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Philippine Bar Association v.

140 SCRA 455, January 7, 1986


Petitions were filed questioning the validity of BP 883, calling a special election for
President and Vice-President on February 7, 1986.

The law was enacted following the letter of President Marcos to the BP that he was
"irrevocably vacating the position of President effective only when the election is held
and after the winner is proclaimed and qualified as Pres. by taking his oath of office
ten days after his proclamation."
The principal ground for the challenge to the validity of the statute was that the
conditional resignation of the President did not create a vacancy required by Article
VII, Sec. 9 which authorized the calling of a special election.


1. Whether or not BP 883 is unconstitutional.

2. Whether or not the Supreme Court should allow incumbent President Marcos to
run on that said special election.


After deliberating, 7 Justices voted to dismiss. On the other hand, 5 Justices voted to
declare the statute unconstitutional. In accordance with Javellana v. Executive
Secretary, of the view that as there were less than ten votes for declaring BP 883
unconstitutional. The petitions should be dismissed.

On the second issue, it turned out to be a political question. It can only be decided by
the people in their sovereign capacity at the scheduled election. Thus, it is outside the
ambit of the courts.

The Court cannot stand in the way of letting the people decide through their ballot,
either to the give the incumbent president a new mandate or elect a new president.
Javellana vs Executive Secretary
GR No. L-36142, March 31 1973, 50 SCRA 33


On January 20, 1973, just two days before the Supreme Court decided the sequel of
plebiscite cases, Javellana filed this suit against the respondents to restrain them from
implementing any of the provisions of the proposed Constitution not found in the
present 1935 Constitution. This is a petition filed by him as a Filipino citizen and a
qualified and registered voter and as a class suit, for himself and in behalf of all
citizens and voters similarly situated. Javellana also alleged that the President had
announced the immediate implementation of the new constitution, thru his Cabinet,
respondents including.

Respondents are acting without or in excess of jurisdiction in implementing the said

proposed constitution upon ground the that the President as Commander-in-Chief of
the AFP is without authority to create the Citizens Assemblies; without power to
approve proposed constitution; without power to proclaim the ratification by the
Filipino people of the proposed constitution; and the election held to ratify the
proposed constitution was not a free election, hence null and void.

Following that, petitioners prayed for the nullification of Proclamation No. 1102 and
any order, decree, and proclamation which have the same import and objective.

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

First. To determine whether or not the new constitution is in force depends upon
whether or not the said new constitution has been ratified in accordance with the
requirements of the 1935 Constitution. It is well settled that the matter of ratification
of an amendment to the constitution should be settled applying the provisions of the
constitution in force at the time of the alleged ratification of the old constitution.
The issue whether the new constitution proposed has been ratified in accordance with
the provisions of Article XV of the 1935 Constitution is justiciable as jurisprudence
here and in the US (from whom we patterned our 1935 Constitution) shall show.

Second. The Constitution does not allow Congress or anybody else to vest in those
lacking the qualifications and having the disqualifications mentioned in the
Constitution the right of suffrage.

The votes of persons less than 21 years of age render the proceedings in the Citizen’s
assemblies void. Proceedings held in such Citizen’s Assemblies were fundamentally
irregular, in that persons lacking the qualifications prescribed in Article V Section 1 of
the 1935 Constitution were allowed to vote in said Assemblies. And, since there is no
means by which the invalid votes of those less than 21 years of age can be separated or
segregated from those of the qualified voters, the proceedings in the Citizen’s
Assemblies must be considered null and void.

Viva voce voting for the ratification of the constitution is void. Article XV of the 1935
Constitution envisages with the term "votes cast" choices made on ballots – not orally
or by raising hands – by the persons taking part in plebiscites. This is but natural and
logical, for, since the early years of the American regime, we had adopted the
Australian Ballot System, with its major characteristics, namely, uniform official
ballots prepared and furnished by the Government and secrecy in the voting, with the
advantage of keeping records that permit judicial inquiry, when necessary, into the
accuracy of the election returns.

The plebiscite on the constitution not having been conducted under the supervision of
COMELEC is void. The point is that, such of the Barrio Assemblies as were held took
place without the intervention of the COMELEC and without complying with the
provisions of the Election Code of 1971 or even of those of Presidential Decree No.
73. The procedure therein mostly followed is such that there is no reasonable means of
checking the accuracy of the returns filed by the officers who conducted said
plebiscites. This is another patent violation of Article X of the 1935 Constitution
which form part of the fundamental scheme set forth in the 1935 Constitution, as
amended, to insure the "free, orderly, and honest" expression of the people's will. For
this, the alleged plebiscite in the Citizen’s Assemblies is null and void, insofar as the
same are claimed to have ratified the revised Constitution.

Third. Proclamation No. 1102 is not an evidence of ratification. Article X of the 1935
Constitution places COMELEC the "exclusive" charge to the "the enforcement and
administration of all laws relative to the conduct of elections," independently of the
Executive. But there is not even a certification by the COMELEC in support of the
alleged results of the citizen’s assemblies relied upon in Proclamation No. 1102. Also,
on January 17, 1973 neither the alleged president of the Federation of Provincial or
City Barangays nor the Department of Local Governments had certified to the
President the alleged result of the citizens' assemblies all over the Philippines. The
citizen’s assemblies did not adopt the proposed constitution. It is to my mind a matter
of judicial knowledge that there have been no such citizen’s assemblies in many parts
of Manila and suburbs, not to say, also, in other parts of the Philippines.

Fourth. The Court is not prepared to concede that the acts the officers and offices of
the Executive Department, in line with Proclamation No. 1102, connote recognition of
or acquiescence to the proposed Constitution.

A department of the Government cannot “recognize” its own acts. Recognition

normally connotes the acknowledgment by a party of the acts of another. Individual
acts of recognition by members of Congress do not constitute congressional
recognition, unless the members have performed said acts in session duly assembled.
This is a well-established principle of Administrative Law and of the Law of Public
Officers. The compliance by the people with the orders of martial law government
does not constitute acquiescence to the proposed Constitution. Neither does the Court
prepared to declare that the people's inaction as regards Proclamation No. 1102, and
their compliance with a number of Presidential orders, decrees and/or instructions,
some or many of which have admittedly had salutary effects, issued subsequently
thereto, amounts to a ratification, adoption or approval of said Proclamation No. 1102.
The intimidation is there, and inaction or obedience of the people, under these
conditions, is not necessarily an act of conformity or acquiescence.

As regards the applicability to these cases of the "enrolled bill" rule, it is well to
remember that the same refers to a document certified to the President for his action
under the Constitution by the Senate President and the Speaker of the House of Reps,
and attested to by the respective Secretaries of both Houses, concerning legislative
measures approved by said Houses. Whereas, Proclamation No. 1102 is an act of the
President declaring the results of a plebiscite on the proposed Constitution, an act
which Article X of the 1935 Constitution denies the executive department of the

In all other respects and with regard to the other respondent in said case, petitions
therein should be given due course, there being more than prima facie showing that the
proposed Constitution has not been ratified in accordance with Article XV of the 1935
Constitution, either strictly, substantially, or has been acquiesced in by the people or
majority thereof; that said proposed Constitution is not in force and effect; and that the
1935 Constitution is still the Fundamental Law of the Land, without prejudice to the
submission of said proposed Constitution to the people at a plebiscite for its
ratification or rejection in accordance with Articles V, X and XV of the 1935
Constitution and the provisions of the Revised Election Code in force at the time of
such plebiscite.

Fifth. Four (4) members of the Court, namely, Justices Barredo, Makasiar, Antonio
and Esguerra hold that it is in force by virtue of the people's acceptance thereof; 4
members of the Court, namely, Justices Makalintal, Castro, Fernando and Teehankee
cast no vote thereon on the premise stated in their votes on the third question that they
could not state with judicial certainty whether the people have accepted or not
accepted the Constitution; and 2 members of the Court, namely, Justice Zaldivar and
myself voted that the Constitution proposed by the 1971 Constitutional Convention is
not in force; with the result, there are not enough votes to declare that the new
Constitution is not in force.

(G.R. No. 73748 - May 22, 1986)

Minute Resolutions


[G.R. No. 73748, May 22, 1986]



Quoted hereunder, for your information, is a resolution of this Court MAY 22, 1986.

In G.R. No. 73748, Lawyers League for a Better Philippines vs. President Corazon C. Aquino, et al.; G.R. No. 73972, People's Crusade for
Supremacy of the Constitution vs. Mrs. Cory Aquino, et al., and G.R. No. 73990, Councilor Clifton U. Ganay vs. Corazon C. Aquino, et al., the
legitimacy of the government of President Aquino is questioned. It is claimed that her government is illegal because it was not established
pursuant to the 1973 Constitution.

As early as April 10, 1986, this Court* had already voted to dismiss the petitions for the reasons to be stated below. On April 17, 1986, Atty.
Lozano as counsel for the petitioners in G.R. Nos. 73748 and 73972 withdrew the petitions and manifested that they would pursue the
question by extra-judicial methods. The withdrawal is functus oficio.

The three petitions obviously are not impressed with merit. Petitioners have no personality to sue and their petitions state no cause of action.
For the legitimacy of the Aquino government is not a justiciable matter. It belongs to the realm of politics where only the people of the
Philippines are the judge. And the people have made the judgment; they have accepted the government of President Corazon C. Aquino which
is in effective control of the entire country so that it is not merely a de factogovernment but is in fact and law a de jure government. Moreover,
the community of nations has recognized the legitimacy of the present government. All the eleven members of this Court, as reorganized, have
sworn to uphold the fundamental law of the Republic under her government.

In view of the foregoing, the petitions are hereby dismissed.

Very truly yours,


Clerk of Court

* The Court was then composed of Teehankee, C.J. and Abad Santos., Melencio-Herrera, Plana, Escolin, Gutierrez, Jr., Cuevas, Alampay and
Patajo, JJ.------------------------------------------

On February 25, 1986, President Corazon Aquino issued Proclamation No. 1 announcing that she and Vice President Laurel were taking power.

On March 25, 1986, proclamation No.3 was issued providing the basis of the Aquino government assumption of power by stating that the
"new government was installed through a direct exercise of the power of the Filipino people assisted by units of the New Armed Forces of the

Whether or not the government of Corazon Aquino is legitimate.

Yes. The legitimacy of the Aquino government is not a justiciable matter but belongs to the realm of politics where only the people are the