 12 of Article XVII in the 1973 Constitution. Constitutional Convention). pp. 2d 841. The view has been repeatedly expressed in many American state court decisions that to avoid such undesirable consequence the task of submission becomes ministerial. a negative answer certainly could result in the work of the Convention being rendered nugatory. it could itself direct the submission to the people for ratification as contemplated in Article XV of the Constitution. could the President. Antonio and the writer concurred in the Plebiscite Cases. 2-3.Constitutional Law I L-36142 Constitutional Law I L-36142 Constitution. one of the leading founders and defenders of the American Constitution. Alexander Hamilton.. Justice Fernando. If the appropriation were made in his capacity as agent of the Convention to assure that there be submission to the people. 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. (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.

L-35948. unless modified. granted. orders. thus: . or instrumentality thereof. or other forms of privileges for the exploration. L35953. L-35940. exploitation. instructions. Barredo. and contracts entered into by the Government. L-35961. Any provision of paragraph one. papers. after examination under oath or affirmation of the complainant and the witnesses may produce. valid and binding. & L-35979). decrees. decrees. Regardless of the wisdom and moral aspects of the contested provisions of the proposed Constitution. L-35929. In the Plebiscite Cases (L-35925. 15. and the persons or things to be seized. including government-owned or controlled corporations. or any subdivision. houses. development. 3(2) All proclamations. xxx xxx xxx Sec. Section fourteen. or other acts of the incumbent President. and particularly describing the place to be searched. Article Eight and of this Article notwithstanding. concessions. 12. agency. Antonio and the writer. 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. binding and effective even after lifting of martial law or the ratification of this Constitution.) Article XVII Sec. and effects against unreasonable searches and seizures of whatever nature and for any purpose shall not be violated. When the national interest so requires. or utilization of natural resources entered into. concurred in by Justices Fernando. issued. overruled this objection. Chief Justice Roberto Concepcion. executive agreements. particularly in international law. Article XIV Sec. or superseded by subsequent proclamations. L-35965. or done by the incumbent President shall be part of the law of the land. and acts promulgated.Constitutional Law I Article IV L-36142 Constitutional Law I L-36142 expressly and explicitly modified or repealed by the regular National Assembly. legal. or such other responsible officer as may be authorized by law. orders. the Prime Minister may enter into international treaties or agreements as the national welfare and interest may require. or unless 207 208 . as Jus Cogens not only because the Sec. are hereby recognized as legal. All treaties. issued or acquired before the ratification of this Constitution.. revoked. The right of the people to be secure in their persons.. and shall remain valid." (Without the consent of the National Assembly. and no search warrant or warrant of arrest shall issue except upon probable cause to be determined by the judge. L-35942. 3. instructions. the incumbent President of the Philippines or the interim Prime Minister may review all contracts. permits.

Clark. 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." V 1973 CONSTITUTION DULY ADOPTED AND PROMULGATED. 262 Mich. 25 NW 245. duly attested by its Secretary... Hammond v. like the English version. 145 Okl. Leeper. 138 NE 881. etc. (Pp. 27 SO 297.. Once ratified by the sovereign people. such limitation of the scope of their function and objective was not in their minds. This Court likewise enunciated in Del Rosario vs. Koehler vs. 67 Iowa 287 [1895]. 209 210 . 60 Iowa 543 [1883]. 179 NW 533. Hamilton v. School District vs. City of Pontiac. Hill. Decision in L-35925. 212 Mich.).Constitutional Law I L-36142 Constitutional Law I L-36142 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. it seems to me a sufficient answer that once convened. approved on second reading on the 27th day of November. Vaughan. belong. 66 Cal. concurring in the same Plebiscite Cases. in his concurring opinion in said Plebiscite Cases.. 1972 and on third reading in the Convention's 291st plenary session on November 29. 71 SE 479.. former Senator Jovito Salonga. 338 [1933]). Blattner. then the titular head of the Liberal Party to which four (4) of the petitioners in L-36165 including their counsel. supra. 17-18. 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. 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. Mr. is practically limitless" (citing Cf. Justice Barredo. Looney vs. 543 [1900]. 570 [1922]. that the proposed Constitution.. 313 [1911]. there can be no debate about the validity of the new Constitution. 14 NW 738." Mr. and added: ". Oct. This claim is without merit because their Annex "M" is the Filipino version of the 1973 Constitution. 632 [1885]. 31 [1920]. 77 Miss. 105 Ohio St. 136 Ga. 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 . 1972 and accordingly signed on November 1972 by the delegates whose signatures are thereunder affixed. cited the foregoing pronouncement in the Del Rosario case. State v. It should be recalled that Constitutional Convention President Diosdado Macapagal was. Petitioners next claim that the 1971 Constitutional Convention adjourned on November 30.. 20. State v. 6 P 734. expressed the view "that when the people elected the delegates to the Convention and when the delegates themselves were campaigning." as provided in Section 1 of Article XV of the 1935 Constitution. Hatch Stoneman. Powell. the area open for deliberation to a constitutional convention . MacMillan v. 247 NW 474.. Justice Fernando. Smith. because the same will be submitted to the people for ratification. 292 P 365. Comelec (L-32476. 1970. as President of the Republic 1962 to 1965. contains the certification by President Diosdado Macapagal of the Constitutional Convention. 202 [1930].

and designates the officer to conduct the plebiscite. Mode of Amending the Constitution Sec." This position certainly imposes limitation on the sovereign people. In all the cases where the court held that illegal or irregular submission. Iowa [1857]. and if upon the third reading. Arizona [1912]. who have the sole power of ratification. fixes the date of the election or plebiscite limits the submission to only electors or qualified electors. See the State Constitutions of Alabama [1901]. Board of Trustees. Arkansas [1874]. the proposed amendments shall be sent to the other house. Massachusetts [1790]. Louisiana [1921]. Illinois [1970]. three-fifths of all the members elected that house shall vote in favor of the proposed amendments. if upon the third reading. prescribes the publication of the proposed amendment or a new Constitution for a specific period prior to the election or plebiscite. or of both state and local officials. three-fifths of all the members elected to that house shall vote in favor thereof. in which they shall likewise be read on three several days. 284. Florida [1887]. 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. This is a clear case of usurpation of sovereign power they do not possess through some kind of escamotage. 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. Mississippi [1890]. or at the election for members of the State legislature only or of all state officials only or of local officials only. 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. This Court should not commit such a grave error in the guise of judicial interpretation. supra). Kentucky [1891]. Georgia [1945]. the procedure prescribed by the state Constitution is so detailed that it specifies that the submission should be at a general or special election. Connecticut [1818]. Maryland [1867]. Michigan [1909]. and Missouri [1945]). petitioners and their counsels are amending by a strained and tortured construction Article XV of the 1935 Constitution. Indiana [1851]. In effect. nullifies the proposed amendment or the new Constitution. Kansas [1861].Constitutional Law I L-36142 Constitutional Law I L-36142 (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. which imposition by the Court is never justified (Wheeler vs. Colorado [1976]. and. Notice 211 212 . the legislature shall order an election by the qualified electors of the state upon such proposed amendments. Legislative Proposals. Minnesota [1857]. 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. to canvass and to certify the results." 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. As typical examples: Constitution of Alabama (1901): Article XVIII. not less than three months after the final adjournment of the session of the legislature at which the amendments were proposed. due to absence of substantial compliance with the procedure prescribed by the Constitution and/or the law.

and returns thereof be made to the secretary of state. Representation in the legislature shall be based upon population. which shall be published in every county in such manner as the legislature shall direct. the same shall become a part of this Constitution. and counted. officers for such election shall be appointed. 213 214 . Sec. such amendments shall be valid to all intents and purposes as parts of this Constitution. In all elections upon such proposed amendments. together with the proposed amendments. Sec. but no more than three amendments shall be proposed or submitted at the same time.the votes cast thereat shall be canvassed. Form of ballot for amendment. such proposed amendments shall be entered on the journal with the yeas and nays. The choice of the elector shall be indicated by a cross mark made by him or under his direction. at which time the same shall be submitted to the electors of the State for approval or rejection. and. They shall be so submitted as to enable the electors to vote on each amendment separately. 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. opposite the word expressing his desire. where a newspaper is published. Constitutional amendments. Either branch of the General Assembly at a regular session thereof may propose amendments to this Constitution. for at least eight successive weeks next preceding the day appointed for such election. tabulated. 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. if the same be agreed to by a majority of all the members. On the day so appointed an election shall be held for the vote of the qualified electors of the state upon the proposed amendments. the substance or subject matter of each proposed amendment shall be so printed that the nature thereof shall be clearly indicated. 22. The result of such election shall be made known by proclamation of the governor. if it be held on a day other than that of a general election.Constitutional Law I L-36142 Constitutional Law I L-36142 of such election. and published in at least one newspaper in each county. 285. elected to each house. Miscellaneous Provisions. and such basis of representation shall not be changed by constitutional amendments. Upon the ballots used at all elections provided for in section 284 of this Constitution. Constitution of Arkansas (1874): Article XIX. for six months immediately preceding the next general election for Senators and Representatives. and if a majority of the electors voting at such election adopt such amendments. shall be given by proclamation of the governor. Following each proposed amendment on the ballot shall be printed the word "Yes" and immediately under that shall be printed the word "No". 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. and the election shall be held in all things in accordance with the law governing general elections. in the same manner as in elections for representatives to the legislature.

the Governor shall. Amendments. and henceforth said amendment or amendments shall be part of the said Constitution. to have been adopted by the people of Maryland as part of the Constitution thereof. to the voters of this State at the same election. they shall be so submitted as to enable the electors to vote on each amendments separately. then in the newspaper. and if a majority of the electors voting on said amendments. declare the said amendment or amendments having received said majority of votes. the same shall be submitted to the electors. and not more than three propositions to amend shall be submitted at the same election. at said election. Propositions for the amendment of this constitution may be made by either branch of the legislature. once a week for four weeks immediately preceding the next ensuing general election. in at least two newspapers. When two or more amendments shall be submitted in the manner aforesaid.Constitutional Law I Constitution of Kansas (1861): Article XIV. in each County. The General Assembly may propose Amendments to this Constitution. Proposal of amendments. 1. to be entered on the Journals with the proposed Amendment. for their approval or rejection. publication. Proposal in general assembly. L-36142 Constitutional Law I L-36142 Sec. 1. shall adopt the amendments. together with the yeas and nays. shall be returned to the Governor. submission to voters. Amendments to the Constitution. at which the proposed amendment or amendments shall be submitted. the same shall become a part of the constitution. in a form to be prescribed by the General Assembly. publications. where so many may be published. The bill or bills proposing amendment or amendments shall be published by order of the Governor. by yeas and nays. and where not more than one may be published. by his proclamation. embodying the Article or Section. and in three newspapers published in the City of Baltimore. severally. were cast in favor thereof. 215 216 . for three months preceding the next election for representatives. to the qualified voters of the State for adoption or rejection. governor's proclamation. Sec. shall be entered on the journal. Constitution of Maryland (1867): Article XIV. at which time. and if it shall appear to the Governor that a majority of the votes cast at said election on said amendment or amendments. they shall be so submitted as that each amendment shall be voted on separately. as the same will stand when amended and passed by three fifths of all the members elected to each of the two Houses. elections. provided that each Amendment shall be embraced in a separate bill. and if two thirds of all the members elected to each house shall concur therein. such proposed amendments. severally. in the manner prescribed in other cases. When more than one amendment shall be submitted at the same time. The votes cast for and against said proposed amendment or amendments. and the secretary of state shall cause the same to be published in at least one newspaper in each county of the state where a newspaper is published.

So it cannot be said that the original framers of the 1935 Constitution as ratified May 14. or one new article which shall not contain more than one subject and matters properly connected therewith. 657 approved on June 21. 1935 by the people did not contain Article X on the Commission on Elections. pp. Phil. the last publication to be not more than thirty nor less than fifteen days next preceding the election. 290-300. 1940 and amended by Commonwealth Act No. nor does it designate the Commission on Elections to supervise the plebiscite. 715. 11-19). 703. 713. 1961 ed. the 1939 amendment to the Ordinance appended to the 1935 Constitution (Tydings-Kocialkowski Act of 217 218 . which article was included therein pursuant to an amendment by that National Assembly proposed only about five (5) years later on April 11. 475-476. publication of four consecutive weeks shall be made. If there be but one newspaper in any county. Vol. the same shall take effect at the end of thirty days after the election. L-36142 Constitutional Law I L-36142 Sec. 73 Phil. 5. because the Commission on Elections was not in existence then as was created only by Commonwealth Act No. Const. Gonzales. Commission. Because before August. p. or at a special election called by the governor prior thereto. As heretofore stated. 1953 ed. 2(b).Constitutional Law I Constitution of Missouri (1945): Article XII. If possible. 13). (2) As aforequoted. the former Department of Interior (now Department of Local Governments and Community Development) supervised the plebiscites on the 1937 amendment on woman's suffrage. 607 approved on August 22.. Amending the Constitution. 1941 (see Tañada & Carreon. each proposed amendment shall be published once a week for two consecutive weeks in two newspapers of different political faith in each county. Article XV does not indicate the procedure for submission of the proposed Constitution to the people for ratification. p. 288.. More than one amendment at the same election shall be so submitted as to enable the electors to vote on each amendment separately. 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. pp. I. 1940 as approved by the President of the United States on December 1940 (see Sumulong vs. Vol. 1940 the Commission on Election was not yet in existence. 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. Commission. much less a detailed procedure for submission or ratification. 70 Phil. at which he may submit any of the amendments. Political Law of the Philippines. on a separate ballot without party designation. 1966 ed. 703. 170 Phil. Tañada & Fernando. ratified by the people on June 18.. It does not make any reference to the Commission on Elections as the body that shall supervise the plebiscite. Article XV of the 1935 Constitution does not require a specific procedure. No such proposed amendment shall contain more than one amended and revised article of this constitution. If a majority of the votes cast thereon is in favor of any amendment. 1940. Neither does it limit the ratification to the qualified electors as defined in Article V of the 1935 Constitution. Submission of amendments proposed by general assembly or by the initiative. 1935 intended that a body known as the Commission on Elections should be the one to supervise the plebiscite. Sumulong vs. I. 708-715. Vol. And Article XV could not make any reference to the Commission on Elections because the original 1935 Constitution as ratified on May 14. it does not specify what kind of election at which the new Constitution shall be submitted. Constitution of the Philippines. at the next general election. Law. II.

2 of Art. As above demonstrated. It did not want to tie the hands of succeeding future constitutional conventions as to who should ratify the proposed amendment or revision. can only refer also to Filipino citizens of all ages and of both sexes. 219 220 . 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. 1940). If the National Assembly then intended that the Commission on Elections should also supervise the plebiscite for ratification of constitutional amendments or revision. the term "people" in whom sovereignty resides and from whom all government authority emanates. 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." 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.Constitutional Law I L-36142 Constitutional Law I L-36142 the U." or some such similar phrases." (Sec. The supervision of said plebiscites by the then Department of Interior was not automatic. the term "Filipino people" refer. Thus in the preamble. it does so expressly as the case of the election of senators and congressmen. In Section 1 of Article II on the Declaration of Principles. When the 1935 Constitution wants to limit action or the exercise of a right to the electorate. Then again. which specifically prescribes that the senators and congressmen shall be elected by the qualified electors. 49 and 517. because of explicit provisions of Sections 2 and 5 of Article VI. VII of the 1935 Constitution)." Section 5 of the same Article VI specifically provides that congressmen shall "be elected by the qualified electors. 34. 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. 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. As aforesaid. the term "people" comprehends not only Filipino citizens but also all aliens residing in the country of all ages and of both sexes. 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. 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. specifically delineate in detail procedure of ratification of amendments to or revision of said Constitutions and expressly require ratification by qualified electors. Congress) and the three 1940 amendments on the establishment of a bicameral Congress. But this alone cannot be conclusive as to such construction. the re-election of the President and the VicePresident. but by virtue of an express authorization in Commonwealth Act Nos. The proposal submitted to the Ozamis Committee on the Amending Process of the 1934-35 Constitutional Conventionsatisfied that the amendment shall be submitted to qualified election for ratification. most of the constitutions of the various states of the United States. 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. does not have a uniform meaning. and the creation of the Commission on Elections (ratified on June 18. not by the generic term "people". But in Section 5 of the same Article II on social justice. 3) If the framers of the 1935 Constitution and the people in ratifying the same on May 14.S. to all Filipino citizens of all ages of both sexes. Likewise. (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 1934-35 Constitutional Convention limits the use of the term "qualified electors" to elections of public officials.

April 30. Act No. Com. consisting of 11 sections. 1 of Com. 34 on the woman's suffrage amendment enacted on September 30. Sec. Act No. Act No. that within thirty (30) days after the election. Act No. 6. Act Nos. 1940 (Sec. 1939." (Sec.. 39 on September 15. No. 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. the holding of a special election. 492).. that copies thereof shall be posted not later than October 20. re-election of the President and Vice-President. 73. . 492 and 517. R. including the amendment creating the Commission on Elections. Com. 1938. consists of 8 sections and provides that the proposed amendments to the Constitution adopted in Resolution No. 1947 (Section 2. consists of 12 sections and. and the creation of a Commission on Elections shall be held at a general election on June 18. 1). 1936. 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. 3) that copies of the returns shall be forwarded to the Secretary of National Assembly and the Secretary of Interior (Sec.A. 1939 "shall be submitted to the Filipino people for approval or disapproval at a general election to be held throughout the Philippines on Tuesday. 1947. 1940 (Sec. the previous Election Code enacted on August 22. Com. was approved on April 25. R. Act Nos. 1939". 34)1. 221 222 . in accordance with the provisions of this Act" (Sec. calling for a plebiscite on the proposed amendments to the Constitution adopted by the National Assembly on September 15. at a general election which shall be held on March 11. Act No. 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. 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. 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. enacted on September 19. 12. 492 and 517 and Rep. 1937. that the votes cast according to the returns of the board of inspectors shall be counted by the National Assembly (Sec. 2). The election laws then in force before 1938 were found in Sections 392-483 of the Revised Administrative Code. insofar as said provisions are not in conflict with it. Com. shall be submitted at following election of local officials. indicates that there is need of a statute expressly authorizing the application of the election laws to plebiscites of this nature. 34). 1940 and 1946. namely. 492. that the amendments to said Constitution proposed in "Res. among others: that the plebiscite on the constitutional amendments providing bicameral Congress. Thus. Act 492). as well as Rep. Com. 73). No. and. No. 73 calling for the plebiscite on the constitutional amendments in 1939. Republic Act No. 1. should apply to the said plebiscite (Sec. 73 approved on October 21. Act No. that the said amendment shall be published in English and Spanish in three consecutive issues of the Official Gazetteat least 20 days prior to the election. Com. 7). adopted on the same date. Com. specifies that the provisions of the Election Law regarding.. 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. 1939 (Sec. makes it expressly applicable to plebiscites. 3. on the question of woman's suffrage . Act No. that the National Assembly shall canvass the returns to certify the results at a special session to be called by President (Sec.A. 1939. Act No. 38. 1940 and provided. Com. 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. Yet the subsequent laws. 2. Commonwealth Act No. 357. 517. Thus Commonwealth Act No.Constitutional Law I L-36142 Constitutional Law I L-36142 The very phraseology of the specific laws enacted by the National Assembly and later by Congress. Act No. 34). 1. aside from providing that "there shall be held a plebiscite on Friday. that copies of the same shall be posted in a conspicuous place and in every polling place not later than February 11.. that the election shall be conducted in conformity with the Election Code insofar as the same may be applicable (Sec. that the election shall be conducted according to provisions of the Election Code insofar as the same may be applicable. October 24. 8). 10. 1937" (Sec.

in enacting Republic Act No. eighteen years of age or over. Act No. Act No. The barrio assembly.Constitutional Law I L-36142 Constitutional Law I L-36142 73). otherwise known as the Barrio Charter. The barrio assembly shall consist of all persons who are residents of the barrio for at least six months. 3590). Republic Acts Nos. 3590. Act No. 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. 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. 180 and 6388 likewise expressly provide that the Election Code shall apply to plebiscites (See. No. Unlike the various State Constitutions of the American Union (with few exceptions). R. 8 days or 30 days. R. provided they are also residents of the barrio for at least 6 months (Sec. From the foregoing provisions. If the Election Code ipso facto applies to plebiscites under Article XV of the 1935 Constitution. 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. (5) Article XV of the 1935 Constitution does not specify who can vote and how they shall vote. and for posting at least 4 days. that the provisions of Com. Rep. The barrio secretary or in his absence. the Senate and House of Representatives shall hold a joint session to canvass the returns and certify the results thereof (Section 6. citizens of the Republic of the Philippines and who are duly registered in the list of barrio assembly members kept by the Barrio Secretary. 4. or in his absence. as amended. 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. 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.A. it should be noted that the period for the publication of the copies of the proposed amendments was about 10 days. Article XV does not state that only qualified electors can vote in the plebiscite. whether literate or not.A. any member designated by the presiding officer to act as secretary shall discharge the duties of secretary of the barrio assembly.A. or any assembly member selected during the meeting. R. Act No. 6388). it is patent that Article XV of the 1935 Constitution does not contemplate nor envision the automatic application of the election law. and that within 30 days after the election. expanded the membership of the barrio assembly to include citizens who are at least 18 years of age. 3. the councilman acting as barrio captain. 1967 and superseded Republic Act No. 357). which was approved on June 17. No.A. 4. 2370. 357 (Election Code) and Com. 180. The barrio captain. 15 days or 20 days. shall apply to the election insofar as they are not inconsistent with this Act (Sec. No. shall act as presiding officer at all meetings of the barrio assembly. No. 657 creating the Commission on Elections. 2. Congress itself. R. Moreover. 73). 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. Sec. and Section 2. and even at that. 73). As above-intimated. 223 224 .

Constitutional Law I L-36142 Constitutional Law I L-36142 For the purpose of conducting business and taking any official action in the barrio assembly. Plebiscite. the questions or issues to be decided. Qualifications of voters and candidates. however. who has been a resident of the barrio during the six months immediately preceding the election. time. there being a quorum. The board of election tellers shall be the same board envisioned by section 8. stating the date. duly registered in the list of voters kept by the barrio 225 226 . To act on budgetary and supplemental appropriations and special tax ordinances submitted for its approval by the barrio council. Sec. A plebiscite shall be called to approve any budgetary. To hear the annual report council concerning the activities and finances of the assembly. and/or declaration by the voters to the board of election tellers. and such plebiscite has been given the widest publicity in the barrio. twenty-one years of age or over. and d. All duly registered barrio assembly members qualified to vote may vote in the plebiscite. The powers of the barrio assembly shall be as follows: a. and such other information relevant to the holding of the plebiscite. action to be taken by the voters. Sec. b. Powers of the barrio assembly. supplemental appropriations or special tax ordinances. To recommend to the barrio council the adoption of measures for the welfare of the barrio. Provided. paragraph 2 of this Act. xxx xxx xxx Sec 10. 6. All actions shall require a majority vote of these present at the meeting there being a quorum. Voting procedures may be made either in writing as in regular election. majority vote of all the barrio assembly members registered in the list of barrio secretary is necessary. 5. it is necessary that at least one-fifth of the members of the barrio assembly be present to constitute a quorum. A plebiscite may be called to decide on the recall of any member of the barrio council. That no plebiscite shall be held until after thirty days from its approval by either body. in case of vacancies in this body. To decide on the holding of a plebiscite as provided for in Section 6 of this Act. the barrio council may fill the same. A plebiscite may be held in the barrio when authorized by a majority vote of the members present in the barrio assembly. For taking action on any of the above enumerated measures. c. or when called by at least four members of the barrio council. able to read and write. and place thereof. Every citizen of the Philippines.

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.Constitutional Law I L-36142 Constitutional Law I L-36142 secretary." That said paragraph 2 of Section 6 provides that "all duly registered barrio assembly members qualified to vote may vote in the plebiscite. all the registered members of the barrio assembly can vote as long as they are 18 years of age or above. 1. 3590)." cannot sustain the position of petitioners in G. Paragraph 2 of Section 6 likewise authorizes open voting as it provides that "voting procedures may be made . If Congress in the exercise of its ordinary legislative power. 5. may vote at the plebiscite on the recall of any member of the barrio council or on a budgetary. 6). on questions submitted for plebiscite. supplemental appropriation. can include 18-year olds as qualified electors for barrio plebiscites. can vote on the plebiscites referred to in Section 6. whether literate or not. Sec. 3590 could simply have restated Section 4 of Republic Act No. although illiterate. able to read and write. there being a quorum (par. may vote or be a candidate in the barrio elections. Such plebiscite may be authorized by a majority vote of the members present in the barrio assembly. and c. to constitute a quorum of the barrio assembly. who are at least 18 years of age. Republic Act No. not as a constituent assembly. 3590).. Otherwise there was no sense in extending membership in the barrio assembly to those who are at least 18 years of age. may vote (Sec. 2370. and/or declaration by the voters to the board of election tellers. or special ordinances. All these barrio assembly members. only Filipino citizens. R. this prerogative can also be exercised by the Chief 227 228 . Counsels Salonga and Tañada as well as all the petitioners in L-36165 and two of the petitioners in L-36164 participated in the enactment of Republic Act No.. who are at least 21 years of age. No. 3590. either in writing as in regular elections. and whether literate or not. 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. 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.A. 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. b. Sec. not otherwise disqualified. No. 6. the old Barrio Charter. The following persons shall not be qualified to vote: a. in the case of election of barrio officials.A. who is not otherwise disqualified. Any person who has been sentenced by final judgment to suffer one year or more of imprisonment. R. whether literate or not. 10. However.A. which provided that only those who are 21 and above can be members of the barrio assembly. No. Consequently. Any person who has violated his allegiance to the Republic of the Philippines. 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. can vote in the elections of barrio officials. Insane or feeble-minded persons. and that only those who are 21 years of age or over and can read and write.R. No. within two years after service of his sentence.

In the cases at bar. 1973 in the province of Cavite. that the acting chairman and coordinator of the Citizens' Assemblies at that time was ViceGovernor Dominador Camerino. Makati. should be accorded the presumption of correctness. 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. is further strengthened by the affidavits and certifications of Governor Isidro Rodriguez of Rizal. Parades of Quezon City. he states that since the declaration of martial law and up to the present time. Rizal. If such a ratio is extended by way of extrapolation to the other provinces. The alleged certification by Governor Lino Bocalan of Cavite. In Cavite province. the 1973 Constitution was proposed by an independent Constitutional Convention. Congress had also the authority to prescribe the procedure for the submission of the proposed amendments to the 1935 Constitution. while the alleged certification of Governor Lino Bocalan of Cavite shows only 126.310 No votes. cities and municipalities. is not true. 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 1939 amendment to the ordinance appended to the 1935 Constitution. which as heretofore discussed. The accuracy of such tabulation and certification by the said Department Secretary should likewise be presumed. creating the Commission on Elections and providing for two consecutive terms for the President. 229 230 . is presumptively the act of the President himself unless the latter disapproves or reprobates the same (Villena vs.000 Yes votes and 100.163 Yes votes and 5. 1102 that the 1973 Constitution was overwhelmingly ratified by the people through the Citizens' Assemblies in a referendum conducted from January 10 to 15. cities and towns of the country.269 No votes as disclosed in Annex 1-A of respondents' Compliance (the certification by the Department of Local Government and Community Development). 1973. as an alter ego of the President. Secretary of Interior. which he did not sign but which he referred to Vice-Governor Camerino (Annex 1-Rejoinder of the Sol. there were 249. Mayor Norberto S. against the certification of the Department of Local Government and Community Development that in Rizal there were 1. The truth of the certification by the Department Secretary and the Chief Executive on the results of the referendum. Amoranto of Quezon City and Councilor Eduardo T. he has been under house arrest in his residence in Urdaneta Village. 451 ). and the 1947 parity amendment.530 No votes. the certification of Governor Isidro Rodriguez of Rizal. 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. cannot be invoked. 1973. the 1940 amendments establishing the bicameral Congress. The procedure for the ratification of the 1937 amendment on woman suffrage. Gen. the result would still be an overwhelming vote in favor of the 1973 Constitution. has the equal power to prescribe the modality for the submission of the 1973 Constitution to the people for ratification or delegate the same to the President of the Republic. because in his duly acknowledged certification dated March 16. 1973).882 Yes votes against 12. and that he was shown a letter for his signature during the conduct of the Citizens' Assemblies. that he never participated in the conduct of the Citizens' Assemblies on January 10 15.157 Yes votes against 292. because it was done in the regular performance of his official functions aside from the fact that the act of the Department Secretary. shows only 614. 67 Phil. cities and municipalities in all the other provinces. 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. dated March 20.Constitutional Law I L-36142 Constitutional Law I L-36142 Executive as delegate of the Constitutional Convention in regard to the plebiscite on the 1973 Constitution. the statement by the President in Presidential Proclamation No. As heretofore stated.126. As claimed by petitioners in L-36165.577 No votes.

Gen. Encarnacion. he sent to the National Secretariat all the certificates of results in 26 municipalities of Rizal for final tabulation (Annex 3-Rejoinder of the Sol. Remedio Gutierrez. for which reason he did not send the aforesaid letter pending submittal of the other results from the said 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. Governor Isidro Rodriguez of Rizal issued a certification dated March 16. 1973 that she was shown xerox copies of unsigned letters allegedly coming from Governor Lino Bocalan dated January 15. 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. Samonte.Constitutional Law I L-36142 Constitutional Law I L-36142 Mayor Pablo Cuneta likewise executed an affidavit dated March 16. Gen. Lydia M. Quezon City. Councilor Eduardo T. 1973 informing him of the results of the referendum in Rizal.588 No votes in the Citizens' Assemblies of Quezon city (Annex V to Petitioners' Notes in L-36165). and that after January 15. particularly in January of this year. she requested him if she could give her the unofficial copies thereof. for she may not have been notified thereof and as a result she was not able to attend said meeting. 1973. 1973. 1973.530 mentioned in said letter were based on the certificates of results in his possession as of January 14. and that in spite of his advice that said unsigned copies were not official.). Gen. he caused the preparation of a letter addressed to Secretary Jose Roño of the Department of Local Government and Community Development showing the results of the referendum in Pasay City. and that in the afternoon of January 15. that the figures 614. issued a certificate dated March 16. wife of alleged barrio treasurer Faustino Gutierrez. for which reason the said letter merely stated that it was only a "summary result". 1973 that he prepared a letter to the President dated January 15. which results were made the basis of the computation of thepercentage of voting trend in the province.010 Yes votes as against 5. Assistant City Treasurer and Officer in Charge of Pasay City also issued an affidavit dated March 15. 1973. participation and control (Annex 4 Rejoinder of the Sol. states that "as far as we know.. and that the said letters were not 231 232 ." does not necessarily mean that there was no such meeting in said barrio. which he gave in good faith (Annex C-Rejoinder to the Sol. 1973 and marked "Rejoinder Annex Pasay City" addressed to the Secretary of the Department of Local Government and Community Development. there has been no Citizens' Assembly meeting in our Area. dated March 20. Pablo F. 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. there were still in any Citizens' Assemblies holding referendum in Pasay City.). 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. 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. Department of Local Government and Community Development. emphasis supplied). 1973 stating that on January 15. Much less can it be a basis for the claim that there was no meeting at all in the other barrios of Quezon City. 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. The barrio captain or the secretary of the barrio assembly could have been a credible witness. Gen. he indorsed the complete certificate of results on the referendum in Pasay City to the Office of the President (Annex 5-Rejoinder of Sol. Paredes. certified on March 12. There were 118. that on the same day. 1973). acting chief of the Records Section. Delia Sutton of the Salonga Law Office asked him for the results of the referendum. 1973. 1973 stating that a certain Atty. The fact that a certain Mrs.157 and 292. chairman of the Secretariat of Quezon City Ratification and Coordinating Council. that both xerox copies of the unsigned letters contain figures showing the results of the referendum of the Citizens' Assemblies in those areas. of barrio South Triangle.

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" (AnnexCamarines Sur to Rejoinder of Petitioners in L-36165). The letter of Governor Felix O. The report of Governor Efren B. to the effect that even assuming the correctness of the figures insisted on by counsel for petitioners in L-36165. Samson of Caloocan City. 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. 40 A 740 [1898]. 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. Alfelor. 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. shows that there were more votes in favor of the plebiscite to be held later than those against. 45 LRA 251). the fact that Mayor Marcial F. Bataan and Negros Occidental. if they were extrapolated and applied to the other provinces and cities of the country. As heretofore stated. At any rate. Election Code). on the one hand. stated in his letter dated March 13. Gen. Wurts. the Yes votes and No votes in the referendum on the new Constitution among the members of the Citizens' Assemblies in Caloocan City. showing "their preference and readiness to accept this new method of government to people consultation in shaping up government policies. discounting which would not tilt the scale in favor of the negative votes. some of them might have been granted absolute pardon or were sentenced to less than one year imprisonment to qualify them to vote (Sec. the Yes votes would still be overwhelmingly greater than the No votes. Similarly. Camarines Sur. 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 L36165 concerning the referendum in Camarines Sur. on the other. 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." (Annex-Bataan to Rejoinder of Petitioners in L-36165). 1971 Rev. it is enough that they are electors voting on the new Constitution (Bott vs. 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. 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.). those who wanted a plebiscite would not outnumber those against holding such plebiscite. does not necessarily give rise to the inference that Mayor Samson of Caloocan City is being intimidated. If there was no such freedom of choice. 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. 233 234 . who belongs to the Liberal Party. Although ex-convicts may have voted also in the referendum. Sr. 43 A 744. The fact that the referendum in the municipality of Pasacao.Constitutional Law I L-36142 Constitutional Law I L-36142 received by her office and that her records do not show any such documents received by her office (Annex 2-Rejoinder of the Sol. 201. 1973 (Annex-6 Camarines Sur to Rejoinder of Petitioners in L-36165). 881 [1899]. 1973 that he does not "feel authorized by the proper authorities to confirm or deny the data" concerning the number of participants. and the number of votes certified by the Department of Local Government and Community Development. it is not necessary that voters ratifying the new Constitution are registered in the book of voters. the ex-convicts constitute a negligible number.

1973 was 16. giving 21. In Problem III. Professor Salonga is not a qualified statistician. it should be observed that registered voters also include names of voters who are already dead. Hence. which all the more impairs his credibility. in his letter dated March 16. It can therefore be inferred that "a total number of persons 15 and over unqualified/disqualified to vote" will be more than 10.197 and hence the "difference or implied number of registered voters that participated" will be less than 6. Salonga. to Consolidated Rejoinder of petitioners in L36165 to the Notes of Arguments and Memorandum of respondents). Salonga. Director Tito A.702 million. 2) The official population projection of this office (medium assumption) for "15 year olds and over" as of January 1. because in the same letter of Mayor Samson. 1973 by the population of "15 years old and over" for the same period which was estimated to be 22.0%. Why did not learned and eminent counsel heed such suggestion? Counsel for petitioners in L-36165. participation rate will therefore be the ratio of the latter figure to the former which gives 74. but who might be qualified to participate at the Citizen's Assembly. Salonga. the "estimate percentage participation of 15-20 years olds" of 105.548. to sustain their position.6% does not seem to provide any meaningful information. 235 236 .506 million.153. It cannot therefore be assumed that all of them participated at the Citizens' Assembly.039.506 million. which was estimated to be 4. relies heavily on the computation of the estimated turnover in the Citizens' Assemblies referendum on January 10 to 15.9% 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. of the Mapua Institute of Technology.2%." The "difference or implied number of 15-20 year olds" of 5. 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 L36165). assuming that all the 11.Constitutional Law I L-36142 Constitutional Law I L-36142 having been recently released from detention. eminent counsel for petitioners in L36165 (Annex M-as amended.618. ostensibly a close relative of former Senator Jovito R. This computation apparently fails to account for some 5.6 million persons "21 years old and over" who were not registered voters (COMELEC). 1973 is 22. 1973 by a certain Professor Benjamin R. 1973 address to the Secretary of the Department of Local Government and Community Development.909 registered voted at Citizens' Assembly.721 million as of January 1.661. To obtain the participation rate of "15-20 years old" one must divide the number in this age group.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. 3) 1 cannot also understand c-2 "Solution to Problem 11. 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. If total number of participants at the Citizens' Assembly Referendum held on January 10-15. Mijares of the Bureau of Census and Statistics. refutes the said computation of Professor Benjamin R.

under its plenary law-making authority.091.436. 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. 8. The Commission on Elections under the 1940 Amendment. Jan. 1973.000 who participated in the referendum and the registered electors of 11. without trenching upon the Constitution. 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. will also be less than 36. (6) It is also urged that martial law being the rule of force. compartmentalized justice and extraneous pressures and influences frustrated the firm and just enforcement of the laws. many individuals fear such sanctions of the law because of lack of effective equal enforcement or implementation thereof in brief.506. in the last Presidential election in November.661. 5) The last remark will therefore make the ratio (a) [Solution to Problem] more than 1. accordingly. 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. This is not the fear that affects the voters' freedom of choice or freedom to vote for or against the 1973 Constitution.000 voted in the referendum.909. Jr. We found that the incumbent President obtained over 5. We search in vain for such guarantee or prescription in said organic law. If 16. could have validly prescribed in the election law open voting in the election of public officers. Even without martial law. 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. It is also claimed or urged that there can be no free choice during martial law which inevitably generates fear in the individual." Congress. embodied as Article X is merely mandated to insure "free. But before martial law was proclaimed. It should also be stressed that many of the partisans of the President in the 1969 Presidential elections. petitioners do not come under such category. the difference between 16.000 votes as against about 3.702. orderly and honest election.000 votes for his rival LP Senator Sergio Osmeña.661.2% of 22. is necessarily inconsistent with freedom of choice.118 (Osmeña.000.. is 5. Moreover. 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. 3. 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.506. the official population projection for 15-year olds and over is 22.000. If the registered electors as of the election of November 8. Those who cringe in fear are the criminals or the law violators.702. But the 1935 Constitution does not require secret voting.Constitutional Law I L-36142 Constitutional Law I L-36142 I have reservations on whether an "appropriate number of qualified voters that supposedly voted" could be meaningfully estimated. garnering a majority of from about 896. the participation ratio would be 74.000.71 and that for (b). Jr. 1971 elections as well as illiterates who are 15 years old and above but below 21. From the foregoing analysis of the Director of Census and Statistics as of January 21. Marcos.000.040. Surely. 1973). 1971 numbered 11.909 for the November 8. which fact should necessarily augment the number of votes who voted for the 1973 Constitution. vs.8%. 1971 elections. Any objection to such a statute concerns its wisdom or 237 238 . (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. 1973.498 to 1. Presidential Election Contest No." (Annex F Rejoinder). the penal. 1969.

fisherman. petitioner Eduardo Monteclaro in L36236 (see Bulletin Today. It might have been true in certain areas.000 teachers among whom officers of the Department of Education campaigned for the ratification of the 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. jeepney driver. As reported by the eminent and widely read columnist. Chairman. Teodoro Valencia in his column in Bulletin Today. Committee on US-Philippine relations. salesman. or the reforms provided for therein. Partisanship based on party or personal loyalties does not generally obtain in a plebiscite on proposed constitutional amendments or on a new Constitution. 1971 to November 29. Tora) went around the country doing a 30minute 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 6week travel from Aparri to Jolo. or salesgirl does not want the new Constitution. Then after the Constitutional Convention convened in June. and more literate perhaps than many of mid-western and southern states of the American Union and Spain.000 barrios of the country have radios. and Sunday Express. provincial boards. 1971. Then again. second only to Japan in the Far East. Even the illiterates listened to radio broadcasts on and discussed the provisions of the 1973 Constitution. 1973." The report of Frank Valeo (Bulletin Today. radio and television. March 3. the proposed reforms were already discussed in various forums and through the press as well as other media of information. The recent example of an open voting is the last election on March 3. Moreover. Secret balloting was demanded by partisan strife in elections for elective officials. who cannot say that voting among them by acclamation was characterized by fear among the members of the National Press Club. reforms were openly discussed and debated except for a few days after the proclamation of martial law on September 21. petitioners would not be willing to affirm that all the members of the citizenry of this country are against the new Constitution. The Philippines is a literate country. 1973 issue. 1973 of the National Press Club officers who were elected by acclamation presided over by its former president. city councils. March 4. specific reforms advanced by the delegates were discussed both in committee hearings as well as in the tri-media the press. lowly employee. This is specially true in sessions of Congress.Constitutional Law I L-36142 Constitutional Law I L-36142 propriety. p. pedestrian. 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.500 towns and 33. even among the 400. 1973 and Daily Express. 1970 of delegates to the Constitutional Convention. 8. Tora. From the time the Constitutional Convention reconvened in October. "Otto Lang. (8) Petitioners likewise claim that there was no sufficient publicity given to the new Constitution. 1972. 1972. They will not deny that there are those who favor the same. not on personalities. taxi driver. Secretary of the United States Senate. 1972 until January 7. Not one of the petitioners can say that the common man farmer. because even before the election in November. open voting was not a universal phenomenon in the Citizens' Assemblies. Many residents in about 1. laborer. President Marcos has been prompt and surefooted in using the power of presidential decree 239 240 . Printed materials on the proposed reforms were circulated by their proponents. but that does not necessarily mean that it was done throughout the country. Hollywood producer director (Tora. From June. March 3. March 4). This is quite inaccurate. March 3 and 4. 1973 issue). who conducted a personal survey of the country as delegate of Senator Mike Mansfield. states: Martial law has paved the way for a re-ordering of the basic social structure of the Philippines. municipal boards and barrio councils when voting on national or local issues. not its legality or constitutionality. There can be no more hardboiled group of persons than newspapermen. bus driver.

That would suggest that he may not be striking too far from the mark. The 1973 Constitution may contain some unwise provisions.. p. 68.. This is the reason why the Constitutional Convention. Gaz.Constitutional Law I L-36142 Constitutional Law I L-36142 under martial law for this purpose. 42 Off.. After cessation of armed hostilities. Styver (L-129. as upheld by this Court in the case of Yamashita vs. 1969 ed. do not like the reforms stipulated in the new Constitution. as heretofore stated. 563. The trial of General Kuroda was after the surrender of Japan on October 2. Nevertheless. The position of the respondent public officers that undermartial law. Clearly. 799) and hence no more martial law in the Philippines. as hereinbefore stated. But this objection to such unwise or vague provisions. 177-178) which reiterates the 1945 case of Yamashita vs. He has zeroed in on areas which have been widely recognized as prime sources of the nation's difficulties land tenancy. there is marked public support for his leadership and tangible alternatives have not been forthcoming. 1972. VI PRESIDENT AS COMMANDER IN CHIEF EXERCISES LEGISLATIVE POWERS DURING MARTIAL LAW. et al. Jalandoni. official corruption. the President as Commander-in-Chief is vested with legislative powers. tax evasion and abuse of oligarchic economic power. that all these reforms were the subject of discussion both in the committee hearings and on the floor of the Constitutional Convention. 1971 to November 29. The promulgation of said executive order is an exercise by the President of his powers as Commander in Chief of all our armed forces. otherwise We will be substituting Our judgment for the judgment of the Constitutional Convention and in effect acting as a constituent assembly. . It should be recalled. 171. in the promulgation and enforcement of Executive Order No. The United States business community in Manila seems to have been re-assured by recent developments . found it expedient to accelerate their proceedings in November. What is not yet certain is how accurate have been his shots. "An important incident to a conduct 241 242 . 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. he knows the targets.) Petitioners cannot safely assume that all the peaceful citizens of the country.. orders and circulars issued to implement the same. (83 Phil. Consequently. as well as the decrees. Styer (75 Phil.. (Emphasis supplied. 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 because all views that could possibly be said on the proposed provisions of the 1973 Constitution were already expressed and circulated. . Brit. 1972. 1945 (23 Encyc.. after spending close to P30 million during the period from June 1. incidents of war may remain pending which should be disposed of as in time of war. 664) when we said "War is not ended simply because hostilities have ceased. refers to the wisdom of the aforesaid provisions. who constitute the majority of the population. 571-72). is sustained by the ruling in the 1949 case of Kuroda vs. which issue is not for this Court to decide.

." It is possible that the courts. 1. the power to create a military commission for the trial and punishment of war criminals is an aspect of waging war. 63 Sup. and constitutional prescriptions. 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 President as Commander-inChief is fully empowered to consummate this unfinished aspect of war." (Ex parte Quirin. namely the trial and punishment of war criminals. emphasis supplied). the maintenance of the existing constitutional order. Trial of War Criminals by Military Tribunals." (Cowles.. Kahanamoku (327 U. customs. 177-178. this strong government. The functions of government are parceled out among a number of mutually independent offices and institutions.) Indeed.. There is an implied recognition in the aforesaid definition of martial law that even in places where the courts can function. up to the effective date of treaty of peace. in his concurring opinion in Duncan vs." (Emphasis supplied). 317 U. the power to exercise those functions is circumscribed by well-established laws. in asserting their authority to pass upon questions which may adversely affect the conduct of the punitive campaign against rebels. through the issuance and enforcement of Executive Order No. in the language of a writer.Constitutional Law I L-36142 Constitutional Law I L-36142 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.S. dissidents as well as subversives. or their functioning would itself threaten the public safety. (83 Phil. martial law may restrict such judicial function until the danger to the security of the state and of the people shall have been decimated.. a military commission "has jurisdiction so long as the technical state of war continues. threaten the public safety. when. and the people for whom this government was instituted are in 243 244 . 2. June. The foregoing view appears to be shared by Rossiter when he stated: Finally. Chief Justice Stone of the United States Supreme Court likewise appears to subscribe to this view. American Bar Association Journal. or military occupation. 304 [1946]). and may extend beyond.S. 1944). This includes the period of an armistice. can have no other purposes than the preservation of the independence of the state. Consequently. by treaty agreement. which in some instances might become an outright dictatorship. It is important to recognize the true and limited ends of any practical application of the principle of constitutional dictatorship. secessionists. when other branches of the government are unable to function. 68. and the defense of the political and social liberties of the people. such operation of the courts may be affected by martial lawshould their "functioning . Ct. 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. And.

. 7. The actions directed to this end should therefore be provisional. 1948 ed. by Clinton L.) Finally. and social rights which their leaders recognize as inherent and inalienable. as a constitutional dictator he had a moral right to take this radical action. The government assumes no power and abridges no right unless plainly indispensable to that end. it is imperative that any action with such lasting effects should eventually receive the positive 245 246 .Nevertheless. is an assertion that can be made without fear of contradiction. Emergency powers are strictly conditioned by their purpose and this purpose is the restoration of normal conditions. 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. one working lasting changes in the political and social fabric. social and economic structure of the nation which cannot be eradicated with the restoration of normal times. that there never has been a perfect constitutional dictatorship. or the impact of a world-wide depression threatens to bring the nation's economy in ruins. And the narrow duty to be pursued by this strong government. and it makes no alteration in the political. political. and the principle of constitutional dictatorship remains eternally valid no matter how often and seriously it may have been violated in practice.Constitutional Law I L-36142 Constitutional Law I L-36142 possession of a lengthy catalogue of economic. this constitutional dictatorship? Simply this and nothing more: to end the crisis and restore normal times. the aim of constitutional dictatorship is the complete restoration of the status quo ante bellum. at least not without the positively registered approval of the legislature. it extends no further in time than the attainment of that end. The government meets the crisis by assuming more powers and respecting fewer rights. By this same token. whether adopted in regular or irregular times. are for parliaments to enact. This historical fact does not comport with philosophical theory. 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. (Constitutional Dictatorship. Permanent laws. A severe crisis arises the country is invaded by a hostile power. Rossiter. the Chief Executive exercises legislative power. But this is true of all institutions of government. But what if a radical act of permanent character. President Lincoln found it necessary to proceed to the revolutionary step of emancipation in aid of his conservative purpose of preserving the Union. whether of temporary or permanent character. In short. Rossiter expressly recognizes that during martial law. p. the decisions and sentences of extraordinary courts should be reviewed by the regular courts after the termination of the crisis. or a dissident segment of the citizenry revolts. is indispensable to the successful prosecution of the particular constitutional dictatorship? The only answer can be: it must be resolutely taken and openly acknowledged. emphasis supplied. thus: The measures adopted in the prosecution of a constitutional dictatorship should never be permanent in character or effect.

and the communist rebels a Maoist oriented secessionists of the extreme left who demand swift institution of reforms.. The Chief Executive announced repeatedly that in choosing to proclaim martial law." (Frankfurter. insurrection or economic depression or dislocation. or must it be too weak to maintain its existence?" That was the dilemma that vexed President Lincoln during the American Civil War. emphasis supplied). doctrinaire concepts and principles. is justified because. 1102 is indispensable to the effectuation of the reforms within the shortest possible time to hasten the restoration of normalcy. Art. under martial law occasioned by severe crisis generated by revolution. political. To Justice Frankfurter. As such. insurgent or subversive conspiracies and the consequent dismantling of the rebellious. 1970 ed. who. In the vein of Mr. should not be regarded as peremptory commands. it is directed towards the institution of radical reforms essential to the elimination of the causes of rebellious. secure the safety of our Republic and the rights as well as lives of the people against open rebellion. pp. it is capable of growth or expansion and adaptation to new conditions. 3 & 6. he suspended one basic human freedom the privilege of the writ of habeas corpus in order to preserve with permanence the American Union. 303. law is "a vital agency for human betterment" and constitutional law "is applied politics using the word in its noble sense. Justice Frankfurter. Justice Holmes. otherwise the dead hand of the past will regulate and control the security and happiness of the living present. Growth implies changes. democratic revolution from the center against the violent revolution and subversion being mounted by the economic oligarchs of the extreme right. Bickel. 10[2]. 1935 247 Constitution) to insure our national and individual survival in peace and freedom. the government exercises more powers and respects fewer rights in order "to end the crisis and restore normal times. Hence.Constitutional Law I L-36142 Constitutional Law I L-36142 approval of the people or of their representatives in the legislature. 86 and 86-A as well as Proclamation No." (Brandeis Papers. emphasis supplied). is the sine qua non to the complete restoration of normalcy. Harvard Law School. The law as a means of social control is not static but dynamic. as he professes. VII. 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. more than the Courts and Congress. the Supreme Court and the Idea of Progress. Harvard Professor Thomas Reed Powell emphasizes "practical wisdom. who resist reforms to maintain their economic hegemony. eradication of the causes that incited rebellion and subversion as secession. pp." for "the logic of constitutional law is 248 . the power expressly vested in him by the 1935 Constitution (Sec. the Constitution is neither a printed finality nor the imprisonment of the past. no matter how revered they may be by jurisprudence and time. upon his proclamation of martial law. by express constitutional mandate. (P. 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. A contrary view would be to deny the self-evident proposition that constitutions and laws are mere instruments for the wellbeing.. It is a living organism. From the foregoing citations. In the exercise of his constitutional and statutory powers. 1939 ed. emphasis supplied). In our particular case. economic and social. insidious subversion secession. secessionists and subversives. but the enfolding of the future. This is the same dilemma that presently confronts the Chief Executive of the Republic of the Philippines. Law and Politics. "Must the government be too strong for the liberties of the people. 19-21). when without express authority in the Constitution and the laws of the United States. the issuance of Presidential Decree Nos. insurgent or subversive apparatus. the meaning of the words of the Constitution is not to be determined by merely opening a dictionary." The government can assume additional powers indispensable to the attainment of that end the complete restoration of peace. security and prosperity of the country and its citizenry. he is in effect waging a peaceful. Its terms must be construed in the context of the realities in the life of a nation it is intended to serve. Exercise of legislative power by the President as Commander in Chief. must. to save the state and to protect the citizenry against actual and threatened assaults from insurgents. peace. the Federal Constitution of the United States and all the civil liberties of the American people. Justice Brandeis gave utterance to the truth that "Our Constitution is not a straight jacket. Paraphrasing Mr.

750). even the scholar. re-adopted or modified to suit the needs of a given society at a particular given epoch. with the change of circumstances. 2 Southern Law Quarterly. to promote their well-being. Justice Benjamin Nathan Cardozo. liberties and fortunes of the citizens and the nation. "We cannot. if 249 250 ." (Poems of Pope.." Adherents there are to the poetic dictum of Alexander Pope: "For forms of government let fools contest. socialist democracy. discarded. representative democracy. Laurel was wont to say. they created an agency known as the government. concepts.. 1969 ed. capacity for decision and courageous action is greater. institutions must also advance. the shades vary from direct democracy.. the Dark Ages and the Renaissance to this era of sophisticated electronics and nuclear weaponry. and to insure the safety and stability of the Republic." (Vol. as new discoveries are made. In between. recommend the blending of idealism with practical wisdom which legal thinkers prefer to identify as progressive legal realism. to outright communism which degenerated in some countries into totalitarianism or authoritarianism. "so long as society is inconstant. But I know also. From the savage era thru ancient times. whatever is best administered is best. overturned." Thus.S.." As Justice Jose P. 138-139. This is especially true in times of great crises where the need for a leader with vision. had been adopted. As that becomes more developed. .. The wisdom of the decision of the Chief Executive can only be judged in the perspective of history." (Abrahms vs. 631) for "the life of the law is not logic. mitigated socialism. emphasis supplied). who personifies the progressive liberal. Justice Holmes aptly observed." In the pontifical tones of Mr." and "there will be change whether we will it or not. states and governments have mutated in their search for the magic instrument for their well-being. Political philosophies and constitutional concepts. Thomas Jefferson. every "constitution is an experiment as all life is an experiment." (Powell. It was trial and error then as it is still now. The national leader. Living organisms as well as man-made institutions are not immutable. charged as it is with so much tension and emotion. This is true of constitutions and laws because they are not "the infallible instruments of a manifest destiny. It cannot be adequately and fairly appraised within the present ambience. government and public administration. As Mr. When the methods of rebellion and subversion have become covert. forms and kinds of government. who wields the powers of government. subtle and insidious. Encyclopedia Britanica. Civilized men organize themselves into a State only for the purpose of serving their supreme interest their welfare. that laws and institutions must go hand in hand with the progress of the human mind. command the waves of progress to halt. Canute-like. but experience. p. Over a century and a half ago. welfare states. p. must perforce submit to the inexorable law of change in his views. more enlightened. the Middle Ages. The eternal paradox in this finite world of mortal and fallible men is that nothing is permanent except change. to preserve the unity of people. it cannot stand still. methods and techniques when brought into the actual arena of conflict as a public functionary face to face with the practical problems of state. under the Webb-Kenyon Law. 1931 Cambridge ed. new truths disclosed and manners and opinions change. pp. there can be no constancy in law. 112. And so it is that some learned jurists. must and has to innovate if he must govern effectively to serve the supreme interests of the people." No matter how we want the law to be stable. and suppose what they did to be beyond amendment. 12. and keep pace with the times. 250 US 616.Constitutional Law I L-36142 Constitutional Law I L-36142 the common sense of the Supreme Court. there should be a recognition of the corresponding authority on the part of the Commanderin-Chief of the Armed Forces to utilize all the available techniques to suppress the peril to the security of the government and the State. spoke the truth when he said that some men "ascribe men of the preceding age a wisdom more than human. one of the founding fathers of the American Constitution and former President of the United States. supra. imagination. 989). in the resolution of constitutional issues that immediately affect the lives. Hence. who advances academic opinions unrelated to factual situations in the seclusion of his ivory tower. the Validity of State Legislation. U. cited in Bickel's Opus. To achieve such end. political scientists and jurists no longer exalt with vehemence a "government that governs least.

which. pp. which power the American Constitution and Congress did not then expressly vest in him. with which the distinguished counsels for the petitioners in L-36164 and L-36165 are familiar. No. L-36165. 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. they can elect a new Senate President and a new Senate President Pro Tempore. 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. 1969 ed. if not of anarchy. 742) and on September 2. 1866. then there is no remedy except an appeal to the people. 1865 argued on March 5 to 13. 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. Kahanamoku (filed on May 10. If this fails. 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. 251 252 . 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. 799). but also saved the Federal Republic of the United States from disintegration by his suspension of the privilege of the writ of habeas corpus. Encyclopedia Britannica. if not to a great extent. We stress that the doctrine of separation of powers and the political nature of the controversy such as this. This was emphasized with sufficient clarity by this Court in the 1949 case of Avelino vs. forgetting that this magic formula constitutes an essential skein in the constitutional fabric of our government. 18-65 (Vol. 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. In G. This is a problem that is addressed to the Senate itself for resolution. Art. objective historians will write the final verdict in the same way that they pronounced judgment on President Abraham Lincoln who suspended the privilege of the writ of habeas corpus without any constitutional or statutory authority therefor and of President Franklin Delano Roosevelt who approved the proclamation of martial law in 1941 by the governor of Hawaii throughout the Hawaiian territory. 1. those present can order the arrest of the absent members (Sec. p. 22. because pursuant to the doctrine of separation of powers under the 1935 Constitution. conserves the unity of our people. If a majority of the senators can convene. Encyclopedia Britannica.Constitutional Law I L-36142 VIII Constitutional Law I L-36142 not partisan passion. The dictum ubi jus. decided on April 3. 10[2].... 23. But if they have no quorum. strengthens the structure of the government and assures the continued stability of the country against the forces of division. 1935 Constitution). 1945 (Vol. 17. ubi remedium. Cuenco (83 Phil. the processes of this Court cannot legally reach a coordinate branch of the government or its head.R. 730. and opinion delivered on December 17. together with other basic constitutional precepts. 1969 ed. for it is purely an internal problem of the Senate. The analytical. 1866) after the lifting of the proclamation suspending the privilege of the writ of habeas corpus. 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? DOCTRINE OF SEPARATION OF POWERS PRECLUDES MANDAMUS AGAINST SENATORS. 1866.24). Parenthetically. VI. long after the Civil War and the Second World ended respectively on April 9 or 26. President Lincoln not only emancipated the Negro slaves in America. No one can deny that the successful defense and preservation of the territorial integrity of the United States was due in part.

must have the same category at the very least as the act of Congress itself. And as pointed out by former Senator Arturo Tolentino. in any of the big hotels or theaters. Validity of the acts of the Senate does not depend on the place of session. not merely to its presiding officers. 296. for the Constitution does not designate the place of such a meeting. VI of 1935 Constitution). if they have a quorum. Like Thomas Jefferson. Art. which is co-equal and coordinate with as well as independent of either Congress or the Chief Executive. Neither can civilized society survive without 253 254 . for it cannot validly meet without the lower House (Sec. However. As heretofore stated. the required vote to nullify Proclamation No. counsel for respondents Puyat and Roy. 1935 Constitution). it is not a law because it is not enacted by both Houses and approved by the President. IX TO NULLIFY PROCLAMATION NO. as the case may be. A declaration that the 1973 Constitution is unenforceable and inoperative is practically deciding that the same is unconstitutional. 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. is addressed to the individual members of the legislative body (Sec. as amended. the senators can meet anywhere. or on special session called by the President. X ARTICLE OF FAITH WE yield to no man as devotees of human rights and civil liberties. Hence. Section 9 of Article VI imposes upon Congress to convene in regular session every year on the 4th Monday of January. for the declaration of invalidity or unconstitutionality be not achieved. counsel for respondents Puyat and Roy in L-36165. mandamus will lie only if there is a law imposing on the respondents the duty to convene the body. VI. its final act. in force and operative. which are anathema to a free spirit. Proclamation No. the maintenance of which is the primary function of the government. 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. We swear "eternal hostility towards any form of tyranny over the mind of man" as well as towards bigotry and intolerance. Consequently. The fact that the doors of Congress are padlocked. 1102 AND 1973 CONSTITUTION REQUIRES EIGHT OR TEN VOTES OF SUPREME COURT. 10[5]. Hence. at the Luneta Independence Grandstand. stated. a session by the Senate alone would be purely an exercise in futility. 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. will not prevent the senators especially the petitioners in L-36165 if they are minded to do so. 9. the duty to convene is addressed to all members of Congress. The Constitutional provision on the convening of Congress. in their own houses. the 1973 Constitution.Constitutional Law I L-36142 Constitutional Law I L-36142 Moreover. or at the Araneta Coliseum. or should be ten (10) under Section 2(2) of Article X of the 1973 Constitution. unless a different date is fixed by law. Art. which is owned by the father-in-law of petitioner Gerardo Roxas in L-36165. The proposed Constitution is an act of the Constitutional Convention. the 1973 Constitution must be deemed to be valid. from meeting elsewhere at the Sunken Gardens. 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 civilized society cannot long endure without peace and order. Should the required vote of eight (8) or ten (10). The rule imposing such a duty invoked by petitioners in L-36165 is purely an internal rule of the Senate. this petition by five former senators for mandamus in L-36165 is useless. As former Senator Arturo Tolentino.

in L-36165. Every citizen. In the language of Mr. whether in the form of invasion from without or rebellion and subversion from within.000 Frenchmen including the leaders of the French revolution. To vert a terrifying blood bath and the breakdown of the Republic. 1972. 99 U. This. that should be the shibboleth. 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.. he knows only too well. 411. secessionists and rebels by effecting the desired reforms in order to eradicate the evils that plague our society. 327. It must be the rhetoric of freedom with order and security for all. 417). whether human or governmental. to compel respondents Gil Puyat and Jose J. who prides himself in being a member or a civilized society under an established government. J. more than for their own selves. concurring: These petitions seek to stop and prohibit the respondents Executive Officers from implementing the Constitution signed on November 30. the ordinary rights of individuals must yield to what he (the President) deems the necessities of the moment. cease to believe in his leadership. (See Keely vs. before normalcy is restored. The most bloody of such mass executions by the wrath of a wronged people. as apprehended by the petitioners. 85. The rhetoric of freedom alone is not enough. 53 L ed. 77. HENCE. although it was disputed. Roy. even as he reserves to himself certain rights which constitute limitations on the powers of government." (Moyer vs. it is believed. But if.S.. that the same is true of temporary detention to prevent apprehended harm. the exercise of which freedom imperils the State and the civilized society to which the individual belongs. they should be willing to give the incumbent Chief Executive a chance to implement the desired reforms. Justice Holmes often invoked by herein petitioners "when it comes to a decision involving its (state life. The incumbent Chief Executive who was trying to gain the support for his reform program long before September 21. 328). there can be no alternative but to submit to the superior right of the government to defend and preserve the State. Sanders. This is the first law of nature and ranks second to none in the hierarchy of all values. He who toys with revolution will be swallowed by that same revolution. 446. 441. impliedly submits to certain constraints on his freedom for the general welfare and the preservation of the State itself. which promises were either offered as a bargaining leverage to secure concessions from him or to delay the institution of the needed reforms. 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. Public danger warrants the substitution of executive process for judicial process. But when there is an inevitable clash between an exertion of governmental authority and the assertion of individual freedom. was the decapitation by guillotine of about 15. realized almost too late that he was being deceived by his partymates as well as by the opposition. The people have been victimized by such bargaining and dilly-dallying. Peabody. the people thru their Citizens' Assemblies. Desmoulins and Marat. the rebels and secessionists to exhort the citizenry to rise against the government. like Robespierre. And we think it is obvious. who promised him cooperation. he will step down voluntarily from the Presidency.S. the enemies of the Republic will be decimated. he abuses and brutalizes the people. the incumbent President proclaimed martial law to save the Republic from being overrun by communists. This was admitted with regard to killing men in the actual clash of arms. which evils have been employed by the communists. President and 255 256 . He is fully cognizant of the lessons of history. THE DISMISSAL OF THESE FIVE CASES IS JUSTIFIED. 1972.Constitutional Law I L-36142 Constitutional Law I L-36142 the natural right to defend itself against all dangers that may destroy its life. Danton. 212 U. then to the battlements we must go to man the ramparts against tyranny. How many of the petitioners and their counsels have been utilizing the rebels. 25 L ed. ESGUERRA. By eliminating the evils. The incumbent President assured the nation that he will govern within the framework of the Constitution and if at any time. because he is aware that he who rides the tiger will eventually end inside the tiger's stomach. for freedom cannot be enjoyed in an environment of disorder and anarchy.

1972. 2. The petitions were not given due course immediately but were referred to the Solicitor General as counsel for the respondents for comment. as said assemblies were merely for consultative purposes. including the undersigned. The undisputed facts that led to the issuance of Proclamation No. Is the new Constitution actually in force and effect? 5. which declared the ratification of the Constitution on November 30. Is the question presented political and. 86 and 86-A are fully set forth in the majority and dissenting opinions in the Plebiscite cases decided on January 22. to convene the Senate in regular session which should have started on January 22. 86 issued on December 31. but. as an act of judicial statesmanship. 3 and 4 be in the affirmative.Constitutional Law I L-36142 Constitutional Law I L-36142 President Pro-Tempore. 1973. with three members of the Court. are as follows: 1. The President had no authority to create and empower the Citizens' Assemblies to ratify the new Constitution at the referendum conducted in connection therewith. 86-A. to act in connection with the ratification of said Constitution. Has the new Constitution been accepted and acquiesced in by the Filipino people? 4. If the answers to questions Nos. 1973. not justiciable. 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. 257 258 . I. For after the acceptance of a new Constitution and acquiescence therein by the people by putting it into practical operation. on which the resolution of the Motion to Dismiss hinges. I maintain that this Court should abstain from assuming jurisdiction. of the Senate under the 1935 Constitution. issued on January 5. Thereafter both parties submitted their notes and memoranda on their oral arguments. are petitioners entitled to the reliefs prayed for? II. voting to dismiss them outright. joint discussion of issues Nos. to nullify Proclamation No. should dismiss the petitions. through the barangays or Citizens Assemblies established under Presidential Decree No. Grounds for the petitions are as follows: 1. 1973. or is it justiciable and fit for judicial determination? 2. In resolving whether or not the question presented is political. therefore. The pivotal question in these cases is whether the issue raised is highly political and. 3. 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. ratified in accordance with the amending process prescribed by Article XV of the 1935 Constitution? 3. and need not be repeated here. 1. Was the new Constitution of November 30. which were empowered under Presidential Decree No. and 4. hence. 1973. 1102 of the President. beyond the competence of this Court to decide. by the Filipino people. issued on January 17. instead. respectively. The issues raised for determination. 3 and 4 is necessary so as to arrive at a logical conclusion. 1972. 1972. 1102 and Presidential Decrees Nos. 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 provisions of Article XV of the 1935 Constitution prescribing the manner of amending the same were not duly observed. The comments were considered motions to dismiss which were set for hearing and extensively argued.

The members of the Congress did not meet anymore last January 22.. 259 260 . 15 out of 24 Senators have done likewise. claiming that the ratification of the new Constitution pursuant to the said decrees is invalid and of no effect. except the Supreme Court by reason of these cases. The Presidential decrees set up the means for the ratification and acceptance of the new Constitution and Proclamation No. Presidential Decree No. But looking through the veneer of judicial conformity with which the petitions have been adroitly contrived. and through these assemblies the proposed 1972 Constitution was submitted to the people for ratification. the Legislative Department under the 1935 Constitution is a thing of the past. 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. 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. 1102 and Presidential Decrees Nos.Constitutional Law I L-36142 Constitutional Law I L-36142 Petitioners seek to set at naught Proclamation No. what is sought to be invalidated is the new Constitution itself the very framework of the present Government since January 17. 1102 of the President announced or declared the result of the referendum or plebiscite conducted through the Citizens Assemblies. Petitioners assail these two acts of the President as unauthorized and devoid of legal effect.976. 1102 simply announced the result of the referendum or plebiscite by the people through the Citizens Assemblies. 1973. If it declares that the present Constitution has not been validly ratified. 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. 86 and 86-A. In brief. how can this Court justify its assumption of jurisdiction when no power has . 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. 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. Proclamation No. 1973. and that 14. 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. have administered justice under the new constitution. If the real purpose of the petitions is to set aside the new Constitution.869 voted against it. or simply "kicking the deadly pricks" with one's bare foot in an effort to eliminate the lethal points. The Executive Department has been fully reorganized. 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.561 members thereof voted for the ratification of the new Constitution and 743. Ultimately the issue is whether the new Constitution may be set aside by this Court. 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. 86 organized the barangays or Citizens Assemblies composed of all citizens at least fifteen years of age. All government offices have dealt with the public and performed their functions according to the new Constitution and laws promulgated thereunder. it has to uphold the 1935 Constitution as still the prevailing organic law. The reason is obvious. The result would be too anomalous to describe. If it declares that the 1972 Constitution is now operative. 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. 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. 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.. The courts.

Borden. the political power of the government has in many ways recognized it. Wiston vs. and. if it decides at all. 70 Neb. is indicative of approval.W. because the judicial power presupposes an established government. Smith vs. In Miller vs. Ed. Johnson. even without popular ratification at that. 581.Constitutional Law I L-36142 Constitutional Law I L-36142 When a Constitution has been in operation for sometime. 97 N. 101.W. and not an amendment. and it would be incapable of pronouncing a judicial decision upon the question before it. therefore. 754. 12 L. 207. 92 Ky. the power of its courts is annulled with it.E. persons have been convicted of the highest crimes known to the law. it is our duty to treat and regard it as a valid constitution. yet as the entire instrument has been recognized as valid in the manner suggested. it would cease to be a court. the Court said: It is said that a state court is forbidden from entering upon such an inquiry when applied to a new constitution. We need not consider the validity of the amendments made after the convention reassembled. and appointing judges to expound and administer them. But it is a case where a new constitution has been formed and promulgated according to the forms of law. Ryan. Johnson. The acceptance of the judicial office is a recognition of the authority of government from which it is derived. Good. 34 F 204. 829. And if the authority of the government is annulled and overthrown. supra. Courts should be slow in nullifying a Constitution claimed to have been adopted not in accordance with constitutional or statutory directives [Miller vs. (Emphasis supplied) In Smith vs. it must necessarily affirm the existence of the government under which it exercises its judicial powers. If the making of them was in excess of its power. 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. Good. 189 S. Va. if not to their liking. and violative of the rights of the people. submission of the people thereto by the organization of the government provided therein and observance of its prescriptions by public officers chosen thereunder. 211. 522. 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. Great interests have already arisen under it. according to its provisions. who can and properly should remedy the matter. it 261 262 . under such circumstances. 48 U. and bring confusion and anarchy upon the state. If it decides at all as a court. Taylor vs Commonwealth. (Emphasis supplied) These rules are all traceable to Luther vs. and be incapable of pronouncing a judicial decision upon the question it undertook to try. 347]. and if the authority of that government is annulled and overthrown.. 589. it would be equally an abuse of power by the judiciary. but. if it were to declare the instrument or a portion invalid. the Court said: . 44 S.S (7 How. come to the conclusion that the government under which it acted had been displaced by an opposing government. 598 (1849) where it was held: Judicial power presupposes an established government capable of enacting laws and enforcing their execution. supra. if a state court should enter upon such an inquiry. and now the organic law of our state.).. important rights exist by virtue of it.

and so the Court.. I held the view that this issue could be properly resolved by this Court. .S. 1973. let us harken to the following admonition of Justice Frankfurter in his dissent in Baker vs. 186. 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. The majority of this Court. however. 1973 1. 28. especially situations like this. Cuenco. 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.R. 1102 and Presidential Decrees Nos. concurring and dissenting: In these five cases. 7 L. 663: The Court's authority possessed neither of the purse nor the sword ultimately rests on sustained public confidence in its moral sanction. did 263 264 . L-10520. 2d.1967. (For particulars about executive acts done under the new Constitution. We are now living under its aegis and protection and only the cynics will deny this. No. 1. 46 Phil. was of the view that the issue was not squarely raised in those cases." (Emphasis supplied) The people have accepted and submitted to a Constitution to replace the 1935 Constitution. see pages 22-25 of the Comments of the Solicitor General. ZALDIVAR. 78 Phil. G. from political entanglements and abstention from injecting itself into the clash of political forces in political settlement. in fact and appearance. as a body. Alejandrino vs. Green. The new organic law is now in the plenitude of its efficacy and vigor. 82 S. Cabili vs. The sober realization of its proper role and delicate function and its consciousness of the limitations on its competence. 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". G. which were decided by this Court on January 22. 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. This Court should not in the least attempt to act as a super-legislature or a super-board of canvassers and sow confusion and discord among our people by pontificating there was no valid ratification of the new Constitution. No. Such feeling must be nourished by the Court's complete detachment. p. 691. Lopez Vito. Arellano. 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.R. Ct.S. or to a co-equal and coordinate branch of the Government (Vera vs. Feb. 192.. 100 Phil. Mabanag vs. Francisco. 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. 4638. For a political question is one entrusted to the people for judgment in their sovereign capacity (Tañada vs. Ed.) Certainly the invalidation of Proclamation No. dated February 3. 369 U.Constitutional Law I L-36142 Constitutional Law I L-36142 necessarily affirms the existence and authority of the government under which it is exercising judicial power. 1101). 1931)." 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". For all the foregoing. or when there is "the potentiality of embarrassment from multifarious pronouncements by various departments on one question. 549. Carr. J. 328 U. 35. 77 Phil. I vote to dismiss all petitions. Quezon. May 8. In the plebiscite cases.. and that it was in the public interest that this Court should declare then whether or not the proposed Constitution had been validly ratified.

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. and to inform the people of this country. after all. power over the two other departments of the government. This contention by the Solicitor General is untenable. as well as through the executive or the legislature. and decide on. Each of the three departments. and every departure therefrom." The Court is now called upon to declare. before Us involve a political.Constitutional Law I L-36142 Constitutional Law I L-36142 make any categorical pronouncement on the question of whether or not the Constitution proposed by the 1971 Convention was validly ratified. must subject him to the restraining and controlling power of the people. the submission. 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. or to the executive. declare it to be void. question. based on decisions of the courts in the United States where. and I believe that the Court can inquire into. or a judicial. the cases. One department is just as representative as the other. The Chief Justice. within its proper constitutional sphere. It must be remembered that the people act through the courts. Cuenco 6. it may. or disregard thereof. in his opinion. 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. 7 My study on the subject of whether a question before the court is political or judicial. 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. 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. the question of whether or not an amendment to the constitution. as in the present cases. 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. acts independently of the other. branch of the government. has discussed lengthily the subject on whether or not. 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. in the cases now before Us. has been ratified in accordance with the requirements prescribed in the Constitution that was amended. In the case ofAvelino v. when the legality of such an act is brought before it in a judicial proceeding. And so. And so. While a court may not restrain the executive from committing an unlawful act. whether or not that proposed Constitution had been validly ratified and had come into effect. but whether or not the constitution has been legally amended is a justiciable question. I fully concur with his conclusion that the question involved in these cases is justiciable. 3 It is a settled doctrine that every officer under a constitutional government must act according to law and subject to its restrictions. The Solicitor General. and restraint is only placed on one department when that sphere is actually transcended. as the ultimate interpreter of the Constitution. the same as it may declare a law enacted by the legislature to be unconstitutional. or rather restraining. 265 266 . 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. acting through the agency of the judiciary. Commission on Elections 5. 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 judicial department of the government exercises a sort of controlling. and the ratification of any change in the Constitution. however. to determine the validity of the proposal. 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. Ratification or non-ratification of a constitutional amendment is a vital element in the procedure to amend the constitution. In the case of Gonzales v.

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 267 268 . owes its existence and all its authority and power from the existing Constitution of the Philippines." It is in consonance with the abovequoted provision of the 1935 Constitution that on March 16. 1971 (41 SCRA 715). 7 of said Resolution No.Constitutional Law I L-36142 Constitutional Law I L-36142 On the question now of whether or not the Constitution proposed by the 1971 Constitutional Convention has been validly ratified. as any other convention of the same nature. Article XV of the 1935 Constitution of the Philippines. 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. Sec. there was a clear mandate that the amendments proposed by the 1971 Convention. Justice Barredo. L-35140. This Court. It follows that from the very resolution of the Congress of the Philippines which called for the 1971 Constitutional Convention. may propose amendments to the Constitution or call a convention for that purpose. in the case of Tolentino vs. said: "The Constitutional Convention of 1971. in order to be valid and considered part of the Constitution. 2 calling a convention to propose amendments to the Constitution of the Philippines. 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. October 16. 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. 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. Commission Elections. the Congress of the Philippines Resolution No. 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 reads as follows: "Section 7. speaking through Mr. which reads: "Section 1. 1967.

.Constitutional Law I L-36142 Constitutional Law I L-36142 country or of revolution against an existing government or of a bloodless seizure of power a la coup d'etat. Article XV. where official ballots prepared for the purpose are used." 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. Now we hold that even as to its latter task of proposing amendments to the Constitution..869 who voted for its rejection. 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. that the voting held in these barangays is not the election contemplated in the provisions of Section 1." In Proclamation No. and it as to such conventions that the remarks of Delegate Manuel Roxas of the Constitutional Convention of 1934 quoted by Senator Pelaez refer. as against 743. and on the basis of the overwhelming majority of the votes cast by the members of all the barangays throughout the Philippines. Proclamation No. 1102 that the provisions of Section 1 of Article XV of the Constitution of 1935 were not complied with. the Convention and its officers and members are all subject to all the provisions of the existing Constitution. of the 1935 Constitution. . As to such kind of conventions. issued on January 17. 1102 unequivocally states that the proposed Constitution of 1972 was voted upon by the barangays. where the voters would prepare their ballots in secret inside the voting 269 270 . the President of the Philippines certified that as a result of the voting before the barangays (Citizens Assemblies) 14. 1973.561 members of the barangays voted for the adoption of the proposed Constitution.976. therefore. The election contemplated in said constitutional provision is an election held in accordance with the provisions of the election law. It is very clear. it is subject to the provisions of Section 1 of Article XV. 1102. It is very plain from the very wordings of Proclamation No. the President proclaimed that the Constitution proposed by the 1971 Convention has been ratified and has thereby come into effect. 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 . where only the qualified and registered voters of the country would cast their votes. it is absolutely true that the convention is completely without restraint and omnipotent all wise.

and on November 14. 1937. 637). Altavas. has not been followed in the case of the Constitution proposed by the 1971 Constitutional Convention. 1947 when the Parity Amendment to the Constitution was ratified. In common parlance. 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. of an election to ratify or reject an amendment to the Constitution. It is very clear. on April 30. 1102 mentions. "An election is the embodiment of the popular will.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. and making the return. 14. on March 11. that Proclamation No. Article XV of the Constitution was completely disregarded. The votes contemplated in said constitutional provision are votes obtained through the election processes as provided by law. furthermore. The affirmative votes cast in the barangays are not the votes contemplated in Section 1 of Article XV of the 1935 Constitution. the expression of the sovereign power of the people. to me.298." (Hontiveros vs. counting them. 1940. when the 1940 Amendments to the Constitution were ratified. "Election" implies a choice by an electoral body at the time and 271 272 . 1935. Proclamation No. 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. I cannot see any valid reason why the practice or procedure in the past. 1102 was issued in complete disregard or in violation. 632. the provision of Section 1. in implementing the constitutional provision requiring the holding. when the amendment to the Constitution providing for Women's Suffrage was ratified. It would thus appear that the barangays assumed the power to determine whether a plebiscite as ordained in the Constitution be held or not. on June 18. when the Constitution of 1935 was ratified. that on the question as to whether or not the people would still like a plebiscite to be called to ratify the new Constitution.Constitutional Law I L-36142 Constitutional Law I L-36142 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. Indeed. It was this kind of election that was held on May 14. 24 Phil. where the votes are canvassed and reported in a manner provided for in the election law. an election is the act of casting and receiving the ballots. of the provisions of Section 1 of Article X of the 1935 Constitution.

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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

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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 extra-legal." (BIack's Constitutional Law, Second Edition, pp. 47-48).

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"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

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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. 3536. 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."

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(Graham v. Jones, 3 So. 2d. 761, 793-794). In our jurisprudence I find an instance where this Court did not allow the will of the majority to prevail, because the requirements of the law were not complied with. In the case of Monsale v. Nico, 83 Phil. 758, Monsale and Nico were both candidates for the office of Municipal Mayor of Miagao, Iloilo, in the elections of November 11, 1947. Monsale had duly filed his certificate of candidacy before the expiration of the period for the filing of the same. However, on October 10, 1947, after the period for the filing of the certificate of candidacy, Monsale withdrew his certificate of candidacy. But on November 7, 1947 Monsale attempted to revive his certificate of candidacy by withdrawing the withdrawal of certificate of candidacy. The Commission on Elections, November 8, 1947, ruled that Monsale could no longer be a candidate. Monsale nevertheless proceeded with his candidacy. The boards of inspectors in Miagao, however, did not count the votes cast for Monsale upon the ground that the votes cast for him were stray votes, because he was considered as having no 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.

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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

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disputed that in a democratic sovereignty resides in the people. But the term "people" must be understood in its constitutional meaning, and they are "those persons who are permitted by the Constitution to exercise the elective franchise." 8 Thus, in Section 2 of Article VII of the 1935 Constitution, it is provided that "the President shall hold his office during a term of four years and, together with the Vice-President chosen for the same term, shall be elected by direct vote of the people..." Certainly under that constitutional provision, the "people" who elect directly the President and the Vice-President are no other than the persons who, under the provisions of the same Constitution, are granted the right to vote. In like manner the provision in Section 1 of Article II of the 1935 Constitution which says "Sovereignty resides in the people and all government authority emanates from them", the "people" who exercise the sovereign power are no other than the persons who have the right to vote under the Constitution. In the case of Garchitorena vs. Crescini 9, this Court, speaking through Mr. Justice Johnson, said, "In democracies, the people, combined, represent the sovereign power of the State. Their sovereign authority is expressed through the ballot, of the qualified voters, in duly appointed elections held from time to time, by means of which they choose their officials for definite fixed periods, and to whom they entrust, for the time being, as their representatives, the exercise of the powers of government." In the case of Moya v. Del Fierro, 10 this Court, speaking through Mr. Justice Laurel, said, "As long as popular government is an end to be achieved and safeguarded, suffrage, whatever may be the modality and form devised, must continue to be the means by which the great reservoir of power must be emptied into the receptacular agencies wrought by the people through their Constitution in the interest of good government and the common weal. Republicanism, in so far as it implies the adoption of a representative type of government, necessarily points to the enfranchised citizen as a particle of popular sovereignty and as the ultimate source of the established authority." And in the case of Abanil v. Justice of the Peace of Bacolod, 11 this Court said: "In the scheme of our present republican government, the people are allowed to have a voice therein through the instrumentality of suffrage to be availed of by those possessing certain prescribed qualifications. The people, in clothing a citizen with the elective franchise for the purpose of securing a consistent and perpetual administration of the government they ordain, charge him with the 284

and the results of the voting reported by the barrio or ward captain. 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. Said Section 4 of the Tydings-McDuffie Law provides as follows: Section 4. that the ratification or any amendment to the 1935 Constitution could only be done by holding an election. 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.S. After the President of the United States certified that the constitution conforms with the provisions of this act. popularly known as the Tydings-McDuffie Law (Public Act No. who in turn submitted the report to the provincial Governor. It is clear therefore.. 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. Cruikshauk. v. regardless of whether they were qualified voters or not. 92 U. but in good faith and with an intelligent zeal for the general benefit and welfare of the state. to the municipal mayor. such vote shall be deemed an expression of the will of the people of the Philippine Independence. and in that respect constitute him a representative of the whole people.S. 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. when the 1935 Constitution as drafted.Constitutional Law I L-36142 Constitutional Law I L-36142 performance of a duty in the nature of a public trust. The alleged referendum in the citizens assemblies participated in by persons aged 15 years or more.... If a majority of the votes cast shall be for the constitution. that when the framers of the 1935 Constitution used. that when we talk of sovereign people. (U. and the latter forwarding the reports to the Department of Local Governments. The Philippine Legislature shall certify the result to the Governor-General of the Philippine Islands. therefore. on a date to be fixed by the Philippine Legislature at which election. issue a proclamation for the election of officers of the government of the Commonwealth of the Philippine Islands provided for in the Constitution.. This duty requires that the privilege thus bestowed exclusively for the benefit of the citizen or class of citizens professing it. 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." 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. and the Governor-General shall. therefore. It can safely be said.." There is no question. and practiced. voting by raising their hands. 588). the qualified voters of the Philippine Islands shall have an opportunity to vote directly or against the proposed constitution and ordinances append thereto. 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. within thirty days after receipt of the certification from the Philippine Legislature. together with a statement of the votes cast. 127). as the term "election" was understood. 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. and a copy of said constitution ordinances. It would be indulging in sophistry to maintain that the voting in 285 286 . 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.

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. 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. the date when Proclamation No. Neither can it be said that the people have accepted the new Constitution. they also have to live under the government as it now exists. 110 was issued. Of course. v. Perhaps. which otherwise they could not do if they did not manifest their option to serve. however. 1977. of the proposed Constitution. they continue to be members of Congress under the 1935 Constitution. Indeed. I agree with counsel petitioners in L-36165 (Gerardo Roxas. regardless of what Constitution is operative whether it is the 1935 Constitution or the new Constitution. if the proposed Constitution does not become effective. 1972. who is the head of the executive department. This doubt has been engendered in my mind after a careful examination and study of the records of these cases. however. because the President of the Philippines. have acquiesced to the new Constitution. et al. 1972. But what could the people do? In the same way that the people have lived under martial law since September 23. and the rest on December 31. 1973. 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. I cannot. took their oath of office. 1973. some on December 31. True it is. particularly with respect to the reports of the voting in the citizens assemblies. is an indication that only a small portion of the members of Congress had manifested the acceptance of the new Constitution. et al. making sure. Let if be noted that 9 Senators did not opt to serve in the interim National Assembly.Constitutional Law I L-36142 Constitutional Law I L-36142 the citizens assemblies amounted to a substantial compliance with the requirements prescribed in Section 1 of Article XV of the 1935 Constitution. had proclaimed that the new Constitution had come into effect. What appears to me. The fact that only one Senator out of 24. they can participate in legislative work in the capacity as duly elected representatives of the people. in the sense that they have continued to live peacefully and orderly under the government that has been existing since January 17. or the inhabitants of this country. in conscience. It is further contended by the Solicitor General. and as it has existed since the declaration of martial law on September 21. only 22 took their oath of office. that of the 15 senators who expressed their option to serve in the interim National Assembly only one them took his oath of office. it may be said that the people. that in the event the new Constitution becomes definitely effective and the interim National Assembly convened. It must be noted. and that option had to be made within 30 day from January 17. or acceptance.) when he said that the members of Congress who opted to serve in the interim National Assembly did only ex abundante cautela. accept the reported affirmative votes in the citizens assemblies as a true and correct expression by the people of their approval. and I have also my serious doubts regarding the truthfulness and accuracy of the reports of the voting in the citizens assemblies. of the Senators who opted to serve in the interim National Assembly. It could not be otherwise. 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. 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. and of the 92 members of the House of Representatives who opted to serve in the interim National Assembly. 1975. there 287 288 . Whereas. 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. 1973 when it was proclaimed that the new Constitution came into effect. the fact is that after the President of the Philippines had issued Proclamation No. and his office had taken the steps to implement the provisions of the new Constitution. the term of some of them will yet expire on December 31. and 18 members of the House of Representatives also did not opt to serve in the interim National Assembly. 1973. that some 92 members of the House of Representatives and 15 members of the Senate. and only 22 Representative out of 110. or by way of a precaution. 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. Alejandro Melchor.

regardless of the fact that it was not ratified in accordance with the provisions of Section 1 of Article XV of the 1935 Constitution. In fact. 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. What the petitioners assail is not the validity of the proposed Constitution but the validity of Presidential Proclamation No. I must state that the Constitution is still in force. therefore. and which has become part of our social and political fabric. and that because the people have accepted it. There will not be stability in our constitutional system. 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. 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. and that he has been acting all the way in consonance with his powers under the Constitution. it passed Resolution No. 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. as we have adverted to in this opinion. 2 calling a convention to propose amendments to the 1935 Constitution. and so it is not in force. It is my honest view that the Constitution proposed by the 1971 Constitutional Convention has not come into effect. should be considered as not yet validly ratified. however. I cannot agree. To me. I feel that if this Court would give its imprimatur to the ratification of the proposed Constitution. and necessarily no stability in our government.Constitutional Law I L-36142 Constitutional Law I L-36142 is nothing that the people can do under the circumstances actually prevailing in our country today circumstances. 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. 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 289 290 . 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. even in a manner contrary to the existing Constitution and the law. is not in accordance with the provisions of Section 1 of Article XV. that the proposed Constitution is invalid. 1102. on March 16. The people of this Republic has reason to be happy because. the validity of the proposed Constitution is not in issue in the cases before Us. with my worthy colleagues in the Court who hold the view that the people have accepted the new Constitution. 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. It being my view that the 1935 Constitution is still in force. I hold that Proclamation No. known to all. The proposed Constitution may still be submitted to a plebiscite in conformity with Section 1 of Article XV of the 1935 Constitution. is still a reality. according to the President. although that approval was not in accordance with the procedure and the requirements prescribed in the 1935 Constitution. I do not say. as announced in Proclamation No. Incidentally. 1102 is invalid and should not be given force and effect. therefore. as proclaimed in Proclamation No. of the 1935 Constitution. it can happen again in some future time that some amendments to the Constitution may be adopted. 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. It being my considered view that the ratification of the proposed Constitution. and which I do not consider necessary to state in this opinion. 1102. 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 this Court is still functioning under the 1935 Constitution. We will be opening the gates for a similar disregard of the Constitution in the future. this was the mandate of Congress when. it being very clear that the provisions of Section 1 of Article XV of the 1935 Constitution had not been complied with. 1967. the new Constitution should be considered as in force. Their proposed Constitution. 1102 which declares the proposed Constitution as having been ratified and has come into effect. we still have a constitutional government.

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. Along with him. It would follow therefore that the legal position taken by the Chief Justice as set forth with his usual lucidity and thoroughness has. "what petitioners really seek to invalidate is the new Constitution. because. to reservations insofar as it contains views and nuances to which I have in the past expressed doubts. and the protection and vindication of popular rights will be safe and secure in their reverential guardianship. by virtue of its role under the separation of powers concept. of course. Even then. FERNANDO. which itself explicitly recognizes the need for change and the process for bringing it about. my concurrence. the political departments could seek the aid of the judiciary. they are incapable of fashioning their own solutions for social problems. involved not necessarily as a participant in the formation of government policy. Jose P. if I can. there have been marked gains in the social and economic sphere. It is. but as an arbiter of its legality. dissenting: No question more momentous." 1 Strict accuracy would of course qualify such statement that what is in dispute. 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 the assent it gives to what has been done conduces to its support in a regime where the rule of law holds sway. Thus in affirming constitutional supremacy. I only wish to help prevent. with regret and with due respect for the opinion of my brethren. said: Let our judges be as it were the vestal keepers of the purity and sanctity of our Constitution. I concur fully with the personal views expressed by the Chief Justice in the opinion that he has written in these cases. 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. In coping with its responsibility arising from the function of judicial review. To repeat. In the United States as here. the Justices of the highest tribunal are not. this Court is not expected to be an oracle given to utterances of eternal verities. I am inspired by what the great jurist and statesman. on the whole. "architects of policy. Under the circumstances.6 a Supreme Court by the conclusion it reaches and the decision it renders does not merely check the coordinate branches." 4 Nonetheless. but given the premise of continuity in a regime under a fundamental law. as Justice Frankfurter made clear. As stressed by respondents. this Court must necessarily take in account not only what the exigent 291 292 . as was stressed by Professors Black 5 and Murphy. but certainly it is more than just a keen but passive observer of the contemporary scene. They can nullify the policy of others. as Justice George Sutherland of the U. I must perforce dissent. but also by its approval stamps with legitimacy the action taken. In discharging such a role. 1102. 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. and this is not to deny that under its aegis. are far-reaching in its implications. J. For while the specific substantive issue is the validity of Presidential Proclamation No." 3 That is why there is this caveat.. 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. an adverse judgment may be fraught with consequences that.Constitutional Law I L-36142 Constitutional Law I L-36142 Constitution. as noted in the opinion of the Chief Justice. subject. Laurel. I feel that a brief expression of the reasons for the stand I take would not be amiss. I vote to deny the motion to dismiss and give due course to the petitions in these cases. It could very well be though that the ultimate outcome is not confined within such limit. S. goes only as far as the validity of its ratification. democracy and the liberties of our people from vanishing in our land. to say the least. Nonetheless.

it is in the judiciary. It has likewise been employed loosely to characterize a suit where the party proceeded against is the President or Congress. Gloss. has to face the gauntlet of a court suit whenever there is a proper case with the appropriate parties. 7 Since the Constitution pre-eminently occupies the highest rung in the hierarchy of legal norms. 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. On this point. it may not be inappropriate to refer to a separate opinion of mine in Lansang v." 12 Once an aspect thereof is viewed as judicial. It is thus beyond the competence of the judiciary to pass upon. Essentially then. which as pointed out in Dillon v. the matter is not justiciable. for from the very language of the controlling article. With the 1935 Constitution containing. and a clear case of its being recreant to its trust. the two vital steps are proposal and ratification. It is their view. Unless clearly falling within the formulation. if this Court were to accede to what is sought by respondents and rule that the question before us is political. 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. at the outset. ultimately this Tribunal. Respondents through Solicitor-General Mendoza would deny our competence to proceed further. What is more. the question raised is political and thus beyond the jurisdiction of this Court. even with due allowance made for the good faith that invariably inspires the step taken. for reasons to be set more lengthily and in the light of the opinion of the Chief Justice. it is my firm conviction that the institution of judicial review speaks too clearly for the point to be missed that official action. For. It must guard against the pitfall of lack of understanding of the dominant forces at work to seek a better life for all. or any branch thereof. For them. an exercise thereof cannot survive an inquiry as to its validity. 1. as above noted. that such a responsibility is vested. they would seek a dismissal of these petitions. the decision reached by the political branches whether in the form of a congressional act or an executive order could be tested in court. deriving no justification from circumstances of weight and gravity. Respondents are acting in the soundest constitutional tradition when. 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. It would be tragic. that since what is involved is not merely the effectivity of an amendment but the actual coming into effect of a new constitution. Where private rights are affected. Such an approach cannot be indicted for unorthodoxy. 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. If to be delimited with accuracy. 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.Constitutional Law I L-36142 Constitutional Law I L-36142 needs of the present demand but what may lie ahead in the unexplored and unknown vistas of the future. 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. in the last analysis. Garcia. the Gonzales. It would be for me then an indefensible retreat. 11 "cannot be treated as unrelated acts. but as succeeding steps in a single endeavor. unless such an authority may either be predicated on express or implied grant in the Constitution or the statutes. 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. Even with due recognition. It is implicit in the concept of the rule of law that rights belong to the people and the government possesses powers only. vigorously pressed and plausibly asserted. especially those suffering from the pangs of poverty and disease. as to which there has been a prior legislative or executive determination to which deference must be paid. 8 Tolentino 9 and Planas 10 cases speak unequivocally to that effect. "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. the judiciary has no choice but to look into its validity. I cannot. Even when the Presidency or Congress 293 294 . there would be no justification for considering the rest as devoid of that character. an explicit article on the subject of amendments. however. such factors. by a blind determination to adhere to the status quo. reach the same result as the majority of my brethren.

wherein rights appropriate for judicial enforcement are sought to be vindicated."14 The view entertained by Professor Dodd is not too dissimilar. its improvident exercise or the abuse thereof. it must be judged in the light of our own history. Witness these words Justice Laurel in an early landmark case. indifferent to popularity. Once allowance made that for all its care and circumspection this Court manned by human beings fettered by fallibility. may give rise to a justiciable controversy." 22 The hope of course was that such assertion of independence impartiality was not mere rhetoric. the public acceptance of its vigorous pursuit of the task of assuring 296 ." 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. 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. and unafraid of criticism in the accomplishment of our sworn duty as we see it and as we understand it. Such an approach could be traced to the valedictory address before the 1935 Constitutional Convention of Claro M. nonetheless earnestly and sincerely striving to do right." 15 After a thorough study of American judicial decisions. There was the assumption of course that it would face up to such a task. Political questions. Vera. are those which the sovereign has set to be decided in the courts. in what may be thought the more useful sense. there has sprung a tradition of what has been aptly termed as judicial activism. undeterred by any consideration. Necessarily then. It cannot be denied that from the well nigh four decades of constitutionalism in the 295 Philippines. or either of them) and not subject to judicial investigation. both federal and state. 21 decided in 1937: "If it is ever necessary for us to make vehement affirmance during this formative period of political history. As was expressed by him: "Judicial questions. too. People v. So juridical realism requires. For the constitutional grant of authority is usually unrestricted." 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. similarly.Constitutional Law I L-36142 Constitutional Law I L-36142 possesses plenary powers. A balance has to be struck. without regard to political considerations and with no thought except that of discharging its trust. This is not to say though that it is satisfied with an empiricism untroubled by the search for jural consistency and rational coherence. deserves to be pursued further." 16 Nor was Professor Weston's formulation any different. he could conclude: "The field of judicial nonenforceability is important. admittedly one of complexity and importance. Recto. The submission of respondents on this subject of political question. both of whom in turn are unabashed admirers of Justice Brandeis. it does not approach constitutional questions with dogmatism or apodictic certainty nor view them from the shining cliffs of perfection. The question thus posed is judicial rather than political. That is a matter more appropriately left to others to determine. a political question being raised. Then. 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. 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. 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. 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. They would derive much aid and comfort from the writings of both Professor Bickel 18of Yale and Professor Freund 19 of Harvard. 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. free from politics. 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. 2. For it needs to be kept in kind always that it can act only when there is a suit with proper parties before it. if shown. are those which the sovereign has entrusted to the socalled political departments of government or has reserved to be settled by its own extra-governmental action. even discounting an almost similar period of time dating from the inception of American sovereignty. There are limits to what may be done and how it is to be accomplished.

. Out of their concern for political stability and security for private rights. The argument over the constitutionality of judicial review has long since been settled by history. at the least in case of conflicting action by different branches of government or of constitutionally unauthorized governmental action against individuals. 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. Thus: "The power of constitutional review.' " 28 Nor is it only Dean Rostow who could point Frankfurter. Electoral Commission 23 to Planas v.' " 30 There is thus an inevitability to the flowering of judicial review. could not accept characterization of judicial review as undemocratic. it ought also to be remembered that architects of that system did not equate constitutional government with unbridled majority rule. and even of guilt. 24 It should continue to exercise its jurisdiction. somewhat self-consciously perhaps. There is a statement of similar importance from Professor Mason: "In Stein v. Thus his study of Holmes and Brandeis. and in the next place oblige it to control itself. colors the literature about judicial review. or at least kept pruned and inconspicuous. Such is the teaching of a host of cases from Angara v.Constitutional Law I L-36142 Constitutional Law I L-36142 that the Constitution be obeyed is easy to understand. is an undemocratic shoot on an otherwise respectable tree. It goes too far. 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. lectured. the following appears: "When it is said that judicial review is an undemocratic feature of our political system. like Dean Rostow. to be exercised by some part of the government. and written about the Constitution have been troubled by a sense that judicial review is undemocratic. A written constitution would promote discord rather than order in society if there were no accepted authority to construe it." 27 More than that. he took pains to emphasize: "Whether another method of enforcing the Constitution could have been devised. New York Frankfurter remarked. in my view. It should be cut off. It has not in the past shirked its responsibility to ascertain whether there has been compliance with and fidelity to constitutional requirements. the short answer is that no such method developed. The Democratic Character of Judicial Review. 'has cast responsibilities upon the Supreme Court which it would be "stultification" for it to evade. The limitation and separation of powers. That is why it has been correctly maintained that 297 298 . if the perspective is one of dissatisfaction.. who began one of his most celebrated legal essays. is implicit in the conception of a written constitution delegating limited powers." 25 He went on to state: "Judicial review. This expression of disapproval has not escaped Dean Rostow of Yale. that the 'duty of deference cannot be allowed imperceptibly to slide into abdication. who may legitimately be regarded as the philosopher of the Constitution. if they are to survive. it is not a case of black and white.. On the question of judicial review. 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. if not its leading advocate during his long stay in the United States Supreme Court. reputed to belong to the same school of thought opposed to judicial activism. . Commission on Elections.' Mr. Many of those who have talked. even in the face of a plausible but not sufficiently persuasive insistence that the matter before it is political. They perceived no contradiction between effective government and constitutional checks. thus: "A theme of uneasiness. To James Madison. the great difficulty lies in this: you must first enable the government to control the governed. with its overtones of distrust. they have urged. as one fully cognizant of the stigma that attaches to a tribunal which neglects to meet the demands of judicial review.' " 29 Professor Konefsky." 26 His view was precisely the opposite. Nor am I persuaded that the reading of the current drift in American legal scholarship by the Solicitor-General and his equally able associates presents the whole picture. 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. they designed a structure whose keystone was to consist of barriers to the untrammeled exercise of power by any group. there are shaded areas. Justice Frankfurter recently remarked.

38 in 1969. the convictions. 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. There are signs that the contending forces on such question." 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. could state in a lecture: "We are under a Constitution. it nevertheless seems to me that the doctrine of political questions ought to be very sharply confined to where the functional 300 . no clear call to a court in effect abandoning the responsibility incumbent on it to keep governmental agencies within constitutional channels. Carr. have been muted. considering how dearly cherished are. Thus: "First of all. The fervor that characterized the expression of their respective points of view appears to have been minimized." 40 For him.. in connection with the decision of cases. 46 There was. 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. Through it. It now dominates the American legal scene." Baker has since then been followed. that distinguished American constitutional historian. if it could. are now quiescent. but the Constitution is what the judges say it is . 44 he was less than insistent on the American Supreme Court exercising judicial self-restraint. the Court has a responsibility to maintain the constitutional order. And that is what John Marshall did." 43 As for Professor Bickel. for some an unequal contest. for many the very staple of what is essentially political. Green 39 about the American Supreme Court declining jurisdiction on the question of apportionment as to do so would cut very 299 deep into the very being of Congress. 45 It has brought forth a plethora of law review articles. has fallen on deaf ears. before occupying that exalted position. prejudices one might even say. depending upon one's predilection. Baker v. of which the Constitution is part. How. coming from both directions. Of late. and the limitations on that power." 34 The above statement is more than just an aphorism that lends itself to inclusion in judicial anthologies or bar association speeches. it has been said that as counsel for the New York Times in the famous Vietnam papers case. the plea for judicial self-restraint. The former disregarded the warning of Justice Frankfurter in Colegrove v. A hole was left where the Court might drive in the peg of judicial supremacy. Professor Corwin. For such indeed is the case as reflected in two leading cases of recent vintage. . Not that it is to be expected that it will entirely disappear. this meaningful query: "The Constitution nowhere provides that it shall be what the judges say it is. certainly goes even further than the authoritative Philippine decision of Vera v. Chief Justice Hughes. on Marshall's epochal opinion in Marbury v. for each group. also included therein. It is not without interest to note that in another paper. 41 Powell. the reaction ranging from guarded conformity to caustic criticism. on the question of the power of a legislative body to exclude from its ranks a person whose qualifications are uncontested. As he put it: "The problem was given no answer by the Constitution. MacCormack. he was less than assertive about the necessity for self-restraint and apparently mindful of the claims of judicial activism. 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. 37 decided in 1962 and Powell v. Avelino. Professor Wechsler advocated as basis for decision what he termed neutral principles of constitutional law. an exponent of the judicial restraint school of thought. At least what once was fitly characterized as the booming guns of rhetoric. the judiciary "ought not to enter this political thicket." 36 Let me not be misunderstood. it has spawned a host of cases. Madison. even if given voice by those competent in the field of constitutional law. 42 It does look then that even in the United States. 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. both noted in the opinion of the Chief Justice. It could and did provoke from Justice Jackson.Constitutional Law I L-36142 Constitutional Law I L-36142 notwithstanding the absence of any explicit provision in the fundamental law of the United States Constitution. to be sure." 31 This is not to deny that there are those who would place the blame or the credit. 32 Curtis belonged to that persuasion. entertained.. the distribution of public power. The matter has been put in temperate terms by Professor Frank thus: "When allowance has been made for all factors. could rightfully state that judicial review "is simply incidental to the power of courts to interpret the law.

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. 48 if my reading of the events and the process that led to such proclamation. then its mandate must be fulfilled. so that this Court is called upon to give meaning and perspective to what could be considered words of vague generality. Any other conclusion would. that eminent jurist. 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. transparent and unchanged. with Senators Lorenzo M. substantial compliance is enough. pregnant with uncertainty. Submission to its commands can be shown only if each and every word is given meaning rather than ignored or disregarded. but it is not. It would be to rely on conjectural assumptions that did founder on the rock of the undisputed facts. 1102 manifests fidelity to the explicit terms of Article XV.Constitutional Law I L-36142 Constitutional Law I L-36142 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. I cannot resist the conclusion then that the views advanced on this subject by distinguished counsel for petitioners. coming from such impeccable sources of the worth and significance of judicial review in the United States. If the Constitution is the supreme law. In the first Commonwealth Act. not to be swayed by appraisal. 51 submitting to the Filipino people for approval or disapproval certain amendments to the original ordinance appended to the 1935 Constitution. 49 and they are not few in number. A word. for me. A great many American State decisions may be cited in support of such a doctrine. The crucial point that had to be met is whether Proclamation No." 47 It is difficult for me at least. and to the prerogatives of others.50 Even if the assumption be indulged in that Article XV is not phrased in terms too clear to be misread. 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. to secret knowledge. rather than the advocacy of the Solicitor-General. 59 There is a similar provision in the legislation. which require that there be obedience to the literal terms of the applicable provision. a rubber band either. With due recognition of its force in constitutional litigation. then it cannot be confidently asserted that there was such compliance. still whatever obscurity it possesses is illumined when the light of the previous legislation is thrown on it. The doctrine has a certain specious charm because of its nice intellectualism and because of the fine deference it permits to expertise. No evasion is tolerated. It would be unwarranted in my view then to assert that the requirements of the 1935 Constitution have been met. 60 which in cotemplation of the 1971 Constitutional Convention. 55 and creating an independent Commission on Elections. as proposed amendments 301 302 . 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. It is understandable why it should be thus. 3. to borrow from Learned Hand. so clearly set forth in the opinion of the Chief Justice. It should not be allowed to grow as a merely intellectual plant. 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. of course. possess the greater weight and carry persuasion. is not inaccurate. Briefly stated. 56 Again. So much then for the invocation of the political question principle as a bar to the exercise of our jurisdiction. 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. Tañada and Jovito Salonga at the van." 52 Then came the statute. to paraphrase Justice Holmes may not be a crystal. 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. There is. That brings me to the issue of the validity of the ratification. There are American decisions. 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." 57 The approval of the present parity amendment was by virtue of a Republic Act 58 which specifically made applicable the then Election Code.

it should be submitted to the vote of the state and ratified by a majority of those voting. it is to be accepted as final and authoritative. not selected by the people according to the forms of law. In affirming such judgment dismissing the action. the delegates made numerous changes in instrument. An action was brought to challenge its validity. it is usually their last resort. 1890. once it is manifested. The obligation to render it obeisance falls on the courts as well. 1891. it was set forth in the opinion of Chief Justice Holt that on May 3. as the new constitution. or changing" it contained no provision giving the legislature the power to require a submission of its work to a vote of the people. Independently of the lack of validity of the ratification of the new Constitution. To avoid any confusion and in the interest of clarity. Johnson. It failed in the lower court." necessarily the possessor of that "power that is able to resolve disputes by saying the last word. Once the fact of acceptance by people of a new fundamental law is made evident. No agency is exempt such a duty. . however. 1890. Nor is the matter before us solely to be determined by the failure to comply with the requirements of Article XV. Article XV had been given a definitive construction. emanate "the highest possible embodiment of human will. 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. In that sense. This would be revolution.. Chief Justice Holt stated: "If a set of men. and this the courts of the existing government must resist until they are overturned by power. if not controlling. 62 then this Court cannot refuse to yield assent to such a political decision of the utmost gravity. and a new government established. who can vote and how they register their will. submitted it to a popular vote. In Miller v. The instrument which we are asked to declare invalid as a constitution has been made and promulgated according to the forms of law. While certainly not controlling. While the judiciary should protect the rights of the people with great care and jealousy. it completed a draft of a constitution. the preliminary steps having been taken. it should be expressed in the manner ordained by law. that the nation as a whole constitutes the "single center of ultimate reference. as Corwin did stress. 4. As thus amended. It provided that before any form of constitution made by them should become operative. as McIver pointed out. the lack of regularity in the method employed to register its wishes is fatal in its consequences. they are not entirely bereft of persuasive significance. 66 decided in 1892. Even if such is not the case. When the convention reassembled. amending. There are American State decisions that enunciate such a doctrine.Constitutional Law I L-36142 Constitutional Law I L-36142 to be voted on in the 1967 elections. it was promulgated by the convention of September 28. he was not devoid of power to specify the mode of ratification. The government which is merely an agency to register its commands has no choice but to submit. if it be accepted by the people. the judiciary is left with no choice but to accord it recognition.. in whom sovereignty resides according to the Constitution. and also because. The restraints thus imposed would set limits to the Presidential action taken. 61 That is the consistent course of interpretation followed by the legislative branch. to follow Laski. 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." 64 From them." 65which is supreme and must be obeyed. providing for the calling of a convention for the purpose of framing a new constitution and the election of delegates. because this is its duty. it is no doubt true. and then adjourned until September following. 1891. The convention met in September. 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. Its officials must act accordingly. in times of great popular excitement. The constitution then in force authorized the legislature. conclusive in its effect. an act was passed in Kentucky. Such a fundamental principle is meaningless if it does not imply. 1102. The convention. even on the assumption that either as an agent of the Constitutional Convention or under his martial law prerogatives. On two vital points. was the offspring of law. however. not even this Court. It is most persuasive. By April." 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. 303 304 . 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. to call a convention "for the purpose of readopting.

1102. Further scrutiny even then is not entirely foreclosed. have signified their assent to it. that as yet sufficient time has not elapsed to be really certain. and especially where such momentous results might follow as would be likely in this instance. the overthrow of the work of the convention. as the Constitution of Virginia. There is in addition the evidence flowing from the conditions of peace and stability. accepted. July 15. we have no difficulty in holding that the Constitution in question. There is still an aspect that is judicial. however. and there being no government in existence under the Constitution of 1869 opposing or denying its validity." 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. at this stage to feel secure in the conviction that 305 306 . It may be added that there was nothing inherently objectionable in the informal method followed in ascertaining its preference. by the individual oaths of members to support it. it is not merely a case of its being implied. the officials under the 1935 Constitution. The result of the work of the convention has been recognized. then no justifiable question may be raised. The greater the base of mass participation. What is more. 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. This is no more than what the courts do in election cases. 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. The fact that the President so certified is well-nigh conclusive. worried about their immediate needs and captive to their existing moods. and by voting. and the people in their primary capacity by peacefully accepting it and acquiescing in it. they are entitled to respect. it could be truly said that there was no barrier to liberty of choice. which went into effect at noon on the 10th day of July. at a general election for their representatives in the Congress of the United States. That is inherent in any human institution. 1901. If it were thus. It would have been different had there been that freedom of debate with the least interference. 1902. and that to it all the citizens of Virginia owe their obedience and loyal allegiance. From the standpoint of respondents then. much more so in a democratic polity. 68 a 1903 decision. Its will was thus expressed formally and unmistakably. by the Legislature in its formal official act adopting a joint resolution. and by enforcing its provisions. thus allowing a free market of ideas. Whatever be their views. This is not to deny that votes are cast by individuals with their personal concerns uppermost in mind. if the power of the judiciary permitted. There thus appears to be conformity to the existing order of things. and its duty requires. This Court is to respect what had thus received the people's sanction. The thought persists. 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. so it has been argued. there was a plebiscite with the result as indicated in Proclamation No. as directed thereby. The daily course of events yields such a conclusion. under its provisions. an inquiry may be had as to whether such indeed was the result. Nor is the fact that Filipinos of both sexes above the age of fifteen were given the opportunity to vote to be deplored." 67 In Taylor v. It is difficult for me. The Court rejected such a view. Through the Citizens Assemblies. It does logically follow likewise that such circumstances being conceded. they could allege that there was more than just mere acquiescence by the sovereign people. and existing Constitution of this state. That is not for me though whole of it. valid. 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. 1902. The Constitution having been thus acknowledged and accepted by the office administering the government and by the people of the state. by registering as voters under it to the extent of thousands throughout the state. is the only rightful. Nor is this all. recognizing the Constitution ordained by the convention which assembled in the city of Richmond on the 12th day of June. including practically all Representatives and a majority of the Senators. however. the more there is fealty to the democratic concept. One could be certain as to the fact of the acceptance of the new or of adherence to the old. as being perhaps equally dangerous. What is more. and acted upon as the only valid Constitution of the state by the Governor in swearing fidelity to it and proclaiming it. Commonwealth. There are other factors to bear in mind. It would be a clear-cut decision either way.Constitutional Law I L-36142 Constitutional Law I L-36142 yet it should at the same time be careful not to overstep the proper bounds of its power.

and subordinated to "the primordial necessity of order in the social life. then such opportunity is forever lost. to so view the question before us is to be caught in a web of unreality. 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. disciplined by system. there is not." 71 Moreover what made it difficult for this Court to apply settled principles. There was not at any time any thought of any restraining order. He remains commander-in-chief with all the constitutional powers it implies. suppose the petitions should prevail? What then? Even so. with the executive department. even petitions were filed. the decision of this Court need not be executory right away. Then too it could resolve what appeared to be the deepening contradictions of political life. He is not a knight-errant. It represents an outlook cognizant of the tensions of a turbulent era that is the present. Such a disposition of a case before this Court is not novel. So it was before. no complication would have arisen. the least interference. I find myself unable to join the ranks of my esteemed brethren who vote for the dismissal of these petitions. Public officials can go about their accustomed tasks in accordance with the revised Constitution. no such problem would be before us. What is more. He is not to yield to spasmodic sentiment. even when he is free. That may be so. For some. it may give the impression of reliance on what may. which for me have not lost their validity. He is to draw his inspiration from consecrated principles. be no more than gossamer distinctions and sterile refinements unrelated to events.Constitutional Law I L-36142 Constitutional Law I L-36142 they did utilize the occasion afforded to give expression to what was really in their hearts. It might be asked though. 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. coupled with the hope that the solution arrived at is a harbinger of a bright and rosy future. 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. for the practical man of affairs. 5. The introduction of novel concepts may be carried only so far though. to assure that the coming force of the revised charter is free from any taint of infirmity. I cannot yield an affirmative response to the plea of respondents to consider the matter closed. reducing at times governmental authority to near impotence and imparting a sense of disillusionment in democratic processes. If the petitions be dismissed however. is traceable to the fact that the revised Constitution was made to take effect immediately upon ratification. This is not to imply that such doubt could not be dispelled by evidence to the contrary. He is to exercise a discretion informed by tradition. is still not wholly free. That is why for some what was done represented an act of courage and faith. 70 Once compliance is had with the requirements of Article XV of the 1935 Constitution. roaming at will in pursuit of his own ideal of beauty or of goodness. It is not an easy decision to reach. but I find it impossible to transcend what for me are the implications of traditional constitutionalism. He is not to innovate at pleasure. Likewise. had there been only one or two amendments. It is one which has all the earmarks of being responsive to the dominant needs of the times. to cherish illusions that cannot stand the test of actuality. that with the revised Constitution. methodized by analogy. That is how things are expected to remain even if the motions to dismiss were not granted. the proceedings terminated once and for all. As Cardozo put the matter: "The judge. while these lawsuits are being further considered. 307 308 . It can be asserted with truth. That is why I do not see sufficient justification for the orthodoxies of constitutional law not to operate. to vague and unregulated benevolence. It is such a comfort then that even if my appraisal of the situation had commanded a majority. then all doubts are set at rest. That was how it was done in the Emergency Powers Act controversy. They can pursue even the tenor of their ways. It has occasioned deep thought and considerable soul-searching. With the foregoing legal principles in mind. If a period of time were allowed to elapse precisely to enable the judicial power to be exercised. For there are countervailing considerations that exert a compulsion not easy to resist. there is an auspicious beginning for further progress. They are free to act according to its tenets. The President in the discharge of all his functions is entitled to obedience." Wide enough in all conscience is the field of discretion that remains. That was so these past few weeks. especially in the field of social and economic rights.

what petitioners really seek to invalidate is the new Constitution". as I understand them and as set forth in the preceding pages. whatever defects there might have been in the procedure are overcome and mooted(and muted) by the fact of ratification". Alternatively." 1 A necessary corollary issue is whether the purported ratification of the proposed Constitution as signed on November 30. 1102 is conclusive on the courts. 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. 1102 was issued by the President in the exercise of legislative power under martial law." 2 Respondents contend that "(A)lthough apparently what is sought to be annulled is Proclamation No.non supervision (by) the Comelec are matters not required by Article XV of the 1935 Constitution". "shall be valid as part of this Constitution when approved by a majority of the votes cast at an election at which the amendments are submitted to the people for theirratification." More specifically.. and their actions must be dismissed. enfranchisement of persons less than 21 years. 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. and 309 310 . he did so as "agent" of the Constitutional Convention. 1973. in toto or parts thereof. the basic premises of a constitutional democracy.. "(T)he fact of approval of the new Constitution by an overwhelming majority of the votes cast asdeclared and certified in Proclamation No.Constitutional Law I L-36142 Constitutional Law I L-36142 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 unprecedented and precedent-setting issue submitted by petitioners for the Court's resolution is the validity and constitutionality of Presidential Proclamation No. TEEHANKEE. J." "alleged defects. (sic) "after ratification.. . such as absence of secret voting. I would herein make an exposition of the fundamental reasons and considerations for my stand. 1102 issued on January 17. shall supersede the Constitution of Nineteen hundred and thirty-five and all amendments thereto.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. and has thereby come into effect. 1972 by the 1971 Constitutional Convention may be said also to have substantially complied with its own mandate that "(T)his Constitution shall take immediately upon its ratification by a majority of the votes cast in a plebiscite called for the purpose and except as herein provided. compel me to vote the way I did. 1102. 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. or contemporaneously. "Proclamation No.

. dealing with the procedure or manner of amending the fundamental law are binding upon the Convention and the other departments of the government. Since Proclamation 1102 is acknowledged by respondent to be "plainly merely declaratory" of the disputed fact of ratification. proposed amendments to the Constitution "should be ratified in only one way. if the Court declares Proclamation 1102 null and void because on its face. 4 The measure of the fact of ratification is Article XV of the 1935 Constitution. the terms and premises of the issues have to be defined. 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. In the Tolentino case. Respondents themselves assert that "Proclamation No. . 10 To test the validity of respondents' submittal that the Court.. spirit and intent of the Charter for effecting amendments. cannot receive the sanction of this Court." 7 In the same Tolentino case.. that is. 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. especially one which contemplates popular and direct participation of the citizenry ." 3 the letter. 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." 8 As continues to be held by a majority of this Court. in annulling Proclamation No.. the ratification of the new Constitution must nonetheless be respected. they are no less binding upon the people. is plainly merely declaratory of the fact that the 1973 Constitution has been ratified and has come into force.. 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.Constitutional Law I L-36142 Constitutional Law I L-36142 "(A)ssuming finally that Article XV of the 1935 Constitution was not strictly followed. This has been consistently held by the Court in the Gonzales: 5 and Tolentino 6 cases. this Court further proclaimed that "as long as any amendment is formulated and submitted under the aegis of the present Charter. 1102 . For the procedure outlined in Article XV was not intended to be exclusive of other procedures. this Court emphasized "that the provisions of Section 1 of Article XV of the Constitution. 1973 of Proclamation 1102 and the question of 312 311 . It must be added that . 1102 would really be "invalidating the new Constitution". 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. any proposal for such amendment which is not in conformity with Hence..

We have. 184. 86. 11 wherein the Court in its Resolution of September 16. Executive Order No. amending a previous order regarding the organization of the Supreme Court. then Chief Justice Moran voted with a majority of the Court to grant the Araneta and Guerrero petitions holding null and void the executive orders on rentals and export control but to defer judgment on the Rodriguez and Barredo petitions for judicial declarations of nullity of the executive orders appropriating the 1949-1950 fiscal year budget for the government and P6 million for the holding of the 1949 national elections. 1946 when Congress met in its first regular session on May 25. 89. whether their purposes have already been accomplished entirely or partially. 1948. and other executive orders appropriating funds for other purposes. The consequences of a blanket nullification of all these executive orders will be unquestionably serious and harmful. It must be borne in mind that these executive orders had been issued in good faith and with the best of intentions by three successive Presidents. and some of them may have already produced extensive effects in the life of the nation. for instance. And I hold that before nullifying them. had ceased and became inoperative at the latest in May.000 for public works. and. appropriating the sum of P6. 1949 after judgment was initially not obtained on August 26.Constitutional Law I L-36142 Constitutional Law I L-36142 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. acquiescence of litigants. reorganizing Courts of First Instance. issued on November 12. 1949 for lack of the required six (6) votes. Executive Order No. and in the last instance. section 26 of the Constitution. 73. if necessary and possible. are per se null and void. 12 Initially. Executive Order No. I am not prepared to hold that all executive orders issued thereafter under Commonwealth Act No. as for instance. Then Chief Justice Manuel V. under Commonwealth Act 671 in pursuance of Article VI. 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. 671. finally declared in effect that the pre-war emergency powers delegated by Congress to the President. nullifying it. completing the "sufficient majority" of six against four dissenting justices "to pronounce a valid judgment on that matter. 1946. while I believe that the emergency powers had ceased in June 1945." 13 313 314 . issued on January 1. precautionary measures should be taken to avoid harm to public interest and innocent parties. 1946. acts and contracts of parties acting in good faith. etc. issued on November 19. 1946. he further voted to also declare null and void the last two executive orders appropriating funds for the 1949 budget and elections. Executive Order No. 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. issued on January 7. controlling rice and palay to combat hunger. 1945. to what extent.750. After rehearsing. A comparable precedent of great crisis proportions is found in the Emergency Powers cases. 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. whether or not they have been ratified by Congress expressly or impliedly. It is my opinion that each executive order must be viewed in the light of its peculiar circumstances. other important circumstances should be inquired into. de facto officers.

legislative. and do hereby. now that the holding of a special session of Congress for the purpose of remedying the nullity of the executive orders in question appears remote and uncertain. if he so desires. and the vital principles underlying its organic structure should be maintained firm and strong. Our Republic is still young. and furthermore. would come to pass should the said executive orders be immediately declared null and void are still real. give my unqualified concurrence in the decision penned by Mr. The harmful consequences which. That Congress may again fail to pass a valid appropriations act is a remote possibility. in our opinion. explained his vote for annulment despite the great difficulties and possible "harmful consequences" in the following passage. the remedy now lies in the hands of the Chief Executive and of Congress. They have not disappeared by reason of the fact that a special session of Congress is not now forthcoming. Justice Tuason declaring that these two executive orders were issued without authority of law.' "15 315 316 . and indefinite deferment will produce the opposite result because it would legitimize a prolonged or permanent evasion of our organic law. which bears re-reading: However. as I envisioned in my concurring opinion. 14 The late Justice Pedro Tuason who penned the initial majority judgment (declaring null and void the rental and export control executive orders) likewise observed that "(T)he truth is that under our concept of constitutional government. in times of extreme perils more than in normal circumstances 'the various branches. are called upon 'to perform the duties discharge the responsibilities committed to respectively. within its own allocated sphere. uncompromisingly and regardless of difficulties. who penned the Court's majority resolution. so as to insure its growth and development along solid lines of a stable and vigorous democracy. opening the way or practices which may undermine our constitutional structure. Democracy is on trial in the Philippines. I am compelled to. for the Constitution vests in the former the power to call a special session should the need for one arise. Executive orders which are. complies with its own constitutional duty. compel Congress to remain in special session till it approves the legislative measures most needed by the country. would be given permanent life. and in the latter. which is our prime concern in all these cases. the power to pass a valid appropriations act. However.Constitutional Law I L-36142 Constitutional Law I L-36142 Then Chief Justice Moran.' given the ability to act. if each of the great branches of the Government. would be effected. hard as the best of steel. and surely it will emerge victorious as a permanent way of life in this country. the President in the exercise of his constitutional powers may. While in voting for a temporary deferment of the judgment I was moved by the belief that positive compliance with the Constitution by the other branches of the Government. repugnant to the Constitution. for under the circumstances it fully realizes its great responsibility of saving the nation from breaking down. and judicial. executive.

if not prescribed. The alternative choice of a liberal stand would permit a disregard of said requirements on the theory urged by respondents that "the procedure outlined in Article XV was not intended to be exclusive of other procedures especially one which contemplates popular and direct participation of the citizenry". then a legislative act. must be discharged. alterable when the legislature shall please to alter it. 22 that the constitutional age and literacy requirements and other statutory safeguards for ascertaining the will of the majority of the people may likewise be changed as "suggested. with due regard for my colleagues' contrary views.. then. signifies that the Constitution may be amended in totoor otherwise exclusively "by approval by a majority of the votes cast an election at which the amendments are submitted to the people for their ratification". then written constitutions are absurd attempts on the part of a people. But suffice it to say that I recognize the power of the Supreme Court. and. contrary to the Constitution. 19 participated in only by qualified and duly registered voters twenty-one years of age or over 20 and duly supervised by the Commission on Elections. wherein he stated that "(T)he Supreme Court is the final arbiter of the Constitution. I have no intention of utilizing that power. it is that as in an analogous situation wherein the state Supreme Court of Mississippi held that the questions of whether the submission of the proposed constitutional amendment of the State Constitution providing for an elective. who. were justifiable and not political questions. I did not want to talk about this because actually there is a case pending before the Supreme Court. in its own nature.S. elections (of public officers) and not plebiscites. judiciary and whether the proposition was in fact adopted. if the latter part be true. Madison25 the U. As Marshall expounded it: "(T)he Constitution is either a superior paramount law. so "tied up (not only) the hands of their official agencies. or it is on a level with ordinary legislative acts. illimitable. even rigid stand that the Constitution is a "superior paramount law.1973. Until the matter of the new Constitution is decided. imposed on us a most difficult and embarrassing duty. as applied to the cases at bar. With respect to appointments. but their own hands as well" 18 in the exercise of their sovereign will or a liberal and flexible stand that would consider compliance with the constitutional The first choice of a strict stand. unchangeable by ordinary means. 21 in accordance with the cited mandatory constitutional requirements. It can and will probably determine the validity of this Constitution. we are faced with the hard choice of maintaining a firm and strict perhaps. if we would.Constitutional Law I L-36142 Constitutional Law I article on the amending process as merely directory rather than mandatory. like other acts. in Cooley's words." 16 Thus. We could not. there is no middle ground between these two alternatives.. and in accordance with our oaths to support and maintain it in its integrity." 317 318 . like all others. by the people (through the Citizens Assemblies) themselves". In the particular instance in which we are now acting.S. If the former part of the alternative be true. to limit a power. our duty to know what the Constitution of the state is. Chief Justice John Marshall who first declared in the historic 1803 case of Marbury vs. instead of an appointive. unchangeable by ordinary means" save in the particular mode and manner prescribed therein by the people. the matter falls under a general provision which authorizes the Prime Minister to appoint additional members to the Supreme Court. Supreme Court's power of judicial review and to declare void laws repugnant to the Constitution. escape the exercise of that jurisdiction which the Constitution has imposed upon us. is not law." 24 To paraphrase U. 23 and that the Comelec is constitutionally "mandated to oversee . we may echo the words therein of Chief Justice Whitfield that "(W)e do not seek a jurisdiction not imposed upon us by the Constitution. but one which. one which we have not sought. L-36142 It should be duly acknowledged that the Court's task of discharging its duty and responsibility has been considerably lightened by the President's public manifestation of adherence to constitutional processes and of working within the proper constitutional framework as per his press conference of January 20." 17 In confronting the issues at bar.

Laurel a century and a third later in the 1936 landmark case of Angara vs.. Electoral Commission. wherein we rejected the contentions on the Convention's behalf "that the issue .Constitutional Law I L-36142 Constitutional Law I L-36142 As was to be restated by Justice Jose P. Paraphrasing no less than the President of Constitutional Convention of 1934. the limitations of good government and restrictions embodied in our Constitution are real as they should be in any living Constitution. and as such.. section 1 of the Constitution by lowering the voting age to 18 years (vice 21 years) 30a "without prejudice to other amendments that will be proposed in the future . its acts impugned by petitioner are beyond the control of Congress and the Courts." II Marshall was to utter much later in the equally historic 1819 case of McCulloch vs. scope and extent of such powers" and stressed that "when the judiciary mediates to allocate constitutional boundaries." 31 2. In denying reconsideration of our judgment of October 16." termed by Justice Frankfurter as "the single most important utterance in the literature of constitutional law most important because most comprehensive and comprehending. for then the distribution of powers would be mere verbiage. 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. 26 "(T)he Constitution sets forth in no uncertain language the restrictions and limitations upon governmental powers and agencies. This must be so. it is subject to the provisions of Section 1 of Article XV. this Court stated that "the constitutional provision in question (as proposed) presents no doubt which may be resolved in favor of respondents and intervenors. is a political question and that the Convention being a legislative body of the highest order is sovereign..." 29 This enduring concept to my mind permeated to this Court's exposition and rationale in the hallmark case of Tolentino. If these restrictions and limitations are transcended it would be inconceivable if the Constitution had not provided for a mechanism by which to direct the course of government along constitutional channels." Justice Laurel pointed out that in contrast to the United States Constitution." 30 This Court therein made its unequivocal choice of strictly requiring faithful (which really includes substantial) compliance with the mandatory requirements of the amending process. and the principles of good government mere political apothegms. Maryland 27 the "climactic phrase."28 "we must never forget that it is a constitution we are expounding. the Philippine Constitution as "a definition of the powers of government" placed upon the judiciary the great burden of "determining the nature.. as to matters not related to its internal operation and the performance of its assigned mission to propose amendments to the Constitution. any mandate of the fundamental law purportedly in order to attain some laudable objective bear in mind that someday somehow others with purportedly more laudable objectives may take advantage of the precedent and continue the destruction of the Constitution. but only asserts the solemn and sacred obligation entrusted to it by the Constitution to determine conflicting claims of authority under the Constitution and to establish for the parties in an actual controversy the rights which the instrument secures and guarantees to them. invoking grounds at best controversial.. Certainly.. 1.. We do not believe such doubt can exist only because it is urged that the end sought to be achieved is to be desired. 1971 prohibiting the submittal in an advance election of 1971 Constitutional Convention's Organic Resolution No. it does not assert any superiority over the other departments . Recto. the bill of rights mere expressions of sentiment. This Court held in Tolentino that: . because it is plain to Us that the 319 320 . making those who laid down the precedent of justifying deviations from the requirements of the Constitution the victims of their own folly. Claro M. 1 proposing to amend Article V. on other portions of the amended section". let those who would put aside.

the framers of the latter see to it that their handiwork is not lightly treated and as easily mutilated or changed. where the Convention hardly started considering the merits of hundreds. Constitution making is the most valued power. in the language of Justice Sanchez. And when such limitations or conditions are so incorporated in the original constitution. hence. operate without any limitations. the original constitutions carry with them limitations and conditions. it must provide the voter not only sufficient time but ample basis for anintelligent appraisal of the nature of amendment per se as well as its relation to the other parts of the Constitution with which it has to form a harmonious whole. if not thousands. future and every other conceivable aspect of the lives of all the peoplewithin the country and those subject to its sovereignty. speaking for the six 321 322 . proposals to amend the existing Constitution. more or less stringent. not only for reasons purely personal but more importantly.Constitutional Law I L-36142 Constitutional Law I L-36142 framers of the Constitution took care that the process of amending the same should not be undertaken with the same ease and facility in changing an ordinary legislation. Generally. Thus. A constitution worthy of the people for deliberation and study. Comelec 33. This Court in Tolentino likewise formally adopted the doctrine of proper submission first advanced in Gonzales vs. to present to people any single proposal or a few of them cannot comply with this requirement. at least. they must be insulated against precipitate and hasty actions motivated by more or less passing political moods or fancies. for the simple reason that intervenors themselves are stating the sole purpose of the proposed amendment is to enable the eighteen year olds to take part in the election for the ratification of the Constitution to be drafted by the Convention. fortunes. restraints or inhibitions save those that they may impose upon themselves. thus: We are certain no one can deny that in order that a plebiscite for the ratification of an amendment to the Constitution may be validly held. It is obvious that correspondingly. 32 3. under the proposed plebiscite. every degree of care is taken in preparing and drafting it. We reject the rationalization that the present Constitution is a possible frame of reference. in regard to the process of their amendment. and perforce must be conceived and prepared with as much care and deliberation. of the people in a constitutional democracy such as the one our founding fathers have chosen for this nation. We are of the opinion that the present Constitution does not contemplate in Section 1 of Article XV a plebiscite or "election" wherein the people are in the dark as to frame of reference they can base their judgment on. second to none. In the context of the present state of things. From the very nature of things. any amendment of the Constitution is of no less importance than the whole Constitution itself. as long as they can be adopted to the needs and exigencies of the people. as a rule. because written constitutions are supposed to be designed so as to last for some time. or for. it does not lie in the delegates of any subsequent convention to claim that they may ignore and disregard such conditions because they are powerful and omnipotent as their original counterparts. In brief. if not for ages. the drafters of an original constitution. and which we of the succeeding generations generally cherish. This is not necessarily true of subsequent conventions called to amend the original constitution. made so by the people themselves. there can be. as already observed earlier. And because the Constitution affects the lives.

For as we have earlier stated. What the Constitution in effect directs is that the government. if one citizen or 100 citizens or 1. in the past elections. expressed their "essential agreement" with Justice Sanchez' separate opinion in Gonzales on the need for "fair submission (and) intelligent rejection" as "minimum requirements that must be met in order that there can be a proper submission to the people of a proposed constitutional amendment" thus: . in this wise: A number of doubts or misgivings could conceivably and logically assail the average voter. They are not to vote blindly. By this. can the 18year old be relied upon to vote with judiciousness when the 21-year old. in submitting an amendment for ratification.' " 34 They stressed further the need for undivided attention. Why should the voting age be lowered at all. educate them with respect to their act of ratification or rejection. does it thereby mean that the 18-year old should not also shoulder the moral and legal responsibilities of the 21-year old? Will he be required to compulsory military service under the colors? Will the contractual consent be reduced to 18 years? If I vote against the amendment. 'no proper submission.36 323 324 . and not 19 or 20? And why not 17? Or even 16 or 15? Is the 18-year old as mature as the 21-year old. there and everywhere from a domain (of searching 4. within its maximum capabilities. sufficient information and full debate. We believe the word "submitted" can only mean that the government. section 1 of the Constitution. will I not be unfair to my own child who will be 18 years old. then there is no submission within the meaning of the word as intended by the framers of the Constitution.. conformably to the intendment of Article XV. should put every instrumentality or agency within its structural framework to enlighten the people. amendments must be fairly laid before the people for their blessing or spurning. will the Constitutional Convention insist on the said amendment? Why is there an unseemly haste on the part of the Constitutional Convention in having this particular proposed amendment ratified at this particular time? Do some of the members of the Convention have future political plans which they want to begin to subserve by the approval this year of this amendment? If this amendment is approved. supra. Four other members of the Court 35 in a separate concurrence in Tolentino. we are not to be understood as saying that. and try to reach a conclusion as the dictates of their conscience suggest. so that there is no need of an educational qualification to entitle him to vote? In this age of permissiveness and dissent. come 1973? The above are just samplings from here. and the proposed amendments and the meaning. free from the incubus of extraneous or possibly insidious influences. The people are not to be mere rubber stamps. intelligent consent or rejection. has not performed so well? If the proposed amendment is voted down by the people. There must be fair submission. They must be afforded ample opportunity to mull over the original provisions. one thing is submission and another is ratification.. nature and effects thereof. in the first place? Why should the new voting age be precisely 18 years.000 citizens cannot be reached.Constitutional Law I L-36142 Constitutional Law I L-36142 members of the Court in Gonzales. should strain every effort to inform every citizen of the provisions to be amended. compare them with the proposed amendments.

. And the answers cannot except as the questions are debated fully. in construing said section. Here. thus stated its position: "(I)t would be tragic and contrary to the plain compulsion of these perspectives. if the Court were to allow itself in deciding this case to be carried astray by considerations other than the imperatives of the rule of law and of the applicable provisions of the Constitution. the Constitution itself. 'This Constitution may be amended. They have been and are effectively distracted from afull and dispassionate consideration of the merits and demerits of the proposed amendment by their traditional pervasive involvement in local elections and politics. and accorded undivided attention. We are resolved to discharge that duty.Constitutional Law I L-36142 Constitutional Law I L-36142 questions) the bounds of which are not immediately ascertainable. sufficiently informed of the meaning. nature and effects of the proposed constitutional amendment. in his separate opinion in Tolentino concurring with this Court's denial of the motion for reconsideration. and by election time will not be. if only because it is evident that the very idea ofdeparting from the fundamental law is anachronistic in the realm of constitutionalism and repugnant to the essence of the rule of law. The Chief Justice. but it is our will that the amendment must be proposed and submitted to Us for ratification only in the manner herein provided. The preamble of the Constitution says that the Constitution has been ordained by the 'Filipino people. as follows: On the premature submission of a partial amendment proposal. Scanning the contemporary scene. 37 Accordingly. They have not been afforded ample time to deliberate thereon conscientiously. 6.. with a "temporary provisional or tentative character": ".' . as expressed in. the Constitution imposes upon the Court the sacred duty to give meaning and vigor to the Constitution. They cannot thus weigh in tranquility the need for and the wisdom proposed amendment. by interpreting and construing its provisions in appropriate cases with the proper parties and by striking down any act violative thereof... succinctly restated this Court's position on the fundamentals. we say that the people are not. in not heeding the popular clamor." in the following terms: . as in all other cases. in a larger measure than when it binds other departments of the government or any other official or entity. many more questions can be added to the already long litany. the real issue here cannot be whether or not the amending process delineated by the present Constitution may be disregarded in favor of allowing the sovereign people to express their decision on the proposed amendments. pondered upon purposefully. it is whether or not the provisional nature of the proposed amendment and themanner of its submission to the people for ratification or rejection conform with the mandate of the peoplethemselves in such regard. Surely. rather. This Court. 38 5. 39 7. a partial amendment would deprive the voters of the context which is usually necessary for them to 325 326 . We must read it as if the people had said. Hence. imploring the aid of Divine Providence. Needless to say. This Court therein dismissed the plea of disregarding mandatory requirements of the amending process "in favor of allowing the sovereign people to express their decision on the proposed amendments" as "anachronistic in the real constitutionalism and repugnant to the essence of the rule of law.' Section 1 of Article XV is nothing than a part of the Constitution thusordained by the people...

As a consequence. in effect. in compliance with the specific man of such Supreme Law. too. What is more. advanced that the foregoing considerations are not decisive on the issue before Us. In short. On the plea to allow submission to the sovereign people of the "fragmentary and incomplete" proposal. specially the youth. It may mean strict adherence to the law. at times. . although inconsistent with the letter and spirit of the Constitution: "The view. adoption of a political approach.. the term "legalistic" may be used to suggest inversely that the somewhat strained interpretation of the Constitution being urged upon this Court be tolerated or. Then. almost all of which bear the penmanship and the signature of girls. is fraught with possibilities which may jeopardize the social fabric. without a definite frame of reference. however. and. For one thing. the Court has been literally bombarded with scores of handwritten letters. the pressure of public opinion has brought to bear heavily upon the Court for a reconsideration of its decision in the case at bar. suffice it to say that. generally stating that the writer is 18 years of age and urging that she or he be allowed to vote. and the partial amendment involved in this case is being submitted to them. which in the case at bar is theSupreme Law of the land. has." and this particular issue will not be submitted to the people.. The question sought to be settled in the scheduled plebiscite is whether or not the people are in favor of the reduction of the voting age. it is bound to unduly strain the people's faith in the soundness and validity of democratic processes and institutions. inasmuch as the people are sovereign." . inasmuch as the advisability of the amendment and an appraisal of the people's feeling thereon political matters. Thus.Constitutional Law I L-36142 Constitutional Law I L-36142 make a reasonably intelligent appraisal of the issue submitted for their ratification or rejection. On a "political" rather than "legalistic" approach: "Is this approach to the problem too "legalistic?" This term has possible connotations. also. at least. it opens the door to wild speculations. the members of the Supreme Court taken the requisite "oath to support and defend the Constitution. In fact. On point. the wisdom of the amendment and the popularity thereof are political questions beyond our province. the submission to a plebiscite of a partial amendment. In fact. overlooked. again. respondents and the intervenors originally 327 328 . It offers ample opportunities for overzealous leaders and members of opposing political camps to unduly exaggerate the pros and cons of the partial amendment proposed. as well as letterhead of some sectarian educational institutions. This course of action favors.. of the pulpit. it is apt to breed false hopes and create wrong impressions. apart from the obvious message of the mass media.. Then. upon the theory that the partial amendment on voting age is badly needed and reflects the will of the people. the Constitution does not permit its submission to the people. As above stated. The issue before Us is whether or not said partial amendment may be validly submitted to the people for ratification "in a plebiscite coincide with the local elections in November 1971.

even with principles. and in the latter case would rise to an entirely new Constitution. Upon the other hand. upon the ground that the issue therein raised is a political one. in particular. and the Convention called upon to draft it would be engaged in a futile undertaking. in effect. it is obviously improper and unwise for the bench to develop into such questions owing to the danger of getting involved in politics... the latter and the Constitution it is in the process of drafting stand essentially for the Rule of Law. approved. will adhere to or approve or indorse such dictum. Aside from the absence of authority to pass upon political question. Amendments to an existing Constitution presumably may be only of certain parts or in toto. In any event. . Indeed. statesmanship is the expression usually availed of to refer to high politics or politics on the highest level. not piece-meal. he pointed out that although "(M)ovants' submittal that "(T)he primary purpose for the submission of the proposed amendment lowering the voting age to the plebiscite on November 8. those urging the vitality and importance of the proposed constitutional amendment and its approval ahead of the complete and final draft of the Constitution must seek a valid solution to achieve it in a manner sanctioned by the amendatory process ordained by our people in the present Constitution" 41 so that there may be "submitted." 9. 1971 is to enable the youth 18 to 20 years who comprise more than three (3) million of our population to participate in the ratification of the new Constitution in so far as "to allow young people who would be governed by the Constitution to be given a say on what kind of Constitution they will have" is a laudable end. This is confirmed by the plea made in the motions for reconsideration in favor of the exercise of judicial statesmanship in deciding the present case. I fail to see the attempted distinction of restricting their application to proposals for amendments of particular provisions of the Constitution and not to so-called entirely new Constitutions. a Constitution would not be worthy of its name.Constitutional Law I L-36142 Constitutional Law I L-36142 maintained that We have no jurisdiction to entertain the petition herein.. and often identified.. Then. If we. politics. "politics" is the word commonly used to epitomize compromise. as the Supreme Law of the land. consented to or even overlooked a circumvention of said tenets and provisions." I earnestly hope that the administration of justice in this country and the Supreme Court. but by way of complete and final amendments as an integrated whole (integrated either with the subsisting Constitution or with the new proposed Constitution). the suggested course of action. Indeed. too. would constitute a grievous disservice to the people and the very Convention itself. However. because of the good intention with which Resolution No. more likely of a partisan nature. Where this Court held in Tolentino that "any amendment of the Constitution is of no less importance than the 329 330 . if we did not exact faithful adherence to the fundamental tenets set forth in the Constitution and compliance with its provisions were not obligatory. the Court would thereby become the Judge of the good or bad intentions of the Convention and thus be involved in a question essentially political in nature. for the sake of political expediency or the advancement of the bid for power of a given political party. of impairing the image and the usefulness of courts of justice as objective and impartial arbiters of justiciable controversies. if adopted. with the dictum that "the end justifies the means." 40 Tolentino. and. hence. 1 is animated. The universal validity of the vital constitutional precepts and principles above-enunciated can hardly be gainsaid. political expediency and statesmanship are generally associated. political approach.

" It was pointed out therein that "(T)he word 'people' may have somewhat varying significations dependent upon the connection in which it is used. But it is obvious that 'people' cannot be used with this broad meaning of political signification. will be the sole organsthrough which the will of the body politic can be expressed.. national and state. 42 2. liberty and property and the pursuit of happiness. In some connections in the Constitution it is confined to citizens and means the same as citizens. III 1. viz. qualified literate voters twenty one years of age or over with one year's residence in the municipality where they have registered.Constitutional Law I L-36142 Constitutional Law I L-36142 whole Constitution itself and perforce must be conceived and prepared with as much care and deliberation". for the creation of an independent Commission on Elections with "exclusive charge" for the purpose of "insuring free." In the sense of "body politic (as) formed by voluntary association of individuals" governed by a constitution and common laws in a "social compact . it would appeal that the reverse would equally be true.. 'People' for political purposes must be consideredsynonymous with qualified voters. 'People' in this aspect is coextensive with the body politic. for the common good" and in another sense of "people" in a "practical sense" for "political purposes" it was therein fittingly stated that in this sense. of capacity or of the educational requirements of Article 20 of the amendments of the Constitution. in the case of proposed constitutional amendments. orderly and honest elections" and ascertaining the true will of the electorate and more. competent. The 'people' in this connection means that part of the entire body of inhabitants who under the Constitution are intrusted with the exercise of the sovereign power and the conduct of government. insuring proper submission to the electorate of such proposals. that the adoption of a whole new Constitution would be of no less importance than any particular amendment and therefore the necessary care and deliberation as well as the mandatory restrictions and safeguards in the amending process ordained by the people themselves so that "they (may) be insulated against precipitate and hasty actions motivated by more or less passing political moods or fancies" must necessarily equally apply thereto. The'people' in the Constitution in a practical sense means those who under the existing Constitution possess the right to exercise the elective franchise and who. A Massachussets case 43 with a constitutional system and provisions analogous to ours. not as yet satisfied. while that instrument remains in force unchanged.S. "people" comprises many who. further provided by amendment duly approved in 1940 in accordance with Article XV. have been limited by constitutions. To restate the basic premises." The people ordained in Article V. law-abiding and educated. The people. While the people are thus the source of political power.. It excludes aliens. by reason of want of years. except as these may be limited for the protection of society. but also those who are wholly or in part dependents and charges upon society by reason of immaturity. can have no voice in any government and who yet are entitled to all the immunities and protection established by the Constitution. women and children. It comprehends not only the sane. the people provided in Article XV of the Constitution for the amending process only"by approval by a majority of the votes cast at an election at which the (duly proposed) amendments are submitted to the people for their ratification. mental or moral deficiency or lack of the common essentials of education. Supreme Court. their governments.' " As was also ruled by the U. which is to say. best defined the uses of the term "people" as a body politic and "people" in the political sense who are synonymous with the qualified voters granted the right to vote by the existing Constitution and who therefore are "the sole organs through which the will of the body politic can be expressed.. section 1 that only those thereby enfranchised and granted the right of suffrage may speak the "will of the body politic". ". as ruled by this Court inTolentino. It includes men. All these persons are secured fundamental guarantees of the Constitution in life. and they have themselves thereby set 331 332 .

the allegedly huge and uniform votes reported." 44 From the text of Article XV of our Constitution." 46 As to voting at such barrio plebiscites."50 IV 1. Since it appears on the face of Proclamation 1102 that the mandatory requirements under the above-cited constitutional articles have not been complied with and that no election or plebiscite for ratification as therein provided as well as in section 16 of Article XVII of the proposed Constitution itself 51 has been called or held. majority vote of all the barrio assembly members registered in the list of the barrio secretary is necessary. or when called by at least four members of the barrio council:Provided. action to be taken by the voters. 54 may be considered as valid. who is not otherwise disqualified. Voting procedures may be made either in writing as in regular elections. 6. 333 334 . A plebiscite may be held in the barrio when authorized by a majority vote of the members present in the barrio assembly. duly registered in the list of voters by the barrio secretary. the questions or issues to be decided. however. Even at barrio level 45 the Revised Barrio Charter fixes certain safeguards for the holding of barrio plebiscites thus: "SEC. Plebiscite. it seems obvious as above-stated that "people" as therein used must be considered synonymous with "qualified voters" as enfranchised under Article V. there being a quorum. and many others. and/or declaration by the voters to the board of election tellers. able to read and write. which latter reports respondents disclaimed inter alia as not final and complete or as not signed.Constitutional Law I L-36142 Constitutional Law I L-36142 bounds to their own power. as against the sudden impulse of mere majorities. twenty one years of age or over. time and place thereof. may vote or be a candidate in the barrio elections. the Charter further requires that "(A)ll duly registered barrio assembly membersqualified to vote may vote in the plebiscite. 10. That no plebiscite shall be held until after thirty days from its approval by either body." 48 The qualifications for voters in such barrio plebiscites and elections of barrio officials 49 comply with the suffrage qualifications of Article V. Qualifications of Voters and Candidates. Petitioners raised serious questions as to the veracity and genuineness of the reports or certificates of results purportedly showing unaccountable discrepancies in seven figures in just five provinces 52 between the reports as certified by the Department of Local Governments and the reports as directly submitted by the provincial and city executives. Every citizen of the Philippines. supplemental appropriations or special tax ordinances" and the required majority vote is specified: "(F)or taking action on any of the above enumerated measures. and such other information relevant to the holding of the plebiscite. 2. 3. orderly and honest elections supervised by the Comelec make it imperative that there be strict adherence to the constitutional requirements laid down for the process of amending in toto or in part the supreme law of the land. who has been a resident of the barrio during the six months immediately preceding the election. section 1 of the Constitution since only "people" who are qualified voters can exercise the right of suffrage and cast their votes. A plebiscite shall be called to approve any budgetary. there cannot be said to have been a valid ratification. and such plebiscite has been given the widest publicity in the barrio. section 1 thereof. 53 whether the reported votes of approval of the proposed Constitution conditioned upon the non-convening of the interim National Assembly provided in Article XVII. stating the date. Sound constitutional policy and the sheer necessity of adequate safeguards as ordained by the Constitution and implementing statutes to ascertain and record the will of the people in free. requiring approval of amendment proposals "by a majority of the votes cast at an election at which the amendments are submitted to the people for their ratification". section 1 of the Constitution and provide that "(S)EC." 47 The subjects of the barrio plebiscites are likewise delimited thus: "A plebiscite may be called to decide on the recall of any member of the barrio council.

AS IT IS HEREBY RESOLVED. provided that the new 335 336 . Article XVII on the Transitory Provision. amendments thereto may be ratified only in the one way therein provided. section 1 of our Constitution. as already stated. raised by petitioners against the procedure observed by the Citizens Assemblies and the reported referendum results since the purported ratification is rendered nugatory by virtue of such non-observance. Finally. the resolution portion of which read as follows: "RESOLVED. as follows: 12. unless respondents seriously intend to question the very statements and pronouncements in Proclamation 1102 itself which shows on its face. as to respondents' argument that the President issued Proclamation 1102 "as "agent" of the Constitutional Convention" 55 under Resolution No. 1973. Delegate Pimentel (V. the cases at bar need not reach the stage of answering the host of questions. xxx xxx xxx 12. it would be necessary to lay the groundwork for the appropriate agencies of the government to undertake the necessary preparation for the plebiscite." He suggested that in view of the expected approval of the final draft of the new Constitution by the end of November 1972 according to the Convention's timetable. that the 1971 Constitutional Convention propose to President Ferdinand E.2 Interpellating. 5844 approved on November 22. On the contrary.Constitutional Law I L-36142 Constitutional Law I L-36142 3. These questions only serve to justify and show the basic validity of the universal principle governing written constitutions that proposed amendments thereto or in replacement thereof may be ratified only in the particular mode or manner prescribed therein by the people.e. In this manner. and which is participated in only by qualified and duly registered voters. Delegate Duavit moved for the approval of the resolution. in an election or plebiscite held in accordance with law and duly supervised by the Commission on Elections. and "as agent of the Convention the President could devise other forms of plebiscite to determine the will of the majority vis-a-vis the ratification of the proposed Constitution. and with a reasonable period for an information campaign. which had already been approved on second and third readings. the said minutes fully show that the Convention's proposal and "agency" was that the President issue a decree precisely calling a plebiscite for the ratification of the proposed new Constitution on an appropriate date. under the charge of the Comelec. 5. Under Article XV. 1972." 56 The minutes of November 22. Upon recognition by the Chair. i. do not at all support this contention. and that copies of this resolution as approved in plenary session be transmitted to the President of the Philippines and the Commission on Elections for implementation. that the mandatory amending process required by the (1935) Constitution was not observed. of the Convention. At any rate. however. 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.) contended that the resolution was unnecessary because section 15. 4. the safeguards provided by the election code generally assure the true ascertainment of the results of the vote and interested parties would have an opportunity to thresh out properly before the Comelec all such questions in pre-proclamation proceedings.

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constitution should be ratified in a plebiscite called for the purpose by the incumbent President. Delegate Duavit replied that the provision referred to did not include theappropriation of funds for the plebiscite and that, moreover, the resolution was intended to serve formal notice to the President and the Commission on Elections to initiate the necessary preparations. xxx xxx xxx 12.4 Interpellating, Delegate Madarang suggested that a reasonable period for an information campaignwas necessary in order to properly apprise the people of the implications and significance of the new charter. Delegate Duavit agreed, adding that this was precisely why the resolution was modified to give the President the discretion to choose the most appropriate date for the plebiscite. 12.5 Delegate Laggui asked whether a formal communication to the President informing him of the adoption of the new Constitution would not suffice considering that under Section 15 of the Transitory Provisions, the President would be duty-bound to call a plebiscite for its ratification. Delegate Duavit replied in the negative, adding that the resolution was necessary to serve notice to the proper authorities to prepare everything necessary for the plebiscite. 12.6 In reply to Delegate Britanico, Delegate Duavit stated that the mechanics for the holding of theplebiscite would be laid down by the

Commission on Elections in coordination with the President. 12.7 Delegate Catan inquired if such mechanics for the plebiscite could include a partial lifting of martial law in order to allow the people to assemble peaceably to discuss the new Constitution. Delegate Duavit suggested that the Committee on Plebiscite and Ratification could coordinate with the COMELEC on the matter. 12.8 Delegate Guzman moved for the previous question. The Chair declared that there was one more interpellant and that a prior reservation had been made for the presentation of such a motion. 1.8a Delegate Guzman withdrew his motion. 12.9 Delegate Astilla suggested in his interpellation that there was actually no need for such a resolution in view of the provision of section 15, Article XVII on the Transitory Provisions. Delegate Duavit disagreed, pointing out that the said provision did not provide for the funds necessary for the purpose. 13. Delegate Ozamiz then moved to close the debate and proceed to the period of amendment. 13.1 Floor Leader Montejo stated that there were no reservations to amend the resolution. 13.2 Delegate Ozamiz then moved for the previous question. Submitted to a vote, the motion was approved.

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Upon request of the Chair, Delegate Duavit restated the resolution for voting. 14.1. Delegate Ordoñez moved for nominal voting. Submitted to a vote, the motion was lost. ANTONIO, J., concurring:
14.2. Thereupon, the Chair submitted the resolution to a vote. It was approved by a show of hands. 57
*

In conformity with my reservation, I shall discuss the grounds for my concurrence. I It is my view thatPto preserve the independence of the State, the maintenance of the existing constitutional order and the defense of the r political and social liberties of the people, in times of a grave emergency, o when the legislative branch of the government is unable to function or its m functioning would itself threaten the public safety, the Chief Executive may u promulgate measures legislative in character, for the successful l prosecution of such objectives. For the "President's power as Commanderg in-chief has beenatransformed from a simple power of military command to a vast reservoir of indeterminate powers in time of emergency. ... In other t words, the principal canons of constitutional interpretation are ... set aside e so far as concerns both the scope of the national power and the capacity of d the President to gather unto himself all constitutionally available powers in : order the more effectively to focus them upon the task of the hour." (Corwin, The President: Office & Powers, pp. 317, 318, [1948]). J u 1. The proclamation of martial rule, ushered the commencement of a crisis n government in this country. In terms of power, crisis government in a e constitutional democracy entails the concentration of governmental power. "The more complete the separation of powers in a constitutional system, 4 the more difficult, and yet the more necessary" according to Rossiter, "will , be their fusion in time of crisis... The power of the state in crisis must not only be concentrated and expanded, it must be freed from the normal 1 system of constitutional and legal limitations. One of the basic features of 9

I, therefore, vote to deny respondents' motion to dismiss and to give due course to the petitions.

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emergency powers is the release of the government from the paralysis of constitutional restraints" (Rossiter, Constitutional Dictatorship, p. 290). It is clearly recognized that in moments of peril the effective action of the government is channeled through the person of the Chief Executive. "Energy in the executive," according to Hamilton, "is essential to the protection of the community against foreign attacks ... to the protection of property against those irregular and high-handed combinations which sometimes interrupt the ordinary course of justice; to the security of liberty against the enterprises and assaults of ambition, of faction, and of anarchy." (The Federalist, Number 70). "The entire strength of the nation", said Justice Brewer in the Debs case (158 U.S. 564; 39 L. ed. 1092), "may be used to enforce in any part of the land the full and free exercise of all national powers and the security of all rights entrusted by the constitution to its care." The marshalling and employment of the "strength of the nation" are matters for the discretion of the Chief Executive. The President's powers in time of emergency defy precise definition since their extent and limitations are largely dependent upon conditions and circumstances. 2. The power of the President to act decisively in a crisis has been grounded on the broad conferment upon the Presidency of the Executive power, with the added specific grant of power under the "Commander-in-Chief" clause of the constitution. The contours of such powers have been shaped more by a long line of historical precedents of Presidential action in times of crisis, rather than judicial interpretation. Lincoln wedded his powers under the "commander-in-chief" clause with his duty "to take care that the laws be faithfully executed," to justify the series of extraordinary measures which he took the calling of volunteers for military service, the augmentation of the regular army and navy, the payment of two million dollars from unappropriated funds in the Treasury to persons unauthorized to receive it, the closing of the Post Office to "treasonable correspondence", the blockade of southern ports, the suspension of the writ of habeas corpus, the arrest and detention of persons "who were represented to him" as being engaged in or contemplating "treasonable practices" all this for the most part without the least statutory

authorization. Those actions were justified by the imperatives of his logic, that the President may, in an emergency thought by him to require it, partially suspend the constitution. Thus his famous question: "Are all laws but one to be unexecuted, and the Government itself go to pieces lest that one be violated?" The actions of Lincoln "assert for the President", according to Corwin, "an initiative of indefinite scope and legislative in effect in meeting the domestic aspects of a war emergency." (Corwin, The President: Office & Powers, p. 280 [1948]). The facts of the civil war have shown conclusively that in meeting the domestic problems as a consequence of a great war, an indefinite power must be attributed to the President to take emergency measures. The concept of "emergency" under which the Chief Executive exercised extraordinary powers underwent correlative enlargement during the first and second World Wars. From its narrow concept as an "emergency" in time of war during the Civil War and World War I, the concept has been expanded in World War II to include the "emergency" preceding the war and even after it. "The Second World War" observed Corwin and Koenig, was the First World War writ large, and the quasi-legislative powers of Franklin Roosevelt as "Commander-in-Chief in wartime"... burgeoned correspondingly. The precedents were there to be sure, most of them from the First World War, but they proliferated amazingly. What is more, Roosevelt took his first step toward war some fifteen months before our entrance into shooting war. This step occurred in September, 1940, when he handed over fifty so-called overage destroyers to Great Britain. The truth is, they were not overage, but had been recently reconditioned and recommissioned. ... Actually, what President Roosevelt did was to take over for the nonce Congress's power to dispose of property of the United States (Article IV, Section 3) and to repeal at least two statutes." (Corwin & Koenig, The Presidency Today, New York University Press, 1956; sf Corwin, The President: Office and Powers, 1948.) The creation of public offices is a power confided by the constitution to Congress. And yet President Wilson, during World War I on the basis of his powers under the "Commander-in-Chief" clause created "offices" which were copied in lavish scale by President Roosevelt in World War II. In April 1942, thirty-five "executive agencies" were purely of Presidential creation. On June 7, 1941 on the basis of his powers as "Commander-in-Chief", he

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issued an executive order seizing the North American Aviation plant of Inglewood, California, where production stopped as a consequence of a strike. This was justified by the government as the exercise of presidential power growing out of the "duty constitutionally and inherently resting upon the President to exert his civil and military as well as his moral authority to keep the defense efforts of the United States a going concern" as well as "to obtain supplies for which Congress has appropriated money, and which it has directed the President to obtain." On a similar justification, other plants and industries were taken over by the government. It is true that in Youngstown Sheet & Tube vs. Sawyer (343 U.S. 579; 72 S. Ct. 863; 96 L. Ed. 1153, [1952]), the Supreme Court of the United States did not sustain the claims that the President could, as the Nation's Chief Executive and Commander-in-Chief of the armed forces, validly order the seizure of most of the country's steel mills. The Court however did not face the naked question of the President's power to seize steel plants in the absence of any congressional enactment or expressions of policy. The majority of the Court found that this legislative occupation of the field made untenable the President's claim of authority to seize the plants as an exercise of inherent executive power or as Commander-in-Chief. Justice Clark, in his concurrence to the main opinion of the Court, explicitly asserted that the President does possess, in the absence of restrictive legislation, a residual or resultant power above or in consequence of his granted powers, to deal with emergencies that he regards as threatening the national security. The same view was shared with vague qualification by Justices Frankfurter and Jackson, two of the concurring Justices. The three dissenting Justices, speaking through Chief Justice Vinson, apparently went further by quoting with approval a passage extracted from the brief of the government in the case ofUnited States vs. Midwest Oil Co., (236 U.S. 459 59 L. Ed. 673, 35 S. Ct. 309) where the court sustained the power of the President to order withdrawals from the public domain not only without Congressional sanction but even contrary to Congressional statutes. It is evident therefore that the Steel Seizure Case, cannot be invoked as an authority to support the view that the President in times of a grave crisis does not possess a residual power above or in consequence of his granted powers, to deal with emergencies that he regards as threatening the

national security. The lesson of the Steel Seizure case, according to Corwin and Koenig, "Unquestionably ... tends to supplement presidential emergency power to adopt temporary remedial legislation when Congress has been, in the judgment of the President, unduly remiss in taking cognizance of and acting on a given situation." (Corwin and Koenig, The Presidency Today, New York University Press, 1956). The accumulation of precedents has thus built up the presidential power under emergency conditions to "dimensions of executive prerogative as described by John Locke, of a power to wit, to fill needed gaps in the law, or even to supersede it so far as may be requisite to realize the fundamental law of nature and government, namely, that as much as may be all the members of society are to be preserved." (Corwin and Koenig, The Presidency Today). In the light of the accumulated precedents, how could it be reasonably argued therefore, that the President had no power to issue Presidential Decree Nos. 86 and 86-A as well as Proclamation No. 1102, since these measures were considered indispensable to effect the desired reforms at the shortest time possible and hasten the restoration of normalcy? It is unavailing for petitioners to contend that we are not faced by an actual "shooting war" for today's concept of the emergency which justified the exercise of those powers has of necessity been expanded to meet the exigencies of new dangers and crisis that directly threaten the nation's continued and constitutional existence. For as Corwin observed: "... today the concept of 'war' as a special type of emergency warranting the realization of constitutional limitations tends to spread, as it were, in both directions, so that there is not only "the war before the war," but the 'war after the war.' Indeed, in the economic crisis from which the New Deal may be said to have issued, the nation was confronted in the opinion of the late President with an 'emergency greater than war'; and in sustaining certain of the New Deal measures the Court invoked the justification of 'emergency.' In the final result constitutional practices of wartime have moulded the Constitution to greater or less extent for peacetime as well, seem likely to do so still more pronouncedly under fresh conditions of crisis." (Corwin, Ibid. p. 318.)

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The same view was expressed by Rossiter thus:

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The second crisis is rebellion, when the authority of a constitutional government is resisted openly by large numbers of citizens who are engaged in violent insurrection against enforcement of its laws or are bent on capturing it illegally or destroying it altogether. The third crisis, one recognized particularly in modern times as sanctioning emergency action by constitutional governments, is economic depression. The economic troubles which plagued all the countries of the world in the early thirties involved governmental methods of an unquestionably dictatorial character in many democracies. It was thereby acknowledged that an economic existence as a war or a rebellion. And these are not the only cases which have justified extraordinary governmental action in nations like the United States. Fire, flood, drought, earthquake, riots, great strikes have all been dealt with by unusual and of dictatorial methods. Wars are not won by debating societies, rebellions are not suppressed by judicial injunctions, reemployment of twelve million jobless citizens will not be effected through a scrupulous regard for the tenets of free enterprise, hardships caused by the eruptions of nature cannot be mitigated letting nature take its course. The Civil War, the depression of 1933 and the recent global conflict were not and could not have been successfully resolved by governments similar to those of James Buchanan, William Howard Taft, or Calvin Coolidge. (Rossiter, Constitutional Dictatorship Crisis of Government in the Modern Democracies, p. 6 [1948).

We are next confronted with the insistence of Petitioners that the referendum in question not having been done inaccordance with the provisions of existing election laws, which only qualified voters who are allowed to participate, under the supervision of the Commission on Elections, the new Constitution, should therefore be a nullity. Such an argument is predicated upon an assumption, that Article XV of the 1935 Constitution provides the method for therevision of the constitution, and automatically apply in the final approval of such proposed new Constitution the provisions of the election law and those of Article V and X of the old Constitution. We search in vain for any provision in the old charter specifically providing for such procedure in the case of a total revision or a rewriting of the wholeconstitution. 1. There is clearly a distinction between revision and amendment of an existing constitution. Revision may involve a rewriting of the whole constitution. The act of amending a constitution, on the other hand, envisages a change of only specific provisions. The intention of an act to amend is not the change of the entire constitution but only theimprovement of specific parts of the existing constitution of the addition of provisions deemed essential as a consequence of new constitutions or the elimination of parts already considered obsolete or unresponsive to the needs of the times. 1 The 1973 Constitution is not a mere amendment to the 1935 Constitution. It is a completely new fundamental charter embodying new political, social and economic concepts. According to an eminent authority on Political Law, "The Constitution of the Philippines and that of the United States expressly provide merely for methods of amendment. They are silent on the subject of revision. But this is not a fatal omission. There is nothing that can legally prevent a convention from actually revising the Constitution of the Philippines or of the United States even were such conventions called merely for the purpose of proposing and submitting amendments to the people. For in the final analysis, it is the approval of the people that gives validity to any proposal of amendment or revision." (Sinco, Philippine Political Law, p. 49).

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Since the 1935 Constitution does not specifically provide for the method or procedure for the revision or for the approval of a new constitution, should it now be held, that the people have placed such restrictions on themselves that they are not disabled from exercising their right as the ultimate source of political power from changing the old constitution which, in their view, was not responsive to their needs and in adopting a new charter of government to enable them to rid themselves from the shackles of traditional norms and to pursue with new dynamism the realization of their true longings and aspirations, except in the manner and form provided by Congress for previous plebiscites? Was not the expansion of the base of political participation, by the inclusion of the youth in the process of ratification who after all constitute the preponderant majority more in accord with the spirit and philosophy of the constitution that political power is inherent in the people collectively? As clearly expounded by Justice Makasiar, in his opinion, in all the cases cited where the Courts held that the submission of the proposed amendment was illegal due to the absence of substantial compliance with the procedure prescribed by the constitution, the procedure prescribed by the state Constitution, is so detailed, that specified the manner in which such submission shall be made, the persons qualified to vote for the same, the date of election and other definite standards, from which the court could safely ascertain whether or not the submission was in accordance with the Constitution. Thus the case of In re McConaughy (119 N.E. 408) relied upon in one of the dissenting opinions involved in the application of the provisions of the state Constitution of Minnesota which clearly prescribed in detail the procedure under which the Constitution may be amended or revised. 2 This is not true with our Constitution. In the case of revision there are no "standards meet for judicial judgment." 3 The framers of our Constitution were free to provide in the Constitution the method or procedure for the revision or rewriting of the entire constitution, and if such was their intention, they could and should have so provided. Precedents were not wanting. The constitutions of the various states of the American Union did provide for procedures for theiramendment and methods for their revision. 4

Certainly We cannot, under the guise of interpretation, modify, revise, amend, remodel or rewrite the 1935 Charter. To declare what the law is, or has been, is a judicial power, but to declare what the law shall be is not within Our judicial competence and authority. Upon the other hand, since our fundamental charter has not provided the method or procedure for the revision or complete change of the Constitution, it is evident that the people have reserved such power in themselves. They decided to exercise it not through their legislature, but through a Convention expressly chosen for that purpose. The Convention as an independent and sovereign body has drafted not an amendment but a completely new Constitution, which decided to submit to the people for approval, not through an act of Congress, but by means of decrees to be promulgated by the President. In view of the inability of Congress to act, it was within the constitutional powers of the President, either as agent of the Constitutional Convention, or under his authority under martial law, to promulgate the necessary measures for the ratification of the proposed new Constitution. The adoption the new Charter was considered as a necessary basis for all the reforms set in motion under the new society, to root out the causes of unrest. The imperatives of the emergency underscored the urgency of its adoption. The people in accepting such procedure and in voting overwhelmingly for the approval of the new Constitution have, in effect, ratified the method and procedure taken. "When the people adopt completely revised or new constitution," said the Court in Wheeler v. Board of Trustees (37 SE 2nd 322, 326-330), "the framing or submission of the instrument is not what gives it binding force and effect. The fiat of the people, and only the fiat of the people, can breathe life into a constitution." This has to be so because, in our political system, all political power is inherent in the people and free governments are founded on their authority and instituted for their benefit. Thus Section 1 of Article II of the 1935 Constitution declares that: "Sovereignty resides in the people and all government authority emanate from them." Evidently the term peoplerefers to the entire citizenry and not merely to the electorate,

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. in reforestation. and is now maintained by the Government that is in undisputed authority and dominance? Of course it is argued that acquiescence by the people can be deduced from their acts of conformity. In other words. Such an assumption flounders on the rock of reality. for thought and for the soul. irrigation ditches. Responding to the challenges of the New Society. martial rule exists when the military rises superior to the civil power in the exercise of some or all the functions of government.L. Sulzberger. III The more compelling question. official corruption. 1973). Such is not the case in this country. "Martial law has paved the way for a re-ordering of the basic social structure of the Philippines" reported Frank Valeo to the United States Senate. generally associated with a regime of Martial law in other countries. The government functions thru its civilian officials. He has zeroed in on areas which have been widely recognized as prime sources of the nation's difficulties land tenancy.. Some courts have viewed it as a military regime which can be imposed in emergency situations. The supremacy of the civil over the military authority is manifest." (Bulletin Today. Mr. the people have turned in half a million loose firearms. He found his second term further frustrated by spread riots. C. 349 350 ." * More important the common man has at long last been freed from the incubus of fear. Except for the imposition of curfew hours and other restrictions required for the security of the State. Manila claims this war is Maoistcoordinated. however is: Has this Court the authority to nullify an entire Constitution that is alreadyeffective as it has been accepted and acquiesced in by the people as shown by their compliance with the decree promulgated thereunder.. The once downtrodden rice tenant has at long last been emancipated a consummation devoutly wished by every Philippine President since the 1930's." * A new sense of discipline has swiftly spread beyond the corridors of government into the social order. because under a regime of martial law the people are bound to obey and act in conformity with the orders of the President. the people are free to pursue their ordinary concerns. The laborer now holds his head high because his rights are amply protected and respected. tax evasion and abuse of oligarchic economic power. their cooperation in its implementation. roads and bridges. a foreign affairs columnist wrote. "Upon the other hand the masses of our people have accepted it. in the repair of dikes. in the physical transformation of the environment to make ours a cleaner and greener land. paid their taxes on undeclared goods and income in unprecedented numbers and amount... lent their labors in massive cooperation in land reform. there is marked public support for his leadership. does not contain the oppressive features. It is true that as a general rule martial law is the use of military forces to perform the functions of civil government. In short. "President Marcos has been prompt and sure-footed in using the power of presidential decree under martial law for this purpose. In a similar vein. because of its manifold blessings. The flaw of this argument lies in its application of a mere theoretical assumption based on the experiences of other nations on an entirely different factual setting. and has absolutely no other choice. a Maoist uprising in Luzon and a much more serious Moslem insurrection in the southern islands from Mindanao across the Sulu archipelago to the frontier regions of Malaysia and Indonesia. March 3 and 4. in the April 11 issue of The New York Times: During his first Presidential term (1965-1969).Constitutional Law I L-36142 Constitutional Law I L-36142 for the latter is only a fraction of the people and is only an organ of government for the election of government officials. Clearly he knows his targets . the existing regime in this Country. "The entire country is turning into one vast garden growing food for the body. Marcos was discouraged by the failure of legislators to approve urgently needed reforms.

The statutes issued under the old Constitution and not taken over are no longer regarded as valid. 726. "precluded from passing upon the fact of change by a logical difficulty which is not to be surmounted. 369 U. the Court whose existence is affected by such change is. 48 U. In such a situation. Carr. Borden. terminating Congress and locking up some opponents (many of whom were later amnestied)." 6 It involves in essence a matter which "the sovereign has entrusted to the socalled political departments of government or has reserved to be settled by its own extra governmental action. 1973 on the "Constancia" and "Manifestation" of counsel for petitioners: The new Constitution is considered effective "if the norms created in conformity with it are by and large applied and obeyed.S. he has hauled the Philippines out of stagnation. The educational system is undergoing revision. New roads have been started. 2d. it necessarily affirms the existence and authority of the government under which it is exercising judicial power. which is merely declaratory of the fact of approval or ratification." said Justice Frankfurter. "From its earliest opinions this Court has consistently recognized. [7 How. Marcos. [1967]. He has started labor reforms and increased wages.S.] 1. "a class of controversies which do not lend themselves to judicial standards and judicial remedies. a corruption is diminished. Marcos has now in effect taken all the reins of power and makes no promise as to when he will relinquish them. Ed. 7 L. Sharecropping is being ended as more than three million acres of arable land are redistributed with state funds.) In other words. 598. Ed. but by presupposing the new one. 722. 186. gifted man. It is addressed more to the framework and political character of this Government which now functions under the new Charter. in the words of Mr. (Daily Express. while fettering a free press." 5 Such change in the organic law relates to the existence of a prior point in the Court's "chain of title" to its authority and "does not relate merely to a question of the horizontal distribution of powers. He is even pushing for a birth control program with the tacit acceptance of the Catholic Church. what is assailed is not merely the validity of Proclamation No. If it decides at all as a court. But. an imaginative. hopes to reshape society by creating an agrarian middleclass to replace the archaic sharecropperabsentee landlord relationship. As soon as the old Constitution loses its effectiveness and the new Constitution has become effective. 1973) As explained in this writer's opinion of April 24.Constitutional Law I L-36142 Constitutional Law I L-36142 Mr.) The essentially political nature of the question is at once made manifest by understanding that in the final analysis. where a complete change in the fundamental law has been effected through political action. 1102 of the President." (Kelsen. and the organs authorized by the old Constitution no longer competent. Mr." 7 The non-judicial character of such a question has been recognized in American law. In non-communist Asia it is virtually impossible to wholly end it and this disagreeable phenomenon still reaches very high. To classify the various instances as "political questions" is rather a form of 351 352 . We do not see how the question posed by petitioners could be judicially decided. "Judicial power presupposes an established government capable of enacting laws and enforcing their execution. the acts that appear with the subjective meaning of creating or applying legal norms are no longer interpreted by presupposing the old basic norm. Melville Fuller Weston. 12 L." (Luther v. 633. but the legitimacy of the government. 727). April 15. in his illuminating dissent in Baker v. Pure Theory of Law. and of appointing judges to expound and administer them. It seeks to nullify a Constitution that is already effective.

Amendment and Revision. the dismissal of these five cases. The secretary of state shall issue the call for the convention." The diversity of views contained in the opinions of the members of this Court. it is the degree of one's faith in the nation's leadership and in the maturity of judgment of our people. JJ. that.. but not limited to. L-36142.. . including. No question of law is involved. At bottom. and submission and ratification of revisions and ordinances. Sec. 36165... number of members. the call shall conform as nearly as possible to the act calling the Alaska Constitutional Convention of 1955. The crux of the matter is that courts are not fit instruments of decision where what is essentially at stake is the composition of those large contests of policy traditionally fought out in non-judicial forums. The legislature may call constitutional conventions at any time. If. cannot be a case on "right" or "wrong" views of the Constitution. the judges hold too strong views of their own to be able to take this course. 36164. For there is scarcely any principle. it may often be good judgment for them to follow the lead of the men who as a practical matter are likely to be looked to by the people as more representative of themselves and conversely are likely to be more directly in touch with popular sentiment. (G. 305-309. and shall place them on the ballot for the next statewide election. 353 354 . Makasiar and Esguerra. 2. districts. Amendments. pp. IN VIEW OF THE FOREGOING. the secretary of state shall place on the ballot for the next general election the question: "Shall there be a Constitutional Convention?" If a majority of the votes cast on the question are in the negative. Barredo. concur. Amendments to this constitution may be proposed by a two-thirds vote of each house of the legislature. Sec. If a majority of the votes cast on the proposition favor the amendment.Constitutional Law I L-36142 APPENDIX TO OPINION Constitutional Law I L-36142 stating this conclusion than revealing of analysis .) 31. they may follow their own leads at their own hazard. 38 Harvard Law Review [1924-25]. Convention. Nos. XIII. election and certification of delegates. however. and the conclusion of this Court in its judgment of March question becomes wholly moot except for this consideration. It is one of attitudes and values. If a majority of the votes cast on the question are in the affirmative. unless the legislature provides for the election of the election delegates at a special election. 1. by which governments and the actions of governments are made and unmade.R. Sec. (Political Questions. Alaska (1959) Art. 1973 are fully justified. in the cases at bar. Call by referendum. 36236 & 36283) PROVISIONS OF STATE CONSTITUTIONS SPECIFICALLY PROVIDING FOR AMENDMENT AND REVISION @ 1. authority or interpretation which has not been countered by the opposite. If during any ten-year period a constitutional convention has not been held. The secretary of state shall prepare a ballot title and proposition summarizing each proposed amendment. . it becomes effective thirty days after the certification of the election returns by the secretary of state.. delegates to the convention shall be chosen at the next regular statewide election. Unless other provisions have been made by law. when the judges as individuals or as a body of individuals come to decide which king or which constitution they will support and assert to represent. the question need not be placed on the ballot until the end of the next ten-year period. 3.

as may have been ratified by a majority of all the votes cast at such special election. hour and place of its meeting. XIX. and have the same qualifications. 355 356 . Whenever two-thirds of the members elected to each branch of the Legislature shall deem it necessary to revise this Constitution. in such manner as the Sec. such Constitution. alteration or amendment shall take effect. Colorado (1876) Art. and if a majority of the electors voting at such election on the proposition for a Convention shall vote in favor thereof. the members shall take an oath to support the constitution of the United States. The number of members of the convention shall be twice that of the senate and they shall be elected in the same manner. and if two-thirds of all the members elected to each of the houses shall vote in favor thereof. and it shall be the duty of the Legislature to submit such proposed amendment or amendments to the people in such manner. at its next session. by numbers or otherwise. and at such time. with the yeas and nays taken thereon. which shall be submitted to the electors for their ratification or rejection at an election appointed by the convention for that purpose. Said convention shall meet within three months after such election and prepare such revisions. provide for the calling thereof. to vote at the next general election for or against a convention to revise. Powers. At a special election to be provided for by law. Before proceeding. in such manner as the Convention may determine. Constitutional convention.Constitutional Law I L-36142 Constitutional Law I L-36142 Sec. not less than two nor more than six months after adjournment thereof. alterations or amendments to the constitution as may be deemed necessary. and vacancies occurring shall be filled in the manner provided for filling vacancies in the general assembly. Amendments. The delegates so elected shall meet within three months after their election at such place as the Legislature may direct. provide by law for calling the same. The general assembly may at any time be a vote of two-thirds of the members elected to each house. the Legislature shall. at the same places. 2. Constitutional amendments. XVIII. at the next session. the general assembly shall. and compare the returns so certified to him. No call for a constitutional convention shall limit these powers of the convention. and after such publication as may be deemed expedient. be certified to the Executive of the State. designate the day. Any amendment or amendments to this Constitution may be proposed in the Senate or Assembly. how called. The qualifications of members shall be the same as of members of the senate. Amending and Revising the Constitution. that each can be voted on separately. in the act calling the convention. Constitutional convention. by his proclamation. 4. and in the same districts. no such revision. and of the state of Colorado. 2. such proposed amendment or amendments shall be entered in their Journals. 3. fix the pay of its members and officers. the Constitution that may be agreed upon by such Convention shall be submitted to the people for their ratification or rejection. Sec. and if a majority of those voting on the question shall declare in favor of such convention. subject only to ratification by the people. and provide for the payment of the same. who shall be chosen in the same manner. and unless so submitted and approved by a majority of the electors voting at the election. or any of them. and it shall be the duty of the Executive to declare. Sec. California (1879) Art. as Members of the Legislature. Constitutional conventions shall have plenary power to amend or revise the constitution. who shall call to his assistance the Controller. 1. Should more amendments than one be submitted at the same election they shall be so prepared and distinguished. together with the necessary expenses of the convention. recommend to the electors of the state. 1. they shall recommend to the electors to vote at the next general for or against a Convention for that purpose. alter and amend this constitution. to be the Constitution of the State of California. and Secretary of State. Convention shall direct. Treasurer. and to faithfully discharge their duties as members of the convention. by a majority of the qualified electors voting thereon such amendment or amendments shall become a part of this constitution. If the people shall approve and ratify such amendment or amendments. The Convention shall consist of a number of delegates not to exceed that of both branches of the Legislature. The general assembly shall. The returns of such election shall.

Sec. and the Secretary of State shall cause such proposed amendment or amendments to be published three months before the next general election in at least three newspapers in each County in which such newspaper shall be published. The delegates so chosen shall convene at the Capital of the State on the first Tuesday in September next after their election. death. compensation of delegates. how adopted. that if more than one amendment be submitted at any general election. vacancies. or at any special or extra-ordinary session thereof 357 358 . powers and duties. employees and assistants as it may be deem necessary. and fix their compensation. A majority of the Convention shall constitute a quorum for the transaction of business. journals. if a majority of those voting on said question shall decide in favor of a Convention for such purpose. for four successive weeks previous to the next general election for members of the general assembly. Amendments and Conventions.Constitutional Law I L-36142 Constitutional Law I L-36142 Sec. with the yeas and nays taken thereon. returns and qualifications of its members. Any amendment or amendments to this Constitution may be proposed in the Senate or House of Representatives. debates and proceedings. all the members elected to each House. Proposal of constitutional amendments in general assembly. and if in the General Assembly next after the said election such proposed amendment or amendments shall upon yea and nay vote be agreed to by two-thirds of Sec. ineligibility. shall be entered in full on their respective journals. together with the ayes and noes of each house hereon. Florida (1887) Art. and the secretary of state shall also cause the said amendment or amendments to be published in full in not more than one newspaper of general circulation in each county. a writ of election to fill such vacancy shall be issued by the Governor. 5. the same shall thereupon become part of the Constitution. Amendments to constitution. 1." and upon such submission. and at said election the said amendment or amendments shall be submitted to the qualified electors of the state for their approval or rejection. Delaware (1897) Art. Every delegate shall receive for his services such compensation as shall be provided by law. at any regular session. Provided. "Shall there be a Convention to revise the Constitution and amend the same?. Constitutional conventions. 2. Either branch of the Legislature. 1. and if the same shall be voted for by two-thirds of all the members elected to each house. Sec. such proposed amendment or amendments shall be entered on their journals. and such as are approved by a majority of those voting thereon shall become part of this constitution. 2. XVI. and provide for the printing of its documents. resignation or otherwise. Method of amending constitution. Such Convention shall be composed of forty-one delegates. and such vacancy shall be filled by the qualified electors of such district or county. and be the judge of the elections. two from Kent County and two from Sussex County by the qualified electors thereof respectively. procedure. 4. The Convention shall determine the rules of its proceedings. XVII. Whenever there shall be a vacancy in the office of delegate from any district or county by reason of failure to elect. each of said amendments shall be voted upon separately and votes thereon cast shall be separately counted the same as though but one amendment was submitted. and two of whom shall be chosen from New Castle County. But the general assembly shall have no power to propose amendments to more than six articles of this constitution at the same session. the General Assembly at its next session shall provide for the election of delegates to such convention at the next general election. and if the same shall be agreed to by two-thirds of all the members elected to each House. such proposed amendment or amendments. Amendments. the proposed amendment or amendments shall be published with the laws of that session of the general assembly. one of whom shall be chosen from each Representative District by the qualified electors thereof. The General Assembly by a twothirds vote of all the members elected to each House may from time to time provide for the submission to the qualified electors of the State at the general election next thereafter the question. The Convention shall have the power to appoint such officers. procedure. quorum. Any amendment or amendments to this constitution may be proposed in either house of the general assembly.

with yea's and nay's thereon. immediately preceding the election at which the same is to be voted upon. provided. shall decide in favor of a Convention for such purpose. Amendments to the Constitution. Revision or amendments by convention. XIX. the General Assembly. Sec. and if a majority of all the electors voting at said election shall have voted for a convention. may propose the revision or amendment of any portion or portions of this Constitution. such proposed amendment or amendments shall. 7. "Shall there be a Convention to revise the Constitution. and amend the same?" shall be decided by the electors qualified to vote for members of the General Assembly. Sec. in not less than one newspaper of the general circulation published in each county. for and against such proposition. Whenever two-thirds of the members elected to each branch of the legislature shall deem it necessary to call a convention to revise or amend this Constitution. for three months preceding the next general election of Representatives. Idaho (1890) Constitutional Law I Art. X. be entered on their journals. Iowa (1857) Art. not less than double the number of the most numerous branch of the legislature. one publication to be made not earlier than ten weeks and the other not later than six weeks. for or against a convention. such amendment or amendments shall become a part of this Constitution. Sec. voting separately. the Legislature chosen at such election shall provide by law for a Convention to revise the Constitution. The electors at said election may vote for or against the revision in question. said Convention to be held within six months after the passage of such law. Sec. Method of revising constitution. prior to said election. by law. and it shall be the duty of the legislature to submit such amendment or amendments to the electors of the state at the next general election. 3. Notice of said action shall be published weekly in one newspaper in every county in which a newspaper is published. however. and also at such times as the General Assembly may. provide. such determination shall be entered upon their respective Journals. and shall be apportioned among the several counties in the same manner as members of said House. with the yeas and nays thereon. If at any time the Legislature. If a majority of the electors so voting be in favor of revision. the legislature shall at the next session provide by law for calling the same. and thereupon submitted to the electors of the State for approval or rejection at the next general election. Convention. The Convention shall consist of a number equal to the membership of the House of Representatives. voting at such election. shall determine that a revision of this Constitution is necessary. L-36142 called for such purpose either in the governor's original call or any amendment thereof. Any amendment or amendments to this Constitution may be proposed in either branch of the legislature. Amendments. and cause the same to be published without delay for at least six consecutive weeks. and in those countries where no newspaper is published. they shall recommend to the electors to vote at the next general election. at 359 360 . and if a majority of the electors shall ratify the same. If the proposed revision or amendment is agreed to by three-fifths of the members elected to each house. 1. by a vote of two-thirds of all the members of both Houses. it shall be entered upon their respective journals with the yeas and nays and published in one newspaper in each county where a newspaper is published for two times. How amendments may be proposed.Constitutional Law I L-36142 6. notice shall be given by posting at the several polling precincts in such counties for six weeks next preceding said election. and if the same shall be agreed to by two-thirds of all the members of each of the two houses. the question. 2. and in each tenth year thereafter. Any such revision or amendment may relate to one subject or any number of subjects. that such revision oramendment may be submitted for approval or rejection in a special election under the conditions described in and in the manner provided by Section 3 of Article XVII of the Constitution. and such convention shall consist of a number of members. and in case a majority of the electors so qualified. but no amendment shall consist of more than one revised article of the Constitution. 3. If a majority of the electors voting upon the amendment adopt such amendment the same shall become a part of this Constitution. At the general election to be held in the year one thousand eight hundred and seventy.

A majority of the delegates elected shall constitute a quorum for the transaction of business. 8. in a manner to be provided by law. Upon the approval of such constitution or amendments by a majority of the qualified electors voting thereon such constitution or amendments shall take effect on the first day of January following the approval thereof. proposal by legislature. Any amendment or amendments to this constitution may be proposed in the senate or house of representatives. . the same shall become part of the constitution. Amendments to constitution. which proposed amendments shall be published with the laws which have been passed at the same session. Sec. Revision of constitution. XVII. 1. If the same shall be agreed to by 2/3 of the members elected to each house. 2. and shall meet within three months after their election for the purpose aforesaid. The convention shall consist of as many members as the House of Representatives. such amendment or amendments shall be entered on the journals. in case an interval of at least 90 days shall not intervene between such final adjournment and the date of such election. the Electors of each House of Representatives District as then organized shall Elect One Delegate for each Electors of each Senatorial District as then organized shall Elect One Delegate for each State Senator to which the District is entitled. with the yeas and nays taken thereon. and shall continue their sessions until the business of the convention shall be completed. Whenever two-thirds of the members elected to each branch of the legislature shall think it necessary to call a convention to revise this Constitution. but. and if it shall appear. at their next session. Amendments to constitution. Any proposed constitution or amendments adopted by such convention shall be submitted to the qualified electors in the manner provided by such convention on the first Monday in April following the final adjournment of the convention. Amendments to the Constitution. 361 362 . the same shall be valid to all intents and purposes as a part of this Constitution. procedure. the legislature shall. they shall recommend to the electors to vote at the next general election for members of the legislature. and. submission to electors. and said amendments shall be submitted to the people for their approval or rejection at any general election. Minnesota (1857) Art. who shall be chosen in the same manner. 9. in each sixteenth year thereafter and at such times as may be provided by law.. General revision. the yeas and nays being entered on the journal. it shall be so regulated that the voters shall vote for or against each separately. Michigan (1909) Art. No proposed constitution or amendment adopted by such convention shall be submitted to the electors for approval as hereinafter provided unless by the assent of a majority of all the delegates elected to the convention. Amendments and Revision. as the legislature shall direct. and the same shall be submitted to the electors at the next spring or autumn election thereafter. the question of a General Revision of the Constitution shall be submitted to the Electors qualified to vote for members of the Legislature. majority vote of electors voting makes amendment valid.. and if a majority of all the electors voting at said election shall have voted for a convention. Sec. at an Election to be held not later than four months after the Proposal shall have been certified as approved. that a majority of all the electors voting at said election shall have voted for and ratified such alterations or amendments. Sec. convention. they may proposed such alterations or amendments. If two or more alterations or amendments shall be submitted at the same time. In case a majority of the Electors voting on the question shall decide in favor of a Convention for such purpose. Whenever a majority of both houses of the legislature shall deem it necessary to alter or amend this Constitution. if a majority of the electors qualified to vote for members of the legislature voting thereon shall ratify and approve such amendment or amendments. The Delegates so elected shall convene at the Capital City on the First Tuesday in October next succeeding such election. Sec. XIV. 1. 4. provide by law for calling the same. At the Biennial Spring Election to be held in the year 1961. respectively. for or against a convention. shall provide by law for the election of delegates to such Convention.Constitutional Law I L-36142 Constitutional Law I L-36142 its next session.

after the expiration of seven years from the adoption of this constitution. shall have voted in favor of calling a Convention. and if. before the same shall be laid before the towns and unincorporated places. 2. that the sense of the people of the state has taken. as the representatives to the general court. and directed to the general court at their then next session. and. XXIV. Constitutional Amendments. the meeting being warned accordingly. in such manner and at such time as the Legislature shall prescribe. procedure. and then proceed in the manner before mentioned. Constitutional amendments. provided that no alterations shall be made in this constitution. and assessors. such proposed amendment or amendments shall be entered on their respective journals. Submission to people of revised constitution drafted at convention. Sec. 12. Without such submission and ratification. and. to insert expressly in the warrant this purpose. in the opinion of the majority of the qualified voters in the state. such amendment or amendments shall become a part of the Constitution. the moderator shall take the sense of the qualified voters present as to the necessity of a revision. Sec. Amendments. and proportioned. among the others for the meeting. with the Yeas and Nays taken thereon. and if it 363 364 . and that. Section 9 of Article IV of the Constitution shall not apply to election to the convention. 3. present and voting at said meetings. 16. and such Convention shall consist of a number of Members not less that of both branches of the legislature. it shall appear to the general court by such return. it shall be the duty of the general court to call a convention for that purpose. shall appear that a majority of the electors voting at such election. shall be made by the clerk sealed up. and not otherwise. Convention for revision of constitution. to vote for or against a convention. procedure. otherwise the general court shall direct the sense of the people to be taken. and a return of the number of votes for and against such necessity. and referred to the Legislature then next to be chosen. there is a necessity for a revision of the constitution. in warning the first annual meetings for the choice of senators. the Legislature shall. It shall be the duty of the selectmen. then it shall be the duty of the Legislature to submit such proposed amendment or amendments to the people. Any convention called to revise this constitution shall submit any revision thereof by said convention to the people of the State of Minnesota for their approval or rejection at the next general election held not less than 90 days after the adoption of such revision. to take the sense of the qualified voters on the subject of a revision of the constitution. of the several towns and places in this state. If at any time the Legislature by a vote of two-thirds of the Members elected to each house. at its next session provide by law for calling a Convention to be holden within six months after the passage of such law. 99. to wit. New Hamspire (1784) Art. and if the people shall approve and ratify such amendment or amendments by a majority of the electors qualified to vote for members of the Legislature voting thereon. such proposed amendment or amendments shall be agreed to by a majority of all the members elected to each house. and shall be published for three months next preceding the time of making such choice. shall determine that it is necessary to cause a revision of this entire Constitution they shall recommend to the electors at the next election for Members of the Legislature. as amended. the same shall constitute a new constitution of the State of Minnesota. Any amendment or amendments to this Constitution may be proposed in the Senate or Assembly. The delegates to be chosen in the same manner. Revision of constitution provided for. 1. 11. said revision shall be of no force or effect. Oklahoma (1907) Art. And if in the Legislature next chosen as aforesaid. reference shall be had to the highest number of vote cast at such election for the candidates of any office or on any question. and if the same shall be agreed to by a Majority of all the members elected to each of the two houses. if it shall appear in the manner provided by law that three-fifths of all the electors voting on the question shall have voted for and ratified such revision. and approved by two thirds of the qualified voters present and voting on the subject. In determining what is a majority of the electors voting such election. 10. Nevada (1864) Art.Constitutional Law I L-36142 Constitutional Law I L-36142 Sec.

alterations. 2. and if the same shall be agreed to by a majority of all the members elected to each of the two houses. shall be canvassed by the secretary of state in the presence of the governor. each proposed article shall be deemed a single proposals or proposition Sec. except when the Legislature. Oregon (1859) Art. No convention shall be called by the Legislature to propose alterations. or new Constitution. such proposed amendment or amendments shall. The votes for and against such amendment. and any amendments. or to propose a new Constitution. proposed by such convention. When two or more amendments shall be submitted in the manner aforesaid to the voters of this state at the same election. provided. a submission to vote. are cast in favor thereof. they shall be so submitted that each amendment shall be voted on separately. unless the law providing for such convention shall first be approved by the people on a referendum vote at a regular or special election. If two or more amendments are proposed they shall be submitted in such manner that electors may vote for or against them separately. Method of amending constitution. and the same shall be in effect as a part of the Constitution from the date of such proclamation. having received said majority of votes to have been adopted by the people of Oregon as part of the Constitution thereof. severally. and section 1 of this Article. If a majority of all the electors voting at such election shall vote in favor of any amendment thereto. severally. which embrace one general subject. with the yeas and nays thereon. Article IV. that in the submission of proposals for the amendment of this Constitution by articles. whether proposed by the legislative assembly or by initiative petition. 13. Any amendment or amendments to this Constitution may be proposed in either branch of the legislative assembly. (1) In addition to the power to amend this Constitution granted by section 1. severally. or amendments. Amendments proposed by legislature. Amendments and Revisions. or amendments. XVII. be entered in their 365 366 . shall order a special election for that purpose. at the next regular election. Sec. it shall thereby become a part of this Constitution. it shall be his duty forthwith after such canvass. revisions. Method of revising constitution. by a two-thirds vote of each house. or amendments. with the yeas and nays thereon. and if the same shall be agreed to by a majority of all the members elected to each of the two houses. shall be submitted to the electors of the State at a general or special election and be approved by a majority of the electors voting thereon. or to propose a new Constitution. before the same shall become effective Provided. with yeas and nays thereon. and if it shall appear to the governor that the majority of the votes cast at said election on said amendment. such proposed amendment or amendments shall. Any amendment or amendments to this Constitution may be proposed in either branch of the Legislature. or amendments to this Constitution. Constitutional convention to propose amendments or new constitution. 1. the proposed revision shall. except when the legislative assembly shall order a special election for that purpose. revisions. Sec. This article shall not be construed to impair the right of the people to amend this Constitution by vote upon an initiative petition therefor. No proposal for the amendment or alteration of this Constitution which is submitted to the voters shall embrace more than one general subject and the voters shall vote separately for or against each proposal submitted. a revision of all or part of this Constitution may be proposed in either house of the Legislative Assembly and. at the next regular general election. be entered in their journals and referred by the secretary of state to the people for their approval or rejection. be entered in their journals and referred by the Secretary of State to the people for their approval or rejection. if the proposed revision is agreed to by at least two-thirds of all the members of each house. by his proclamation. 1. unless the law providing for such convention shall first be approved by the people on a referendum vote at a regular general election. That the question of such proposed convention shall be submitted to the people at least once in every twenty years. however. 2. If a majority of the electors voting on any such amendment shall vote in favor thereof.Constitutional Law I L-36142 Constitutional Law I L-36142 Sec. No convention shall be called to amend or propose amendments to this Constitution. it shall thereby become a part of this Constitution. to declare the said amendment.

that the proposed revision has received a majority of votes and has been adopted by the people as the Constitution of the State of Oregon. at its next session. and if two-thirds of all the members elected of the two houses. notwithstanding section 1. A proposed revision may deal with more than one subject and shall be voted upon as one question. they shall be submitted in such manner that the electors shall vote for or against each of them separately.Constitutional Law I L-36142 Constitutional Law I L-36142 journals and referred by the Secretary of State to the people for their approval or rejection. as the case may be. they shall recommend to the electors to vote at the next general election for or against a convention. such proposed amendment or amendments shall. If two or more amendments are proposed. The votes for and against the proposed revision shall be canvassed by the Secretary of State in the presence of the Governor and. where a newspaper is published. and. Amendments. and if a majority of the electors voting thereon shall approve the same. 2. shall deem it necessary to call a convention to revise or amend this Constitution. Any constitution adopted by such convention shall have no validity until it has been submitted to and adopted by the people. Whenever two-thirds of the members. Amendments. for their approval or rejection. if the same shall be agreed to by two-thirds of all the members of the two houses. 4. he shall. 15. The revision shall be in effect as the Constitution or as a part of this Constitution from the date of such proclamation. XX. Sec. and the Legislature shall cause the same to be published in at least one newspaper in every county of the State. for or 367 368 . Any amendments to his Constitution may be proposed in either house of the Legislature. promptly following the canvass. Utah (1896) Art. provision for. 23. at which time the said amendment or amendments shall be submitted to the electors of the State. Sec. be entered on their journals. shall vote in favor thereof. the legislature shall at the next session provide by a law for calling the same. The convention shall consist of not less than the number of members in both branches of the Legislature. not less than double that of the most numerous branch of the legislature. they shall recommend to the electors to vote at the next general election. Constitutional convention. voting separately. elected to each branch of the Legislature. Any amendment or amendments to this Constitution may be proposed in either branch of the legislature. Revision of the Constitution by convention. such amendment or amendments shall become a part of this constitution. Sec. Whenever two-thirds of the members elected to each branch of the legislature shall deem it necessary to call a convention to revise or amend this constitution. and it shall be the duty of the legislature to submit such amendment or amendments to the electors of the state at the next general election. If two or more amendments are proposed. and if a majority of all the electors voting at such election shall have voted for a convention. by his proclamation. Article IV of this Constitution. Amendments. published in each county. if it appears to the Governor that the majority of the votes cast in the election on the proposed revision are in favor of the proposed revision. New constitution. 1. Procedure for amendments. Sec. voting at such election. 3. for two months immediately preceding the next general election. if a majority of all the electors. 2. shall provide by law for calling the same. Wyoming (1890) Art. How voted for. and. 1. 14. The Legislature. and such convention shall consist of a number of members. Sec. such proposed amendment or amendments shall be entered on their respective journals with the yeas and nays taken thereon. except when the Legislative Assembly orders a special election for that purpose. shall vote for a convention. at the next regular state-wide primary election. declare. with the yeas and nays thereon. and if a majority of the electors shall ratify the same. in at least one newspaper of general circulation. they shall be so submitted as to enable the electors to vote on each of them separately. method of proposal and approval. Sec. against a convention. such amendment or amendments shall become part of this Constitution.

the hearing lasted five days. states that "all elections of public officers except barrio officials andplebiscites shall be conducted in the manner provided by this Code. of registration and the custody thereof. The manner of conducting elections and plebiscites provided by the Code is spelled out in other sections thereof. the rules for appreciation of ballots. literacy and residence. J. As it turned out. and ratified in a plebiscite held on following May 14. 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. 1102) was not an act of ratification.. J. and could not have been more exhaustive if the petitions had been given due course from the beginning. 1935. because it was not in accordance with the existing Constitution (of 1935) and the Election Code of 1971. Section 99 requires that qualified voters be registered in a permanent list. 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. 369 370 . but to our mind they are merely subordinate and peripheral. for approval. 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). It was in this sense that word was used by the framers in Article XV (also in Articles VI and VII). and then the canvass and proclamation of the results. morning and afternoon.. of the 1935 Constitution on the basis of age (21). the records. Succeeding sections prescribe the election paraphernalia to be used." the provision of Article XV regarding ratification of constitutional amendments. The major thrust of the petitions is that the act of the Citizens Assemblies as certified and proclaimed by the President on January 17." This is a statutory requirement designed. Section 1. It was not a vague and amorphous concept. or their will on important matters submitted to the pursuant to law. the word "election" had already a definite meaning in our law and jurisprudence. the qualifications being those set forth in Article V. and with specific reference to the term "plebiscites. the procedure for registering voters. Section 1. Considering on the one hand the urgency of the matter and on the other hand its transcendental importance." At the time Constitution was approved by the Constitutional Convention on February 8. concurring: CASTRO. which suggested the need for hearing the side of the respondents before that preliminary question was resolved.Constitutional Law I L-36142 Constitutional Law I L-36142 Separate Opinions MAKALINTAL. Article XV. let alone a valid one. the description and printing of official ballots. 1973 (Proclamation No. The Election Code of 1971. concurring: The preliminary question before this Court was whether or not the petitioners had made out a sufficient prima faciecase in their petitions to justify their being given due course. Section 102 enumerates the classes of persons disqualified to vote. 1947 (Parity Amendment). in its Section 2. of the proposed Constitution. but a procedure prescribed by statute ascertaining the people's choices among candidates for public offices. eligibility of the President and the Vice President for re election. creation of the Commission of Elections). the actual casting of votes and their subsequent counting by the boards of inspectors. 1940 (establishment of a bicameral legislature. as were the other election laws previously in force. 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. thus: in 1939 (Ordinance appended to the Constitution). Other grounds are relied upon by the petitioners in support of their basic proposition. These qualifications are reiterated in Section 101 of the Election Code. to carry out the constitutional mandate relative to the exercise of the right suffrage.

in an election or plebiscite held in accordance with law and participated in only by qualified and duly registered voters. 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. 2 passed by Congress on March 16. proposing "to President Ferdinand E.Constitutional Law I L-36142 Constitutional Law I L-36142 With specific reference to the ratification of the 1972 draft Constitution. (g) canvass of plebiscite returns. 5843. 1973. The same procedure is prescribed in Article XVI. This Constitution shall take effect immediately upon its ratification by a majority of the votes cast in a plebiscite called for the purpose and. at which the proposed Constitution "shall be submitted to the people for ratification or rejection. Commission on Elections. 7. (b) freedom of information and discussion. 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. 1971 (41 SCRA 702). 73 on the same day. so as to enable the youth to be thus enfranchised to participate in the plebiscite for the ratification of such other amendments later. that is. instead of plural. calling a plebiscite to be held on January 15. October 16. 16. (3) After the draft Constitution was approved by the Constitutional Convention on November 30. 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. Section 16. The amendments proposed by the Convention shall be valid and considered part of the Constitution when approved by a majority of the votes cast in an election at which they are submitted to the people for their ratification pursuant to Article XV of the Constitution. This Court held that such separate submission was violative of Article XV." Pursuant to said Resolution the President issued Decree No. except as herein provided. (f) manner of voting to insure freedom and secrecy thereof. L-34150. such as: (a) publication of the proposed Constitution in English and Pilipino. prescribing in detail the different steps to be taken to carry out the process of ratification. 1972 the said body adopted Resolution No. (e) printing of official ballots." The Decree had eighteen (18) sections in all. and (h) in general. which provides: Sec. 1967. 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. with the Commission on Elections exercising its constitutional and statutory powers of supervision of the entire process. compliance with the provisions of the Election Code of 1971. shall supersede the Constitution of nineteen hundred and thirty-five and all amendments thereto. (2) Article XVII. (c) registration of voters: (d) appointment of boards of election inspectors and designation of watchers in each precinct. No. of the draft itself states: Sec. several additional circumstances should be considered: (1) This draft was prepared and approved by a Convention which had been convened pursuant to Resolution No. for the ratification of any future amendment to or revision of the said Constitution. 371 372 . Indeed. Marcos that a decree be issued calling aplebiscite for the ratification of the proposed New Constitution on such appropriate date as he shall determine and providing for the necessary funds therefor." * Thus a grammatical construction based on a singular. which contemplated that "all the amendments to be proposed by the same Convention must be submitted to the people in a single "election" or plebiscite. Section 1. Section 2. of the Constitution.

the Assemblies were convened for a referendum between January 10 and 15. 73) for the ratification of the Constitution. 1973. thus: COMMENTS ON QUESTION No. it was reported that six additional questions would be submitted. and that he was considering two new dates for the purpose February 19 or March 5. The Citizens Assemblies which purportedly ratified the draft Constitution were created by Presidential Decree No. 1972. district or ward for at least six months. 1973 the newspapers came out with a list of four questions to be submitted to the Citizens Assemblies. 1973 (Presidential Decree No. it may likewise be noted. January 11. the convening of Congress on January 22. and that copies of the new Constitution would be distributed in eight dialects the people. 1973 accordance with the provisions of the 1935 Constitution? (5) If the elections would not be held. 1973. COMELEC. like the holding of the plebiscite on the new Constitution. district or ward secretary. 86 dated December 31." By Presidential Decree No. "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. as in Tolentino vs. 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 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. was that the Assemblies should express their views as to the plebiscite should be held.Constitutional Law I L-36142 Constitutional Law I L-36142 In the cases now before Us what is at issue is not merely the ratification of just one amendment. the continuation of martial rule. 1973. when do you want the next elections to be called? (6) Do you want martial law to continue? [Bulletin Today. 1 373 374 . 73) be extended to accommodate new voters. not as to whether or not it should be held at all. that he had ordered that the registration of voters (pursuant to Decree No. Appended to the six additional questions above quoted were the suggested answers. 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. 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. fifteen years of age or over. 1972. and the holding of elections in November 1973." The Assemblies "shall consist of all persons who are residents of the barrio. December 24.) On January 10. The question concerning plebiscite was reworded as follows: "Do you like the plebiscite to be held later?" The implication. citizens of the Philippines and who are registered in the lists of Citizen Assembly members kept by the barrio. (Bulletin Today. January 11. The next day. dated January 5. 86-A." On January 5. to "consider vital national issues now confronting the country. but the ratification of an entire charter setting up a new form of government. emphasis supplied].

QUESTION No. QUESTION No. that the plebiscite should be done away with and a favorable vote by the Assemblies deemed equivalent ratification. 6 We want President Marcos to continue with Martial Law. for the first time. We want him to be strong and firm so that he can accomplish all his reform program and establish normalcy in the country. however. Section 1. 1973. but in the suggested answer to question No. The vote of the Citizens Assemblies should already be considered the plebiscite on the New Constitution. So it was that on January 11. QUESTION No. Strangely. QUESTION No. then the new Constitution should be deemed ratified. assuming that such voting was held. This was done. 3 If the Citizens Assemblies approve of the New Constitution. If all other measures fail. the suggestion was broached. not in the questionnaire itself. the second day of the purported referendum. We want him to exercise his powers with more authority. 4 We are sick and tired of too frequent elections. was not within the intendment of Article XV. The referendum can by no means be considered as the plebiscite 375 376 . of the 1935 Constitution nor in accordance with the Election Code of 1971. There should be no serious dispute as to the fact that the manner in which the voting was conducted in the Citizen Assemblies. it was not similarly suggested that an unfavorable vote be considered as rejection.Constitutional Law I L-36142 Constitutional Law I L-36142 In order to broaden the base of citizens' participation in government. for reforms to take root and normalcy to return. we want President Marcos to declare a revolutionary government along the lines of the new Constitution without the ad interim Assembly. QUESTION No. We are fed up with politics. 5 Probably a period of at least seven (7) years moratorium on elections will be enough for stability to be established in the country. 3. it should not be done so until after at least seven (7) years from the approval of the New Constitution by the Citizens Assemblies. Or if it is to be convened at all. 2 But we do not want the Ad Interim Assembly to be convoked. of so many debates and so much expenses.

to resolve which considerations other than judicial. No question of wisdom or of policy is involved. Senator Arturo Tolentino. No set of rules for counting the votes or of tabulating them and reporting the figures was prescribed or followed. The suggestion misses the point entirely. 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. which is one of the essential features of the election process. 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. or ex convicts * these being the classes of persons expressly disqualified from voting by Section 102 of the Election Code. either by way of supervision or in the assessment of the results. or as the election intended by Congress when it passed Resolution No. In short. Respondents Gil J. 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. and therefore beyond the competence of this Court. 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. in our opinion. which is the constitutional body charged with the enforcement and administration of all laws relative to the conduct of elections. of the 1935 Constitution and with the Election Code of 1971. 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. whose theory may be taken as the official position of the Government. took no part at all. which was converted by act of the people to the present de jure government under the 1973 Constitution. of the draft Constitution itself. Section 16. The effectivity of the said Constitution. namely. that is. and for that reason give due course to these petitions or grant the writs herein prayed for. challenge the jurisdiction of this Court on the ground that the questions raised in the petitions are political and therefore non-justiciable. Several theories have been advanced respectively by the parties. But from this finding it does not necessarily follow that this Court may justifiably declare that the Constitution has not become effective. of the Election Code and of other related laws and official acts. Section 1. in their respective capacities as President and President Pro Tempore of the Senate of the Philippines. let alone registered voters. The Commission on Elections. in the final analysis. Secrecy. It has been suggested that since according to Proclamation No. is the basic and ultimate question posed by these cases. feeble-minded. it was done mostly by acclamation or open show of hands. that approval of the 1973 Constitution by the people was made under a revolutionary government. 2 on March 16. is on a matter which is essentially justiciable. 1967 calling a Convention for the revision of the 1935 Constitution. and to conclude that it exists even if it has not been ascertained according to law is simply to beg the issue. Such a finding. or to assume the very fact to be established. are relevant and unavoidable. in the course of a successful political revolution. However. within the power of this Court to inquire into. 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. but on a ground not concurred in by the Solicitor General. Puyat and Jose Roy (in L-36165). a finding that the ratification of the draft Constitution by the Citizens Assemblies. was not therefore observed. In other words the very existence of such majority or plurality depends upon the manner of its ascertainment. The Citizens Assemblies were not limited to qualified.Constitutional Law I L-36142 Constitutional Law I L-36142 contemplated in Section 2 of said Code and in Article XVII." 377 378 . It imports nothing more than a simple reading and application of the pertinent provisions of the 1935 Constitution. the constitutional and statutory qualifications were not considered in the determination of who should participate. The respondents represented by the Solicitor General. as certified by the President in Proclamation No. and regardless of whether or not they were illiterates. likewise invoke the political question doctrine. and through their counsel. but included all citizens from the age of fifteen. No official ballots were used in the voting.

it is averred. dated September 24. and the latter by not convening on January 22. 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.Constitutional Law I L-36142 Constitutional Law I L-36142 Heretofore. curiously enough. 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. such as "those involving the validity. * The theory advanced by Senator Tolentino. as ordained by the 1935 Constitution." By this order. 3-A. The logic of the political-question doctrine is illustrated in statement of the U. as counsel for respondents Puyat and Roy. as necessary corollary. or constitutionality of Proclamation No. in defiance of the existing Constitution but peacefully because of the absence of any appreciable opposition. that the Constitution was in full force and effect. ordained a new Constitution and succeeded in having the government operate under it. 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. of the 1973 Constitution. legality. including all its agencies and instrumentalities. 3 as amended by General Order No. is based on realities. trenched upon the domain of the judiciary. or of any decree. who disagrees with the revolutionary government theory of Senator Tolentino. 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. If they had risen up in arms and by force deposed the then existing government and set up a new government in its place. is political and therefore non-judicial in nature. order or act issued. may be taken up and restated at same length if only because it would constitute. and so courts forbear to take cognizance of the question but leave it to be decided through political means. promulgated or performed by me or by my duly designated representative pursuant thereto. whether or not the government legitimately functions under it instead of under the 1935 Constitution.) The ratification by the Citizens Assemblies. Under such a postulate what the people did in the Citizen Assemblies should be taken as an exercise of the ultimate sovereign power. was the culminating act of the revolution. and shall exercise all the powers and prerogatives appurtenant and incident to my position as such Commanderin-Chief of all the Armed Forces of the Philippines. it is pointed out. legislative. if no force had been resorted to and the people. by the Solicitor General. which thereupon converted the government into a de jure one under the 1973 Constitution. judicial dictum can prevail against it. and judicial. wherein he proclaimed "that I shall govern the nation and direct the operation of the entire government. 1 the next day. Senator Tolentino contends that after President Marcos declared martial law on September 21. with the power and authority of the entire Government behind it. The process employed was one of interpretation and synthesis. 1972. 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. the most convenient ground for the invocation of the political-question doctrine. Against such a reality there can be no adequate judicial relief. 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. in some instances. The case involved the issue of which of two opposing 379 380 . Supreme Court in a case * relied upon. If a new government gains authority and dominance through force. the Commander-in-Chief of the Armed Forces assumed all the powers of government executive. constitutional disputes which have come before this Court for adjudication proceeded on the assumption. 1081) he established a revolutionary government when he issued General Order No. albeit peaceful. by removing from its jurisdiction certain classes of cases. We do not see that situation would be any different. if sustained. conceded by all. 1081. in the context just set forth. Section 2. 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. then the issue of whether or not that Constitution has become effective and. it can be effectively challenged only by a stronger force. 1972 (Proclamation No.S." (General Order No. as far as the doctrine of judicial review is concerned. in my capacity. 1973 or at any time thereafter. In support of his theory.

Dec. which defy judicial analysis and adjudication. The more relevant consideration. Dec. 1973 under Presidential Decree No." (Bulletin Today. 1972)." In other words. (1) The Citizens Assemblies were created. for recommendation imports recognition of some higher authority in whom the final decision rests. 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 381 382 . place. 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. 86. the Katipunan ng mga Barangay has strongly recommended that the new Constitution should already be deemed ratified by the Filipino people. and that "the postponement would give us more time to debate on the merits of the Charter. in proclaiming that the Constitution had been ratified. "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. But then the President. In fact the plebiscite planned for January 15. 1972). should be as to what the President had in mind in convening the Citizens Assemblies. 24. as submitted to them on the particular point at issue here. which uniformly held that the inquiry belonged to the political power and not to the judicial. submitting the Constitution to them and proclaiming that the favorable expression of their views was an act of ratification. therefore. the reasons for the postponement being." (5) There was not enough time for the Citizens Assemblies to really familiarize themselves with the Constitution. it necessarily affirms the existence and authority of the government under which it is exercising judicial power. are necessarily involved. 22. If it decides at all as a court. The issue had previously come up in several other cases before the courts of the State. 1973. since the court would have no choice but to decide in one way alone in order to be able to decide at all. 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. 73 had been postponed to an indefinite date. 1972." (3) The question. pursuant to such recommendation.Constitutional Law I L-36142 Constitutional Law I L-36142 governments struggling for supremacy in the State of Rhode Island was the lawful one. In the first. but only for the expression of their views on a consultative basis. the U. as attributed to the President in the newspapers. was "Do you a approve of the Constitution?" (4) President Marcos. with specific reference to the questioned ratification. 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. It should be noted that the above statement from Luther vs. Commenting on the ruling thus arrived at. several significant circumstances may be noted. the question could not be considered proper for judicial determination.) 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. that he would base his decision (as to the date. However. much less with the many other subjects that were submitted to them. Indeed. according to Presidential Decree No. 23. In this respect subjective factors. we are not prepared to agree that the premise is justified. 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. it would cease to be a court." (2) The President announced. according to the Daily Express of January 2. that "the referendum will be in the nature of a loose consultation with the people.S. and incapable of pronouncing a judicial decision upon the question it undertook to try. Supreme Court said: "And if a State court should enter upon the inquiry proposed in this case. that "there was little time to campaign for or against ratification" (Daily Express. did proclaim that the Constitution had been ratified and had come into effect. as far as we can see. and should come to the conclusion that the government under which it acted had been put aside and displaced by an opposing government. Dec.

. they will rise up in arms not in revolt against the Republic but in protection of the Republic which they have installed. 1102 the President made pointed reference to "the demand of some of our citizens . It is quite clear when the people say.... But we cannot disqualify the people from speaking on what we and the people consider purely political matters especially those that affect the fundamental law of the land.. our lives. The pivotal question is rather whether or not the effectivity of the said Constitution by virtue of Presidential Proclamation No. he said: I reiterate what I have said in the past: there is no turning back for our people.. Jan.. that when all other measures should fail. regardless of non-compliance with the pertinent constitutional and statutory provisions prescribing the procedure for ratification. (A Report to the Nation. On one hand we read. was intended to be definite and irrevocable. The implications of disregarding the people's will are too awesome to be even considered. We have burned our bridges behind us. our destiny. on matters that may come before the experts and interpreters of the law. that they mean they will not discard.. For if any power in government should even dare to disregard the people's will there would be valid ground for revolt. Let no man misunderstand the strength of our resolution. on justiciable matters.. the following public statements of the President: Speaking about the proclamation of martial law." "(I)t is my feeling.. 1973. We can. We have committed ourselves to this revolution. the Constitution. our fortunes. from which the following portion is quoted: .. among other things: . 1102.. for instance. 7... . perhaps delimit the power of the people to speak on legal matters. 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.. 1102 on January 17. We have pledged to it our future. "that the Citizens' Assemblies which submitted this recommendation merely sought articulate their impatience with the status 383 384 . 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." but in the next breath added: ".. how can we speak of Revolutionary Government? They cannot be compatible . if we do ratify the Constitution. 1973 the Daily Express published statement of the President made the day before. The political questions that were presented to the people are exactly those that refer to the form of government which the people want . On January 19.) On the occasion of the signing of Proclamation No. 1973. 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. upon the recommendation of the Katipunan ng mga Barangay. the President said the following. On the same occasion of the signing of Proclamation No." he said. . that the President be directed to organize and establish a Revolutionary Government.Constitutional Law I L-36142 Constitutional Law I L-36142 one. we ratify the Constitution.

and legal.. We must now defend the Republic with the stronger powers of the Constitution. confusion and misery. in all fairness and honesty. because that would be the only other way to carry out the reforms he had envisioned and initiated reforms which. pp... he would heed the recommendation of the Citizens' Assemblies to establish a revolutionary government. 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. it is that the step taken in connection with the ratification of the Constitution was meant to be irreversible.. the following appears: xxx xxx xxx Q. revolution is of necessity. I have had to use this constitutional power in order that we may not completely lose the civil rights and freedom which we cherish. because precisely the Constitution had been ratified. 1-12. In his TV address of September 23. . in his opinion. In "Today's Revolution: Democracy" he says: I believe.. And if this is a correct and accurate assessment of the situation. namely. The third obvious alternative was entirely ruled out. If there is any significance. We are against the wall.. by avowals no less significant if not so emphatic in terms. (Vital Documents. a return to the 1935 Constitution." 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. except only in the field of civil liberties. emphasis supplied). both explicit and implicit. but that in a democratic society. The Government of the Republic of the Philippines which was established by our people in 1946 continues.. the latter being unnecessary. President Marcos has professed fealty to the Constitution. in the necessity of Revolution as an instrument of individual and social change . confusion and misery to the masses . won't you be in serious trouble if you 385 386 . peaceful. this is not a military takeover of civil government functions. xxx xxx xxx I repeat. constitutional.. and certainly unmistakable. in the foregoing pronouncements. In the report of an interview granted by the President to the Newsweek Magazine (published in the issue of January 29. for it was thestatus quo under that Constitution that had caused "anarchy. Now that you have gotten off the constitutional track. therefore. the matter lies beyond the power of judicial review.Constitutional Law I L-36142 Constitutional Law I L-36142 quo that has brought about anarchy." The message seems clear: rather than return to such status quo. On the other hand. must be given credit for the improved quality of life in its many aspects.. 1973). 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 assure you that I am utilizing this power vested in me by the Constitution to save the Republic and reform our society. and that nothing anyone could say would make the least difference. 1972.

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. as they were reported to him. xxx xxx xxx In the light of this seeming ambivalence. we have no means of knowing. To interpret the Constitution that is judicial. whether the people have accepted the Constitution. We have not tarried on the point at all since we find no reliable basis on which to form a judgment. and they are better informed than my contemporaries at that age. is in no position to pass judgment. That the Constitution should be deemed in effect because of popular acquiescence that is political. it is constitutional because the Constitution provides for it in the event of invasion. to our mind. 387 388 . to the point of judicial certainty. has found acceptance among the people. 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. In articulating our view that the procedure of ratification that was followed was not in accordance with the 1935 Constitution and related statutes. If he should decide that there is no turning back. then judicial review is out of the question. demand that the action he took pursuant thereto be final and irrevocable.Constitutional Law I L-36142 Constitutional Law I L-36142 run into critical problems with your programs? R. rebellion or immediate danger thereof. we do not find the issue decisive insofar as our vote in these cases is concerned. The President should now perhaps decide. if he has not already decided. we have allowed 15year-olds the right to vote. The only thing is that instead of 18-yearolds voting. with the free expression of opinions through the usual media vehicles restricted. Under a regime of martial law. I have never gotten off the constitutional track. the choice of what course of action to pursue belongs to the President. if only to dispel any cloud of doubt that may now and in the future shroud the nation's Charter. On the matter of whether it is constitutional to proclaim martial law. since its submission to the Citizens Assemblies. But the 15-year-olds of today are high-school students. In the deliberations of this Court one of the issues formulated for resolution is whether or not the new Constitution. whether adherence to such procedure is weighty enough a consideration. we have discharged our sworn duty as we conceive it to be. We therefore vote not to give due course to the instant petitions. if not graduates. In any event. Everything I am doing is in accordance with the 1935 Constitution. and therefore beyond the domain of judicial review. You must remember this (martial law provision) was lifted from the American legislation that was the fundamental law of our country. insurrection. We have earlier made reference to subjective factors on which this Court. that what the people recommended through the Citizens Assemblies. such issue being related to the political question theory propounded by the respondents.

Known as the Constitutional Convention of 1971. An attempt was made to have the Convention recessed until after the lifting of martial law. 1973. 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. J. after further reflection. Republic Act 6132. If indeed this explanation may be considered as a modification of my rationalization then. 1940 of the re-election of the President. Tañada on January 15. in my estimation. and considering that I reserved before the filing of a more extended opinion. They revolve around the purported ratification of the Constitution of 1973 declared in Proclamation 1102 issued by the President on January 17. 1971. and not long after the motion of Delegate Kalaw to such effect was turned down.. and by the third quarter of 1972 had finished deliberations and second-reading voting only on an insignificant number of proposals until September 21. After encountering a lot of difficulties. not altogether unexpectedly. nothing more cogent and compelling than what had already been previously presented by Counsel Tañada is before Us now. more extensive and illuminating arguments were heard by Us. the bicameral legislature and the Commission on Elections. but. brilliance and eloquence of counsels. 1973. Generally. 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. when the President. Accordingly. to dismiss them. rejecting the proposed increase in the members of the House of Representatives and eligibility of members of Congress to the Constitutional Convention. more than as a legal. not necessarily as a consequence of the revolutionary concept previously suggested by me. that the vote of the people in the referendum in the Citizens Assemblies held on January 10 to 15. therefore. 1970. 1978. delegates to a constitutional convention to propose amendments to the Constitution of 1935 were elected in accordance with the implementing law. the activities within the assembly shifted to high gear. on November 10. I regard the present petitions as no more than mere reiterations of the Supplemental Petitions filed by Counsel Lorenzo M. but upon the ground that as a political. 1973 in the so called Plebiscite Cases decided by this Court on January 22. Pursuant to a joint resolution of the Congress sitting as a constituent assembly approved on March 16. 1937 of women's suffrage. the result of the referendum may be construed as a compliance with the substantiality of Article XV of the 1935 Constitution. yet abruptly. 1939 of the amendments to the Ordinance Appended to the Constitution. the assembly began its sessions on June 1. I reiterate. I The facts that gave rise to these proceedings are historical and well known. 1967. I will take this opportunity to explain further why I hold that the 1973 Constitution is already in force. upon the result of which Proclamation 1102 is based. namely. of the transcendental importance of the issues before the Court and the significance to our people and in history of the individual stands of the members of the Court in relation to said issues and to the final outcome of these cases. 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. however. As 389 390 .Constitutional Law I BARREDO. and with due recognition of the sincerety. the delegates went about their work in comparatively slow pace. 1972. As I shall elucidate anon. 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. if only to clarify that apart from the people's right of revolution to which I made pointed reference in my previous opinion. 1947 of the parity amendment and 1967. concurring: L-36142 Constitutional Law I L-36142 As far as I am concerned. issued Proclamation 1081 declaring martial law throughout the country. In view. Of course. I can see now. may be deemed as a valid ratification substantially in compliance with the basic intent of Article XV of the 1935 Constitution. act of the people. due to bitter rivalries over important positions and committees and an incomprehensible fear of overconcentrating powers in their officers. they may be taken judicial notice of. the vote I cast when these petitions were initially considered by the Court. I cannot see any reason why I should change the position I took in regard to the earlier cases.

1972. "that the plebiscite scheduled to be held January 15. WHEREAS. the convention gathered swift momentum in its work. 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. subsequently. the Convention had Resolution No. 1973. however. 73 submitting the draft constitution for ratification by the people at a plebiscite set for January 15. to last very long. General Order No. 1972. both local and national. 17 was issued ordering and enjoining the authorities to allow and encourage public and free discussions on proposed constitution. In the meanwhile also. on the basis of preliminary and initial reports from the field as gathered from barangays (citizens assemblies) that have so far been established. December 1. 1972. there was full and unlimited coverage of the workings in the convention by the mass media. Not only this. In connection with the plebiscite thus contemplated. 1973. 86-A STRENGTHENING AND DEFINING THE ROLE OF BARANGAYS (CITIZENS ASSEMBLIES) WHEREAS. be postponed until further notice". 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. 1973. the President issued Presidential Decree. it approved by overwhelming vote the draft of a complete constitution. the President. General Order No. In the meantime. withdrew said orders and enjoined full and stricter implementation of martial law. Needless to say. Earlier. the President had issued on December 3. before martial law was declared. and 391 392 . public debates and discussions on various aspects of proposed amendments were not uncommon. instead of mere specific amendments of particular portions of the Constitution of 1935. on November 22. On January 7. under date of December 17. the barangays (citizens assemblies) would like themselves to be the vehicle for expressing the views of the people on important national issues. and on November 30. the President ordered. 1973. the same order of January 7. the President issued 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. on January 5. No.Constitutional Law I L-36142 Constitutional Law I L-36142 if unmindful of the arrest and continued detention of several of its members. 1972 Presidential Decree No." Acting under this authority. the people would like to decide for themselves questions or issues. 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. affecting their day-to-day lives and their future. 1972. 1973. such barangays (citizens assemblies) desire that they be given legal status and due recognition as constituting the genuine. 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. WHEREAS. At the same time. 20. 86-A providing as follows: PRESIDENTIAL DECREE NO. These two orders were not. legitimate and valid expression of the popular will.

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. MARCOS. this was followed by Presidential Decree No. on the basis of the said petitions. 1973. including those specified in paragraph 2 hereof. The barangays (citizens assemblies) shall conduct between January 10 and 15. and the holding of elections in November 1973. wherever practicable. and others in the future. 3. 1973. the convening of Congress on January 22. pursuant to express will of the people as reflected in the reports gathered from the many thousands of barangays (citizens assemblies) throughout the country. FERDINAND E. And on January 7. 1973. since their creation pursuant to Presidential Decree No. 86 dated December 31. 1972. like the holding of the plebiscite on the new Constitution. which shall serve as guide or basis for action or decision by the national government. this 5th day of January. 86-B reading thus: PRESIDENTIAL DECREE NO. Done in the City of Manila.Constitutional Law I L-36142 Constitutional Law I L-36142 WHEREAS. do hereby declare as part of the law of the land the following: 1. in the year of Our Lord. shall be translated into concrete and specific decision. nineteen hundred and seventy three. 86 dated December 31. by virtue of the powers vested in me by the Constitution as Commander-in-Chief of all Armed Forces of the Philippines. Such barangays (citizens assemblies) shall consider vital national issues now confronting the country. a referendum on important national issues. WHEREAS. President of the Philippines. The present barangays (citizens assemblies) are created under Presidential Decree No. it is evident that the people believe that the 393 394 . and submit results thereof to the Department of Local Governments Community Development immediately thereafter. 1972. and the elections in November 1973 pursuant to the 1935 Constitution. the Barangays (Citizens Assemblies) have petitioned the Office of the President to submit them for resolution important national issues. THEREFORE. one of the questions persistently mentioned refers to the ratification of the Constitution proposed by the 1971 Constitutional Convention. This Decree shall take effect immediately. 86-B DEFINING FURTHER THE ROLE OF BARANGAYS (CITIZENS ASSEMBLIES) WHEREAS. the continuation of martial rule. the people would like the citizens assemblies to conduct immediately a referendum on certain specified questions such as the ratification of the new Constitution. 4. continuance of martial law. the convening of Congress on January 22. WHEREAS. I. NOW. 2. 1973.

86-A dated January 5. and that it is now necessary to bring this down to the level of the people themselves through the Barangays or Citizens Assemblies. 1973. by virtue of the powers in me vested by the Constitution. It may assumed that the said "comments" came from official sources. 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. this 7th day of January in the year of Our Lord. 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. As petitioners point out. albeit specifically unidentified. President of the Philippines. The Secretary of the Department of Local Governments and Community Development shall insure the implementation of this Order. 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. 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?. And so it was that by January 10. economic and social fields. but on January 11. 1973. Done in the City of Manila.Constitutional Law I L-36142 Constitutional Law I L-36142 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. the most relevant of these "comments" were the following: COMMENTS ON 395 396 . 1973 and that the initial referendum shall include the matter of ratification of the Constitution proposed by the 1971 Constitutional Convention. 1973 in accordance with the provisions of the 1935 Constitution? (5) If the elections would not be held. FERDINAND E. nineteen hundred and seventy-three. MARCOS. when the Citizens Assemblies thus created started the referendum which was held from said date to January 15. 1973. I. NOW THEREFORE.

telephone. The last figures were tabulated at 12 midnight of January 16. WHEREAS. the Constitution proposed by the nineteen hundred seventy-one Constitutional Convention is subject to ratification by the Filipino people. QUESTION No. it should not be done so until after at least seven (7) years from the approval of the New Constitution by the Citizens Assemblies. Said proclamation reads: PROCLAMATION NO. 2 L-36142 Constitutional Law I L-36142 But we do not want the Ad Interim Assembly to be convoke. Or if it is to be convened at all. 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. the Department of Public Information Network System.Constitutional Law I xxx xxx xxx QUESTION No. the Weather Bureau Communication System connecting all provincial capitals and the National Civil Defense Network connecting all provincial capitals. the results of the voting were collated and sent to the Department of Local Governments. the 11 regions submitted the figures they received from the field to the central committee to tabulate the returns. and there seems to be showing otherwise. 1973 and early morning of January 17. Every afternoon at 2:00 o'clock. If the Citizens Assemblies approve of the new Constitution then the new Constitution should be deemed ratified. The development culminated in the issuance by the President of Proclamation 1102 on January 17. The certificates of results were then flown to Manila to confirm the previous figures received by the aforementioned means of transmission. the SSB communication of the PACD connecting most provinces. 3 The vote of the Citizens Assemblies should already be considered the plebiscite on the New Constitution. the provincial government SSB System in each province connecting all towns. 1973. 1102 ANNOUNCING THE RATIFICATION BY THE FILIPINO PEOPLE OF THE CONSTITUTION PROPOSED BY THE 1971 CONSTITUTIONAL CONVENTION. The Solicitor General claims. 1973 and were then communicated to the President by the Department of Local Governments. 397 398 . The certificates of results tallied with the previous figures taken with the exception of few cases of clerical errors. that the results of the referendum were determined in the following manner: Thereafter. The transmission of the results was made by telegram.

869) who voted for its rejection. district or ward for at least six months. WHEREAS. 6. The first attempt to question the steps just enumerated taken by the President was in the so-called Plebiscite Cases. dated December 31. I have hereunto set my hand and caused the seal of the Republic of the Philippines to be affixed. responding to the clamor of the people an pursuant to Presidential Decree No. 1972. Done in the City of Manila.298. in the year of Our Lord. 1 Their common target then was Presidential Decree No. President of the Philippines. ten in number. 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.Constitutional Law I L-36142 Constitutional Law I L-36142 WHEREAS. which were filed by different petitioners during the first half of December 1972.976. NOW. and has thereby come into effect. by virtue of the powers in me vested by the Constitution. as against seven hundred forty-three thousand eight hundred sixty nine (743. FERDINAND E. fourteen million nine hundred seventysix thousand five hundred sixty one (14. 86-A. fifteen years of age or over. I. composed of all persons who are residents of the barrio. Citizens Assemblies were created in barrios in municipalities and in districts/wards in chartered cities pursuant to Presidential Decree No. 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. but before the said cases could be decided.561) members of all the Barangays (Citizens Assemblies) voted for the adoption of the proposed Constitution. 1973. district or ward secretary.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. 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 ninetyeight thousand eight hundred fourteen (14. 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. nineteen hundred and seventy-three. the Katipunan ng Mga Barangay has strongly recommended that the new Constitution should already be deemed ratified by the Filipino people. the series of moves tending in effect to make them 399 400 . citizens of the Philippines and who are registered in the list of Citizen Assembly members kept by the barrio. dated January 5. THEREFORE. IN WITNESS WHEREOF. 73. WHEREAS. MARCOS. this 17th day of January.

What a disgrace it would be to admit that this Supreme Court does not know. and so. makes of these cases which were filed after January 17. filed on January 15. 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. 1973 were known. 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. Withal. from the 11-man tribunal under the 1935 Constitution to a 15-man Court. the cases had become academic. Antonio and Esguerra also believed. and in the mind of the majority of the members of the Court. Reacting swiftly. which is a political determination not within the Court's competence. before the hour of the hearing of the petition which set for 9:30 o'clock in the morning of that day. who have been sued as President and President Pro Tempore of the Senate. also above quoted. For my part. Suffice it to state no that before the hearing could be closed and while Counsel Tañada was still insisting on his prayer for preliminary injunction or restraining order. And when Presidential Decree No. political nature and beyond our jurisdiction. scholars and researchers who 401 402 . I find myself confronted by a matter which. 1973 the date when Proclamation 1102 declared the new Constitution as ratified. although believed to be inconsequential by my learned brethren. In other words. as Justices Zaldivar. his supplemental motion seeking the prohibition against and injunction of the proceedings going on. together with the "comments". whether it is fish or fowl. 86-A. to the effect that change in the composition of the Supreme Court provided for the 1973 Constitution. 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. petitioners sensed that a new and unorthodox procedure was being adopted to secure approval by the people of the new Constitution. January 17th. it would be prejudging the very matter in issue one way or the other. Tolentino for respondent Gil J. and. evidently. I refer to the point raised by Counsel Arturo M. 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. for lack. it would be faced with the dilemma that if it acts either as the former or as the latter. declaring that the new Constitution had been ratified. inasmuch as Counsel Tañada's pleading and argument had anticipated its issuance. it would be choosing between two constitutions. according them. not being satisfied with the fate of his urgent motion for early decision of the above ten cases dated January 12. of full ventilation.Constitutional Law I L-36142 Constitutional Law I L-36142 moot and academic insofar as they referred exclusively to the said Presidential Decree began to take shape upon the issuance of Presidential Decree No. 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. but the majority felt it was not ready to resolve the matter. 1973. the decision reserved petitioners the filing of the "appropriate" cases. which was Monday. While I agree that the problem is at first blush rather involved. 86-B. I strongly feel needs special attention. the Court resolved on the same day. much less lacking in courage or wisdom to resolve an issue that relates directly to its own composition. 1973. was issued and the six additional questions which were first publicized on January 11. I took the view that even on the basis of the supplemental petition and the answer thereto filed by respondents. quoted above. to use a common apt expression. in effect. Puyat and Jose Roy. the Court could already decide on the fundamental issue of the validity Proclamation 1102. 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. the present ones. 1973 and need not be repeated here. I feel very strongly that the issue should not be ignored or dodged. executive agreement 2 or law. to consider the supplemental motion as a supplemental petition and to require the respondents to answer the same the next Wednesday. II At the threshold. 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. the valiant and persistent efforts of petitioners and their counsels were overtaken by adverse developments. January 15. in which event. hence Counsel Tañada.

the smooth running of the government would have to depend entirely on the unanimity of opinions among all its departments. 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. as otherwise. It is undeniable that the whole government. if we are acting as the 11-man Court. hence. I am against leaving such an important point open to speculation. unless it is assumed that only the judges have the exclusive prerogative of making and enforcing the law. which is hardly possible. Stated differently. By nature I am averse to ambiguity and equivocation and as a member of the Supreme Court. not only because if that were to be the rule. Indeed. there had been the requisite number of votes for a valid collegiate action. 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. We intended to mean the implementation or enforcement of the new Constitution now being done could continue. 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. because the courts must at the first instance accord due respect to the acts of the other departments. indeed.Constitutional Law I L-36142 Constitutional Law I L-36142 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. according to what law and other considerations inherent to our function dictate. 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. presidential orders and decrees of the most legislative character affecting practically every aspect of governmental and private activity as well as the relations between the government and the citizenry are pouring out from Malacañang under the authority of said Constitution. even if we have it understood that by the vote of justices in favor of such dismissal. and. The truth of matter is simply that in the normal and logical conduct governmental activities. including the provincial. municipal and barrio units and not excluding the lower courts up to the Court of Appeals. there is here no prejudgment for or against any of the two constitutions. only six votes would suffice to declare Proclamation 1102 ineffective. Accordingly. 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. is operating under the 1973 Constitution. 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. it is neither practical nor wise to defer the course of any action until after the courts have ascertained their legality. For instance. Our inescapable duty is to make a choice between them. in like manner that it is inconceivable that the 1935 and 1973 Constitution can be considered by Us both in force. there is yet no country in the world that has recognized judicial supremacy as its basic governmental principle. To my knowledge. no matter how desirable we might believe the idea to be. 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 may be argued that the present cases do not involve an issue of unconstitutionality. the same is allowed to have effect until the Supreme Court rules that it is unconstitutional. a cloud would exist as to efficacy of the dispositive portion of Our decision dismiss these cases. On the other hand. the functioning of government would correspondingly be undesirably hesitative and cumbersome. 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. despite the general result we might announce. which is contrary to all norms of juridical and political thinking. Almost daily. from very nature of things. but more importantly. Besides. aside from being its sole interpreter. taxes are being exacted and penalties in connection therewith are 403 404 . doubts may arise as to whether or not. Be that as it may.

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. there is a working quorum. to the extent that the continuation or discontinuance of what is now practically a oneman-rule. which even unreasoning obstinacy cannot ignore. not to mention the distinctive features of the general provisions. involving as they do the statement of general principles. 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.Constitutional Law I L-36142 Constitutional Law I by any standard be expected to vote against legality of the very Constitution under which they would be appointed. decrees and acts previously issued or done by the President. fundamentally. 1973. since January 18. and as far as I know. 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. the judiciary provisions. the express ratification of all proclamations. the transitory provisions notably depart from traditional and orthodox views in that. their effectivity at bay if it is not being indifferent to or ignoring them. In other words. 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. he can wait for its decision. since they cannot Moreover. Obligations have been contracted and business and industrial plans have been and are being projected pursuant to them. in defiance of traditional views and prevailing jurisprudence. in general. committed to abide by the decision of the Supreme Court. is unimaginable. 405 406 . in my appraisal. What is more. just as its nationalistic features are somewhat different in certain respects. orders. the 1973 Constitution is the same 1935 Constitution. on the other hand. President has not countermanded the Secretary's steps in that direction. with a few improvements. Displacements of public officials and employees in big numbers are going on in obedience to them. even imperative. the powers of government during the interim period are more or less concentrated in the President. the institutional changes introduced thereby are rather radical and its social orientation is decidedly more socialistic. Accepting the truth of this assertion. official alter ego. has been shoving this Court. It is. all matters related to the administrative supervision of the lower courts which by the new charter has been transferred from the Department of Justice to the Supreme Court. to mind. the articles on the form of government. from its preamble down to its amending and effectivity clauses. is a commitment to the concept of martial law powers being implemented by President Marcos. It is suggested that the President. whereas the Supreme Court is holding. While it does retain republicanism as the basic governmental tenet. obviously meant to encompass those issued during martial law. while there sufficient justices to declare by their unanimous vote illegality of Proclamation 1102. is even left to his discretion. L-36142 being imposed under said orders and decrees. the votes of the justices to added would only be committed to upholding the same. let alone the absurd and complicated consequences such a position entails in the internal workings within the judiciary amount its different components. One cannot but note that the change embraces practically every part of the old charter. the President has not augmented the justices of the Court to complete the prescribed number of fifteen is. 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. what makes the premise of presumptive valid preferable and. it does necessarily follow that by this attitude of the President. the Secretary of Justice. unrealistic to insist on that. as it were. A cursory perusal of the former should convince anyone that it is in essence a new one. and if the Court feels that it cannot in the meantime consider the enforcement of the new Constitution. Notably. Not only that. That. being a man of law. and the addition of new justices cannot in anyway affect the voting on the constitutional questions now before Us because. considers the Supreme Court as still operating under the Constitution. much less impede. For the ten justices of the Supreme Court to constitute an island of resistance in the midst of these developments. of no consequence considering that with the presence of ten justices who are the Court now. the citizenship and suffrage qualifications. the new constitution unlike any other constitution countenances the institution by the executive of reforms which normally is the exclusive attribute of the legislature. Quite on the contrary.

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. according to them the referendum was a farce and its results were manufactured or prefabricated. The new Constitution. the Constitution of 1973 is a new one. the undeniable fact is that the voting in the referendum resulted in the approval by the people of the New Constitution. and it is inconceivable and humanly impossible for anyone to have been able to gather. they also contend that in any event. which served as basis for Proclamation 1102.Constitutional Law I L-36142 Constitutional Law I L-36142 Withal. Francisco Cruz. 1940. III In brief. no other form of ratification can be considered contemplated by the framers of the Old Constitution than that which had been followed 1935. the best proofs that by its expressed and implied intent. Furthermore. the Constitution of 1973 is already in force. and." By virtue of the presumptive validity of the new charter. 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. who is supposed to have submitted the final report to the President. 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. tabulate and canvass the 15 million votes allegedly reported within the short period of time employed. otherwise. 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. inasmuch as. I need not dwell at length on these variant positions of the parties. Article XVII. 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. the last three or four which were held under the supervision of the Commission on Elections. 1937. Should the Court finally decide that the Constitution is invalid. disregarding unessential matters of form. albeit I held that nonetheless. 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. to make myself clearer on some 407 408 . ceased in the meanwhile to be members of the 11-manCourt in the 1935 Constitution. considering that Mr. etc. it would be problematical for any dissenting justice to consider himself as included automatically in the 15-man-Court. On the other hand. and accordingly. the main contention of the petitioners is that Proclamation 1102 is invalid because the ratification of the 1973 Constitution it purports to declare as having taken place as a result of the referendum above-referred to is ineffective since it cannot be said on the basis of the said referendum that said Constitution has been "approved by a majority of the votes cast at an election" in the manner prescribed by Article XV the Constitution of 1935. since that would tantamount to accepting a position he does not honestly believe exists.Court. all of form part of the 15-manCourt provided for therein correspondingly. On the other hand. which would have been unnecessary if the old constitution were being merely amended. in its Section 10. there has been a substantial compliance with Article XV of the 1935 Constitution. then We would automatically revert to our positions in the 11-man. there was neither time nor opportunity for real debate before they voted. they emphatically deny the veracity of the proclaimed results of the referendum because. unless We feel We cannot in conscience accept the legality of existence. not adversely affected by it. offices and courts as well as the tenure of all incumbent officials. Of course. 1946 and 1967. there was no proper submission because martial law per secreates constructive duress which deprives the voters of the complete freedom needed for the exercise of their right of choice and actually. 1939. We have in legal contemplation. I cannot say that Article XV of the Old Constitution has been complied with. anyway. had no official authority to render the same. In order. More specifically. however. We would just continue to be in our membership in the 15-man-Court.

could still be significant enough and legally sufficient to serve as basis for a valid ratification. In connection with the question. if brief and inadequate for those who are abreast of current events and general occurrences. I take it that if the majority had expressed disapproval of the new Constitution. None of the other members of the Court. I do not believe to be possible. Do you approve of the New Constitution? capital is being made of the point that as so framed. the logical consequence would have been the complete abandonment of the idea of holding any plebiscite at all. looking at things more understandingly and realistically the two questions emphasized by counsel. 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. simply because I saw with own eyes that people did actually gather and listen discussions. as far as I can recall. namely. I would like to add a few considerations to what I have already said in the former cases. in decisionmaking regarding matters of vital national interest. or if anyone of Us did. the effectivity clause. Justice Fred Ruiz Castro whose mastery of the English language can rightly be the cause of envy of even professors of English. the thrust of the said question does not seek an answer of fact but of opinion. of the new Constitution. the real figure. it is very plain to see that since the majority has already approved the new Constitution. 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. Oddly enough. Accordingly. I am not aware that he gave it more than passing attention. there should be a direct and expressed desire of the people to such effect in order to forestall as much as possible any serious controversy regarding the non-holding of the plebiscite required by the letter of Section 16 of Article XVII. (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. I can believe that the figures referred to in the proclamation may not accurate. 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. 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.Constitutional Law I L-36142 Constitutional Law I L-36142 relevant points. such may have been the idea. and I say this only because petitioners would consider the newspapers as the official gazettes of the administration. 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. how could anyone expect the millions of unlettered members of the Citizens Assemblies to have noticed the point brought out by Justice 409 410 . however. it must have been thought that if the holding of a plebiscite was to be abandoned. a plebiscite would be superfluous. 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 remember distinctly that the observation regarding the construction of the subject question was not originally made by any of the talented counsels for petitioners. which honestly. when the first set of questions was released. If in fact there were substantially less than 14 million votes of approval. I am in no position to deny that the result of the referendum was as the President had stated. and that they did vote. 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. It came from Mr. however. the "comments" accompanying the questions do strongly suggest this view. In my opinion in those cases. On the other hand. 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. It is contended. that if the newspaper reports are to be believed. It must not be lost sight of. but I cannot say in conscience that all of them are manufactured or prefabricated. And as it turned out. thru the Citizens Assemblies. the majority found no necessity in holding a plebiscite. I can see that at the outset. Clear as these rationalizations may be. in my estimate. ever noticed how the said question is phrased. Thus.

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. considering the need for faster decisions and more resolute action. in my former opinion. the so inequalities widening the gap between the rich and the poor. two or three specific proposed amendments. the formation of a new society.Constitutional Law I L-36142 Constitutional Law I L-36142 Castro? Truth to tell. and prolonged dialogue and exchange of ideas are not generally possible." On the assumption that the actual answer. one has to take the good together with the bad in it. particularly. deteriorating conditions of peace and order. private armies. and naturally. It is also contended that because of this reference in answer to that question to the deferment of the convening of the interim assembly. reading the question in the light of the accompanying "comment" corresponding to it in particular. considering the ever present possibility that after all it may be cured by subsequent amendment. Definitely. In interest of accuracy. in the context of actualities. no matter how substantial. anarchy. it had to be approved without loss of time and sans the cumbersome processes that. It is rare for anyone to reject a constitution only because of a few specific objectionable features. Accordingly. the remedy was far from using bullets alone. The contention has no basis. considering. From the point of view of the President and on the basis of intelligence reports available to him. nor practical. the said answer is at best a conditional approval not proper nor acceptable for purposes of ratification plebiscite. for necessarily. namely. After all voting on a whole new constitution is different from voting on one. 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. To others said "comments" may appear as evidence of corruption of the will of those who attended the assemblies. 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. the intention is no more than a suggestion or a wish. he approves the New Constitution. affirmative answer must be taken as a categorical vote of approval thereof. Stated otherwise. was of similar tenor. the circumstances surrounding making of the Constitution acquired a different and more meaningful aspect. as a matter of fact. At most. influence peddling. it must be considered that a martial law was declared. 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. For one thing. however. the former calls for nothing more than a collective view of all the provisions of the whole charter. and many other deplorable long standing maladies crying for early relief and solution. if only because the implementation of martial law since its inception has been generally 411 412 . have in the past obstructed rather than hastened the progress of the people. from the realistic viewpoint. they may also be viewed in the same light as the sample ballots commonly resorted to in the elections of officials. 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. it is not fair to ascribe to it the imposition of a condition. 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. I myself did not realize the difference until Justice Castro gave it emphasis. If a constitution was to be approved as an effective instrument towards the eradication of such grave problems. Let us not forget that the times are abnormal. but actually. 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. the additional answer proposed in pertinent "comment" reads as follows: "But we do not want Ad Interim Assembly to be convoked etc. it is not fair to condemn and disregard the result of the referendum barely because of martial law per se. there was need to indicate to the people the paths open to them in their quest for the betterment of their conditions. As regards said "comments". as in the case of rebellious movement that threatened the Quirino Administration. which no one can contend are per se means of coercion. many of the objectionable features of martial law have not actually materialized. oligarchic political practices. as reported. Besides. As I intimated. Only by bearing these considerations in mind can the "comments" already referred to be properly appreciated.

And so it is recorded that in the elections 1951 and 1971. it is not for me to resort. have any cause for apprehension in regard to the conduct by them of the normal activities of life. for the purposes of these cases. It is a fact. I joined my colleagues in holding that the question of whether or not there was proper submission under Presidential Decree No. although the restrictions on the freedom of speech. since it is known by all that only those who run afoul the law. 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. 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. borne by history and actual experience. the Filipino voters gave the then opposition parties overwhelming if not sweeping victories. held while the privilege of writ ofhabeas corpus was under suspension. to find out with absolute precision the veracity of the total number of votes actually cast. 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. Being personally aware. I consider it unnecessary to be strictly judicial in inquiring into such fact. The foregoing discussion is only to counter. 73 is justiciable. For my part. 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. even if extrapolated will not. to judicial tape and measure. Moreover. that is something else which may actually cause him to cast a captive vote. if irregularly and crudely. however. 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. At this juncture. if I may. which means without the rigor that has attended it in other lands and other times. 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. that the Citizens Assemblies did meet and vote. I reiterate that in point of law. my considered opinion is that the Court may no longer decide these cases on the basis of purely legal considerations. 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. 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. And on this premise. Factors which are non-legal but nevertheless ponderous and compelling cannot be ignored.Constitutional Law I L-36142 Constitutional Law I L-36142 characterized by restraint and consideration. the claims that upon a comparison of conflicting reports. The main basis of my opinion in the previous cases was acceptance by the people. thanks to the expressed wishes of the President that the same be made "Philippine style". of the factual background of the cases at bar which include ratification itself. cases of excess votes may be found. it is necessary for me to point out that when it comes to ratification. that in the Philippines. 413 414 . 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. The ruling in the decided cases relied upon by petitioners are to this effect. saving inconsequential instances. in defiance of the respective administrations that ordered the suspensions. In my opinion in the Plebiscite Cases. the suspension of the privilege of the writ habeas corpus has never produced any chilling effect upon the voters. IV It is my sincere conviction that the Constitution of 1973 has been accepted or adopted by the people. In view. After all. 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. I find neither strict nor substantial compliance. for their relevancy is inherent in the issue itself to be resolved. however. as I have already stated.

Constitutional Law I L-36142 Constitutional Law I L-36142 as far as I can figure out. 1. they very rarely. if at all. the effectivity clause. who was himself the petitioner in the case I have just referred to is. of the New Constitution. as I have discussed earlier above. must appear to have been made in strict conformity with the requirements of Article XV thereof. My understanding is that generally. for the very fact that a new constitution is being adopted implies a general intent to put aside the whole of the old one. I cannot accord to the filing of these cases as indicative enough of the general attitude of the people. What is more. 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. I. how can a whole new constitution be by any manner of reasoning an amendment to any other constitution and how can it. Comelec. and what would be really incongrous is the idea that in such an eventuality. 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. 41 SCRA 702. In any event. No less than counsel Tolentino for herein respondents Puyat and Roy. if not organized resistance in one form or another. that decision asserted judicial competence to inquire into the matter of compliance or non compliance as a justiciable matter. Consider that in the present case what is involved is not just an amendment of a particular provision of an existing Constitution. there would have been already demonstrative and significant indications of a rather widespread. in the exercise of their inherent revolutionary powers. I made strong and unequivocal pronouncements to the effect that any amendment to the Constitution of 1935. I have no alternative but to rely on what has been officially declared. Much as they are to be given due recognition as magnificent manifestations of loyalty and devotion to principles. form part of such other constitution? In fact. an entirely new Constitution that is being proposed. At this point. it must not be overlooked that. their having been accepted and adopted by the President. which in these cases does not exist. Article XVII. it is. which are entirely different from those in the backdrop of the Tolentino rulings I have referred to. Without trying to strain any point however. It is true that in the opinion I had the privilege of penning the Court in Tolentino vs. the new Constitution would subject its going into effect to any provision of the constitution it is to supersede. considering that due to the unorthodoxy of the procedure adopted and the difficulty of an accurate checking of all the figures. based on official reports submitted to him in due course of performance of duty of appropriate subordinate officials. "(T)his is not to say that the people may not. I am unable to conceive of any manageable means of acquiring information upon which to predicate a denial. 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. Giving substantial allowances for possible error and downright manipulation. 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. 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. until overcome by better evidence. if ratified." Said resolution even added. 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. here. by virtue of any provision 415 416 .". after all. I feel safer by referring to the results announced in the proclamation itself. 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. submit the following considerations in the context of the peculiar circumstances of the cases now at bar." Indeed. to use the language precisely of Section 6. come into being. 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. This important circumstance makes a great deal of difference. to be valid. amend the Constitution or promulgate an entirely new one otherwise. constitutions are selfborn.

having these facts in mind. 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. Frankly. 3. have taken the same oath of loyalty to the Constitution that we. Now. the Justices. And to top it all. 1973 for the regular session. two. I would have had serious doubts as to whether Article XV could have had priority of application. it was not constitutionally indispensable for the presiding officers to issue any call to the members to convene. From the very nature of things. so long as they are convinced of the fact of their approval. they have already opted to accept the New Constitution as the more effective instrument for fulfillment of the national destiny. equally bound with Us to preserve and protect the Constitution. hence the present prayers formandamus have no legal and factual bases. both collective and individual. thereby manifesting their acceptance of the new charter. 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 417 418 . I refer to the ostensible reaction of the component elements. even if nothing were done than to merely call the roll and disperse. 3 This must be the reason why every constitution has its own effectivity clause. Counsel Tolentino even pointed out that if there were not enough members to form a quorum. 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. 2. 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. a meaningful transformation of the old society and a responsive reformation of the contemporary institutions and principles. the Executive and the Legislative. there is the stark reality that the Senators and the Congressmen. 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. have already accepted the New Constitution and recognized its enforceability and enforcement. therefore. quite to the contrary. 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. Otherwise stated. It is not alone the physical futility of such a gesture that concerns me. knowledgeable and courageous members. 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. And with particular relevance to the present cases. It must be assumed that being composed of experienced. When an entirely new constitution is proposed to supersede the existing one. If as the representatives of the people. have taken and they are. I would hold that the better rule is for the courts to defer to the people's judgment. and as a matter of policy should consider the matter non-justiciable. in such instances. 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. and it being obvious that of the three great departments of the government under the 1935 Constitution. More than that.Constitutional Law I L-36142 Constitutional Law I L-36142 of another constitution. Accordingly. no less than the President. There is still another circumstance which I consider to be of great relevancy. we cannot but take into consideration the forces and the circumstances dictating the replacement. so that if. 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. 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. As counsel Tolentino has informed the court. the courts should not bother about inquiring into compliance with technical requisites. any smaller group could have ordered the arrest of the absent members. I do not feel warranted to accord such act as enough token of resistance. have officially and in writing exercised the option given to them to join the Interim National Assembly under the New Constitution. regardless of the form by which it is expressed provided it be reasonably feasible and reliable.

principally the political. particularly. the Court might be standing in the way of the very thing our beloved country needs to retrieve its past glory and greatness. there has been at least substantial compliance with Article XV of the 1935 Constitution. in the Plebiscite Cases that is. This is not only the teaching of the American Declaration of Independence but is indeed. but what I can see is that in a political sense. 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. they must have acted in the honest conviction that what was being done was in conformity with prevailing constitutional standards. which to me is in reality the real meaning of our oath of office. In other words. we must perforce infer that they meant their decision to count. they could not have had in mind any intent to do what was constitutionally improper. therefore. specially when it is considered that the most important element of the ratification therein contemplated is not in the word "election". their posterity and their national destiny. oft-referred to above. I take it that when they answered that by their signified approval of the New Constitution. not accomplished ratification. they do not consider it necessary to hold a plebiscite. In other words. there is more than sufficient ground to hold that. cannot but feel apprehensive that instead of serving the best interests of our people. of their inalienable right to change their fundamental charter by any means they may deem appropriate. I cannot agree with the Solicitor General that in the legal sense. or. even if only in a broad sense. it is my conviction that what these cases demand most of all is not a decision demonstrative of our legal erudition and Solomonic wisdom but an all rounded judgment resulting from the consideration of all relevant circumstances. it should be regarded as implied in every constitution that regardless of the language of its amending clause. Comelec. In the last analysis. from the political standpoint. Those who may feel restrained to consider this view out of respect to the import of Tolentino vs. Viewed from the strictly legal angle and in the light of judicial methods of ascertainment. under the leadership of President Marcos. There is nothing that cannot be sacrificed in the pursuit of these 419 420 . 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. a truth that is self-evident. Finally. so long as such approval is reasonably ascertained. the answers to the referendum questions were not given by the people as legal conclusions. in brief. political and social needs nor conducive to the timely attainment of their national destiny. It is my considered opinion that viewed understandingly and realistically. 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. if any doubt should still linger as to the legitimacy of the New Constitution on legal grounds. a decision more political than legal. it can be rightly said. the moment they are convinced that the existing one is no longer responsive to their fundamental. and it behooves this Court to render judgment herein in that context. supra.Constitutional Law I L-36142 Constitutional Law I L-36142 1935 Constitution. once the people have given their sanction to a new charter.. Basically accustomed to proceed along constitutional channels. 5. would be well advised to bear in mind that the case was decided in the context of submission. 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. the ratification of the 1973 Constitution declared in Proclamation 1102 complies substantially with Article XV of the 1935 Charter. that the ratification here in question was constitutionally justified and justifiable. as an extra constitutional exercise by the people. their liberties and their fortunes shall be safeguarded. are the people living under it their happiness. More important than even the Constitution itself with all its excellent features. towards their accomplishment. 4. 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. More. the latter may be deemed as constitutionally permissible even from the point of view of the preceding constitution. Conscious of the declared objectives of the new dispensation and cognizant of the decisive steps being with the least loss of time. judged by such intent and.

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 have brought out everything in the Filipino that these cases demand. When I consider. 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. In this momentous juncture of our history. Antonio Luna. had their differences of views and they did not hesitate to take diametrically opposing sides that even reached tragic proportions. despite our being convinced of the sincerity and laudableness of their objectives. I am led to wonder whether or not we. certainly. whether in legal form or otherwise. to a repudiation of our oath to support and defend the Constitution of 1935. not to speak of all executive departments and bureaus under them as well as all the lower courts. it is feared. there can be no court or power on earth that can reverse them.Constitutional Law I L-36142 Constitutional Law I L-36142 objectives. as long as we are all animated by sincere love of country and aim exclusively at the attainment of the national destiny. the members of both Houses of Congress. unless they act in strict conformity therewith. 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. 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 any event. that the President. we need not fear playing opposite roles. Verily. not arising from foreign invasion. I would not be human if I should be insensitive to the passionate and eloquent appeals of Counsels Tañada and Salonga that these cases be decided on the basis of conscience. I cannot believe that any people can be so stifled and enchained. Quezon. Laurel and Recto. I consider it a God-given attribute of the people to disengage themselves. so that all us Filipinos may forever join hands in the pursuit of our national destiny. they have so encased themselves within its provisions and may. Rizal. May God grant that the controversies the events leading to these cases have entail will heal after the decision herein is promulgated. 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. MAKASIAR. however. J. In times of national emergencies and crises. That is exactly what I am doing. Mabini and so also with our patriots of the recent generations. the Vice President. Roxas. which constitute the totality of the reasons for national existence. they are less important by themselves. the Court would be deemed as sanctioning. IN VIEW OF ALL THE FOREGOING. Aguinaldo. if necessary.. and this would amount. concurring: 421 422 . 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. 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. their industry and wisdom. what is imperative is national unity. therefore. Our heroes of the past. no longer take measures to redeem themselves from the situation brought about by the deficiencies of the old order. And once they have made their decision in that respect. the attainment of our national aspirations. Osmeña. What seems to me to be bothering many of our countrymen now is that by denying the present petitions. their patriotism and devotion to principle. only because we feel that by the people's own act of ratifying the Constitution of 1935. I cannot agree. This is certainly something one must gravely ponder upon. whether sophisticatedly or crudely. albeit my admiration and respect are all theirs for their zeal and tenacity. I vote to dismiss these petitions for mandamus and prohibition without costs. to mention only some of them. but all of them are admired and venerated. not only the deviations from traditional democratic concepts and principles but also the qualified curtailment of individual liberties now being practiced. Bonifacio.

1051). thus: "Sovereignty resides in the people and all government authority emanates from them. 61-64. al. Gray. (103 Phil. Johnson. No. Justice Brewer. economic and political system as re-structured by the 1973 Constitution and by the implementing decrees and orders (see Miller vs. then of the Kansas State Supreme Court and later Associate Justice of the Federal Supreme Court. And being political. or in regard to which full discretionary authority had been delegated to the Legislature or Executive branch of the government. This basic democratic concept is expressly restated in Section 1 of Article II of the Declaration of Principles of the 1935 and 1973 Constitutions. 18 SW 522. 506): "The two important. 1102 would inevitably render inoperative the 1973 Constitution. vs. supra).R. 423 424 . et al. the power to propose constitutional amendments is vested in Congress or in a constitutional convention. Beyond these. defined a political question as one which. Cuenco. 104 SO 2nd 841 [1958]). Gronna. 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. this Court is precluded from inquiring into the validity of such ratification." Under Article XV of the 1935 Constitution. who have been obeying the mandates of the new Constitution. then Associate Justice. because the ratification. other provisions are mere machineries and forms. L-36164. This is as it should be in a democracy. 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. 285 NW 59. for it is inseparably or inextricably link with and strikes at. as well as acquiescence of people in. et al. et al. Mr.. 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. et. 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. Chief Justice Roberto Concepcion. 522526. not a justiciable. As Mr. 1102 is a political. which is in fact the express prayer of the petitioners in G. tested by the definition of a political question enunciated in Tañada. in behalf of the Court. 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." The legality of the submission is no longer relevant. and will dissipate any confusion in the minds of the citizenry." (Tañada. the 1973 Constitution and the legitimacy of the government organized and operating thereunder. as well as exercising the rights and performing the obligations defined by the new Constitution. aside from the fact the this view will not do violence to rights vested under the new Constitution. But they are not themselves the essentials. 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. while the power to ratify or reject such proposed amendments or new Constitution is reserved by the sovereign people. and decrees and orders issued in implementation of the same and cooperating with the administration in the renovation of our social. 1892). the validity of ratification and adoption of. issue. for the people are the repository of all sovereign powers as well as the source of all governmental authority (Pole vs. They may not be disregarded. Cuenco.Constitutional Law I L-36142 Constitutional Law I L-36142 Assuming. In 1957. adoption or acquiescence and of the consequent effectivity of the new Constitution. because it is decisive of. it is beyond the ambit of judicial inquiry. stated in re Prohibitory Amendment Cases (24 Kansas 700 & 710 Reprint 499. without conceding. the validity of Presidential Proclamation No. is "to be decided by the people in their sovereign capacity. because by them certainty as to the essentials is secured." (Cited in Larken vs. vital elements of the Legislature and a majority of the popular vote. 1939). under the Constitution. vs. The nullification of Proclamation No.

government. by Pritchett.Constitutional Law I L-36142 Constitutional Law I L-36142 This was the ruling by the American Supreme Court in the 1939 case of Coleman vs. Oct. Justices Roberts.. 433. stated that: . Final determination by Congress that ratification by three-fourths of the States has taken place "is conclusive upon the courts. 1962 Ed. 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." And decision of a "political question" by the "political department" to which the Constitution has committed it "conclusively binds the judges. . which challenge inevitably the validity of the 1973 Constitution after its ratification or 425 426 . (L-34150. we are unable to agree. is governed by the Constitution. Justice Black in his concurring opinion. as well as all other officers. et al. hardly applies to the cases at bar.. 29. Lopez Vito (78 Phil.. 44). 16. 83 L. The doctrine in the aforesaid case of Coleman vs. We think that in accordance with this historic precedent the question of the efficacy of ratifications by state legislatures. 1967.ed. 21 SCRA 774) and Tolentino vs. p. Frankfurter. et al. citizens and subjects of. Upon this assurance a proclaimed amendment must be accepted as a part of the Constitution. of course. intervening procedure or Congressional determination of ratification conforms to the commands of the Constitution. The ruling in the cases of Gonzales vs. with the ultimate authority in the Congress in the exercise of its control over the promulgation of the adoption of the amendment. Comelec. unlike the present petitions. (American Constitutional Issues. This view was likewise emphasized by Mr. Congress. 1971.S. leaving to the judiciary its traditional authority of interpretation.. 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.. calls for decisions by a "political department" of questions of a type which this Court has frequently designated "political. This decision by the political departments of the Government as to the validity of the adoption of the Fourteenth amendment has been accepted. 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.. whether submission. Nov. Comelec. and Douglas join. Miller (307 U. 1385). Miller was adopted by Our Supreme Court in toto in Mabanag vs." In the exercise of that power. 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 . thus: The Constitution grants Congress exclusive power to control submission of constitutional amendments. in which Mr.. where Chief Justice Hughes. 1). in the light of previous rejection or attempted withdrawal." 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. should be regarded as a political question pertaining to the political departments. speaking for the majority. (L-28224. However...

We pronounced therein: It is true that in Mabanag vs. Chief Accountant of the Senate. Thus. 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. it is said that Senators and Members of the House of Representatives act. for their authority does not emanate from the Constitution they are the very source of all powers of government. The force of this precedent has been weakened. When acting as such. As heretofore stated. notas members. this Court characterizing the issue submitted thereto as a political one. 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. and hence. In the first. we held the officers and employees of the Senate Electoral Tribunal are supervision and control. Lopez Vito (78 Phil. 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. Cuenco. such as ours to make. Thus we rejected the theory advanced in these four (4) cases. and in the fourth. Commission on Elections. Hence. that the issues therein raised were political questions the determination of which is beyond judicial review. Lopez Vito has been weakened by subsequent cases. (21 SCRA 787) We did not categorically and entirely overturn the doctrine in Mabanag vs. in the second. supra. however. the power to amend the Constitution or to propose amendments thereto is not included in the general grant of legislative powers to Congress. but as component elements of a constituent assembly. to amend their own Fundamental Law. It should be stressed that even in the Gonzales case. Lopez Vito. of the Senate Electoral Tribunal. when exercising the same. we declared unconstitutional an act of Congress purporting to apportion the representative districts for the House of Representatives. including the Constitution itself. We held that: Indeed. for the second party. 785-786). not of that of the Senate President. It is part of the inherent powers of the people as the repository of sovereignty in a republican state. this Court proceeded to determine the number of Senators necessary for a quorum in the Senate. claimed by the latter. WE merely stated therein that the force of the ruling in the said case of Mabanag vs. as members. upon the ground that the apportionment had not been made as may be possible according to the number of inhabitants of each province. Tañada vs. Avelino vs. when performing the same function. in the third we nullified the election. (21 SCRA pp. 427 428 . by Suanes vs. Cuenco and Macias vs. the members of Congress derive their authority from the Constitution. Congress may propose amendments to the same explicitly grants such power.Constitutional Law I L-36142 Constitutional Law I L-36142 adoption thru acquiescence by the sovereign people. unlike the people. of two (2) Senators belonging to the first party. 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.

) 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.. About six thereafter. the issue whether or not a resolution of Congress before acting as a constituent assembly violates the Constitution is essentially justiciable. 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. Thus. the said Constitution shall take effect. Judicial wisdom is not to be pitted against the wisdom of the political department of the government.Constitutional Law I for which reason We concluded L-36142 Constitutional Law I L-36142 In short. Appendix II. and the union shall be perpetual. We reiterated the foregoing statements (41 SCRA 703-714). on October 19. Modern Library ed. p. 525). unless such alteration be agreed to in a congress of the united states. hence. Massachusetts and ended with the surrender of General Cornwallis at Yorktown. that was written from 1776 to 1777 and ratified on March 1. 577. and. not political. p. 1966 Ed.. Modern Library Ed. 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. 1781 (Encyclopedia Brit. 1937. and be afterwards confirmed by the legislatures of every state. p.. emphasis supplied. the latter should be deemed modified accordingly. Courts do not deal with propriety or wisdom or absence of either of an official act or of a law. 1787. remains a political issue removed from the jurisdiction of this Court to review. (p. II. Lopez Vito. constitutionality or unconstitutionality of an act: it inquires into the existence of power or lack of it. Federalist. 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. not necessarily in all thirteen (13) states. I.. 1787 calling for a Federal Constitutional Convention "for the sole and express purpose of revising the articles of confederation . 1781(Encyclopedia Brit. and to the extent that this view may be inconsistent with the stand taken in Mabanag vs.. Vol.. nor shall any alterations at any time hereafter be made in any of them. Vol.. Both primarily stressed on the impropriety of the submission of a proposed constitutional amendment. subject to judicial review. p. Virginia. Article XIII of the Articles of Confederation and Perpetual Union stated specifically: The articles of this confederation shall be inviolably observed in every state.) In the Tolentino case. Fearful the said Federal Constitution would not be ratified by the legislatures as prescribed. Judicial power concerns only with the legality or illegality. . The inevitable consequence therefore is that the validity of the ratification or adoption of or acquiescence by the people in the 1973 Constitution. 1775 with the skirmish at Lexington. the Congress of the Confederation passed a resolution on February 21. history Professor Edward Earle Mead of Princeton University recorded that: 429 430 . (See the Federalist. supra.. The Convention convened at Philadelphia on May 14. 1933 Ed. emphasis supplied. One more word about the Gonzales and Tolentino cases. 787." (Appendix I. 776) adopted their Articles of Confederation and Perpetual Union. emphasis supplied). 584.

namely. Modern Library Ed. p. 312). Board of Trustees (37 SE 2nd 322. 679 footnote. nor against the legitimacy of the government organized and functioning thereunder. . 1937. The nine-state provision was. 16 C. of course.S. it declared that the Constitution would go into effect as soon as nine states ratified. could be elected to a convention. 1788 and by the last four states on May 29. Suspecting that Rhode Island. 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. 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 the Congress of the Confederation. p. mildly revolutionary. the absence of a bill of Rights and of a provision affirming the power of judicial review. viii-ix. 1 Cranch 137). Until this date. the new government should go into effect if and when it should be ratified by nine of the thirteen states . provided for ratification of the Constitution by popularly elected conventions in each state.J. ministers. 27.Constitutional Law I L-36142 Constitutional Law I L-36142 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. by Samuel Eliot Morison. We think that the principle which we apply in the instant case was very clearly applied in the creation of the 431 432 . no challenge has been launched against the validity of the ratification of the American Constitution. (The Federalist. 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. 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 liberties of the American people were guaranteed by subsequent amendments to the Federal Constitution... would prove recalcitrant. 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. emphasis supplied) Historian Samuel Eliot Morison similarly recounted: The Convention. People. at least. 326-330). thus: No case identical in its facts with the case now under consideration has been called to our attention.. 1790 (12 C. Madison (1803. 1965 ed. formally submitted the new constitution to the states and politely faded out before the first presidential inauguration. In the 1946 case of Wheeler vs. still sitting in New York to carry on federal government until relieved. furthermore. Experience clearly indicated that ratification then would have had the same chance as the scriptural camel passing through the eye of a needle. And so the American Constitution was ratified by nine (9) states on June 21. Introduction by Edward Earle Mead.. and we have found none. and others ineligible to state legislatures. the Court cited precisely the case of the irregular revision and ratification by state conventions of the Federal Constitution. pp. (The Oxford History of the Am. anticipating that the influence of many state politicians would be Antifederalist. The convention method had the further advantage that judges.J..

But they knew that their labors were only to be suggestions. that the disease was too deeply seated to be reached such tentative means. But the convention soon became convinced that any amendments were powerless to effect a cure. that they had no power." (37 SE 327-328. to wit. This would be an authorized exercise of sovereign power by the court.. 55. if their decisions were to be final. had a right to propose a plan of government to the people for their adoption. but submitted to the sovereign power. and their work had no more binding sanction than a constitution drafted by Mr. We do not hesitate to say that a court is never justified in placing by implication a limitation upon the sovereign. to be submitted to and passed by the Congress.. to adopt the course they did. and no authority whatsoever.Constitutional Law I L-36142 Constitutional Law I L-36142 constitution of the United States. The convention created by a resolution of Congress had authority to do one thing. It was objected by some members.) In the 1903 case of Weston vs. at any time." xxx xxx xxx . They had no authority. by their expressed will. Pomeroy's Constitutional Law. and any private individuals as well as they. 69 Ind. They saw that the system they were called to improve must be totally abandoned. 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. and that they as well as any private individuals. under the articles of confederation. .. 519. a new constitution. this proposal.. in fact.. the Indiana Supreme Court said: "The people of a State may form an original constitution. has this to say: "The convention proceeded to do. The fiat of the people and only the fiat of the people. Ryan. They were. the framing or submission of the instrument is not what gives it binding force and effect. discussing the convention that formulated the constitution of the United States. what they were not authorized to do by a resolution of Congress that called them together. 505. amend the articles of confederation. That resolution plainly contemplated amendments to the articles of confederation. transformed this suggestion. to construct a new government. can breathe life into a constitution. p. and the people might have done the same with a constitution submitted to them by a single citizen.. a mere assemblage of private citizens. into an organic law. and afterwards ratified by all the State legislatures. . This they did not do. In State v. 329. Hamilton in his office would have had. The people. the Court held: 433 434 . emphasis supplied. Swift. and one only. or abrogate an old one and form a new one. no authority. the people. and did accomplish. without any political restriction except the constitution of the United States. xxx xxx xxx . in the manner pointed out by the existing organic law. and that the national idea must be reestablished at the center of their political society. When the people adopt a completely revised or new constitution.

297-316). 1776 to 1788. People. The Articles of Confederation and Perpetual Union that was in force from July 12. 12. Petitioners.. 18 of their main Notes. 27. The fallacy of the statement is so obvious that no further refutation is needed.M. The Web of Government. However. emphasis supplied). Corpus Juris Secundum. in our opinion. CJS. In Chapter XX on "The Creative Period in Politics.) 44 S. 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. 198. p. 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. 16. It is equally absurd to affirm that the present Federal Constitution of the United States is not the successor to the Articles of Confederation and Perpetual Union. even though they do not involve the violent overthrow of an established order. but does not refer to it even implicitly as revolutionary constitution (pp. 1785-1788. it would not." (R. 1965 Ed. refer US to pp. having been acknowledged and accepted by the officers administering the state government. 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. This opinion does not cite any decided case. and by the people.Constitutional Law I L-36142 Constitutional Law I L-36142 It remains to be said that if we felt at liberty to pass upon this question. As heretofore stated. invoking the opinion expressed in Vol. The Federal Constitution was a "creation of the brain and purpose of man" in an era of peace. Petitioners pray for a declaration that the 1973 Constitution is inoperative (L-36164). 270-281). p. It can only be considered revolutionary in the sense that it is a radical departure from its predecessor. is unconstitutional and void. 679 of Vol. by Samuel Eliot Morison. petitioners in G. 1102 strikes at the validity and enforceability of the 1973 Constitution and of the government established and operating thereunder. which were added by the Legislature at the requirement of Congress." Professor Morison delineates the genesis of the Federal Constitution. Against the decision in the Wheeler case. is a similar holding as to certain provisions of the Nebraska Constitution of 1886. It is rather ridiculous to refer to the American Constitution as a revolutionary constitution. and being in force without opposition. 270-316 of the Oxford History of the American People. the Articles of Confederation and Perpetual Union. who discusses the Articles of Confederation and Perpetual Union in Chapter XVIII captioned "Revolutionary Constitution Making. 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.R. the Supreme Court of Virginia hold that their state Constitution of 1902. MacIver. forged as it was during the war of independence was a revolutionary constitution of the thirteen (13) states. 1965 ed. 2 Neb. If 435 436 . Commonwealth (Va. on p.. In the recent case of Taylor vs. L-36165 dismissed this most significant historical fact by calling the Federal Constitution of the United States as a revolutionary one. 1775 1781" (pp. . In Brittle v. No. 203). but merely refers to the footnotes on the brief historic account of the United States Constitution on p. and were compelled to hold that the act of February 23. though never submitted to the people for their approval. the issue as to the validity of Proclamation No.E. 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. confirming the validity of the ratification and adoption of the American Constitution. 754. 1887." (97 NW 349350. .. by any means follow that the amendment is not a part of our state Constitution. supra.

1. Oregon (223 U. suggested by the argument as to the full significance of the previous doctrine. and the officers who carried their decisions into operation answerable as trespassers. the authority of the government under which they were appointed. 56 L. And its decision is binding on every other department of the government. 1102 is nullified.ed. 133-151.. 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. 581).ed. and on the application of the Legislature or of the Executive (when the legislature cannot be convened) against domestic violence. 118. And when the senators and representatives of a state are admitted into the Councils of the Union. as the United State guarantee to each state a republican government. as well as its republican character. 1. 377-386).supra. if not in some cases as criminals. Because it reaffirmed the pronouncements in both Borden and Beckham cases. Borden (7 How. 38): "For if this court is authorized to enter upon this inquiry. the apparent misapprehension on one side and seeming misconception on the other.. It is true that the contest in this case did not last 437 438 . penned by Mr. Beckham(178 U. who re-stated: In view of the importance of the subject. it is sufficient for us to quote the decision in Pacific States Telephone and Telegraph Co. then the laws passed by its legislature during that time were nullities. had long been decided as early as the 1849 case of Luther vs. That the issue of the legitimacy of a government is likewise political and not justiciable. is recognized by the proper constitutional authority. 548. On this subject it was said (p. affirmed in the 1900 case of Taylor vs. we do not content ourselves with a mere citation of the cases. its salaries and compensations to its officers illegally paid . if it had been annulled by the adoption of the opposing government. For. 7 How.. 44 L. 581.ed. and could not be questioned in a judicial tribunal. and shall protect each of them against invasion. proposed by the plaintiff. its taxes wrongfully collected. 12 L. Chief Justice White. 1187) and re-enunciated in 1912 in the case of Pacific States Telephone and Telegraph Company vs. its public accounts improperly settled and the judgments and sentences of its courts in civil and criminal cases null and void. and it should be decided that the character government had no legal existence during the period of time above mentioned.S. Congress must necessarily decide what government is established in the state before it can determine whether it is republican or not. Borden." 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.. but state more at length than we otherwise would the issues and the doctrine expounded in the leading and absolutely controlling case Luther v. 12 L.ed.Constitutional Law I L-36142 Constitutional Law I L-36142 Proclamation No. "Under this article of the Constitution it rests with Congress to decide what government is established one in a state.S. xxx xxx xxx .

and when that department had decided. definitely determined to be political and governmental. 1187. are. Ct. 142-151. 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. and embraced within the scope of the scope of the powers conferred upon Congress. accepted and acted upon the by Chief of State and other government functionaries. in Taylor vs. 548. therefore within the reach of judicial power. dismissed for want of jurisdiction. 1. the courts were bound to take notice of the decision and follow it. where. in their very essence. Rep." xxx xxx xxx As the issues presented. as well as by the people. In that case it was held that the question. 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. 7 How. Borden. but conclude by directing attention to the statement by the court. against domestic violence. 12 L. pp. which of the two opposing governments of Rhode Island. 890. Yet the right to decide is placed there and not in the courts. (223 U. was the legitimate one. 1009. 578): "But it is said that the 14th Amendment must be read with S 4 of article 4. and the writ of error must therefore be. Dorr was the head. and shall protect each of them against invasion. becomes valid." xxx xxx xxx . In the 1903 case of Taylor vs. speaking through Mr.. and on application of the legislature. Luther v. 44 L. Congress was not called upon to decide the controversy.ed. emphasis supplied). it follows that the case presented is not within our jurisdiction. when recognized. the charter government or the government established by a voluntary convention. 178 U. and have long since by this Court been. and not. Chief Justice Fuller. or the Executive (when the legislature cannot be convened).ed. Commonwealth (44 SE 754-755). and it is. 20 Sup. after disposing of a contention made concerning the 14th Amendment. and as no senators or representatives were elected under the authority of the government of which Mr. 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.. namely. 439 440 . 581. Beckham.S." xxx xxx xxx "It was long ago settled that the enforcement of this guaranty belonged to the political department. We do not stop to cite other cases which indirectly or incidentally refer to the subject. of the Constitution. was a question for the determination of the political department. it was said (p.Constitutional Law I L-36142 Constitutional Law I L-36142 long enough to bring the matter to this issue. providing that the United States shall guarantee to every state in this Union a republican form of government.S.

either directly or collaterally.. the amendment is embodied therein. such act becomes valid upon ratification or adoption or acquiescence by the people. 755). unless satisfied that the Constitution was violated in submitting the proposal. 1902. July 15. 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. by approval of the electors. King. In the 1956 case of Thomson vs. emphasis supplied). The result of the work that the convention has been recognized. 118 & 123)." It has likewise been held that it is not necessary that voters ratifying the new Constitution are registered in the book of voters. accepted. but. by the Legislature in its formal official act adopting a joint resolution. Thus. 263. it becomes part of the Constitution. . 281 Pa. 375). if once sanctioned. 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. Even though it be submitted at an improper time. as directed thereby. 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. 40 A 740 [1899]. because of any mistake antecedent thereto.. by the individual oaths of members to support it. (p. at a general election for their representatives in the Congress of the United States. Legal complaints to the submission may be made prior to taking the vote.R. in the 1905 case of Ex parte Birmingham and A. 408 410). 45 LRA 251. the Court stated: There may be technical error in the manner in which a proposed amendment is adopted. Armstrong v. without omitting any requisite steps. King (130 A 407. 207. and cannot be attacked. (130 A 409). recognizing the Constitution ordained by the convention which assembled in the city of Richmond on the 12th day of June 1901. 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 is enough that they are electors voting on the new Constitution. (Bott vs. Wurts. as the Constitution of Virginia. it is effective for all purposes when accepted by the majority. Even if the act of the Constitutional Convention is beyond its authority. if followed. Company (42 SO pp. 126 A. unobjected to. and by voting. and by the people in their primary capacity by peacefully accepting it and acquiescing in it." 441 442 . In the 1925 case of Taylor vs. Substance more than form must be regarded in considering whether the complete constitutional system for submitting the proposal to amend the constitution was observed. Peoples State Bank (75 NW 2nd 370. under its provisions. yet. courts should uphold amendment.Constitutional Law I L-36142 Constitutional Law I L-36142 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. or in its advertisement. and acted upon as the only valid Constitution of the state by the Governor in swearing fidelity to it and proclaiming it. registering as voters under it to the extent of thousands through the state.

Even prior to the election in November.' as provided by Section 3249. 42 SCRA 448). 14. see also Sylvester vs. The civil courts. 1970 of delegates of the Constitutional Convention and during the deliberations of the Constitutional Convention from June 1. Copies of the 1973 Constitution had been furnished the United Nations Organization and practically all the 443 444 . 3(2) of Article XVII of the 1973 Constitution. v. Garcia. 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. in civic forums and in all the media of information. 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. Tindall. 21. et al. Rec. even if proved. Dec. had been thoroughly discussed in the various committees of the Constitutional Convention. in the 1958 case of Swaim vs. Only the five (5) petitioners in L-36165 close their eyes to a fait accompli. 663). 1971 until martial law was proclaimed on Sept. civil and administrative cases pursuant to such decrees. military tribunals and quasi-judicial bodies created by presidential decrees have decided some criminal. were not such irregularities would have invalidated the election. Tuscaloosa County (103 SO 2nd 769). The irregularities complained of. including the lower courts. All the other functionaries recognize the new government and are performing their duties and exercising their powers under the 1973 Constitution. which suspension implies constraint on individual freedom as the proclamation of martial law. In both situations. 1972 to Jan." (Emphasis supplied. Code of 1942. 1972. there is no total blackout of human rights and civil liberties. 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. 22. 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. All the local governments. Ladner (131) SO 2nd 45 462). while two new ambassadors have been accepted by the Philippines after the ratification of the 1973 Constitution on January 17. on the floor of the Convention itself." The same principle was reiterated in 1961 by the Mississippi Supreme Court in Barnes. 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. 17. 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. dominated either by Nacionalistas or Liberals. The foreign ambassadors who were accredited to the Republic of the Philippines before martial law continue to serve as such in our country. 1973. 1971. Free election is not inevitably incompatible with martial law. 1973 implement some of the reforms and had been ratified in Sec.. to be used in the holding of the special election on the constitutional amendment. Ilarde and John Osmeña opted to serve in the Interim Assembly. 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. according to the certification of the Commission on Elections dated February 19. did not invalidate the amendment which was ratified by the people. Many of the decrees promulgated by the Chief Executive from Sept. aside from the fact of its ratification by the sovereign people through the Citizens Assemblies. 154 Fla.. 8 SO 2nd 892.Constitutional Law I L-36142 Constitutional Law I L-36142 Again. et al. the salient reforms contained in the 1973 Constitution which have long been desired by the people. 1973 (Annex Rejoinder-3 to Consolidated Rejoinder of petitioners in L-36165).

& (e) of Annex A to Notes of respondents Puyat and Roy in L-36165). rebels and subversives as the only possible exceptions. Johnson 18 SW 522: If a set of men. The convention. in times of great popular excitement. 1-A(c). however. there should be a remedy in the courts. the power of a court as to the acts of the other departments of the government is not an absolute one. however. then. The instrument which we are asked to declare invalid as a constitution has been made and promulgated according to the forms of law. one of a judicial character? It is our undoubted duty. (d). but merely to determine whether they have kept within constitutional limits. it is a duty rather than a power. 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. In brief. The judiciary cannot compel a co-equal department to perform a duty. It may be said. it would undoubtedly be the duty of the courts declare its work a nullity. No adverse reaction from the United Nations or from the foreign states has been manifested. Is the question. and this the courts of the existing government must resist until they are overturned by power. not selected by the people according to the forms of law. if a statute be unconstitutional to so declare it. if a provision of the state constitution be in conflict with the federal constitution. While the judiciary should protect the rights of the people with great care and jealousy. also. for every violation of or non-compliance with the law. the overthrow of the work of the convention. when the question is properly presented. For instance. secessionists. because this is its duty. to hold the former invalid. It is a matter of current history that both the executive and legislative branches of the government have recognized its validity as a 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. This is not. as being perhaps equally dangerous. On the contrary. and its duty required. but if it does act. But this is a very different case. yet it should at the same time be careful to overstep the proper bounds of its power. however. the rest of the citizenry are complying with decrees. if the power of the judiciary permitted. always the case. 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. who are qualified electors under the 1973 Constitution (see pars. It is responsible to the people. and are now daily doing so. Of happy relevance on this point is the holding in Miller vs. orders and circulars issued by the incumbent President implementing the 1973 Constitution. it is the duty of the court to say whether it has conformed to the organic law. and no law existed providing for the 445 446 . therefore. and especially where such momentous results might follow as would be likely in this instance. After the American Revolution the state of Rhode Island retained its colonial character as its constitution. were to formulate an instrument and declare it the constitution. This would be revolution. and also because. and a new government established. was the offspring of law. that.Constitutional Law I L-36142 Constitutional Law I L-36142 other countries with which the Philippines has diplomatic relations. it is usually their last resort.

and 15 N. submitted it to a vote. Great 448 . material and immaterial. unless the manner be followed. another. had no power to make any material amendment. when it reassembled. and the political department having recognized the one. 7 How. 738. were void. in Luther v. Then. and in substance says that where the political department has decided such a matter the judiciary should abide by it. as it held the federal court. yet in the argument approves it. and then the court might differ as to what amendments are material. and the result would be confusion and anarchy. if this be essential. But it is a case where a new constitution has been formed and promulgated according to the forms of law. Whether the charter government. It is not a question of whether merely an amendment to a constitution. without the judiciary being asked to overstep the proper limits of its power. 14 N. If the instrument as ratified by the people could not be corrected or altered at all.Constitutional Law I L-36142 Constitutional Law I L-36142 making of a new one. 391. Perhaps the members of the court might differ as to what 447 amendments are material. State v. This would be arrogating sovereignty to itself. was the legitimate one. 543. it was held to be the duty of the judiciary to follow its decision. Rep. The charter government did not acquiesce in these proceedings. the convention exceeded its power. and that such as were made are void by reason of the people having theretofore approved the instrument. the judiciary. was uniformly held by the courts of the state not to be a judicial. what constitution are we now living under. they have ample remedy. and we find the court. then the instrument. has been adopted. Borden. Koehler v.W. it can. through error of opinion. If it provides how it is to be done. 60 Iowa. who proceeded to organize a new government. 1 Nev. this court must determine what amendments were material. and finally declared the state under martial law. 1. Rep. 609. Rep. but a political question. If a wrong has been done. made without calling a convention. to be submitted to a popular vote. as passed upon by the people or as fixed by the court would be lacking a promulgation by the convention. while not expressly deciding the principle. resulting in the election of a convention to form a new one.W. will declare the amendment invalid. or if the court must determine what changes were material. next. Tuffy. The instrument provides for amendment and change. and declared it adopted. It called another convention. 12 Pac. which in 1843 formed a new constitution. making a constitution. Let us illustrate the difficulty of a court deciding the question: Suppose this court were to hold that the convention. or the one established by the voluntary convention. The supreme court of the United States. in effect. as the interpreter of that constitution. and the people are dissatisfied. is by the people acting as a body politic. The convention framed one. then. then the question would arise. as required by that constitution. Hill. 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. Elections were held for state officers. in the proper way in which it should be remedied. that the convention had then the implied power to correct palpable errors. and. In 1841 public meetings were held. One judge might say that all the amendments. 835. If.

8. the political power of the government has in many ways recognized it. This Court cannot dictate to our principal. under such circumstances. 1973. in a milieu vastly different from 1868 to 1898. Marcos (Pres. the sovereign people. 1973 under the 1935 Constitution. In this respect. of Article II of both the 1935 and the 1973 Constitutions."* (Vol. We need not consider the validity of the amendments made after the convention reassembled. This dangerous possibility does not obtain in the case of our Republic. If the making of them was in excess of its powers. It is possible that. Election Contest No. WE cannot presume to know better than the incumbent Chief Executive. cannot apply to a unitary state like the Republic of the Philippines. coordinate and co-equal branch of the government demands adherence to the presumption of correctness of the President's declaration. Judge Cooley advanced the aforesaid opinion in 1868 when he wrote his opus "Constitutional Limitations. We affirmed in Osmeña vs. must restrain its enthusiasm to sally forth into the domain of political action expressly and exclusively reserved by the sovereign people themselves. who can and properly should remedy the matter. according to its provisions. as to how the approval of the new Constitution should be manifested or expressed. 6. and now the organic law of our commonwealth.Constitutional Law I L-36142 Constitutional Law I L-36142 interests have already arisen under it. 1102 that the people through their Citizens' Assemblies had overwhelmingly approved the new Constitution due regard to a separate. (emphasis supplied). If this Court inquires into the validity of Proclamation No. to execute the law and administer the affairs of government. That would be incompatible with their sovereign character of which We are reminded by Section 1. The sovereign people have spoken and we must abide by their decision. which states may be jealous of the powers of the Federal government presently granted by the American Constitution. if it were to declare the instrument of a portion invalid. persons have been convicted of the highest crime known to the law. would be anomalous. yet. not having a similar mandate by direct fiat from the sovereign people. Even if conclusiveness is to be denied to the truth of the declaration by the President in Proclamation No. as the entire instrument has been recognized as valid in the manner suggested. 445 446). only last January 8. 1969 ed. there is no overriding reason to deny the same to the Chief of State as head of the 449 450 . it would be equally an abuse of power by the judiciary and violative of the rights of the people. 3. he might have altered his views on the matter. was re-elected by the vote of over 5 million electors in 1969 for another term of four years until noon of December 30. 1102 and consequently of the adoption of the 1973 Constitution it would be exercising a veto power on the act of the sovereign people. Such presumption is accorded under the law and jurisprudence to officials in the lower levels of the Executive branch. 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. regardless of our notion as to what is the proper method of giving assent to the new Charter. who. and bring confusion and anarchy upon the state. 1973). pp. Encyclopedia Brit. His opinion expressed in 1868 may apply to a Federal State like the United States. Then again. important rights exist by virtue of it. of whom this Court is merely an agent. which to say the least. 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. it is our duty to treat and regard it as a valid constitution. Jan. The opinion of Judge Thomas McIntire Cooley that the sovereign people cannot violate the procedure for ratification which they themselves define in their Constitution. This Court. unlike the members of this Court. and. were he live today. if not to their liking..

102. [1927] 50 Phil. the inclusion of those from 15 years up to below 21 years old. 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. 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. 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. convicts or ex-convicts. Included likewise in the delegated authority of the President. 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. whether peaceful citizens. including the localities of petitioners. Code). are entitled as much as the educated. Even in the absence of such certification. Much less are We justified in reversing the burden of proof by shifting it from the petitioners to the respondents. This should suffice to dispose of this point. civil interdiction or ignorance deserve more solicitude from the State than the rest of the citizenry. 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. Elec. etc. 1967 Ed. aside from the fact that such reports are not contained in the record. [1931] 282 U. much less overthrow the results of the referendum as certified. 595 and O'Gonmore. and those who are 21 years of age or above to express their conformity or non conformity to the proposed Constitution. Dir. Proclamation No.S. in the face of the certifications by the Office the Secretary of the Department of Local Government and Community Development.. 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. in much the same way that in passing law. the law abiding. ex-convicts and imbeciles constitute a very negligible number in any locality or barrio.. secessionists. pp. these sectors of our citizenry. 1973). these citizens. As a matter of fact. the Department National Defense and the Philippine Constabulary as well the 451 452 . Hartford. Under the rules on pleadings. There is nothing in the records that contradicts. WE cannot reverse the rule on presumptions. 251). ex convicts and illiterates were allowed to vote in the Citizens' Assemblies. to 1-E. etc. Not all ex-convicts are banned from voting. And have failed to do so. et al: vs. (Annexes 1. ex-convicts granted absolute pardon are qualified to vote. of both sexes. whether literate or illiterate. it should likewise be presumed that the President was in possession of the fact upon which Proclamation No. whose juridical personality or capacity to act is limited by age. if not for generations. In the ultimate analysis. 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.Constitutional Law I L-36142 Constitutional Law I L-36142 Executive Branch. about which no proof was even offered. 1102 is not just an ordinary act of the Chief Executive. 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. The Power of Judicial Review. the ex-convicts and the ignorant. Petitioners decry that even 15-year olds. 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. 112-11 citing Lorenzo vs.." Moreover. without being presumptuous. This presumption is further strengthened by the fact that the Department of Local Governments. Petitioners deny the accuracy or correctness of Proclamation No. 1102 was based.. because their stake under the new Charter is not any less than the stake of the more fortunate among us. Congress or the legislative body is presumed to be in possession of the facts upon which such laws are predicated (Justice Fernando. Without admitting that ex-convicts voted in the referendum. 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. is the prerogative to proclaim the results of the plebiscite or the voting the Citizens' Assemblies. Furthermore. 1971 Rev. rebels.

but the question may be asked as to what exactly they did to support such reforms. which is a most grievous accusation. WE cannot determine what is good for the people or ought to be their fundamental law.Constitutional Law I L-36142 Constitutional Law I L-36142 Bureau of Posts are all under the President. 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. inevitable concomitants of martial law. to apply and interpret the Constitution and the laws for 453 454 . 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." 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. rules of pleadings and evidence. 62. They are witness to the frustrations of well-meaning Presidents who wanted to effect the reforms. must the word of the petitioners prevail over that of the Chief Executive. for the progress and happiness of the people. As stated in Wheeler vs. because of the restrictions on the civil liberties of his people. Secretary of Interior. "Now the hopes for the long-awaited reforms to be within a year or to are brighter. All the petitioners herein cannot stand on the proposition that the rights under the 1935 Constitution are absolute and invulnerable to limitations that may be needed for the purpose of bringing about the reforms for which the petitioners pretend to be clamoring for and in behalf of the people. For the last seven (7) decades since the turn of the century. "burying their heads in timeless sand. are presumptively acting for and in behalf of the President and their acts are valid until disapproved or reprobated by the President (Planas vs. The 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. is to charge the President with falsification. "a court is never justified in placing by implication a limitation upon the sovereign. Under the. 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. despite the violent uprisings in the thirties. funded and seriously implemented. which necessarily entail some degree of sacrifice on the part of the citizenry. where the accused is always presumed to be innocent. and the violent demonstrations of recent memory. 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. no tangible substantial reform had been effected. 67 Phil. 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. Until the contrary is established or demonstrated. Gil. because they happen to be former senators and delegates to the Constitutional Convention? More than any of the petitioners herein in all these cases. 67 Phil. 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 L36165 belong to the opposition party. 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. Villen vs. 1946. the incumbent President realizes that he risks the wrath of his people being visited upon him and the adverse or hostile verdict of history. Board of Trustees. and from 1946 to 1952. This Court did not heed to the principle that the courts are not the fountain of all remedies for all wrongs. herein petitioners should grant that the Chief Executive is motivated by what is good for the security and stability of the country. which offices as his alter ego. WE can only exercise the power delegated to Us by the sovereign people. Congress and the oligarchs acted like ostriches. the petitioners have the burden of proof by preponderance of evidence in civil cases and by proof beyond reasonable doubt in criminal prosecutions. 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.

least of all of the American nation. 17 Encyclopedia Brit. 732733). WE cannot perform an act inimical to the interest of Our principal. who later appointed him first as Attorney General of the United States.. The choice of heroes should not be expressed indiscriminately just to embellish one's rhetoric. who were then demoralized and plotting mutiny. 1966 ed. the surviving members of the family of Marshal Petain would not relish the error. 778-779. let alone a rebel government engaged in international negotiations. (See Taylor vs. briefly recounts that he was born in 1777 in Calvert County. 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. 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. 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 455 456 . He was a leader of the Federalist Party. His death "went largely unnoticed and unregretted. in which position he continued for 28 years until he died on October 21. although Marshal Foch has a distinct place in history on his own merits. so that the historians. supra). Chief Justice Taney sympathized with the Southern States and. 508-509) to this effect. because he held Verdun against the 1916 offensive of the German army at the cost of 350. also a slave owner and landed aristocrat. Unlike in the Borden case. That he had no sympathy for the Negroes was revealed by his decision in Dred Scott vs." Because he himself was a slave owner and a landed aristocrat.. practiced law and was later appointed Attorney General of Maryland. 1969 ed. 21 of the Encyclopedia Brit.. who at any time may directly exercise their sovereign power ratifying a new Constitution in the manner convenient to them. 9487 [1861]). which animosity to say the least does no befit a judicial mind. (pp. But who exactly was Chief Justice Roger Brooke Taney? The Editorial Board of Vol. 1969 ed. 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. One can therefore discern his hostility towards President Lincoln when he decided Ex parte Merryman. not against them nor to prejudice them. of parents who were landed aristocrats as well as slave owners. Commonwealth.. Sandford (19 How. Taney became a lawyer in 1799. He also was a member of the Maryland state legislature for several terms. pp. Certainly. 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. then Secretary of the Treasury and in 1836 Chief Justice of the United States Supreme Court to succeed Chief Justice John Marshall. Distinguished counsel in L-36165 appears to have committed another historical error. Inheriting the traditional conservatism of his parents who belonged to the landed aristocracy. 654-657). Such a man could hardly be spoken of as a hero of the American Bar. There is not even a rebel government duly organized as such even only for domestic purposes. which disintegrated after the war of 1812. which may be due to his rhetorical in the Encyclopedia Britannica (Vol. On the contrary.. hoped that the Southern States would be allowed to secede peacefully from the Union. The vice president elected under the 1935 Constitution does not asset any claim to the leadership of the Republic of the Philippines.Constitutional Law I L-36142 Constitutional Law I L-36142 the benefit of the people." 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.000 of his French soldiers. 9. Encyclopedia Britannica (Vol. even while Chief Justice. compelling him to join the Democratic Party of Andrew Jackson. The foregoing clarification is offered in the interest of true scholarship and historical accuracy. And neither would the members of the clan of Marshal Foch acknowledge the undeserved accolade. 1973. 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. As heretofore stated. 1864. supra. Maryland. refers to Marshal Henri Philippe Petain as the genuine hero or "Savior of Verdun". 1966 & 1969 eds. pp. 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.

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. 207 Kan. J. 167. Hammond vs. 34. St. Such an attitude does not sit well with the dictum that "We can differ without being difficult. Surely. 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. The proclaimed conviction of petitioners in L-36165 on this issue would have a ring of credibility. although there was an illegal or irregular or no submission at all to the people. they will not affirm that the mere filing of their petition in L-36165 already made them "heroes and idealists. Cooney. and member of the newly integrated Philippine Bar. Winneth. 486 Pac.. Ryan. et al." The challenge likewise seems to insinuate that the members of this Court who disagree with petitioners' views are materialistic cowards or mercenary fence-sitters. do not recognize the sincerity of those who entertain opinions that clash with their own. 69 Ohio St. State. As late as 1971. political leader. Sours. 31 Colo. we can disagree without being disagreeable." 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. Fernando.." which distinguished counsel in L36165 is wont to quote. 8 SE 318. State vs.R. Laylin. Cuenco.S. Woodward vs. WE refuse to believe that petitioners and their learned as well as illustrious counsels. 225 P 1007. Combs vs. Dig. 74 Pac. 102 Am. City Mayor. adopted or acquiesced in by the people since January 18. pronounced that the presumption of constitutionality must persist in the absence of factual foundation of record to overthrow such presumption (Ermita-Malate Hotel. Smith. ALL THE PETITIONS IN THESE FIVE CASES SHOULD BE DISMISSED.Constitutional Law I L-36142 MAKASIAR. 10 L. July 31. scholars and liberal thinkers that they are. et al. Mr. Clark. 4th Dec. L-24698. if they proceeded first to hold a rump session outside the legislative building. speaking for the Court. et al. 1967. 935 [1934]. 355. because it is not unreasonable to demand or to exact that he who exhorts others to be brave must first demonstrate his own courage. Rep.A. Shanahan. We now discuss the other issues raised by the petitioners. 496. 71 SE 482-483. 1009). 1. 78 Neb. Pursuant to Our reservation. State. 70 Neb. 20 SCRA 849). 780. II EVEN IF ISSUE IS JUSTICIABLE. 17). ADOPTION OR ACQUIESCENCE CREATES STRONG PRESUMPTION OF VALIDITY OF 1973 CONSTITUTION. 211. 1973 until the present. and the 1956 case of Tipton vs. which We do not find now necessary to deal with in view of Our opinion on the main issue. vs. 645. Thompson vs. WE reserve the right to prepare an extensive discussion of the other points raised by petitioners. Corre vs. 110 NW 1113. 1. As intimated in the aforecited cases. 68 NE 574. 81 Ga. The Court need not be reminded of its solemn duty and how to perform it. 97 NW 347. Weston vs. People vs. is a justiciable question. [1949] 83 Phil. 379. etc. 369. Rep. supra). 70 Mont. even the courts. [N. 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. Gray. author of law books. concurring: Constitutional Law I L-36142 eminence as law professor. 457 458 . (Collier vs. IN VIEW OF THE FOREGOING. vs. 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. Justice Enrique M. 30 SE 522. 2d 506. 103 Ga.] 149. if they believe most vehemently in the justice and correctness of their position that the 1973 Constitution has not been validly ratified. PEOPLE'S RATIFICATION.

namely. 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. 1972. I. Vol. XVII. as well as independent of. it inescapably must have the power to delegate the same to the President. As a fourth separate and distinct branch. 1975 and 1977) which provides that the new Constitution shall take effect immediately upon its ratification (Sec. in estimation of the Convention can better determine appropriate time for such a referendum as well as the amount necessary to effect the same.. ratification of which means their elimination from the political scene. An unsympathetic Congress would not be disposed to submit the proposed Constitution drafted by the Constitutional Convention to the people for ratification. to emphasize its independence. . and that the national and local leaders desire that there be continuity in the immediate transition from the old to the new Constitution. the executive and the judicial. If Congress can legally delegate to the Chief Executive or his subaltern the power to promulgate subordinate rules and regulations to implement the law. 1952 ed. for the purpose of maintaining the same unimpaired and in order that its work will not be frustrated. the three grand departments of the Government. 1973 Constitution). Article XVII. 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. To deny the Convention such prerogative. would not be disposed to call a plebiscite and appropriate funds therefor to enable the people to pass upon the 1973 Constitution. 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. 1972 that the urgency of instituting reforms rendered imperative the early approval of the new Constitution. for which reason the Convention thru Resolution No. who. which superseded Resolution No. 29 approved on November 22.. 3[1]. 91 Pac. 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. It enjoys the same immunity from interference or supervision by any of the aforesaid branches of the Government in its proceedings. EXECUTIVE AND JUDICIARY." after stating in "whereas" clauses that the 1971 Constitutional Convention expected to complete its work by the end of November. 5843 adopted on November 16. would leave it at the tender mercy of both legislative and executive branches of the Government. 1973 Constitution). Malcolm and Laurel. Phil. 1972. That could have been the fate of the 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. Constitution of the Philippines. a co-equal body.. Frantz vs. The Constitutional Convention is co-ordinate and co-equal with.. Art. possesses the power to call a plebiscite and to appropriate funds for the purpose. including the printing of its own journals (Tañada and Fernando. 1973. The new Constitution likewise shortened abruptly the terms of the members of the present Congress (whose terms end on December 31. Under the foregoing circumstances. the Convention has the power to fix the date for the plebiscite and to provide funds therefor. Law. 16. 193). 22. the organization of the Citizens' Assemblies for consultation on national issues. by necessary implication as it is indispensable to its independence and effectiveness. p. Autry. who were elected under the 1935 Constitution. this authority to delegate implementing rules should not be denied to the Constitutional Convention. Because the Constitutional Convention. Const. the members of Congress. for the President contemplated in the new Constitution exercises primarily ceremonial prerogatives. the legislative. because the convening of the interim National Assembly depends upon the incumbent President (under Sec. 8 9. affords them little comfort. is comprehended within the ordinance-making power of the President under Section 63 of the Revised 459 460 . pp. much less appropriate the necessary funds therefor. They will not provide the means for their own liquidation. Implicit in that independence.Constitutional Law I III L-36142 Constitutional Law I L-36142 CONSTITUTIONAL CONVENTION CO-EQUAL WITH AND INDEPENDENT OF CONGRESS. 29.

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. It should be noted that in approving said Resolution No." The use of the term "decree" is significant for the basic orders regulating the conduct of all inhabitants are issued in that form and nomenclature by the President as the Commander in Chief and enforcer of martial law. the same are contained in the "Whereas" clauses of the Constitutional Convention Resolution No. The fact that said Resolution No.Constitutional Law I L-36142 Constitutional Law I L-36142 Administrative Code. 29." That the Constitutional Convention omitted such phrase. is a valid exercise of such delegated authority. WHEREAS. The calling as well as conduct of the plebiscite was left to the discretion of the President. Marcos that a decree be issued calling a plebiscite . which superseded Resolution No. and who can participate in the plebiscite. how it shall be conducted and who shall oversee it. But even if adequate criteria should be required. the 1971 Constitutional Convention is expected to complete its work of drafting a proposed new Constitution for the Republic by the end of November. 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).. 29. it could have easily included the necessary phrase for the purpose. 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. the Constitutional Convention itself recognized the validity of. cannot be successfully challenged.. because he is in possession of all the facts funnelled to him by his intelligence services. 29. who shall supervise the plebiscite.. and is beyond the competence of this Court to nullify. 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 461 462 . unlike the delegation by Congress of the rule-making power to the Chief Executive or to any of his subalterns." (Emphasis supplied). Hence. 1081 placing the entire country under martial law by resolving to "propose to President Ferdinand E. can only mean that it left to the President the determination of the manner by which the plebiscite should be conducted. the issuance by the President of Presidential Decree No. in view of the urgency of instituting reforms. 5843. . thus: WHEREAS. division or part of the Philippines "or disposing of issues of general concern . the early approval of the New Constitution has become imperative. WHEREAS. The employment by the President of these Citizens' Assemblies for consultation on the 1973 Constitution or on whether there was further need of a plebiscite thereon. but not to direct said body to supervise the plebiscite. their creation by the President thru Presidential Decree No." did not in effect designate the Commission on Elections as supervisor of the plebiscite. Such delegation.. or validated Presidential Proclamation No. 1972. 29. does not need sufficient standards to circumscribe the exercise of the power delegated. 1973 and appropriating funds therefor pursuant to said Resolution No. 86 of December 31. as consultative bodies representing the localities including the barrios. It should be noted that Resolution No. 73 on December 1. . who. If that were the intention of the Constitutional Convention in making the delegation. both issues of national concern is still within the delegated authority reposed in him by the Constitutional Convention as aforesaid. Consequently. 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. 1972 setting the plebiscite on January 15. was in the superior position to decide when the plebiscite shall be held. 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. 1972.

etc. emphasis supplied). xx-xxi). (pp. As Mr. The view has been repeatedly expressed in many American state court decisions that to avoid such undesirable consequence the task of submission becomes ministerial. Constitutional Convention). 1972 on the Plebiscite Cases. with whom Messrs. such an objection would indeed have been formidable. If it were otherwise. The result of the deliberations of all collective bodies must necessarily be a compound.Constitutional Law I L-36142 Constitutional Law I L-36142 Constitution. With Congress not being in session. 2d 841. of the individuals of whom they are composed. then such an argument loses force. 104 SO. Res. pp. Fernando in L-35925. could be held as not devoid of such competence. (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. Nor is the appropriation by him of the amount necessary to be considered as offensive to the Constitution. No. could conceivably make use of such authority to compel the Convention to submit to its wishes. IV VAGUENESS OR AMBIGUITY DOES NOT INVALIDATE THE 1973 CONSTITUTION (1) Petitions challenge the 1973 draft as vague and incomplete.. If it were done by him in his capacity as President. Modern Library Ed. must necessarily be a compromise of as many dissimilar interests and inclinations. a negative answer certainly could result in the work of the Convention being rendered nugatory. 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. 212219.. 2-3. 7th Dec. one of the leading founders and defenders of the American Constitution. not to say insurmountable. Here it did not do so. the appropriating arm of the government. concurring opinion of J. stated that: "I never expect to see a perfect work from imperfect man. it could itself direct the submission to the people for ratification as contemplated in Article XV of the Constitution. Antonio and the writer concurred in the Plebiscite Cases. The President then. 463 464 . Gray. with the political branches devoid of any discretion as to the holding of an election for that purpose. as well of the errors and prejudices as of the good sense and wisdom.. Alexander Hamilton. 29. stated: ." (Annex "1" of Answer. call for such a plebiscite? Under such circumstances. 1956-1966). The compacts which are to embrace thirteen distinct States in a common bond of amity and union. on pain of being rendered financially distraught. by the decree under question. could the President. How can perfection spring from such materials?" (The Federalist. pp. and alluded to their arguments during the hearings on December 18 and 19. if performing his role as its agent. Justice Fernando. Section 15 of Article XIV and Sections 3(2) and 12 of Article XVII in the 1973 Constitution. then a legislative body.. It is understandable why it should be thus. Justices Barredo. answering the critics of the Federal Constitution. Once this work of drafting has been completed. The Convention itself could have done so. If the appropriation were made in his capacity as agent of the Convention to assure that there be submission to the people. 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.

including government-owned or controlled corporations. Regardless of the wisdom and moral aspects of the contested provisions of the proposed Constitution. permits.Constitutional Law I Article IV L-36142 Constitutional Law I L-36142 expressly and explicitly modified or repealed by the regular National Assembly. orders. or other forms of privileges for the exploration. or other acts of the incumbent President. xxx xxx xxx Sec. revoked. and acts promulgated. L-35940. Any provision of paragraph one. or any subdivision. or utilization of natural resources entered into. and particularly describing the place to be searched. L35953. thus: . as Jus Cogens not only because the Sec. decrees. L-35961. or superseded by subsequent proclamations. exploitation.. are hereby recognized as legal. particularly in international law." (Without the consent of the National Assembly. Article Eight and of this Article notwithstanding. Barredo.. valid and binding. or done by the incumbent President shall be part of the law of the land. Antonio and the writer. the Prime Minister may enter into international treaties or agreements as the national welfare and interest may require. concessions. concurred in by Justices Fernando. orders. 12. 15. The right of the people to be secure in their persons. instructions. 3.) Article XVII Sec. L-35929. and shall remain valid. agency. issued. overruled this objection. decrees. granted. L-35948. or such other responsible officer as may be authorized by law. and effects against unreasonable searches and seizures of whatever nature and for any purpose shall not be violated. L-35965. and contracts entered into by the Government. development. or instrumentality thereof. houses. and the persons or things to be seized. Article XIV Sec. 3(2) All proclamations. papers. 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. legal. Section fourteen. instructions. unless modified. When the national interest so requires. or unless 465 466 . binding and effective even after lifting of martial law or the ratification of this Constitution. executive agreements. the incumbent President of the Philippines or the interim Prime Minister may review all contracts. Chief Justice Roberto Concepcion. and no search warrant or warrant of arrest shall issue except upon probable cause to be determined by the judge. after examination under oath or affirmation of the complainant and the witnesses may produce. In the Plebiscite Cases (L-35925. L-35942. All treaties. & L-35979). issued or acquired before the ratification of this Constitution.

. 14 NW 738. as President of the Republic 1962 to 1965. 1972 and accordingly signed on November 1972 by the delegates whose signatures are thereunder affixed." as provided in Section 1 of Article XV of the 1935 Constitution. 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. 136 Ga. State v. 60 Iowa 543 [1883]. 25 NW 245. duly attested by its Secretary." V 1973 CONSTITUTION DULY ADOPTED AND PROMULGATED. contains the certification by President Diosdado Macapagal of the Constitutional Convention. Smith. 247 NW 474. 202 [1930]. Justice Fernando. it seems to me a sufficient answer that once convened. 31 [1920]. Hatch Stoneman. then the titular head of the Liberal Party to which four (4) of the petitioners in L-36165 including their counsel. 467 468 . Hill. 66 Cal. 6 P 734. It should be recalled that Constitutional Convention President Diosdado Macapagal was. because the same will be submitted to the people for ratification.Constitutional Law I L-36142 Constitutional Law I L-36142 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. Clark. 145 Okl. 27 SO 297. Koehler vs. 262 Mich. MacMillan v." Mr... such limitation of the scope of their function and objective was not in their minds. 313 [1911]. Hamilton v. 632 [1885].).. 1970. Mr. School District vs. 212 Mich. 1972 and on third reading in the Convention's 291st plenary session on November 29. Vaughan.. Looney vs. supra. Decision in L-35925. This Court likewise enunciated in Del Rosario vs. etc. City of Pontiac. expressed the view "that when the people elected the delegates to the Convention and when the delegates themselves were campaigning. 543 [1900]. belong. Oct. concurring in the same Plebiscite Cases. Leeper. in his concurring opinion in said Plebiscite Cases. 105 Ohio St. This claim is without merit because their Annex "M" is the Filipino version of the 1973 Constitution. the area open for deliberation to a constitutional convention . 179 NW 533.. Once ratified by the sovereign people. 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. State v. approved on second reading on the 27th day of November. 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. and added: ". Powell. there can be no debate about the validity of the new Constitution. 292 P 365. 17-18. 338 [1933]). Hammond v. former Senator Jovito Salonga. that the proposed Constitution. Justice Barredo. Petitioners next claim that the 1971 Constitutional Convention adjourned on November 30. is practically limitless" (citing Cf. 67 Iowa 287 [1895].. 77 Miss. 71 SE 479. 138 NE 881. 570 [1922]. cited the foregoing pronouncement in the Del Rosario case. (Pp. like the English version. Comelec (L-32476. Blattner.. 20. 35 SCRA 367) that the Constitutional Convention has the authority to "entirely overhaul the present Constitution and propose an entirely new Constitution based on an ideology foreign to the democratic system .

This is a clear case of usurpation of sovereign power they do not possess through some kind of escamotage. Minnesota [1857]. 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. See the State Constitutions of Alabama [1901]. 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. the legislature shall order an election by the qualified electors of the state upon such proposed amendments. three-fifths of all the members elected to that house shall vote in favor thereof. who have the sole power of ratification. As typical examples: Constitution of Alabama (1901): Article XVIII. Louisiana [1921]. supra). Arizona [1912]. Massachusetts [1790].Constitutional Law I L-36142 Constitutional Law I L-36142 (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. Colorado [1976]. Iowa [1857]. In all the cases where the court held that illegal or irregular submission. 284. Florida [1887]. prescribes the publication of the proposed amendment or a new Constitution for a specific period prior to the election or plebiscite." 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. petitioners and their counsels are amending by a strained and tortured construction Article XV of the 1935 Constitution. or of both state and local officials. Connecticut [1818]. Maryland [1867]. the procedure prescribed by the state Constitution is so detailed that it specifies that the submission should be at a general or special election. Indiana [1851]. Kansas [1861]. Michigan [1909]. Notice 469 470 . fixes the date of the election or plebiscite limits the submission to only electors or qualified electors." This position certainly imposes limitation on the sovereign people. In effect. Board of Trustees. Georgia [1945]. in which they shall likewise be read on three several days. and if upon the third reading. This Court should not commit such a grave error in the guise of judicial interpretation. nullifies the proposed amendment or the new Constitution. which imposition by the Court is never justified (Wheeler vs. Arkansas [1874]. 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. and designates the officer to conduct the plebiscite. Illinois [1970]. due to absence of substantial compliance with the procedure prescribed by the Constitution and/or the law. 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. Mississippi [1890]. not less than three months after the final adjournment of the session of the legislature at which the amendments were proposed. or at the election for members of the State legislature only or of all state officials only or of local officials only. Mode of Amending the Constitution Sec. and Missouri [1945]). to canvass and to certify the results. Kentucky [1891]. and. the proposed amendments shall be sent to the other house. if upon the third reading. three-fifths of all the members elected that house shall vote in favor of the proposed amendments.

and. Miscellaneous Provisions. together with the proposed amendments. 22. 471 472 . officers for such election shall be appointed. for six months immediately preceding the next general election for Senators and Representatives. but no more than three amendments shall be proposed or submitted at the same time. If such election be held on the day of the general election. such amendments shall be valid to all intents and purposes as parts of this Constitution. and if it