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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.

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.

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 De-
fense; General ROMEO ESPINO, in his capacity as Chief
of Staff of the Armed Forces of the Philippines;
CONSTANCIO E. CASTAÑEDA, in his capacity as Secretary
of General Services; Senator GIL J. PUYAT, in his
capacity as President of the Senate; and Senator JOSE
ROY, in his capacity as President Pro Tempore of the
Senate, respondents.

No. L-36236. March 31, 1973.


EDDIE B. MONTECLARO, [personally and in his capacity as
President of the National Press Club of the Philip-
pines], petitioner, vs. THE EXECUTIVE SECRETARY, THE
SECRETARY OF PUBLIC INFORMATION, THE AUDITOR
GENERAL, THE BUDGET COMMISSIONER & THE NATION-
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al Treasurer, respondents.

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, and THE HONORABLE AUDITOR
GENERAL, respondents.

Constitutional law; Doctrine of Separation of powers; Six


Justices agree that the issue of the validity of Proclamation
1102 (announcing the ratification of the proposed Constitution)
is a justiciable question; four Justices differ.—On the first issue
involving the political-question doctrine, Justices Makalintal,
Zaldivar, Castro, Fernando, Teehankee and Chief Justice
Concepcion, or six (6) members of the Court, hold that the
issue of the validity of Proclamation 1102 presents a justiciable
and non-justiciable question. Justices Makalintal and Castro
did not vote squarely on this question, but, only inferentially,
in their discussion of the second question. Justice Barredo
qualified his vote, stating that “inasmuch as it is claimed that
there has been approval by the people, the Court may inquire
into the question of whether or not there has actually been
such an approval, and, in the affirmative, the Court should
keep its hands-off out of respect to the people’s will, but, in the
negative, the Court may determine from both factual and legal
angles whether or not Article XV of the 1935 Constitution has
been complied with.” Justices Makasiar, Antonio and
Esguerra, or three (3) members of the Court hold that the issue
is political and “beyond the ambit of judicial inquiry.”
Same; Amendments; Six Justices agree that the
Constitution proposed by the 1971 Constitutional Convention
has not been ratified validly conformably to the applicable
constitutional and statutory provisions; one Justice qualifies
his vote while the three others dissent.—On the second question
of validity of the ratification, Justices Makalintal, Zaldivar,
Castro, Fernando, Teehankee and Chief Justice Concepcion, or
six (6) members of the Court also hold that the Constitution
proposed by the 1971 Constitutional Convention was not
validly ratified in accordance with Article XV, section 1 of the
1935 Constitution, which provides only one way for
ratification, i.e., “in an election or plebiscite held in accordance
with law and participated in only by qualified and duly
registered voters.”

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Justice Barredo qualified his vote while Justices
Makasiar, Antonio and Esguerra, or three (3) members of the
Court hold that under their view there has been in effect
substantial compliance with the constitutional requirements
for valid ratification.
Same; Same; Four Justices hold that the proposed
Constitution has been acquiesced in by the people; two Justices
hold that the people have not expressed themselves; one Justice
thinks the doctrine of “Constitution by acquiescence”
inapplicable; while the three other justices agree that they lack
the knowledge or competence to make a determination.—On the
third question of acquiescence by the Filipino people in the
aforementioned proposed Constitution, no majority vote has
been reached by the Court.
Four (4) of its members, namely, Justices Barredo,
Makasiar, Antonio and Esguerra hold that “the people have
already accepted the 1973 Constitution.” Two (2) members of
the Court, namely, Justice Zaldivar and Chief Justice
Concepcion hold that there can be no free expression, and
there has even been no expression, by the people qualified to
vote all over the Philippines, of their acceptance or repudiation
of the proposed Constitution under Martial Law. Justice
Fernando thinks that the doctrine of “Constitution by
acquiescence” cannot be applied at this time Justices
Makalintal and Castro are joined by Justice Teehankee in
their statement that “Under a regime of martial law, with the
free expression of opinions through the usual media vehicles
restricted, (they) have no means of knowing, to the point of
judicial certainty, whether the people have accepted the
Constitution.”
Remedial law; Certiorari; Six Justices voted to dismiss the
petitions while the four others voted to give them due course.—
On the fourth question of relief, six (6) members of the Court,
namely, Justices Makalintal, Castro, Barredo, Makasiar,
Antonio and Esguerra voted to dismiss the petition. Justices
Makalintal and Castro so voted on the strength of their view
that “the effectivity of the said Constitution, in the final
analysis, is the basic and ultimate question posed by these
cases to resolve which considerations other than judicial, and
therefore beyond the competence of this Court, are relevant
and unavoidable.” Four (4) members of the Court, namely,
Justices Zaldivar, Fernando, Teehankee and Chief Justice
Concepcion voted to deny respondents’ motion to dismiss and
to give due course to the petitions.
Constitutional law; Amendments; Four Justices hold that
the new Constitution of 1973 is in force; four Justices did not
vote on the question; while the remaining two Justices voted
that the proposed

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Constitution is not in force.—On the fifth question of whether
the new Constitution of 1973 is in force: Justices Barredo,
Makasiar, Antonio and Esguerra hold that it is in force by
virtue of the people’s acceptance thereof; 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 Justice Zaldivar
and Chief Justice Concepcion voted that the Constitution
proposed by the 1971 Constitutional Convention is not in force;
with the result that there are not enough votes to declare that
the new Constitution is not in force.

Concepcion, C.J., dissenting:

Constitutional law; Courts; Only a majority of all the


members of the Supreme Court is required to annul an
executive proclamation.—There is nothing either in the
Constitution or in the Judiciary Act requiring the vote of eight
Justices to nullify a rule or regulation or an executive order
issued by the President. It is very significant that in the
previous drafts of section 10, Article VIII of the Constitution,
“executive order” and “regulation” were included among those
that required for their nullification the vote of two thirds of all
the members of the Court. But “executive order” and
“regulation” were later deleted from the final draft (Aruego,
The Framing of the Philippine Constitution, Vol. 1, pp. 495,
496), and thus a mere majority of six members of this Court is
enough to nullify them. x x x An executive proclamation has no
more than “the force of an executive order,” so that, for the
Supreme Court to declare such proclamation unconstitutional,
under the 1935 Constitution, the same number of votes needed
to invalidate an executive order, rule or regulation — namely,
six (6) votes — would suffice.
Same; Same; The question of the effectivity of the new
Constitution should be determined by applying the provisions of
the former Constitution.—As regards the applicability of the
provisions of the proposed new Constitution, approved by the
1971 Constitutional Convention, in the determination of the
question whether or not it is now in force, it is obvious that
such question depends upon whether or not the said new
Constitution has been ratified in accordance with the
requirements of the 1935 Constitution, upon the authority of
which said Constitutional Convention was called and approved
the proposed Constitution. It is well settled that the matter of
ratification of an amendment to the Constitution should be
settled applying the provisions of the Constitution in force at
the time of the alleged ratification of the old

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Constitution.
Same; Doctrine of Separation of Powers; The validity of
Proclamation 1102 does not partake of the nature of a political,
and, hence, nonjusticiable question.—Referring to the issue on
whether the new Constitution proposed by the 1971
Constitutional Convention has been ratified in accordance with
the provisions of Article XV of the 1935 Constitution is a
political question or not, I do not hesitate to state that the
answer must be in the negative. Indeed, such is the position
taken by this Court, in an endless line of decisions, too long to
leave any room for possible doubt that said issue is inherently
and essentially justiciable. Such, also has been the consistent
position of the courts of the United States of America, whose
decisions have a persuasive effect in this jurisdiction, our
constitutional system in the 1935 Constitution being patterned
after that of the United States. Besides, no plausible reason
has, to my mind, been advanced to warrant a departure from
said position, consistently with the form of government
established under said Constitution.
Same; Same; The issue of whether the exercise of a
Constitutional power has met its conditions is justiciable.—
When the grant of power is qualified, conditional or subject to
limitations, the issue on whether or not the prescribed
qualifications or conditions have been met, or the limitations
respected, is justiciable or non-political, the crux of the
problem being one of legality or validity of the contested act,
not its wisdom. Otherwise, said qualifications, conditions or
limitations — particularly those prescribed or imposed by the
Constitution — would be set at naught. What is more, the
judicial inquiry into such issue and the settlement thereof are
the main functions of courts of justice under the Presidential
form of government adopted in our 1935 Constitution, and the
system of checks and balances, one of its basic predicates. As a
consequence we have neither the authority nor the discretion
to decline passing upon said issue, but are under the
ineluctable obligation — made particularly more exacting and
peremptory by our oath, as members of the highest Court of
the land, to support and defend the Constitution — to settle it.
Same; Amendments; Elections; The right to vote is
conferred by the Constitution and the same may not be
increased or diminished.— Article V of the Constitution was
meant to be and is a grant or conferment of a right to persons
possessing the qualifications and none of the disqualifications
therein mentioned, which in turn, constitute a limitation of or
restriction to said right,

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and cannot accordingly, be dispensed with, except by


constitutional amendment. Obviously, every such
constitutional grant or conferment of right is necessarily a
negation of the authority of Congress or of any other branch of
the government to deny said right to the subject of the grant —
and, in this sense, only, may the same partake of the nature of
a guarantee. But, this does not imply, not even remotely, that
the Fundamental Law allows Congress or anybody else to vest
in those lacking the qualifications and having the
disqualifications mentioned in the Constitution the right of
suffrage.
Same; Same; Same; The votes of persons less than 21 years
of age renders the proceedings in the Citizens assemblies void.
—It is thus clear that the proceedings held in such Citizens’
Assemblies were fundamentally irregular, in that persons
lacking the qualifications prescribed in section 1 of Art. V of
the Constitution were allowed to vote in said assemblies. And,
since there is no means by which the invalid votes of those less
than 21 years of age can be separated or segregated from those
of the qualified voters, the proceedings in the Citizens’
Assemblies must be considered null and void.
Same; Same; Same; Viva voce voting for the ratification of
the Constitution is void.—Article XV 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. And the 1935 Constitution has been so
consistently interpreted in all plebiscites for the ratification or
rejection of proposed amendments thereto, from 1935 to 1967.
Hence the viva voce voting in the Citizens’ Assemblies was and
is null and void ab initio.
Same; Same; Commission on Elections; The plebiscite on
the Constitution, not having been conducted under the
supervision of the Comelec is void.—The point is that, such of
the Barrio Assemblies as were held took place without the
intervention of the Commission on Elections and without
complying with the provisions of the Election Code of 1971 or
even of those of Presidential Decree No. 73. 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
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Art. X of the Constitution which can be hardly sanctioned.


And, since the provisions of this article form part of the
fundamental scheme set forth in the 1935 Constitution, as
amended, to ensure the “free, orderly, and honest” expression
of the people’s will, the aforementioned violation thereof
renders null and void the contested proceedings or alleged
plebiscite in the Citizens’ Assemblies, insofar as the same are
claimed to have ratified the revised Constitution proposed by
the 1971 Constitutional Convention.
Same; Same; The Presidential proclamation of the
ratification of the proposed Constitution, when assailed, may be
inquired into.—A declaration to the effect that a given
amendment to the Constitution or revised or new Constitution
has been ratified by a majority of the votes cast therefor, may
be duly assailed in court and be the object of judicial inquiry,
indirect proceedings therefor — such as the cases at bar — and
the issue raised therein may and should be decided in
accordance with the evidence presented.
Same; Same; Proclamation 1102 is not an evidence of
ratification.—Inasmuch as Art. X of the 1935 Constitution
places under “exclusive” charge of the Commission on
Elections, “the enforcement and administration of all laws
relative to the conduct of election,” independently of the
Executive, and there is not even a certification by the
Commission in support of the alleged results of the citizens’
assemblies relied upon in Proclamation No. 1102 — apart from
the fact that on January 17, 1973 neither the alleged president
of the Federation of Provincial or City Barangays nor the
Department of Local Governments had certified to the
President the alleged result of the citizens’ assemblies all over
the Philippines — it follows necessarily that, from a
constitutional and legal viewpoint, Proclamation No. 1102 is
not even prima facie evidence of the alleged ratification of the
proposed Constitution.
Same; Same; The citizens assemblies did not adopt the
proposed Constitution.—Indeed, I can not, in good conscience,
declare that the proposed Constitution has been approved or
adopted by the people in the citizens’ assemblies all over the
Philippines, when it is, to my mind, a matter of judicial
knowledge that there have been no such citizens’ assemblies in
many parts of Manila and suburbs, not to say, also, in other
parts of the Philippines.
Same; Same; The acts of the executive department under
martial law cannot be construed as an acquiescence to the
proposed Constitution.—I am not prepared to concede that the
acts of the officers and offices of the Executive Department, in
line with Proclamation No. 1102, connote a recognition thereof
or an

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acquiescence thereto. Whether they recognized the proposed


Constitution or acquiesce thereto or not is something that
cannot legally, much less necessarily or even normally, be
deduced from their acts in accordance therewith, because they
are bound to obey and act in conformity with the orders of the
President, under whose “control” they are, pursuant to the
1935 Constitution. They have absolutely no other choice,
specially in view of Proclamation No. 1081 placing the
Philippines under Martial Law.
Same; Same; A department of the Government cannot
“recognize” its own acts.—Then again, a given department of
the Government cannot generally be said to have “recognized”
its own acts. Recognition normally connotes the
acknowledgment by a party of the acts of another. Accordingly,
when a subordinate officer or office of the Government
complies with the commands of a superior officer or office,
under whose supervision and control he or it is, the former
merely obeys the latter. Strictly speaking, and from a legal and
constitutional viewpoint, there is no act of recognition involved
therein. Indeed, the lower officer or office, if he or it acted
otherwise, would just be guilty of insubordination.
Same; Same; Individual acts of recognition by members of
Congress do not constitute congressional recognition.—
Individual acts of recognition by members of our legislature, as
well as of other collegiate bodies under the government, are
invalid as acts of said legislature or bodies, unless its members
have performed said acts in session duly assembled, or unless
the law provides otherwise, and there is no such law in the
Philippines. This is a well-established principle of
Administrative Law and of the Law of Public Officers, and no
plausible reason has been adduced to warrant departure
therefrom.
Same; Same; The compliance by the people with the orders
of the martial law government does not constitute acquiescence
to the proposed Constitution.—Neither am I prepared to
declare that the people’s inaction as regards Proclamation No.
1102, and their compliance with a number of Presidential
orders, decrees and/or instructions — some or many of which
have admittedly had salutary effects — issued subsequently
thereto amounts, constitutes or attests to a ratification,
adoption or approval of said Proclamation No. 1102. The
intimidation is there, and inaction or obedience of the people,
under these conditions, is not necessarily an act of conformity
or acquiescence.
Same; Same; The “enrolled bill” rule does not apply to the
acts of the President in reference to powers he does not possess.
—As

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regards the applicability to these cases of the “enrolled bill”
rule, it is well to remember that the same refers to a document
certified to the President — for his action under the
Constitution — by the Senate President and the Speaker of the
House of Representatives, and attested to by the Secretary of
the senate and the Secretary of the House of Representatives,
concerning legislative measures approved by the two House of
Congress. Whereas, Proclamation 1102 is an act of the
President declaring the results of a plebiscite on the proposed
Constitution, an act which Article X of the 1935 Constitution
denies the executive department of the Government.
Remedial law; Certiorari; Due course should be granted to
the petitions there being more than prima facie showing of non-
compliance with the Constitution.—In all other respects and
with regard to the other respondents in said case, as well as in
cases L-36142, L-36164, L-36236 and L-36283, my vote is that
the 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 or substantially, or has been
acquiesced in by the people or a 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 m 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.

Makalintal and Castro, JJ.:

Constitutional law; Inquiry as to whether or not the act of


the Citizens Assemblies as certified and proclaimed by the
President was an act of ratification lies within the power of
judicial review.—Such a finding [a finding that the ratification
of the draft Constitution by the Citizens Assemblies, as
certified by the President m Proclamation No. 1102, was not in
accordance with the constitutional and statutory procedure
laid down for the purpose] is on a matter which is essentially
justiciable, that is, within the power of this Court to inquire
into. It imports nothing more than a simple reading and
application of the pertinent provisions of the 1935 Constitution
of the Election Code and of other related laws and otiicial acts.
No question of wisdom or of policy is involved.
Same; Procedure of ratification followed not in accordance
with the 1935 Constitution and the related statutes; Reasons.—
There should be no serious dispute as to the fact that the
manner in which

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the voting was conducted in the Citizens Assemblies, assuming


that such voting was held, was not within the intendment of
Article XV, Section 1, of the 1935 Constitution nor in
accordance with the Election Code of 1971. The referendum
can by no means be considered as the plebiscite contemplated
in Section 2 of said Code and in Article XVII, lection 16, of the
draft Constitution itself, or as the election intended by
Congress when it passed Resolution No. 2 on March 16, 1967
calling a Convention for the revision of the 1935 Constitution.
Same; Same; Same.—The Citizens Assemblies were not
limited to qualified, let alone registered, voters, but included
all citizens from the age of fifteen, and regardless of whether or
not they were illiterates, feeble-minded, or ex-convicts — these
being the classes of persons expressly disqualified from voting
by Section 102 of the Election Code. In short, the constitutional
and statutory qualifications were not considered in the
determination of who should participate. No official ballots
were used in the voting; it was done mostly by acclamation or
pen show of hands. Secrecy, which is one of the essential
features of the election process, was not therefore observed. No
set of rules for counting the votes or of tabulating them and
reporting the figures was prescribed or followed. The
Commission on Elections, which is the constitutional body
charged with the enforcement and administration of all laws
relative to the conduct of elections, took no part at all, either
by way of supervision or in the assessment of the results.
Same; Matter of whether or not the Constitution has
become effective because of popular acquiescence beyond the
domain of judicial review.—Under a regime of martial law,
with the free expression of opinions through the usual media
vehicles restricted, we have no means of knowing, to the point
of judicial certainty, whether the people have accepted the
Constitution. In any event, we do not find the issue decisive
insofar as our vote in these cases is concerned. To interpret the
Constitution — that is judicial. That the Constitution should
be deemed in effect because of popular acquiescence — that is
political, and therefore beyond the domain of judicial review.

Barredo, J.:

Constitutional law; Validity of a law presumed until


otherwise declared unconstitutional.—With full consciousness
of my limitations but compelled by my sense of duty and
propriety to straighten out this grave issue (on whether the
Court is acting as an 11-man Court under the 1935
Constitution or as a 15-man Court

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under the 1973 Constitution) touching on the capacity in which


the Court is acting in these cases, I hold that we have no
alternative but to adopt in the present situation the orthodox
rule that when the validity of an act or law is challenged as
being repugnant to a constitutional mandate, the same is
allowed to have effect until the Supreme Court rules that it is
unconstitutional. Stated differently, We have to proceed on the
assumption that the new Constitution is in force and that We
are acting in these present cases as the 15-man Supreme Court
provided for therein. Contrary to counsel’s contention, there is
here no prejudgment for or against any of the two
constitutions. The truth of the matter is simply that in the
normal and logical conduct of governmental activities, it is
neither practical nor wise to defer the course of any action
until after the courts have ascertained their legality, not only
because if that were to be the rule, the functioning of
government would correspondingly be undesirably hesitative
and cumbersome, but more importantly, because the courts
must at the first instance accord due respect to the acts of the
other departments, as otherwise, the smooth running of the
government would have to depend entirely on the unanimity of
opinions among all its departments, which is hardly possible,
unless it is assumed that only the judges have the exclusive
prerogative of making and enforcing the law, aside from being
its sole interpreter, which is contrary to all norms of juridical
and political thinking. To my knowledge, there is yet no
country in the world that has recognized judicial supremacy as
its basic governmental principle, no matter how desirable we
might believe the idea to be. ... It is undeniable that the whole
government, including the provincial, municipal and barrio
units and not excluding the lower courts up to the Court of
Appeals, is operating under the 1973 Constitution. Almost
daily, presidential orders and decrees of the most legislative
character affecting practically every aspect of governmental
and private activity as well as the relations between the
government and the citizenry are pouring put from
Malacafiang under the authority of said Constitution. ...
Moreover, what makes the premise of presumptive validity
preferable and] imperative, is that We are dealing here with a
whole Constitution that radically modifies or alters not only
the form of our government from presidential to parliamentary
but also other constitutionally based institutions vitally
affecting all levels of society.
Same; When Article XV of the 1935 Constitution not
complied with.—In my separate opinion in the Plebiscite
Cases, I already made the observation that in view of the lack
of solemnity and regularity in the voting as well as in the
manner of reporting and canvassing conducted in connection
with the referendum, I cannot say that Article XV of the old
Constitution has been complied with,

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albeit I held that nonetheless, the Constitution of 1973 is


already in force.
Same; Result of referendum is as the President stated.—In
my opinion in those cases, the most important point I took into
account was that in the face* of the Presidential certification
through Proclamation 1102 itself that the New Constitution
has been approved by a majority of the people and having in
mind facts of general knowledge which I have taken judicial
notice of, I am in no position to deny that the result of the
referendum was as the President had stated. I can believe that
the figures referred to in the proclamation may not be
accurate, but I cannot say in conscience that all of them are
manufactured or prefabricated, simply because I saw with my
own eyes that people did actually gather and listen to
discussions, if brief and inadequate for those who are not
abreast of current events and general occurrences, and that
they did vote.. . . I am not prepared to discredit entirely the
declaration that there was voting and that the majority of the
votes were in favor of the New Constitution. If in fact there
were substantially less than 14 million votes of approval, the
real figure, in my estimate, could still be significant enough
and legally sufficient to serve as basis for a valid ratification.
Same; Referendum through Citizens Assemblies not mere
consultative.—It is contended, however, that the
understanding was that the referendum among the Citizens
Assemblies was to be in the nature of a loose consultation and
not an outright submission for purposes of ratification. I can
see that at the, outset, when the first set of questions was
released, such may have been the idea. It must not be lost
sight of, however, that if the newspaper reports are to be
believed, and I say this only because petitioners would consider
the newspapers as the official gazettes of the administration,
the last set of six questions were included precisely because the
reaction to the idea of mere consultation was that the people
wanted greater direct participation, thru the Citizens
Assemblies, in decision-making regarding matters of vital
national interest. Thus, looking at things more
understandingly and realistically, the two questions
emphasized by counsel, namely, (1) Do you approve of the New
Constitution? and (2) Do you want a 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.
Same; Results of referendum valid.—Let us not forget that
the times are abnormal, and prolonged dialogue and exchange
of ideas are not generally possible, nor practical, considering
the need for faster

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decisions and more resolute action. After all voting on a whole


new constitution is different from voting on one, two or three
specific proposed amendments, the former calls for nothing
more than a collective view of all the provisions of the whole
charter, for necessarily, one has to take the good together with
the bad in it. It is rare for anyone to reject a constitution only
because of a few specific objectional features, no matter how
substantial, considering the ever present possibility that after
all it may be cured by subsequent amendment. Accordingly,
there Was need to indicate to the people the paths open to
them in their quest for the betterment of their conditions, and
as long as it is not shown that those who did not agree to the
suggestions in the “comments” were actually compelled to vote
against their will, I am not convinced that the existence of said
“comments” should make any appreciable difference in the
Court’s appraisal of the result of the referendum.
Same; Referendum not in strict compliance with 1935
Constitution.— At this juncture, I think it is fit to make it clear
that I am not trying to show that the result of the referendum
may be considered as sufficient basis for declaring that the
New Constitution has been ratified in accordance with the
amending clause of the 1935 Constitution. I reiterate that in
point of law, I find neither strict nor substantial compliance.
The foregoing discussion is only to counter, if I may, certain
impressions regarding the general conditions obtaining during
and in relation to the referendum which could have in one way
or another affected the exercise of the freedom of choice and
the use of discretion by the members of the Citizens
Assemblies, to the end that as far as the same conditions may
be relevant in my subsequent discussions of the acceptance by
the people of the New Constitution they may also be
considered.
Same; 1973 Constitution already adopted by the people.—It
is my sincere conviction that the Constitution of 1973 has been
accepted or adopted by the people. And on this premise, my
considered opinion is that the Court may no longer decide
these cases on the basis of purely legal considerations. Factors
which are non-legal but nevertheless ponderous and
compelling cannot be ignored, for their relevancy is inherent in
the issue itself to be resolved.
Same; Ruling in Tolentino vs. Comelec (U SCRA 702)
distinguished from case at bar.—It is true that in the opinion I
had the privilege of penning for 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

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VOL. 50, MARCH 31, 1973 43

Javellana vs. The Executive Secretary


requirements of Article XV thereof. What is more, that decision
asserted judicial competence to inquire into the matter of
compliance or noncompliance as a justiciable matter. I still
believe in the correctness of those views and I would even add
that I sincerely feel that 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, whicn 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.
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.
3. 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 1935
Constitution on January 22, 1973 for the regular session.
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 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 significant 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

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44 SUPREME COURT REPORTS ANNOTATED

Javellana vs. The Executive Secretary

political right to choose the fundamental charter by which


their lives, their liberties and their fortunes shall be
safeguarded
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, oftweferred to above, in the
Plebiscite Cases — that is, as an extraconstitutional 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.

Makasiar, J.:

Constitutional law; Issue as to the validity of Proclamation


No. 1102 political and not justiciable; Reasons.—Assuming,
without conceding, that the procedure for ratification
prescribed in Article XV of the 1935 Constitution was not
complied with, the validity of Presidential Proclamation No.
1102 is a political, not a justiciable, issue; for it is inseparably
or inextricably linked with and strikes at, because it is decisive
of, the validity of the ratification and adoption of, as well as
acquiescence of the 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).
Same; Acceptance by the people of the 1973 Constitution
cures any infirmity in its submission; Reason.—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.

Esguerra, J.:

Constitutional law; Issue as to whether or not Constitution


of November 30, 1972 ratified in accordance with the amending
process prescribed by the 1935 Constitution and other related
statutes highly

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Javellana vs. The Executive Secretary

political and not justiciable.—Certainly, the invalidation of


Proclamation No. 1102 and Presidential Decrees Nos. 86 and
86-A by this Court would smack of plain political meddling
which is described by the United States Supreme Court as
“entering a political thicket” in Colgrove vs. Green, 328 U.S. p.
549. At this juncture it would be the part of wisdom for this
Court to adopt the proper attitude towards political upheavals
and realize that the question before Us is political and not fit
for judicial determination.
Same; Political question explained.—For a political
question is one entrusted to the people for judgment in their
sovereign capacity (Tanada vs. Cuenco, G.R. No. L-10520, Feb.
28, 1967; 100 Phil. 1101), or to a co-equal and coordinate
branch of the Government (Vera vs. Arellano, 77 Phil. 192;
Mabanag vs. Lopez Vito, 78 Phil. 1; Alejandrino vs. Quezon, 46
Phil. 35; Cabili vs. Francisco, G.R. No. 4638, May 8, 1931). A
case involves a political question when there would be “the
impossibility of undertaking independent resolutions without
expressing a lack of respect due to coordinate branches of
government,” or when there is “the potentiality of
embarassment from multifarious pronouncements by various
departments on one question.”

Zaldivar, J., dissenting and concurring:

Constitutional law; Meaning of political question.—A


political question relates to “those questions which under the
Constitution are to be decided by the people in their sovereign
capacity or in regard to which full discretionary authority has
been delegated to the legislative, or to the executive, branch of
the government.
Same; The courts have the power to determine whether the
acts of the Executive are authorized by the Constitution and the
laws.—It is a settled doctrine that every officer under a
constitutional government must act according to law and
subject to its restrictions, and every departure therefrom, or
disregard thereof, must subject him to the restraining and
controlling power of the people, acting through the agency of
the judiciary. It must be remembered that the people act
through the courts, as well as through the executive or the
legislature. One department is just as representative as the
other, and the judiciary is the department which is charged
with the special duty of determining the limitations which the
law places upon all official actions.
Same; Courts have power to determine validity of means
adopted to change the Constitution.—It is in the power of this
Court, as the ultimate interpreter of the Constitution, to
determine the

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46 SUPREME COURT REPORTS ANNOTATED

Javellana vs. The Executive Secretary

validity of the proposal, the submission, and the ratification of


any change in the Constitution. Ratification or non-ratification
of a constitutional amendment is a vital element in the
procedure to amend the constitution, and I believe that the
Court can inquire into, and decide on, the question whether or
not an amendment to the Constitution, as in the present cases,
has been ratified in accordance with the requirements
prescribed in the Constitution that was amended.
Same; “Election” contemplated in Article XV of the
Constitution is an election conducted under the election law.—
The election contemplated in said constitutional provision is an
election held in accordance with the provisions of the election
law, where only the qualified and registered voters of the
country would cast their votes, where official ballots prepared
for the purpose are used, where the voters would prepare their
ballots in secret inside the voting booths in the polling places
established in the different election precincts throughout the
country, where the election is conducted by election inspectors
duly appointed in accordance with the election law, where the
votes are canvassed and reported in a manner provided for in
the election law. It was this kind of election that was held on
May 14, 1935, when the Constitution of 1935 was ratified; on
April 30, 1937, when the amendment to the Constitution
providing for Women’s Suffrage was ratified; on June 18, 1940,
when the 1940 Amendments to the Constitution were ratified;
on March 11, 1947 when the Parity Amendment to the
Constitution was ratified; and on November 14, 1967 when the
amendments to the Constitution to increase the number of
Members of the House of Representatives and to allow the
Members of Congress to run in the elections for Delegates to
the Constitutional Convention of 1971 were rejected.
Same; Votes cast in the barangays not the votes
contemplated in Section 1 of Article XVof the 1935 Constitution.
—It is my view that the President of the Philippines cannot by
decree order the ratification of the proposed 1972 Constitution
thru a voting in the barangays and make said result the basis
for proclaiming the ratification of the proposed Constitution. It
is very clear, to me, that Proclamation 1102 was issued in
complete disregard or in violation, of the provisions of Section
1 of Article XV of the 1935 Constitution.
Same; Same; Manner of voting by the barangays subject to
judicial notice.—But what is more noteworthy is the fact that
the voting in the barangays, except in very few instances, was
done by the raising of hands by the persons indiscriminately
gathered to participate in the voting, where even children
below 15 years of age were included. This is a matter of
common observation, or of common knowledge, which the
Court may take judicial notice of. To

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Javellana vs. The Executive Secretary

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 would mean the rule of the crowd,
which is only one degree higher than the rule by the mob.
Same; The fact that a majority voted for the amendment of
the Constitution, unless the vote was taken as provided by the
Constitution, is not sufficient to make a change in that
instrument.—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 cannot 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
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 must be
upheld.
Same; Voting in the barangays was not freely exercised
because of the existence of martial law.—One of the valid
grounds against the holding of the plebiscite on January 15,
1973, as provided in Presidential Decree No. 73, is that there is
no freedom on the part of the people to exercise their right of
choice, because of the existence of martial law in our country.
The same ground holds true as regards 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.'
Same; Meaning of “people” in the Constitution.—It is not
disputed that in a democracy 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.”
Same; The term “election” in Article XV of the Constitution
should be taken in its historical perspective.—It can safely be
said that when the framers of the 1935 Constitution used the
word “election” in Section 1 of Article XV of the 1935
Constitution they had no other idea in mind except the
elections that were periodically

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48 SUPREME COURT REPORTS ANNOTATED


Javellana vs. The Executive Secretary

held in the Philippines for the choice of public officials prior to


the drafting of the 1935 Constitution, and also the “election”
mentioned in the Independence Act. It is but logical to expect
that the framers of the 1935 Constitution would provide a
mode of ratifying an. amendment to that Constitution itself.
Same; It cannot be said that the people have accepted the
1978 Constitution.—What appears to me, however, is that
practically it is only the officials and employees under the
executive department of the Government who have been
performing their duties apparently in observance of the
provisions of the new Constitution.... True it is, that 92
members of the House of Representatives and 15 members of
the Senate, of the Congress of the Philippines had expressed
their option to serve in the interim National Assembly that is
provided for in Section 2 of Article XVII of the proposed
Constitution. It must be noted, however, that of the 15
senators who expressed their option to serve in the interim
National Assembly only one of them took his oath of office; and
of the 92 members of the House of Representatives, only 22
took their oath of office. This is an indication that only a small
portion of the members of Congress had manifested their
acceptance of the new Constitution.
Same; Acceptance of Constitution is manifested by oath of
office.—It is in the taking of the oath of office where the affiant
says that he swears to “support and defend the Constitution”
that the acceptance of the Constitution is made manifest. I
agree with counsel for petitioners in L-36165 (Gerardo Roxas,
et al. v. Alejandro Melchor, et al.) when he said that the
members of Congress who opted to serve in the interim
National Assembly did so only ex abundante cautela, or by way
of a precaution, or making sure, that in the event the new
Constitution becomes definitely effective and the interim
National Assembly is convened they can participate in
legislative work in their capacity as duly elected
representatives of the people, which otherwise they could not
do if they did not manifest their option to serve, and that
option had to be made within 30 days from January 17, 1973,
the date when Proclamation No. 1102 was issued.
Same; Presidential declaration that government is not a
revolutionary government subject to judicial notice.—The Court
may take judicial notice of the fact that the President of the
Philippines has reassured the nation that the government of
our Republic since the declaration of martial law is not a
revolutionary government, and that he has been acting all the
way in consonance with his powers under the Constitution.
The people of this Republic

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Javellana vs. The Executive Secretary

has reason to be happy because, according to the President, we


still have a constitutional government.
Same; Congress may still call a plebiscite.—It being my
view that the 1935 Constitution is still in force, I believe
Congress may still convene and pass a law calling for an
election at which the Constitution proposed by the 1971
Constitutional Convention will be submitted to the people for
their ratification or rejection.

Fernando, J., dissenting:

Constitutional law; When power of judicial review should


be exercised.—In the United States as well as here, the exercise
of the power of judicial review is conditioned on the necessity
that the decision of a case or controversy before it so requires.
To repeat, the Justices of the highest tribunal are not, as
Justice Frankfurter made clear, “architects of policy. They
cannot nullify the policy of others, they are incapable of
fashioning their own solutions for social problems.”
Nonetheless, as was stressed by Professors Black, and Murphy,
a Supreme Court by the conclusion it reaches and the decision
it renders does not merely check the coordinate branches, but
also by its approval stamps with legitimacy the action taken.
Thus, in affirming constitutional supremacy, the political
departments could seek the aid of the judiciary.
Same; Same; Whether there has been deference to the
provisions of the Constitution is a judicial question.—With the
1935 Constitution containing, as above noted, an explicit
article on the subject of amendments, it would follow that the
presumption to be indulged in is that the question of whether
there has been deference to its terms is for this Court to pass
upon. What is more, the Gonzales, Tolentino and Planas cases
speak uneauivocally to that effect. Nor is it a valid objection to
this conclusion that what was involved in those cases was the
legality of the submission and not ratification, for from the
very language of the controlling article, the two vital steps are
proposal and ratification, which as pointed out in Dillon v.
Gloss (256 US 368) “cannot be treated as unrelated acts, but as
succeeding steps in a single endeavor.” Once an aspect thereof
is viewed as judicial, there would be no justitification for
considering the rest as devoid of that character.
Same; The Philippines has a tradition of judicial activism.
—It cannot be denied that from the well-nigh four decades of
constitutionalism in the Philippines, even discounting an
almost similar period of time dating from the inception of
American

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50 SUPREME COURT REPORTS ANNOTATED

Javellana vs. The Executive Secretary

sovereignty, there has sprung a tradition of what has been


aptly termed as judicial activism. Such an approach could be
traced to the valedictory address before the 1935
Constitutional Convention of Claro M. Recto.
Same; Nature of judicial function.—It suffices to state that
what elicits approval on the part of our people of a judiciary
ever alert to inquire into alleged breaches of the fundamental
law is the realization that to do so is merely to do what is
expected of it and that thereby there is no invasion of spheres
appropriately belonging to the political branches. For it needs
to be kept in mind always that it can act only when there is a
suit with proper parties before it, wherein rights appropriate
for judicial enforcement are sought to be vindicated. Then, too,
it does not approach constitutional questions with dogmatism
or apodictic certainty nor view them from the shining cliffs of
perfection. This is not to say that it is satisfied with an
empiricism untroubled by the search for jural consistency and
rational coherence. A balance has to be struck. So juridical
realism requires. Once allowance is made that for all its care
and circumspection this Court is manned by human beings
fettered by fallibility, but nonetheless earnestly and sincerely
striving to do right, the public acceptance of its vigorous
pursuit of the task of assuring that the Constitution be obeyed
is easy to understand. It has not in the past shirked its
responsibility to ascertain whether there has been compliance
with and fidelity to the constitutional requirements. It should
not start now. It should continue to exercise its jurisdiction,
even in the face of a plausible but not sufficiently persuasive
insistence that the matter before it is political.
Same; Requirements of the Constitution for its amendment
was not complied with.—There is, of course, the view not
offensive to reason that a sense of the realities should temper
the rigidity of devotion to the strict letter of the text to allow
deference to its spirit to control. With due recognition of its
force in constitutional litigation, if my reading of the events
and the process that led to such proclamation, so clearly set
forth in the opinion of the Chief Justice, is no inacc urate, then
it cannot be confidently asserted that there was such
compliance. It would be to rely on conjectural assumptions that
did founder on the rock of the undisputed facts. Any other
conclurion would, for me, require an interpretation that
borders on the s rained. So it has to be if one does not lose sight
of how the article on amendments is phrased. A word, to
paraphrase Justice Holmes may not be crystal, transparent
and unchanged, but it is not, to borrow from Learned Hand,
that eminent jurist, a rubber band either. It would be
unwarranted in my view to assert that the requirements of the
1935 Constitution have been met.

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Javellana vs. The Executive Secretary

 
Same; Same.—Even if the assumption be indulged in that
Article XV is not phrased in terms too clear to be misread, so
that this Court is called upon to give meaning and perspective
to what could be considered words of vague generality,
pregnant with uncertainty, still whatever obscurity it
possesses is illumined when the light of the previous
legislation is thrown on it. In the first Commonwealth Act,
submitting to the Filipino people for approval or disapproval
certain amendments to the original ordinance appended to the
1935 Constitution, it was made clear 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.”
Then came the statute, calling for the plebiscite on the three
1940 amendments providing for a bicameral Congress or a
Senate and a House of Representatives to take the place of a
unicameral National Assembly, reducing the term of the
President to four years but allowing this re-election with the
limitation that he cannot serve for more than eight consecutive
years, and creating an independent Commission on Elections.
Again it was expressly provided that the election “shall be
conducted in conformity with the provisions of the Election
Code insofar as the same may be applicable.” The approval of
the present parity amendment was by virtue of a Republic Act
which specifically made applicable the then Election Code.
There is a similar provision in the legislation which in
contemplation of the 1971 Constitutional Convention provided
for increase of the membership of the House of
Representatives, to a maximum of one hundred eighty, and the
eligibility of senators and representatives to become members
of such constitutional convention without forfeiting their seats.
Thus, the consistent course of interpretation followed by the
legislative branch is most persuasive, if not controlling. The
restraint thus imposed would set limits to the Presidential
action taken, even on the assumption that either as an agent of
the Constitutional Convention or under his martial law
prerogatives, he was not devoid of power to specify the mode of
ratification. On two vital points, who can vote and how they
register their will, Article XV had been given a definitive
construction.
Same; Petitions in the case at bar should not be dismissed.
—There is for me an obstacle to the petitions being dismissed
for such ascertainment of popular will did take place during a
period of martial law. It would have been different had there
been that freedom of debate with the least interference, thus
allowing a free market of ideas. If it were thus, it could be truly
said that there was no barrier to liberty of choice. It would a
clear-cut decision either way. One could be certain as to the
fact of the acceptance of the new or of adherence to the old.
This is not to deny

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52 SUPREME COURT REPORTS ANNOTATED

Javellana vs. The Executive Secretary

that votes are cast by individuals with their personal concerns


uppermost in mind, worried about their immediate needs and
captive to their existing moods. That is inherent in any human
institution, much more so in a democratic polity. Nor is it open
to any valid objection because in the final analysis the state
exists for the individuals who in their collectivity compose it.
Whatever be their views, it is entitled to respect. It is difficult
for me, however, at this stage to feel secure in the conviction
that they did utilize the occasion afforded to give expression to
what was really in their hearts. This is not to imply that such
doubt could not be dispelled by evidence to the contrary. If the
petitions be dismissed, however, then such opportunity is
forever lost.
Same; A decision in favor of the petitioners need not be
immediately executory.—It might be asked though, suppose the
petitioners should prevail? What then? Even so, the decision of
this Court need not be executory right away. Such a disposition
of a case before this Court is not novel. That was how it was
done in the Emergency Powers Act controversy. Once
compliance is had with the requirements of Article XV of the
1935 Constitution, to assure that the coming force of the
revised Charter is free from any taint of infirmity, then all
doubts are set at rest.
Same; How the case at bar should be viewed.—For some, to
so view the question before us is to be caught in a web of
unreality, to cherish illusions that cannot stand the test of
actuality. What is more, it may give the impression of reliance
on what may, for the practical man of affairs, be no more than
gossamer distinctions and sterile refinements unrelated to
events. That may be so, but I find it impossible to transcend
what for me are the implications of traditional
constitutionalism. This is not to assert that an occupant of the
bench is bound to apply with undeviating rigidity doctrines
which may have served their day. He could at times even look
upon them as mere scribblings in the sands to be washed away
by the advancing tides of the present. The introduction of novel
concepts may be Cirried only so far though. As Cardozo put the
matter: “The judge, even when he is free, is still not wholly
free. He is not to innovate at pleasure. He is not a knight-
errant, roaming at will in pursuit of his own ideal of beauty or
of goodness. He is to draw his inspiration from consecrated
principles. He is not to yield to spasr iodic sentiment, to vague
and unregulated benevolence. He is to exercise a discretion
informed by tradition, methodized by analogy, disciplined by
system, and subordinated to ‘the primordial necessity of order
in the social life.’ Wide enough in all conscience is the field of
discretion that remains.”

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VOL. 50, MARCH 31, 1973 53

Javellana vs. The Executive Secretary

Teehankee, J., dissenting:

Constitutional law; Issue as to the validity of Presidential


Proclamation No. 1102 presents a justiciable question and
constitutes a proper subject of judicial review; Reasons.—As
was to be restated by Justice Jose P. Laurel a century and a
third later in the 1936 landmark case of Angara vs. Electoral
Commission, “(T)he Constitution sets forth in no uncertain
language the restrictions and limitations upon governmental
powers and agencies. 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, for then the
distribution of powers would be mere verbiage, the bill of
rights mere expressions of sentiment, and the principles of
good government mere political apothegms. Certainly, the
limitations and restrictions embodied in our Constitution are
real as they should be in any living Constitution.”
Same; Same; Same.—Justice Laurel pointed out that in
contrast to the United States Constitution, the Philippine
Constitution as “a definition of the powers of government”
placed upon the judiciary the great burden of “determining the
nature, scope and extent of such powers” and stressed that
“when the judiciary mediates to allocate constitutional
boundaries, it does not assert any superiority over the other
departments ... 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.”
Same; No valid ratification of Constitution where
ratification not in accordance with mandatory requirements of
Article XV of the 1935 Constitution.—Since it appears on the
face of Proclamation 1102 that the mandatory requirements of
the 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 has been called or held, there cannot be said
to have been a valid ratification.
Same; Same; Necessity of strict adherence to constitutional
requirements; Reasons for.— 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, orderly and honest
elections supervised by

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54 SUPREME COURT REPORTS ANNOTATED

Javellana vs. The Executive Secretary

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.

ORIGINAL PETITIONS in the Supreme Court. Manda-


mus and prohibition.
The facts are stated in the resolution of the Court.
  Ramon A. Gonzales for petitioner Josue Javellana.
  Lorenzo M. Tañada & Associates for petitioners
Vidal Tan, et al.
  Tañada, Salonga, Ordonez, 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 & Associates for petitioners
Napoleon V. Dilag, et al.
  Arturo M. Tolentino for respondents Gil J. Puyat
and Jose Roy.
  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:
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Javellana vs. The Executive Secretary

“On March 16, 1967, Congress of the Philippines passed


Resolution No. 2, which was amended by Resolution No. 4 of
said body, adopted on June 17, 1969, calling a Convention to
propose amendments to the Constitution of the Philippines.
Said Resolution No. 2, as amended, was implemented by
Republic Act No. 6132, approved on August 24, 1970, pursuant
to the provisions of which the election of delegates to said
Convention was held on November 10, 1970, and the 1971
Constitutional Convention began to perform its functions on
June 1, 1971. While the Convention was in session on
September 21, 1972, the President issued Proclamation No.
1081 placing the entire Philippines under Martial Law. On
November 29, 1972, the Convention approved its Proposed
Constitution of the Republic of the Philippines. The next day,
November 30, 1972, the President of the Philippines issued
Presidential Decree No. 73, “submitting to the Filipino people
for ratification or rejection the Constitution of the Republic of
the Philippines proposed by the 1971 Constitutional
Convention, and appropriating funds therefor,” as well as
setting the plebiscite for said ratification or rejection of the
Proposed Constitution on January 15, 1973.
“Soon after, or on December 7, 1972, Charito Planas filed,
with this Court, Case G.R. No. L-35925, against the
Commission on Elections, the Treasurer of the Philippines and
the Auditor General, to enjoin said ‘respondents or their agents
from implementing Presidential Decree No. 73, in any manner,
until further orders of the Court,’ upon the grounds, inter alia,
that said Presidential Decree ‘has no force and effect as law
because the calling x  x  x 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 x x x,’
and ‘there is no proper submission to the people of said
Proposed Constitution set for January 15, 1973, there being no
freedom of speech, press and assembly, and there being no
sufficient time to inform the people of the contents thereof.’
“Substantially identical actions were filed, on December 8,
1972, by Pablo C. Sanidad against the Commission on
Elections (Case G.R. No. L- 35929) on December 11, 1972, by
Gerardo Roxas, et al., against the Commission on Elections,
the Director of Printing, the National Treasurer and the
Auditor General (Case G.R. L-35940), by Eddie B. Monteclaro
against the Commission on Elections and the Treasurer of the

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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. L-35979), the
respondents were required to file their answers ‘not later than
12:00 (o’clock) noon of Saturday, December 16, 1972.’ Said
cases were, also, set for hearing and partly heard on Monday,
December 18, 1972, at 9:30 a.m. The hearing was continued on
December 19, 1972. By agreement of the parties, the
aforementioned last case — G.R. No. L-35979 — was, also,
heard, jointly with the others, on December 19, 1972. At the
conclusion of the hearing, on that date, the parties in all of the
aforementioned cases were given a short period of time within
which ‘to submit their notes on the points they desire to stress.’
Said notes were filed on different dates, between December 21,
1972, and January 4, 1973.
“Meanwhile, or on December 17, 1972, the President had
issued an order temporarily suspending the effects of
Proclamation No. 1081, for the purpose of free and open debate
on the Proposed Constitution. On December 23, the President
announced the postponement of the plebiscite for the
ratification or rejection of the Proposed Constitution. No
formal action to this effect was taken until January 7, 1973,
when General Order No. 20 was issued, directing ‘that the
plebiscite scheduled to be held on January 15, 1978, be
postponed until further notice.’ Said General Order No. 20,
moreover, ‘suspended in the meantime’ the ‘order of December
17, 1972, temporarily suspending the effects of Proclamation

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Javellana vs. The Executive Secretary

No. 1081 for purposes of free and open debate on the proposed
Constitution.’
“In view of these events relative to the postponement of the
aforementioned plebiscite, the Court deemed it fit to refrain,
for the time being, from deciding the aforementioned cases, for
neither the date nor the conditions under which said plebiscite
would be held were known or announced officially. Then,
again, Congress was, pursuant to the 1935 Constitution,
scheduled to meet in regular session on January 22, 1973, and
since the main objection to Presidential Decree No. 73 was that
the President does not have the legislative authority to call a
plebiscite and appropriate funds therefor, which Congress
unquestionably could do, particularly in view of the formal
postponement of the plebiscite by the President — reportedly
after consultation with, among others, the leaders of Congress
and the Commission on Elections — the Court deemed it more
imperative to defer its final action on these cases.
“In the afternoon of January 12, 1973, the petitioners in
Case G.R. No.  L-35948 filed an ‘urgent motion,’ praying that
said case be decided ‘as soon as possible, preferably not later
than January 15, 1973.’ It was alleged in said motion,  inter
alia:
‘6. That the President subsequently announced the issuance
of Presidential Decree No. 86 organizing the so-called Citizens
Assemblies, to be consulted on certain public questions
[Bulletin Today, January 1, 1973];
‘7. That thereafter it was later announced that “the
Assemblies will be asked if they favor or oppose —
“[1] The New Society;
“[2] Reforms instituted under Martial Law;
“[3] The holding of a plebiscite on the proposed new
Constitution and when (the tentative new dates given
following the postponement of the plebiscite from the
original date of January 15 are February 19 and March
5);
“[4] The opening of the regular session slated on
January 22 in accordance with the existing Constitution
despite Martial Law.” [Bulletin Today, January 3, 1973.]
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‘8. That it was later reported that the following are to be the
forms of the questions to be asked to the Citizens Assemblies:

“[1] Do you approve of the New Society?
“[2] Do you approve of the reform measures under
martial law?
“[3] Do you think that Congress should meet again in
regular session?
“[4] How soon would you like the plebiscite on the new
Constitution to be held? [Bulletin Today, January 5,
1973].
‘9. That the voting by the so-called Citizens Assemblies was
announced to take place during the period from January 10 to
January 15, 1973;
‘10. That on January 10, 1973, it was reported that on more
question would be added to the four (4) question previously
announced, and that the forms of the question would be as
follows: —
“[1] Do you like the New Society?
“[2] Do you like the reforms under martial law?
“[3] Do you like Congress again to hold sessions?
“[4] Do you like the plebiscite to be held later?
“[5] Do you like the way President Marcos running the
affairs of the government?  [Bulletin Today, January 10,
1973; emphasis an additional question.]
‘11. That on January 11, 1973, it was reported that six (6)
more questions would be submitted to the so-called Citizens
Assemblies: —
“[1] Do you approve of the citizens assemblies as the
base of popular government to decide issues of national
interests?

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Javellana vs. The Executive Secretary

 
“[2] Do you approve of the new Constitution?
“[3] Do you want a plebiscite to be called to ratify the
new Constitution?
“[4] Do you want the elections to be held in November,
1973 in accordance with the provisions of the 1935
Constitution?
“[5] If the elections would not be held, when do you
want the next elections to be called?
“[6] Do you want martial law to continue? [Bulletin
Today, January 11, 1973; emphasis supplied]
‘12. That according to reports, the returns with respect to
the six (6) additional questions quoted above will be on a form
similar or identical to Annex “A” hereof;
‘13. That attached to page 1 of Annex “A” is another page,
which we marked as Annex “A-1,” and which reads: —
“COMMENTS ON
QUESTION No. 1
In order to broaden the base of citizens’ participation in
government.
QUESTION No. 2
But we do not want the Ad Interim Assembly to be
convoked. Or if it is to be convened at all, it should not be
done so until after at least seven (7) years from the
approval of the New Constitution by the Citizens
Assemblies.
QUESTION No. 3
The vote of the Citizens Assemblies should already be
considered the plebiscite on the New Constitution.
If the Citizens Assemblies approve of the New
Constitution, then the new Constitution should be
deemed ratified.

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QUESTION No. 4
We are sick and tired of too frequent elections. We are
fed up with politics, of so many debates and so much
expenses.
QUESTION No. 5
Probably a period of at least seven (7) years moratorium
on elections will be enough for stability to be established
in the country, for reforms to take root and normalcy to
return.
QUESTION No. 6
We want President Marcos to continue with Martial
Law. We want him to exercise his powers with more
authority. We want him to be strong and firm so that he
can accomplish all his reform programs and establish
normalcy in the country. If all other measures fail, we
want President Marcos to declare a revolutionary
government along the lines of the new Constitution
without the ad interim Assembly.”
‘Attention is respectfully invited to the comments on
“Question No. 3,” which reads: —
“QUESTION No. 3
The vote of the Citizens Assemblies should be considered
the plebiscite on the New Constitution.
If the Citizens Assemblies approve of the New
Constitution, then the new Constitution should be
deemed ratified.
This, we are afraid, and therefore allege, is pregnant with
ominous possibilities.
‘14. That, in the meantime, speaking on television and over
the radio, on January 7, 1973, the President announced that
the limited freedom of debate on the proposed Constitution was
being withdrawn and that the proclamation of martial law and
the orders and decrees issued thereunder would thenceforth
strictly be enforced [Daily Express, January 8, 1973];

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‘15. That petitioners have reason to fear, and therefore
state, that the question added in the last list of questions to be
asked to the Citizens Assemblies, namely: —
“Do you approve of the New Constitution?” —
in relation to the question following it: —
“Do you still want a plebiscite to be called to ratify the
new Constitution?” —
would be an attempt to by-pass and short-circuit this
Honorable Court before which the question of the validity of
the plebiscite on the proposed Constitution is now pending;
‘16. That petitioners have reason to fear, and therefore
allege, that if an affirmative answer to the two questions just
referred to will be reported then this Honorable Court and the
entire nation will be confronted with a fait accompli which has
been attained in a highly unconstitutional and undemocratic
manner;
‘17. That the  fait accompli  would consist in the supposed
expression of the people approving the proposed Constitution;
‘18. That, if such event would happen, then the case before
this Honorable Court could, to all intents and purposes,
become moot because, petitioners fear, and they therefore
allege, that on the basis of such supposed expression of the will
of the people through the Citizens Assemblies, it would be
announced that the proposed Constitution, with all its defects,
both congenital and otherwise, has been ratified;
‘19. That, in such a situation the Philippines will be facing a
real crisis and there is likelihood of confusion if not chaos,
because then, the people and their officials will not know which
Constitution is in force.
‘20. That the crisis mentioned above can only be avoided if
this Honorable Court will immediately decide and announce its
decision on the present petition;
‘21. That with the withdrawal by the President of the
limited freedom of discussion on the proposed Constitution
which was given to the people pursuant to Sec. 3 of
Presidential Decree No. 73, the opposition of respondents to
petitioners’
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62 SUPREME COURT REPORTS ANNOTATED


Javellana vs. The Executive Secretary

prayer at the plebiscite be prohibited has now collapsed and


that a free plebiscite can no longer be held.’
“At about the same time, a similar prayer was made in a
‘manifestation’ filed by the petitioners in L-35949, ‘Gerardo
Roxas, et al. v. Commission on Elections, et al.,’ and L-35942,
‘Sedfrey A. Ordoñez, et al. v. The National Treasurer, et al.’
“The next day, January 13, 1973, which was a Saturday, the
Court issued a resolution requiring the respondents in said
three (3) cases to comment on said ‘urgent motion’ and
‘manifestation,’ ‘not later than Tuesday noon, January 16,
1973.’ Prior thereto, or on January 15, 1973, shortly before
noon, the petitioners in said Case G.R. No. L-35948 riled a
‘supplemental motion for issuance of restraining order and
inclusion of additional respondents,’ praying —
‘x x x that a restraining order be issued enjoining and
restraining respondent Commission on Elections, as well
as the Department of Local Governments and its head,
Secretary Jose Roño; the Department of Agrarian
Reforms and its head, Secretary Conrado Estrella; the
National Ratification Coordinating Committee and its
Chairman, Guillermo de Vega; their deputies,
subordinates and substitutes, and all other officials and
persons who may be assigned such task, from collecting,
certifying, and announcing and reporting to the
President or other officials concerned, the so-called
Citizens’ Assemblies referendum results allegedly
obtained when they were supposed to have met during
the period comprised between January 10 and January
15, 1973, on the two questions quoted in paragraph 1 of
this Supplemental Urgent Motion.’
“In support of this prayer, it was alleged —
‘3. That petitioners are now before this Honorable
Court in order to ask further that this Honorable Court
issue a restraining order enjoining herein respondents,
particularly respondent Commission on Elections as well
as the Department of Local Governments and its head,
Secretary Jose Roño; the Department of Agrarian
Reforms and its head, Secretary Conrado Estrella; the
National Ratification Coordinating Committee and its
Chairman, Guillermo de Vega; and their deputies,
subordinates and/or substitutes, from collecting,
certifying, announcing and reporting to the President the
supposed Citizens’ Assemblies referendum results
allegedly obtained when they were supposed to have met
during the period between January 10 and January 15,
1973, particularly

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Javellana vs. The Executive Secretary

on the two questions quoted in paragraph 1 of this


Supplemental Urgent Motion;
‘4. That the proceedings of the so-called Citizens’ Assemblies
are illegal, null and void particularly insofar as such
proceedings are being made the basis of a supposed consensus
for the ratification of the proposed Constitution because: —
[a] The elections contemplated in the Constitution,
Article XV, at which the proposed constitutional
amendments are to be submitted for ratification, are
elections at which only qualified and duly registered
voters are permitted to vote, whereas, the so called
Citizens’ Assemblies were participated in by persons 15
years of age and older, regardless of qualifications or
lack thereof, as prescribed in the Election Code;
[b] Elections or plebiscites for the ratification of
constitutional amendments contemplated in Article XV
of the Constitution have provisions for the secrecy of
choice and of vote, which is one of the safeguards of
freedom of action, but votes in the Citizens’ Assemblies
were open and were cast by raising hands;
[c] The Election Code makes ample provisions for free,
orderly and honest elections, and such provisions are a
minimum requirement for elections or plebiscites for the
ratification of constitutional amendments, but there
were no similar provisions to guide and regulate
proceedings of the so called Citizens’ Assemblies;
[d] It is seriously to be doubted that, for lack of
material time, more than a handful of the so called
Citizens’ Assemblies have been actually formed, because
the mechanics of their organization were still being
discussed a day or so before the day they were supposed
to begin functioning: —
‘Provincial governors and city and municipal
mayors had been meeting with barrio captains and
community leaders since last Monday [January 8,
1973) to thresh out the mechanics in the formation
of the Citizens Assemblies and the topics for
discussion.’ [Bulletin Today, January 10, 1973]

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‘It should be recalled that the Citizens’ Assemblies were
ordered formed only at the beginning of the year [Daily
Express, January 1, 1973], and considering the lack of
experience of the local organizers of said assemblies, as well as
the absence of sufficient guidelines for organization, it is too
much to believe that such assemblies could be organized at
such a short notice.
‘5. That for lack of material time, the appropriate amended
petition to include the additional officials and government
agencies mentioned in paragraph 3 of this Supplemental
Urgent Motion could not be completed because, as noted in the
Urgent Motion of January 12, 1973, the submission of the
proposed Constitution to the Citizens’ Assemblies was not
made known to the public until January 11, 1973. But be that
as it may, the said additional officials and agencies may be
properly included in the petition at bar because: —
[a] The herein petitioners have prayed in their
petition for the annulment not only of Presidential
Decree No. 73, but also of “any similar decree,
proclamation, order or instruction.”
so that Presidential Decree No. 86, insofar at least as it
attempts to submit the proposed Constitution to a plebiscite by
the so-called Citizens’ Assemblies, is properly in issue in this
case, and those who enforce, implement, or carry out the said
Presidential Decree No. 86, and the instructions incidental
thereto clearly fall within the scope of this petition;
[b] In their petition, petitioners sought the issuance of
a writ of preliminary injunction restraining not only the
respondents named in the petition but also their “agents”
from implementing not only Presidential Decree No. 73,
but also “any other similar decree, order, instruction, or
proclamation in relation to the holding of a plebiscite on
January 15, 1973 for the purpose of submitting to the
Filipino people for their ratification or rejection the 1972
Draft or proposed Constitution approved by the
Constitutional Convention on November 30, 1972”; and
finally,
[c] Petitioners prayed for such other relief which may
be just and equitable. [p. 39, Petition].

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“Therefore, viewing the case from all angles, the officials
and government agencies mentioned in paragraph 3 of this
Supplemental Urgent Motion, can lawfully be reached by the
processes of this Honorable Court by reason of this petition,
considering, furthermore, that the Commission on Elections
has under our laws the power, among others, of: —
“(a) Direct and immediate supervision and control
over national, provincial, city, municipal and municipal
district officials required by law to perform duties
relative to the conduct of elections on matters pertaining
to the enforcement of the provisions of this Code *****”
[Election Code of 1971, Sec. 3].
‘6. That unless the petition at bar is decided immediately
and the Commission on Elections, together with the officials
and government agencies mentioned in paragraph 3 of this
Supplemental Urgent Motion are restrained or enjoined from
collecting, certifying, reporting or announcing to the President
the results of the alleged voting of the so-called Citizens’
Assemblies, irreparable damage will be caused to the Republic
of the Philippines, the Filipino people, the cause of freedom an
democracy, and the petitioners herein because:
[a] After the result of the supposed voting on the
questions mentioned in paragraph 1 hereof shall have
been announced, a conflict will arise between those who
maintain that the 1935 Constitution is still in force, on
the one hand, and those who will maintain that it has
been superseded by the proposed Constitution, on the
other, thereby creating confusion, if not chaos;
[b] Even the jurisdiction of this Court will be subject
to serious attack because the advocates of the theory that
the proposed Constitution has been ratified by reason of
the announcement of the results of the proceedings of the
so-called Citizens’ Assemblies will argue that, General
Order No. 3, which shall also be deemed ratified
pursuant to the Transitory Provisions of the proposed
Constitution, has placed Presidential Decree Nos. 73 and
86 beyond the reach and jurisdiction of this Honorable
Court.’

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

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Javellana vs. The Executive Secretary
Assemblies or Barangays: Do you approve of the New
Constitution? Do you still want a plebiscite to be called to
ratify the new Constitution?
“WHEREAS, fourteen million nine hundred seventy-six
thousand five hundred sixty-one (14,976,561) members of all
the Barangays (Citizens Assemblies) voted for the adoption of
the proposed Constitution, as against seven hundred forty-
three thousand eight hundred sixty-nine (743,869) who voted
for its rejection; while on the question as to whether or not the
people would still like a plebiscite to be called to ratify the new
Constitution, fourteen million two hundred ninety-eight
thousand eight hundred fourteen (14,298,814) answered that
there was no need for a plebiscite and that the vote of the
Barangays (Citizens Assemblies) should be considered as a
vote in a plebiscite;
“WHEREAS, since the referendum results show that more
than ninety-five (95) per cent of the members of the Barangays
(Citizens Assemblies) are in favor of the new Constitution,
the  Katipunan ng Mga Barangay  has strongly recommended
that the new Constitution should already be deemed ratified
by the Filipino people;
‘NOW, THEREFORE, I, FERDINAND E. MARCOS,
President of the Philippines, by virtue of the powers in me
vested by the Constitution, do hereby certify and proclaim that
the Constitution proposed by the nineteen hundred and
seventy-one (1971) Constitutional Convention has been ratified
by an overwhelming majority of all of the votes cast by the
members of all the Barangays (Citizens Assemblies)
throughout the Philippines, and has thereby come into effect.
‘IN WITNESS WHEREOF, I have hereunto set my hand
and caused the seal of the Republic of the Philippines to be
affixed.
‘Done in the City of Manila, this 17th day of January, in the
year of Our Lord, nineteen hundred and seventy-three.
(Sgd.) FERDINAND E. MARCOS
‘President of the Philippines
‘By the President:
‘ALEJANDRO MELCHOR
‘Executive Secretary’

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68 SUPREME COURT REPORTS ANNOTATED
Javellana vs. The Executive Secretary

 
“Such is the background of the cases submitted
determination. After admitting some of the allegations made in
the petition in L-35948 and denying the other allegations
thereof, respondents therein alleged in their answer thereto,
by way affirmative defenses: 1) that the ‘questions raised’ in
said petition ‘are political in character’; 2) that ‘the
Constitutional Convention acted freely and had plenary
authority to propose not only amendments but a Constitution
which would supersede the present Constitution’; 3) that ‘the
President’s call for a plebiscite and the appropriation of funds
for this purpose are valid’; 4) that ‘there is not an improper
submission” and ‘there can be a plebiscite under Martial Law’;
and 5) that the ‘argument that the Proposed Constitution is
vague and incomplete, makes an unconstitutional delegation of
power, includes a referendum on the proclamation of Martial
Law and purports to exercise judicial power’ is ‘not relevant
and x x x without merit.’ Identical defenses were set up in the
other cases under consideration.
“Immediately after the hearing held on January 17, 1973, or
since the afternoon of that date, the Members of the Court
have been deliberating on the aforementioned cases and, after
extensive discussions on the merits thereof, have deemed it
best that each Member write his own views thereon and that
thereafter the Chief Justice should state the result or the votes
thus cast on the points in issue. Hence, the individual views of
my brethren in the Court are set forth in the opinions attached
hereto, except that, instead of writing their separate opinions,
some Members have preferred to merely concur in the opinion
of one of our colleagues.”

 
Then the writer of said decision expressed his own
opinion on the issues involved therein, after which he
recapitulated the views of the Members of the Court, as
follows:
“1. There is unanimity on the justiciable nature of the issue
on the legality of Presidential Decree No. 73.
“2. On the validity of the decree itself, Justices Makalintal,
Castro, Fernando, Teehankee, Esguerra and myself, or six (6)
Members of the Court, are of the opinion that the issue has
become moot and academic, whereas Justices Barredo,
Makasiar and Antonio voted to uphold the validity of said
Decree.
“3. On the authority of the 1971 Constitutional Convention
to pass the proposed Constitution or to incorporate therein the
provisions contested by the petitioners in L-35948, Justices

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Javellana vs. The Executive Secretary

Makalintal, Castro, Teehankee and Esguerra opine that the


issue has become moot and academic. Justices Fernando,
Barredo, Makasiar, Antonio and myself have voted to uphold
the authority of the Convention.
“4. Justice Fernando, likewise, expressed the view that the
1971 Constitutional Convention had authority to continue in
the performance of its functions despite the proclamation of
Martial Law. In effect, Justices Barredo, Makasiar and
Antonio hold the same view.
“5. On the question whether the proclamation of Martial
Law affected the proper submission of the proposed
Constitution to a plebiscite, insofar as the freedom essential
therefor is concerned, Justice Fernando is of the opinion that
there is a repugnancy between the election contemplated
under Art. XV of the 1935 Constitution and the existence of
Martial Law, and would, therefore, grant the petitions were
they not moot and academic. Justices Barredo, Antonio and
Esguerra are of the opinion that issue involves questions of
fact which cannot be predetermined, and that Martial Law per
se  does not necessarily preclude the factual possibility of
adequate freedom, for the purposes contemplated.
“6. On Presidential Proclamation No. 1102, the following
views were expressed:
“a. Justices Makalintal, Castro, Fernando, Teehankee,
Makasiar, Esguerra and myself are of the opinion that
the question of validity of said Proclamation has not
been properly raised before the Court, which,
accordingly, should not pass upon such question.
“b. Justice Barredo holds that the issue on the
constitutionality of Proclamation No. 1102 has been
submitted to and should be determined by the Court, and
that the ‘purported ratification of the Proposed
Constitution x  x  x based on the referendum among
Citizens’ Assemblies falls short of being in strict
conformity with the requirements of Article XV of the
1935 Constitution,’ but that such unfortunate drawback
notwithstanding, ‘considering all other related relevant
circumstances, x  x  x the new Constitution is legally
recognizable and should be recognized as legitimately in
force.’
“c. Justice Zaldivar maintains unqualifiedly that the
Proposed Constitution has not been ratified in
accordance with

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70 SUPREME COURT REPORTS ANNOTATED


Javellana vs. The Executive Secretary

Article XV of the 1935 Constitution, and that,


accordingly, it has no force and effect whatsoever.
“d. Justice Antonio feels ‘that the Court is not
competent to act’ on the issue whether the Proposed
Constitution has been ratified by the people or not, ‘in
the absence of any judicially discoverable and
manageable standards,’ since the issue ‘poses a question
of fact.’
“7. On the question whether or not these cases should be
dismissed, Justices Makalintal, Castro, Barredo, Makasiar,
Antonio and Esguerra voted in the affirmative, for the reasons
set forth in their respective opinions. Justices Fernando,
Teehankee, and the writer similarly voted, except as regards
Case No. L-35948 as to which they voted to grant to the
petitioners therein a reasonable period of time within which to
file appropriate pleadings should they wish to contest the
legality of Presidential Proclamation No. 1102. Justice
Zaldivar favors the granting of said period to the petitioners in
said Case No. L-35948 for the aforementioned purpose, but he
believes, in effect, that the Court should go farther and decide
on the merits everyone of the cases under consideration.” 

Accordingly, the Court — acting in conformity with


the position taken by six (6) of its members,1 with three
(3) members dissenting,2  with respect to G.R. No. L-
35948, only and another member 3 dissenting, as regards
all of the cases dismissed the same, without special
pronouncement as to costs.
The Present Cases
Prior thereto, or on January 20, 1973, Josue
Javellana filed Case G.R. No. L-36142 against the
Executive Secretary and the Secretaries of National
Defense, Justice and Finance, to restrain said
respondents “and their subordinates or agents from
implementing any of the provisions of the propose
Constitution not found in the present Constitution” —
referring to that of 1935. The petition therein, filed by
Josue Javellana, as a “Filipino citizen, and a qualified
and registered 

_______________
1  Justices Makalintal, Castro, Barredo, Makasiar, Antonio and
Esguerra.
2 Chief Justice Concepcion and Justices Fernando and Teehankee.
3 Justice Zaldivar.

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VOL. 50, MARCH 31, 1973 71


Javellana vs. The Executive Secretary

voter” and as “a class suit, for himself, and in behalf of


all citizens and voters similarly situated,” was amended
on or about January 24, 1973. After reciting in
substance the facts set forth in the decision in the
plebiscite cases, Javellana alleged that the President
had announced “the immediate implementation of the
New Constitution, thru his Cabinet, respondents
including,” and that the latter “are acting without, or in
excess of jurisdiction in implementing the said proposed
Constitution” upon the ground: “that the President, as
Commander-in-Chief of the Armed Forces of the
Philippines, is without authority to create the Citizens
Assemblies”; that the same “are without power to
approve the proposed Constitution ...”; “that the
President is without power to proclaim the ratification
by the Filipino people of the proposed Constitution”; and
“that the election held to ratify the proposed
Constitution was not a free election, hence null and
void.”
Similar actions were filed, on January 23, 1973, by
Vidal Tan, J. Antonio Araneta, Alejandro Roces, Manuel
Crudo, Antonio U. Miranda, Emilio de Peralta and
Lorenzo M. Tañada, against the Executive Secretary, the
Secretaries of Finance, Justice, Land Reform, and
National Defense, the Auditor General, the Budget
Commissioner, the Chairman of the Presidential
Commission on Reorganization, the Treasurer of the
Philippines, the Commission on Elections and the
Commissioner of Civil Service;4 on February 3, 1973, by
Eddie Monteclaro, personally and as President of the
National Press Club of the Philippines, against the
Executive Secretary, the Secretary of Public
Information, the Auditor General, the Budget
Commissioner and the National Treasurer;5  and on
February 12, 1973, by Napoleon V. Dilag, Alfredo
Salapantan, Jr., Leonardo Asodisen, Jr. and Raul M.
Gonzales,6  against the Executive Secretary, the
Secretary of National Defense, the Budget
Commissioner and the Auditor General.
Likewise, on January 23, 1973, Gerardo Roxas,
Ambrosio Padilla, Jovito R. Salonga, Salvador H.
Laurel,7  Ramon V. Mitra, Jr. and Eva Estrada-Kalaw,
the first as “duly elected

_______________
4 Case G.R. No. L-36164.
5 Case G.R. No. L-36236.
6 Case G.R. No. L-36293.
7 Who withdrew as petitioner on January 25, 1973.

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72 SUPREME COURT REPORTS ANNOTATED


Javellana vs. The Executive Secretary

Senator and Minority Floor Leader of the Senate,” and


others as “duly elected members” thereof, filed Case G.R.
No. L-36165, against the Executive Secretary, the
Secretary National Defense, the Chief of Staff of the
Armed Forces of the Philippines, the Secretary of
General Services, the President and the President Pro
Tempore of the Senate. In their petition — as amended
on January 26, 1973 — petitioners Gerardo Roxas, et al.
allege,  inter alia, that the term of office of three of the
aforementioned petitioners8  would expire on December
31, 1975, and that of the others9 on December 31, 1977;
that pursuant to our 1935 Constitution, “which is still in
force Congress of the Philippines “must convene for its
8th Session on Monday, January 22, 1973, at 10:00 A.M.,
which is regular customary hour of its opening session”;
that “on said day, from 10:00 A.M. up to the afternoon,”
said petitioner “along with their other colleagues, were
unlawfully prevented from using the Senate Session
Hall, the same having been closed by the authorities in
physical possession and control the Legislative
Building”; that “(a)t about 5:00 to 6:00 P.M. the said day,
the premises of the entire Legislative Building were
ordered cleared by the same authorities, and no one was
allowed to enter and have access to said premises”; that
“(r)espondent Senate President Gil J. Puyat and, in his
absence, respondent President Pro Tempore Jose Roy we
asked by petitioning Senators to perform their duties
under the law and the Rules of the Senate, but
unlawfully refrained and continue to refrain from doing
so”; that the petitioners ready and willing to perform
their duties as duly elected members of the Senate of the
Philippines,” but respondent Secretary of National
Defense, Executive Secretary and Chief of Staff,
“through their agents and representatives, are
preventing petitioners from performing their duties as
duly elected Senators of the Philippines”; that “the
Senate premise in the Congress of the Philippines
Building x  x  x are occupied by and are under the
physical control of the elements military organizations
under the direction of said

_______________
8  Originally, Gerardo Roxas, Ambrosio Padilla and Salvador H.
Laurel. Now, after the withdrawal of the latter, the first two (2) only.
9 Namely, Jovito R. Salonga, Ramon V. Mitra, Jr. and Eva Estrada-
Kalaw.

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Javellana vs. The Executive Secretary

respondents”; that, as per “official reports, the


Department of General Services x x x is now the civilian
agency in custody of the premises of the Legislative
Building”; that respondents “have unlawfully excluded
and prevented, and continue to so exclude and prevent”
the petitioners “from the performance of their sworn
duties, invoking the alleged approval of the 1972 (1973)
Constitution of the Philippines by action of the so-called
Citizens’ Assemblies on January 10, 1973 to January 15,
1973, as stated in and by virtue of Proclamation No.
1102 signed and issued by the President of the
Philippines”; that “the alleged creation of the Citizens’
Assemblies as instrumentalities for the ratification of
the Constitution of the Republic of the Philippines” is
inherently illegal and palpably unconstitutional; that
respondents Senate President and Senate President Pro
Tempore “have unlawfully refrained and continue to
refrain from and/or unlawfully neglected and continue to
neglect the performance of their duties and functions as
such officers under the law and the Rules of the Senate”
quoted in the petition; that because of events
supervening the institution of the plebiscite cases, to
which reference has been made in the preceding pages,
the Supreme Court dismissed said cases on January 22,
1973, by a majority vote, upon the ground that the
petitions therein had become moot and academic; that
the alleged ratification of the 1972 (1973) Constitution
“is illegal, unconstitutional and void and x  x  x can not
have superseded and revoked the 1935 Constitution,” for
the reasons specified in the petition as amended; that,
by acting as they did, the respondents and their “agents,
representatives and subordinates x  x  x have excluded
the petitioners from an office to which” they “are
lawfully entitled”; that “respondents Gil J. Puyat and
Jose Roy have unlawfully refrained from convening the
Senate for its 8th session, assuming general jurisdiction
over the Session Hall and the premises of the Senate
and x  x  x continue such inaction up to this time and
x  x  x a writ of  mandamus  is warranted in order to
compel them to comply with the duties and functions
specifically enjoined by law”; and that “against the above
mentioned unlawful acts of the respondents, the
petitioners have no appeal nor other speedy and
adequate remedy in the ordinary course of law except by
invoking the equitable remedies of  mandamus  and
prohibition with the provisional remedy of preliminary
mandatory injunction.”

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74 SUPREME COURT REPORTS ANNOTATED


Javellana vs. The Executive Secretary
 
Premised upon the foregoing allegations, said
petitioners prayed that, “pending hearing on the merits,
a writ of preliminary mandatory injunction be issued
ordering respondents Executive Secretary, the Secretary
of National Defense, the Chief of Staff of the Armed
Forces of the Philippines, and the x  x  x Secretary of
General Service, as well as all their agents,
representatives and subordinates to vacate the premises
of the Senate of the Philippines and to deliver physical
possession of the same to the President of the Senate or
his authorized representative”; and that hearing,
judgment be rendered declaring null and Proclamation
No. 1102 x  x  x and any order, decree, proclamation
having the same import and objective, issuing writs of
prohibition and mandamus, as prayed for against above-
mentioned respondents, and making the writ injunction
permanent; and that a writ of  mandamus  be issued
against the respondents Gil J. Puyat and Jose Roy
directing them to comply with their duties and functions
as President and President Pro Tempore, respectively, of
the Senate of Philippines, as provided by law and the
Rules of the Senate.”
Required to comment on the above-mentioned
petitions and/or amended petitions, respondents filed,
with the leave Court first had and obtained, a
consolidated comment on said petitions and/or amended
petitions, alleging that the same ought to have been
dismissed outright; controverting petitioners’ allegations
concerning the alleged lack impairment of the freedom of
the 1971 Constitution Convention to approve the
proposed Constitution, its alleged lack of authority to
incorporate certain contested provisions thereof, the
alleged lack of authority of the President to create and
establish Citizens’ Assemblies “for the purpose
submitting to them the matter of ratification of the new
Constitution,” the alleged “improper or inadequate
submission of the proposed constitution,” the “procedure
for ratification adopted x  x  x through the Citizens
Assemblies”; a maintaining that: 1) “(t)he Court is
without jurisdiction to act on these petitions”; 2) the
questions raised therein are “political in character and
therefore nonjusticiable”; 3) “there substantial
compliance with Article XV of the 1935 Constitution”; 4)
“(t)he Constitution was properly submitted the people in
a free, orderly and honest election; 5)

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Javellana vs. The Executive Secretary

“Proclamation No. 1102, certifying the results of the


election, is conclusive upon the courts”; and 6) “(t)he
amending process outlined in Article XV of the 1935
Constitution is not exclusive of other modes of
amendment.”
Respondents Puyat and Roy, in said Case G.R. No. L-
36165, filed their separate comment therein, alleging
that “(t)he subject matter” of said case “is a highly
political question which, under the circumstances, this
x  x  x Court would not be in a position to act upon
judicially,” and that, in view of the opinions expressed by
three members of this Court in its decision in the
plebiscite cases, in effect upholding the validity of
Proclamation No. 1102, “further proceedings in this case
may only be an academic exercise in futility.”
On February 5, 1973, the Court issued a resolution
requiring respondents in L-36236 to comment on the
petition therein not later than Saturday, February 10,
1973, and setting the case for hearing on February 12,
1973, at 9:30 a.m. By resolution dated February 7, 1973,
this Court resolved to consider the comments of the
respondents in cases G.R. Nos. L-36142, L-36164, and L-
36165, as motions to dismiss the petitions therein, and
to set said cases for hearing on the same date and time
as L-36236. On that date, the parties in G.R. No. L-
3628310  agreed that the same be, likewise, heard, as it
was, in fact, heard jointly with the aforementioned cases
G.R. Nos. L-36142, L-36164, L-36165 and L-36236. The
hearing, which began on February 12, 1973, shortly
after 9:30 a.m., was continued not only that afternoon,
but, also, on February 13, 14, 15 and 16, morning and
afternoon, after which the parties were granted up to
February 24, 1973, noon, within which to submit their
notes of oral arguments and additional arguments, as
well as the documents required of them or whose
presentation was reserved by them. The same resolution
granted the parties until March 1, 1973, to reply to the
notes filed by their respective opponents. Counsel for the
petitioners in G.R. Nos. L-36164 and L-36165 filed their
aforementioned notes on February 24, 1973, on which
date the Solicitor General sought an extension of time
up to March 3, 1973, within which to file his notes,
which was granted, with

_______________
10 Napoleon V. Dilag, et al. v. Executive Secretary, et al.

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76 SUPREME COURT REPORTS ANNOTATED


Javellana vs. The Executive Secretary

the understanding that said notes shall include his reply


to the notes already filed by the petitioners in G.R. Nos.
L-36164 and L-36165. Counsel for the petitioners,
likewise, moved and were granted an extension of time,
to expire on March 10, 1973, within which to file, as they
did, their notes in reply to those submitted by the
Solicitor General on March 3, 1973. On March 21, 1973,
petitioners in L-36165 filed a “Manifestation a
Supplemental Rejoinder,” whereas the Office of the
Solicitor General submitted in all these cases a
“Rejoinder Petitioners’ Replies.”
After deliberating on these cases, the members of the
Court agreed that each would write his own opinion and
serve a copy thereof on his colleagues, and this they did.
Subsequently, the Court discussed said opinions and
votes were cast thereon. Such individual opinions are
appended hereto.
Accordingly, the writer will first express his person
opinion on the issues before the Court. After the
exposition his aforesaid opinion, the writer will make,
concurrently with his colleagues in the Court, a resume
of summary of the votes cast by them in these cases.
Writer’s Personal Opinion
I.
Alleged academic futility of further proceedings in
G.R. L-36165.
This defense or theory, set up by counsel for
respondents Gil J. Puyat and Jose Roy in G.R. No. L-
36165, and, also, by the Solicitor General, is predicated
upon the fact that, in Our decision in the plebiscite
cases, Mr. Justice Barredo had expressed the view that
the 1935 Constitution had “pro tanto passed into
history” and “been legitimately supplanted by the
Constitution now in force by virtue of Proclamation No.
1102 x  x  x”; that Mr. Justice Antonio did not feel “that
this Court competent to act” in said cases “in the
absence of any judicially discoverable and manageable
standards” and because “the access to relevant
information is insufficient to assure the correct
determination of the issue,” apart from the

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Javellana vs. The Executive Secretary

circumstance that “the new constitution has been


promulgated and great interests have already arisen
under it” and that the political organ of the Government
has recognized its provisions; whereas, Mr. Justice
Esguerra had postulated that “(w)ithout any competent
evidence x  x  x about the circumstances attending the
holding” of the “referendum or plebiscite” thru the
Citizens’ Assemblies, he “cannot say that it was not
lawfully held” and that, accordingly, he  assumed  ”that
what the proclamation (No. 1102) says on its face is true
and until overcome by satisfactory evidence” he could
not “subscribe to the claim that such plebiscite was not
held accordingly”; and that he accepted “as a  fait
accompli  that the Constitution adopted (by the 1971
Constitutional Convention) on November 30, 1972, has
been duly ratified.”
Counsel for respondents Gil J. Puyat and Jose Roy
goes on to say that, under these circumstances, “it seems
remote or improbable that the necessary eight (8) votes
under the 1935 Constitution, and much less the ten (10)
votes required by the 1972 (1973) Constitution, can be
obtained for the relief sought in the Amended Petition”
in G.R. No. L-36165.
I am unable to share this view. To begin with, Mr.
Justice Barredo announced publicly, in open court,
during the hearing of these cases, that he was and is
willing to be convinced that his aforementioned opinion
in the plebiscite cases should be reconsidered and
changed. In effect, he thus declared that he had an open
mind in connection with the cases at bar, and that in
deciding the same he would not necessarily adhere to
said opinion if the petitioners herein succeeded in
convincing him that their view should be sustained.
Secondly, counsel for the aforesaid respondents had
apparently assumed that, under the 1935 Constitution,
eight (8) votes are necessary to declare invalid the
contested Proclamation No. 1102. I do not believe that
this assumption is borne out by any provision of said
Constitution. Section 10 of Article VIII thereof reads:

“All cases involving the constitutionality of a treaty or law


shall be heard and decided by the Supreme Court in banc, and
no treaty or law may be declared unconstitutional without the
concurrence of two thirds of all the members of the Court.”

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78 SUPREME COURT REPORTS ANNOTATED
Javellana vs. The Executive Secretary

 
Pursuant to this section, the concurrence of two-
thirds of all the Members of the Supreme Court is
required only to declare “treaty or law” unconstitutional.
Construing said provision, in a resolution dated
September 16, 1949, then Chief Justice Moran, voicing
the  unanimous  view of the Members of this Court,
postulated:

“x x x There is nothing either in the Constitution or in the


Judiciary Act requiring the vote of eight Justices to nullify a
rule or regulation or an executive order issued by the
President. It is very significant that in the previous drafts of
section 10, Article VIII of the Constitution, ‘executive order’
and ‘regulation’  were included  among those that required for
their nullification the vote of two-thirds of all the members of
the Court. But ‘executive order’ and ‘regulation’ were
later deleted from the final draft (Aruego, The Framing of the
Philippine Constitution, Vol. I, pp. 495, 496), and thus a mere
majority of six members of this Court is enough to nullify
them.”11

The distinction is not without reasonable foundation.


The two thirds vote (eight [8] votes) requirement,
indeed, was made to apply only to treaty and law,
because, in these cases, the participation of the two
other departments of the government — the Executive
and the Legislative — is present, which circumstance is
absent in the case of rules, regulations and executive
orders. Indeed, a law (statute) passed by Congress is
subject to the approval or veto of the President, whose
disapproval cannot be overridden except by the vote of
two-thirds (2/3) of all members of each House of
Congress.12  A treaty is entered into by the President
with the concurrence of the Senate,13  which is not
required in the case of rules, regulations or executive
orders which are exclusive acts of the President. Hence,
to nullify the same, a lesser number of votes is necessary
in the Supreme Court than that required to invalidate a
law or treaty.
Although the foregoing refers to rules, regulations
and

_______________
11 Araneta v. Dinglasan, 84 Phil. 431, 437-438. See, also, Gonzales
v. Commission on Elections,  L-28196 & L-28224, Nov. 9, 1967.
Emphasis ours.
12 Art. VI, sec. 20(1), Constitution.
13 Art. VII, sec. 10(7), Constitution.

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VOL. 50, MARCH 31, 1973 79


Javellana vs. The Executive Secretary

executive orders issued by the President, the dictum


applies with equal force to executive proclamation, like
said Proclamation No. 1102, inasmuch as the authority
to issue the same is governed by section 63 of the
Revised Administrative Code, which provides:

“Administrative acts and commands of the (Governor-


General) President of the Philippines touching the
organization or mode of operation of the Government or
rearranging or readjusting any of the districts, divisions, parts
or ports of the (Philippine Islands) Philippines and all acts and
commands governing the general performance of duties by
public employees or disposing of issues of general concern shall
be made effective in executive orders.
“Executive orders fixing the dates when specific laws,
resolutions, or orders are to have or cease to (have) effect
and  any information concerning matters of public
moment  determined by law, resolution, or executive orders,
may be promulgated in an executive proclamation, with all the
force of an executive order.”14
In fact, while executive order embody administrative
acts or commands of the President, executive
proclamations are mainly informative and declaratory in
character, and so does counsel for respondents Gil J.
Puyat and Jose Roy maintain in G.R. No. L-36165.15 As
consequence, an executive proclamation has  no
more  than “the force of an executive order,” so that, for
the Supreme Court to declare such proclamation
unconstitutional, under the 1935 Constitution, the same
number of votes needed to invalidate an executive order,
rule or regulation — namely, six (6) votes — would
suffice.As regards the applicability of the provisions of
the proposed new Constitution, approved by the 1971
Constitutional Convention, in the determination of the
question whether or not it is now in force, it is obvious
that such question depends upon whether or not the said
new Constitution has been ratified in accordance with
the requirements of the 1935 Constitution, upon the
authority of which said Constitutional Convention was
called and approved the proposed Constitution.

_______________
14 Italics ours.
15 See page 4, last paragraph, of his Comment dated Feb. 6, 1973.

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80 SUPREME COURT REPORTS ANNOTATED


Javellana vs. The Executive Secretary

It is well settled that the matter of ratification of an


amendment to the Constitution should be settled
by applying the provisions of the Constitution in force at
the time of the alleged ratification, or the old
Constitution.16
II
Does the issue on the validity of Proclamation No.
1102 partake of the nature of a political, and, hence, non-
justiciable question?
The Solicitor General maintains in his comment the
affirmative view and this is his main defense. In support
thereof, he alleges that “petitioners would have this
Court declare as invalid the New Constitution of the
Republic” from which — he claims — “this Court now
derives its authority”; that “nearly 15 million of our body
politic from the age of 15 years have mandated this
Constitution to be the New Constitution and the
prospect of unsettling acts done in reliance on it caution
against interposition of the power of judicial review”;
that “in the case of the New Constitution, the
government has been recognized in accordance with the
New Constitution”; that “the country’s foreign relations
are now being conducted in accordance with the new
charter”; that “foreign governments have taken note of
it”; that the “plebiscite cases” are “not precedents for
holding questions regarding proposal and ratification
justiciable”; and that “to abstain from judgment on the
ultimate issue of constitutionality is not to abdicate
duty.”
At the outset, it is obvious to me that We are not
being asked to “declare” the  new  Constitution invalid.
What petitioners dispute is the theory that it has been
validly ratified by the people, especially that they have
done so  in accordance with Article XV of the 1935
Constitution. The petitioners maintain

_______________
16 In re Opinion of Justices, 107 Atl. 673, 5 A.L.R. 1412; Crawford
v. Gilchrist, 59 So. Rep. 963; McAdams v. Henley, 273 S.W. 355; Egbert
v. City of Dunseith, 74 N.D. 1, 168 A.L.R. 621, 24 N.W. 2d. 907; State
ex rel. Landis, Atty. Gen. v. Thompson, 163 So. Rep. 270; St. Louis
Brewing Association v. Moore, 64 L. ed. 947; Ellingham v. Dye, 99 N.E.
Rep. 1, 18; Johnson v. Craft, 87 So. Rep. 375.

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VOL. 50, MARCH 31, 1973 81
Javellana vs. The Executive Secretary

that the conclusion reached by the Chief Executive in


the dispositive portion of Proclamation No. 1102 is not
borne out by the whereases preceding the same, as the
predicates from which said conclusion was drawn; that
the plebiscite or “election” required in said Article XV
has not been held; that the Chief Executive has no
authority, under the 1935 Constitution, to dispense with
said election or plebiscite; that the proceedings before
the Citizens’ Assemblies did not constitute and may not
be considered as such plebiscite; that the facts of record
abundantly show that the aforementioned Assemblies
could not have been held throughout the Philippines
from January 10 to January 15, 1973; and that, in any
event, the proceedings in said Assemblies are null and
void as an alleged ratification of the new Constitution
proposed by the 1971 Constitutional Convention, not
only because of the circumstances under which said
Assemblies had been created and held, but, also, because
persons disqualified to vote under Article V of the
Constitution were allowed to participate therein,
because the provisions of our Election Code were not
observed in said Assemblies, because the same were not
held under the supervision of the Commission on
Elections, in violation of section 2 of Article X of the
1935 Constitution, and because the existence of Martial
Law and General Order No. 20, withdrawing or
suspending the limited freedom to discuss the merits
and demerits of said proposed Constitution, impaired
the people’s freedom in voting thereon, particularly  a
viva voce, as it was done in many instances, as well as
their ability to have a reasonable knowledge of the
contents of the document on which they were allegedly
called upon to express their views.
Referring now more specifically to the issue on
whether the new Constitution proposed by the 1971
Constitutional Convention has been ratified in
accordance with the provisions of Article XV of the 1935
Constitution is a political question or not, I do not
hesitate to state that the answer must be in the
negative. Indeed, such is the position taken by this
Court,17 in

_______________
17 Mun. of Malabang v. Benito, L-28113, Mar. 28, 1969; NAWASA
v. Piguing, et al., L-35573, Oct. 11, 1968; Fernandez v. P. Cuerva &
Co., L-21114, Nov. 25, 1967; Gonzales v. Commission on Elections, L-
28224, Nov. 29, 1967; Bara Lidasan v. COMELEC,

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82 SUPREME COURT REPORTS ANNOTATED


Javellana vs. The Executive Secretary

an endless line of decisions, too long to leave any room


for possible doubt that said issue is inherently and
essentially justiciable. Such, also, has been the
consistent position of the courts of the United States of
America, whose decisions have a persuasive effect in this
jurisdiction, our constitutional system in the 1935
Constitution being patterned after that of the United
States. Besides, no plausible reason has, to my mind,
been advanced to warrant a departure from said
position, consistently with the form of government
established under said Constitution.
Thus, in the aforementioned plebiscite cases,18  We
rejected  the theory of the respondents therein that the
question

_______________
L-28089, Oct. 25, 1967; Mun. of San Juan v. NAWASA, L-22047, Aug.
31, 1967; Mun. of San Joaquin v. Siva, L-19870, Mar. 18, 1967; Pelayo
v. Auditor General, L-23825, Dec. 24, 1965; Philippine Constitution
Association v. Gimenez, L-23326, Dec. 18, 1965; Mun. of La Carlota v.
NAWASA, L-20232, Sept. 30, 1964; Guevara v. Inocentes, L-25577,
Mar. 15, 1966; Gillera v. Fernandez, L-20741, Jan. 31, 1964; Siguiente
v. Secretary of Justice, L-20370, Nov. 29, 1963; Mun. of Naguilian v.
NAWASA, L-18540, Nov. 29, 1963; Herrera v. Liwag, L-20079, Sept.
30, 1963; Aytona v. Castillo, L-19313, Jan. 19, 1962; La Mallorca, etc.
v. Ramos, et al., L-15476, Sept. 19, 1961; Tan v. De Leon, et al., L-
15254, Sept. 16, 1961; Macias v. Commission on Elections, L-18684,
Sept. 14, 1961; Philippine Tobacco Flue-Curing & Redrying Corp. v.
Sabugo, et al., L-16017, Aug. 31, 1961; Miller v. Mardo, L-15138, July
31, 1961; Cu Bu Liong v. Estrella, et al., L-14212, July 31, 1961;
Pampanga Sugar Development Co., Inc. v. Fuentes, et al., L-14738,
July 31, 1961; Earnshaw Docks & Honolulu Iron Works v. Mardo, et
al., L-14759, July 31, 1961; Liwanag v. Central Azucarera Don Pedro,
L-15372, July 31, 1961; Lecura v. Regional Office No. 3, etc., L-15582,
July 31, 1961; Pitogo v. Sen Bee Trading Co., et al., L-15693, July 31,
1961; Pascual v. Sec. of Public Works and Communications, L-10405,
Dec. 29, 1960; Corominas, Jr. v. Labor Standards Commission, L-
14837, June 30, 1961; City of Baguio v. NAWASA, L-12032, Aug. 31,
1959; City of Cebu v. NAWASA, L-12892, April 20,1960; Montes v.
Civil Service Board of Appeals, 101 Phil. 490, Rutter v. Esteban, 93
Phil. 68; Araneta v. Dinglasan, 84 Phil. 368; Borromeo v. Mariano, 41
Phil. 322.
18  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.

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whether Presidential Decree No. 73 calling a plebiscite


to be held on January 15, 1973, for the ratification or
rejection of the proposed new Constitution, was valid or
not, was not a proper subject of judicial inquiry because,
they claimed, it partook of a political nature, and
We  unanimously  declared that the issue was a
justiciable  one.  With identical unanimity, We overruled
the respondents’ contention in the 1971  habeas corpus
cases,19  questioning Our authority to determine the
constitutional sufficiency of the factual bases of the
Presidential proclamation suspending the privilege of
the writ of  habeas corpus  on August 21, 1971, despite
the opposite view taken by this Court in  Barcelona v.
Baker20  and  Montenegro v. Castañeda,21  insofar as it
adhered to the former case, which view We, accordingly,
abandoned and refused to apply. For the same reason,
We did not apply and expressly modified, in Gonzales v.
Commission on Elections,22 the political-question theory
adopted in Mabanag v. Lopez Vito.23 Hence, respondents
herein urge Us to reconsider the action thus taken by
the Court and to revert to and follow the views
expressed in  Barcelon v. Baker and Mabanag v. Lopez
Vito.24
The reasons adduced in support thereof are, however,
substantially the same as those given in support of the
political-question theory advanced in said  habeas
corpus  and plebiscite cases, which were carefully
considered by this Court and found by it to be legally
unsound and constitutionally untenable. As a
consequence, Our decision in the

_______________
19 L-33964, Teodosio Lansang, et al. v. Brigadier-General Eduardo
M. Garcia; L-33965, Rogelio V. Arienda v. Secretary of National
Defense, et al.; L-33973, Luzvimindo David v. Gen. Eduardo Garcia, et
al.; L-33962, Felicidad G. Prudente v. General Manuel Yan, et al.; L-
34004, Domingo E. de Lara v. Brigadier-General Eduardo M. Garcia;
L-34013, Reynaldo Rimando v. Brig. Gen. Eduardo M. Garcia; L-34039,
Carlos C. Rabago v. Brig. Gen. Eduardo Garcia, et al.; L-34265, Antolin
Oreta, Jr. v. Gen. Eduardo Garcia, et al.; and L-34339, Gary B. Olivar,
et al. v. Gen. Eduardo Garcia, et al.
20 5 Phil. 87.
21 91 Phil. 882.
22 G.R. Nos. L-28196 and L-28224, Nov. 9, 1967.
23 78 Phil. 1.
24 Supra.

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84 SUPREME COURT REPORTS ANNOTATED


Javellana vs. The Executive Secretary

aforementioned  habeas corpus  cases partakes of the


nature and effect of a stare decisis, which gained added
weight by its virtual reiteration in the plebiscite cases.
The reason why the issue under consideration and
other issues of similar character are justiciable, not
political, is plain and simple. One of the principal bases
of the non-justiciability of so-called political questions is
the principle of separation of powers — characteristic of
the Presidential system of government — the functions
of which are classified or divided, by reason of their
nature, into three (3) categories, namely: 1) those
involving the making of laws, which are allocated to the
legislative department; 2) those concerned mainly with
the enforcement of such laws and of judicial decisions
applying and/or interpreting the same, which belong to
the executive department; and 3) those dealing with the
settlement of disputes, controversies or conflicts
involving rights, duties or prerogatives that are legally
demandable and enforceable, which are apportioned to
courts of justice. Within its own sphere — but  only
within  such sphere — each department is supreme and
independent of the others, and each is devoid of
authority, not only to encroach upon the powers or field
of action assigned to any of the other departments, but,
also, to inquire into or pass upon the advisability
or  wisdom  of the acts performed, measures taken or
decisions made by the other departments — provided
that such acts, measures or decisions are within the area
allocated thereto by the Constitution.25
This principle of separation of powers under the
presidential system goes hand in hand with the system
of checks and balances, under which each department is
vested by the Fundamental Law with some powers to
forestall, restrain or arrest a possible or actual misuse or
abuse of powers by the other departments. Hence, the
appointing power of the Executive, his pardoning power,
his veto power, his authority to call the Legislature or
Congress to special sessions and even to prescribe or
limit the object or objects of legislation that may be
taken up in such sessions, etc. Conversely, Congress or
an agency or arm thereof — such as the Commission on

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25 In re McConaughy, 119 N.W. 408, 417.

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Appointments — may approve or disapprove some


appointments made by the President. It, also, has the
power of appropriation, to “define, prescribe, and
apportion the jurisdiction of the various courts,” as well
as that of impeachment. Upon the other hand, under the
judicial power vested by the Constitution, the “Supreme
Court and x  x  x such inferior courts as may be
established by law,” may settle or decide with finality,
not only justiciable controversies between private
individuals or entities, but, also, disputes or conflicts
between a private individual or entity, on the one hand,
and an officer or branch of the government, on the other,
or between two (2) officers or branches of service, when
the latter officer or branch is charged with acting
without jurisdiction or in excess thereof or in violation of
law. And so, when a power vested in said officer or
branch of the government is absolute or unqualified, the
acts in the exercise of such power are said to
be political in nature, and, consequently, non-justiciable
or beyond judicial review. Otherwise, courts of justice
would be arrogating upon themselves a power conferred
by the Constitution upon another branch of the service
to the exclusion of the others. Hence, in  Tañada v.
Cuenco,26  this Court quoted with approval from In re
McConaughy,27 the following:
 
“ ‘At the threshold of the case we are met with the assertion
that the questions involved are political, and not judicial. If
this is correct, the court has no jurisdiction as the certificate of
the state canvassing board would then be final, regardless of
the actual vote upon the amendment. The question thus raised
is a fundamental one; but it has been so often decided contrary
to the view contended for by the Attorney General that it would
seem to be finally settled.
* * * *
“ ‘*  *  * What is generally meant, when it is said that a
question is political, and not judicial, is that  it is a matter
which is to be exercised by the people in their primary political
capacity, or that it has been specifically delegated to some
other department or particular officer of the government, with
discretionary power to

_______________
26 103 Phil. 1051, 1067.
27 119 N.W. 408, 411, 417. 

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86 SUPREME COURT REPORTS ANNOTATED


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act. See  State vs. Cunningham, 81 Wis. 497, N.W. 724, 15


L.R.A. 561;  In re Gunn, 50 Kan. 155; 32 Pac. 470, 948, 19
L.R.A. 519;  Green vs. Mills, 69 Fed. 852, 16 C.C.A. 516, 30
L.R.A. 90; Fletcher vs. Tuttle 151 Ill. 41, 37 N.E. 683, 25 L.R.A.
143, 42 Am. St. Rep. 220. Thus the Legislature may in its
discretion  determine whether it will pass law or submit a
proposed constitutional amendment to the people. The courts
have no judicial control over such matters, not merely because
they involve political questions, but because they are matters
which the people have by the Constitution delegated to the
Legislature. The Governor may exercise the powers delegated
him, free from judicial control, so long as he observes the laws
act within the limits of the power conferred. His
discretionary acts cannot be controllable, not primarily because
they are of a politics nature, but because the Constitution and
laws have placed the particular matter under his control.  But
every officer under constitutional government must act
accordingly to law and subject its restrictions, and every
departure therefrom or disregard thereof must subject him to
that restraining and controlling power of the people, acting
through the agency of the judiciary; for it must be remembered
that the people act through courts, as well as through the
executive or the Legislature. One department is just as
representative as the other, and the judiciary is the department
which is charged with the special duty of determining the
limitations which the law places upon all official action. The
recognition of this principle, unknown except in Great Britain
and America, is necessary, to “the end that the government may
be one of laws and not of men” — words which Webster said
were  the greatest  contained in any written constitutional
document.” (Italics supplied.) 

and, in an attempt to describe the nature of a political


question in terms, it was hoped, understandable to the
laymen, We added that “x  x  x the term “political
question” connotes, in legal parlance, what it means in
ordinary parlance, namely, a question of policy” in
matters concerning the government of a State, as a body
politic. “In other words, in the language of Corpus Juris
Secundum (supra), it refers to “those questions which,
under the Constitution, are to be decided by the people in
their sovereign capacity, or in regard to which  full
discretionary authority  has been delegated to the
Legislature or executive branch of the government.” It is
concerned with issues dependent upon the  wisdom, not
legality, of a particular measure.”

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Accordingly, when the grant of power is qualified,
conditional or subject to limitations, the issue on
whether or not the prescribed qualifications or
conditions have been met, or the limitations respected, is
justiciable or non-political, the crux of the problem being
one of  legality or validity  of the contested act,  not  its
wisdom. Otherwise, said qualifications, conditions or
limitations — particularly those prescribed or imposed
by the Constitution — would be set at naught. What is
more, the judicial inquiry into such issue and the
settlement thereof are the  main functions of courts of
justice under the Presidential form of government
adopted in our 1935 Constitution, and the system of
checks and balances, one of its basic predicates. As a
consequence, We have neither the authority nor the
discretion to decline passing upon said issue, but
are under the ineluctable obligation — made particularly
more exacting and peremptory by our oath, as members
of the highest Court of the land, to support and defend
the Constitution — to settle it. This explains why,
in  Miller v. Johnson,28  it was held that courts have a
“duty, rather than a power,” to determine whether
another branch of the government has “kept  within
constitutional limits.” Not satisfied with this postulate,
the court went farther and stressed that, if the
Constitution provides how it may be amended — as it is
in our 1935 Constitution — “then, unless the manner is
followed, the judiciary as the interpreter of that
constitution, will declare the amendment invalid.”29  In
fact, this very Court — speaking through Justice Laurel,
an outstanding authority on Philippine Constitutional
Law, as well as one of the highly respected and foremost
leaders of the Convention that drafted the 1935
Constitution — declared, as early as July 15, 1936, that
“(i)n times of social disquietude or political excitement,
the great landmarks of the Constitution are apt to be
forgotten or marred, if not entirely obliterated. In cases
of conflict, the  judicial  department is the  only
constitutional organ  which can be called upon to
determine the proper allocation of powers between the
several departments” of the government.30
_______________
28 92 Ky. 589, 18 S.W. 522, 523.
29  Citing Koehler v. Hill, 60 Iowa 543, 14 N.W. Rep. 738, and 15
N.W. Rep. 609; State v. Tufly, 19 Nev. 391, 12 Pac. Rep. 835.
30 Angara v. Electoral Commission, 63 Phil. 139, 157. Italics ours.

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Javellana vs. The Executive Secretary

 
The Solicitor General has invoked  Luther v.
Borden31  in support of his stand that the issue under
consideration is non-justiciable in nature. Neither the
factual background of that case nor the action taken
therein by the Federal Supreme Court has any
similarity with or bearing on the cases under
consideration.
Luther v. Borden  was an action for trespass filed by
Luther with the Circuit Court of the United States
against Borden and others for having forcibly entered
into Luther’s house, in Rhode Island, sometime in 1842.
The defendants who were in the military service of said
former colony of England, alleged in their defense that
they had acted in obedience to the commands of a
superior officer, because Luther and others were
engaged in a conspiracy to overthrow the government by
force and the state had been placed by competent
authority under Martial Law. Such authority was the
charter government of Rhode Island at the time of the
Declaration of Independence, for — unlike other states
which adopted a new Constitution upon secession from
England — Rhode Island retained its form of
government under a British Charter, making only such
alterations, by acts of the Legislature, as were necessary
to adapt it to its subsequent condition as an independent
state. It was under this form of government when Rhode
Island joined other American states in the Declaration of
Independence and, by subsequently ratifying the
Constitution of the United States, became a member of
the Union. In 1843, it adopted a new Constitution.
Prior thereto, however, many citizens had become
dissatisfied with the charter government. Memorials
addressed by them to the Legislature having failed to
bring about the desired effect, meetings were held and
associations formed — by those who belonged to this
segment of the population — which eventually resulted
in a convention called for the drafting of a new
Constitution to be submitted to the people for their
adoption or rejection. The convention was not authorized
by any law of the existing government. The delegates to
such convention framed a new Constitution which

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31 12 L. ed. 581 (1849).

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Javellana vs. The Executive Secretary

was submitted to the people. Upon the return of the


votes cast by them, the convention declared that said
Constitution had been adopted and ratified by a majority
of the people and became the paramount law and
Constitution of Rhode Island.
The charter government, which was supported by a
large number of citizens of the state, contested, however,
the validity of said proceedings. This notwithstanding,
one Thomas W. Dorr, who had been elected governor
under the new Constitution of the rebels, prepared to
assert authority by force of arms, and many citizens
assembled to support him. Thereupon, the charter
government passed an Act declaring the state under
Martial Law and adopted measures to repel the
threatened attack and subdue the rebels. This was the
state of affairs when the defendants, who were in the
military service of the charter government and were to
arrest Luther, for engaging in the support of the rebel
government — which was never able to
exercise  any  authority in the state — broke into his
house.
Meanwhile, the charter government had taken
measures to call its own convention to revise the existing
form of government. Eventually, a new constitution was
drafted by a convention held under the authority of the
charter government, and thereafter was adopted and
ratified by the people. “(T)he times and places at which
the votes were to be given, the persons who were to
receive and return them, and the qualifications of the
voters  having all been previously authorized and
provided for by law passed by the charter government,”
the latter formally surrendered all of its powers to the
new government, established under its authority, in May
1843, which had been in operation uninterruptedly since
then.
About a year before, or in May 1842, Dorr, at the
head of a military force, had made an unsuccessful
attempt to take possession of the state arsenal in
Providence, but he was repulsed, and, after an
“assemblage of some hundreds of armed men under his
command at Chepatchet in the June following, which
dispersed upon approach of the troops of the old
government, no further effort was made to establish” his
government. “x  x  x until the Constitution of 1843” —
adopted under the auspices of the charter government —
“went into

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90 SUPREME COURT REPORTS ANNOTATED


Javellana vs. The Executive Secretary

operation, the charter government  continued  to assert


its authority and exercise its powers and to  enforce
obedience throughout the state x x x.”
Having offered to introduce evidence to prove that the
constitution of the rebels had been ratified by the
majority of the people, which the Circuit Court rejected,
apart from rendering judgment for the defendants, the
plaintiff took the case for review to the Federal Supreme
Court which affirmed the action of the Circuit Court,
stating:
 

“It is worthy of remark, however, when we are referring to


the authority of State decisions, that the trial of Thomas W.
Dorr took place after the constitution of 1843 went into
operation.  The judges who decided that case held their
authority under that constitution and it is admitted on all
hands that it was adopted by the people of the State, and is the
lawful and established government. It is the decision, therefore,
of a State court, whose judicial authority to decide upon the
constitution and laws of Rhode Island is not questioned by
either party  to this controversy, although the government
under which it acted was framed and adopted under the
sanction and laws of the charter government.
“The point, then, raised here has been already decided by the
courts of Rhode Island. The question relates, altogether, to the
constitution and laws of that State, and the well settled rule in
this court is, that the courts of the United States adopt and
follow the decisions of the State courts in questions which
concern merely the constitution and laws of the State.
“Upon what ground could the Circuit Court of the United
States which tried this case have departed from this rule, and
disregarded and overruled the decisions of the courts of Rhode
Island?  Undoubtedly the courts of the United States have
certain powers under the Constitution and laws of the United
States which do not belong to the State courts. But the power of
determining that a State government has been lawfully
established, which the courts of the State disown and repudiate,
is not one of them. Upon such a question the courts of the
United States are bound to follow the decisions of the State
tribunals, and must therefore regard the charter government
as the lawful and established government during the time of
this contest.32
_______________
32 Luther v. Borden, supra, p. 598. Italics ours.

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It is thus apparent that the context within which the
case of  Luther v. Borden  was decided is basically and
fundamentally different from that of the cases at bar. To
begin with, the case did not involve a federal question,
but one purely municipal in nature. Hence, the Federal
Supreme Court was “bound to follow the decisions of the
State tribunals” of Rhode Island upholding the
constitution adopted under the authority of the charter
government. Whatever else was said in that case
constitutes, therefore, an  obiter dictum. Besides, no
decision analogous to that rendered by the State Court
of Rhode Island exists in the cases at bar. Secondly, the
states of the Union have a measure of  internal
sovereignty  upon which the Federal Government may
not encroach, whereas ours is a unitary form of
government, under which our local governments derive
their authority from the national government.
Again,  unlike  our 1935 Constitution, the charter or
organic law of Rhode Island contained  no provision on
the manner, procedure or conditions for its amendment.
Then, too, the case of  Luther v. Borden  hinged more
on the question of recognition of  government, than on
recognition of  constitution, and there is a fundamental
difference between these two (2) types of recognition, the
first being generally conceded to be a political question,
whereas the nature of the latter depends upon a number
of factors, one of them being whether the new
Constitution has been adopted in the manner prescribed
in the Constitution in force at the time of the purported
ratification of the former, which
is essentially a justiciable question. There was, in Luther
v. Borden, a conflict between two (2) rival  governments,
antagonistic to each other, which is absent in the
present cases. Here, the Government established under
the 1935 Constitution is the very same government
whose Executive Department has urged the adoption of
the new or revised Constitution proposed by the 1971
Constitutional Convention and now alleges that it has
been ratified by the people.
In short, the views expressed by the Federal Supreme
Court in Luther v. Borden, decided in 1849, on matters
other  than those referring to its power to review
decisions of a state court concerning the constitution and
government of that state, not the Federal Constitution or
Government, are manifestly neither

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controlling, nor even persuasive in the present cases,


having as the  Federal  Supreme Court admitted
— no authority whatsoever to pass upon such matters or
to review decisions of said state court thereon. In fact,
referring to that case, the Supreme Court of Minnessota
had the following to say:

“Luther v. Borden, 7 How. 1, 12 L. Ed. 581, is always cited


by those who assert that the courts have no power to
determine questions of a political character. It is interesting
historically, but it has  not the slightestapplication to the case
at bar. When carefully analyzed, it appears that it merely
determines that the  federal courts will accept as final and
controlling a decision of the highest court of a state upon a
question of the construction of the Constitution of the state.
x x x.33

Baker v. Carr,34  cited by respondents, involved an


action to annul a Tennessee statute apportioning the
seats in the General Assembly among the counties of the
State, upon the theory that the legislation violated the
equal protection clause. A district court dismissed the
case upon the ground, among others, that the issue was
a political one, but, after a painstaking review of the
jurisprudence on the matter, the Federal Supreme
Court reversed the appealed decision and held that said
issue  was justiciable  and non-political, inasmuch as:
“x  x  x (d)eciding whether a matter has in any measure
been committed by the Constitution to another branch of
government, or whether the action of that
branch exceeds whatever authority has been committed,
is itself a delicate exercise in constitutional
interpretation, and  is a responsibility of this Court as
ultimate interpreter of the Constitution x x x.”
Similarly, in Powell v. McCormack,35 the same Court,
speaking through then Chief Justice Warren, reversed a
decision of the Court of Appeals of New York affirming
that of a Federal District Court, dismissing Powell’s
action for a declaratory judgment declaring thereunder
that he — whose qualifications were uncontested — had
been unlawfully excluded from the 90th Congress of the
U.S. Said dismissal

_______________
33 In re McConaughy, supra, p. 416. Italics ours.
34 369 U.S. 186, 7 L. ed. 2d. 663, 82 S. Ct. 691 (March 26, 1962).
35 395 U.S. 486, 23 L. ed. 2d. 491, 89 S. Ct. 1944 (1969).

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was predicated upon the ground,  inter alia, that the


issue was political, but the Federal Supreme Court held
that it was clearly a justiciable one.
The Supreme Court of Minnessota undertook a
careful review of American jurisprudence on the matter.
Owing to the lucidity of its appraisal thereof, We append
the same to this opinion as Annex A thereof.
After an, exhaustive analysis of the cases on this
subject, the Court concluded:

“The authorities are thus  practically uniform  in holding


that whether a constitutional amendment has been properly
adopted according to the requirements of an existing
Constitution  is a judicial question. There can be little doubt
that the consensus of judicial opinion is to the effect that it is
the  absolute duty  of the judiciary to determine whether the
Constitution has been amended in the manner required by the
Constitution, unless a special tribunal has been created to
determine the question; and even then many of the courts hold
that the tribunal cannot be permitted to illegally amend the
organic law. x x x.”36

In the light of the foregoing, and considering that Art.


XV of our 1935 Constitution prescribes the method or
procedure for its amendment, it is clear to my mind that
the question whether or not the revised Constitution
drafted by the 1971 Constitutional Convention has been
ratified in accordance with said Art. XV is a justiciable
one and non-political in nature, and that it is not only
subject to judicial inquiry, but, also, that it is the Court’s
bounden duty to decide such question.
The Supreme Court of the United States has
meaningfully postulated that “the courts cannot reject as
‘no law suit’ ” — because it allegedly involves a political
question — “a bona fide controversy as to whether some
action denominated ‘political’  exceeds constitutional
authority.”37

_______________
36  In re McConaughy, 119 N.W. 408, 415. Emphasis ours. The
observation as to the uniformity of authorities on the matter has been
reiterated in Winget v. Holm, 244 N.W. 329, 332.
37 Baker v. Carr, 369 U.S. 186, 7 L. ed. 2d 663, 686, 82 S. Ct. 691.

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94 SUPREME COURT REPORTS ANNOTATED
Javellana vs. The Executive Secretary

III
Has the proposed new or revised Constitution been
ratified conformably to said Art. XV of the 1935
Constitution?
Petitioners in L-36142 maintain the negative view,
upon ground: 1) that the President “is without authority
to create the Citizens’ Assemblies” through which,
respondents maintain, the proposed new Constitution
has been ratified; 2) that said Assemblies “are without
power to approve the proposed Constitution”; 3) that the
President “is without power to proclaim the ratification
by the Filipino people of the proposed Constitution”; and
4) that “the election held (in the Citizens’ Assemblies) to
ratify the proposed Constitution was not a free election,
hence null and void.”
Apart from substantially reiterating these grounds
support of said negative view, the petitioners in L-36164
contend: 1) that the President “has no power to call a
plebiscite for the ratification or rejection” of the proposed
new Constitution or “to appropriate funds for the
holding of the said plebiscite”; 2) that the proposed new
or revised Constitution “is vague and incomplete,” as
well as “contains provisions which are beyond the
powers of the 1971 Convention to enact,” thereby
rendering it “unfit for x  x  x submission the people”; 3)
that “(t)he period of time between November 1972 when
the 1972 draft was approved and January 11-15, 1973,”
when the Citizens’ Assemblies supposedly ratified said
draft, “was too short, worse still, there was practically no
time for the Citizens’ Assemblies to discuss the merits of
the Constitution which the majority of them have not
read a which they never knew would be submitted to
them ratification until they were asked the question —
“do you approve of the New Constitution?” during the
said days of the voting”; and that “(t)here was altogether
no freedom discussion and no opportunity to concentrate
on the matter submitted to them when the 1972 draft
was supposedly submitted to the Citizens’ Assemblies
for ratification.”
Petitioner in L-36236 added, as arguments in support
of the negative view, that : 1) “(w)ith a government-
controlled press, there can never be a fair and proper
submission of the proposed
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Constitution to the people”; and 2) Proclamation No.


1102 is null and void “(i)nasmuch as the ratification
process” prescribed “in the 1935 Constitution was not
followed.”
Besides adopting substantially some of the grounds
relied upon by the petitioners in the above-mentioned
cases, the petitioners in L-36283 argue that “(t)he
creation of the Citizens’ Assemblies as the vehicle for the
ratification of the Constitution was a deception upon the
people since the President announced the postponement
of the January 15, 1973 plebiscite to either February 19
or March 5, 1973.”38
The reasons adduced by the petitioners in L-36165 in
favor of the negative view have already been set forth
earlier in this opinion. Hence, it is unnecessary to
reproduce them here. So it is, with respect to the
positions taken in L-36165 by counsel for therein
respondents Gil J. Puyat and Jose Roy — although more
will be said later about them — and by the Solicitor
General, on behalf of the other respondents in that case
and the respondents in the other cases.
1. What is the procedure prescribed by the 1935
Constitution for its amendment?
Under section 1 of Art. XV of said Constitution, three
(3) steps are essential, namely:
1. That the amendments to the Constitution be
proposed either by Congress or by a convention called for
that purpose, “by a vote of three-fourths of all the
Members of the Senate and the House of
Representatives voting separately,” but “in joint session
assembled”;
2. That such amendments be “submitted to the people
for their ratification” at an “election”; and
3. That such amendments be “approved by a majority
of the votes cast” in said election.
Compliance with the first requirement is virtually
conceded,

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38 See p. 5 of the Petition.

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although the petitioners in L-36164 question the


authority of the 1971 Constitutional Convention to
incorporate certain provisions into the draft of the new
or revised Constitution. The main issue in these five (5)
cases hinges, therefore, on whether or not the last two
(2) requirements have been complied with.
2. Has the contested draft of the new or revised
Constitution been submitted to the people for their
ratification conformably to Art. XV of the Constitution?
In this connection, other provisions of the 1935
Constitution concerning “elections” must, also, be taken
into account, namely, section I of Art. V and Art. X of
said Constitution. The former reads:

“Section 1. Suffrage may be exercised by male citizens of the


Philippines not otherwise disqualified by law, who are twenty-
one years of age or over and are able to read and write, and
who shall have resided in the Philippines for one year and in
the municipality wherein they propose to vote for at least six
months preceding the election. The National Assembly shall
extend the right of suffrage to women, if in a plebiscite which
shall be held for that purpose within two years after the
adoption of this Constitution, not less than three hundred
thousand women possessing the necessary qualifications shall
vote affirmatively on the question.”

Sections 1 and 2 of Art. X of the Constitution ordain in


part:

“Section 1. There shall be an  independent  Commission on


Elections composed of a Chairman and two other Members to
be appointed by the President with the consent of the
Commission on Appointments, who shall hold office for a term
of nine years and may not be reappointed. ...
“xxx xxx xxx
“Sec. 2. The Commission on Elections shall
have  exclusive  charge of the enforcement and administration
of all laws relative to the conduct of elections and shall exercise
all other functions which may be conferred upon it by law. It
shall decide, save those involving the right to vote,  all
administrative questions, affecting elections, including the
determination of the number and location of polling places, and
the appointment of election inspectors and of other election
officials. All law enforcement agencies and

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Javellana vs. The Executive Secretary

instrumentalities of the Government, when so required by the


Commission, shall act  as its deputies  for the purpose
of  insuring fee, orderly, and honest elections. The decisions,
orders, and rulings of the Commission shall be subject to
review by the Supreme Court.
“xxx xxx xxx”39

 
a. Who may vote in a plebiscite under Art. V of the
Constitution?
Petitioners maintain that section 1 of Art. V of the
Constitution is  a limitation  upon the exercise of the
right of suffrage. They claim that no other persons than
“citizens of the Philippines not otherwise disqualified by
law, who are twenty-one years of age or over and are
able to read and write, and who shall have resided in the
Philippines for one year and in the municipality wherein
they propose to vote for at least six months preceding
the election,” may exercise the right of suffrage in the
Philippines. Upon the other hand, the Solicitor General
contends that said provision merely guarantees the right
of suffrage to persons possessing the aforementioned
qualifications and none of the disqualifications,
prescribed by law, and that said right may be vested by
competent authorities in persons  lacking  some or all of
the aforementioned qualifications, and  possessing  some
of the aforesaid disqualifications. In support of this view,
he invokes the permissive nature of the language —
“(s)uffrage may be exercised” — used in section 1 of Art.
V of the Constitution, and the provisions of the Revised
Barrio Charter, Republic Act No. 3590, particularly
sections 4 and 6 thereof, providing that citizens of the
Philippines “eighteen years of age or over,” who are
registered in the list of barrio assembly members, shall
be members thereof and may participate as such in the
plebiscites prescribed in said Act.
I cannot accept the Solicitor General’s theory. Art. V
of the Constitution declares who may exercise the right
of suffrage, so that those lacking the qualifications
therein prescribed may  not  exercise such right. This
view is borne out by the records of

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39 Italics ours.

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the Constitutional Convention that drafted the 1935
Constitution. Indeed, section 1 of Art. V of the 1935
Constitution was largely based on the report of the
committee on suffrage of the Convention that drafted
said Constitution which report was, in turn, “strongly
influenced by the election laws then in force in the
Philippines x  x  x.”40 Said committee had recommended:
1) “That the right of suffrage should exercised  only  by
male citizens of the Philippines.” 2) “That should
be limited  to those who could read and write.” 3) “That
the duty  to vote should be made  obligatory.” It appears
that the first recommendation was discussed extensively
in the Convention, and that, by way of compromise, it
was eventually agreed to include, in section 1 of Art. V of
the Constitution, the second sentence thereof imposing
upon the National Assembly established by the original
Constitution — instead of the bicameral Congress
subsequently created by amendment said Constitution
— the duty to “extend the right of suffrage women, if in
a plebiscite to, be held for that purpose within two years
after the adoption of this Constitution, not less than
three hundred thousand women possessing the
necessary qualifications shall vote affirmatively on the
question.”41
The third recommendation on “compulsory” voting
was, also debated upon rather extensively, after which it
was rejected by the Convention.42  This accounts, in my
opinion, for the permissive language used in the first
sentence of said Art. V. Despite some debates on the age
qualification — amendment having been proposed to
reduce the same to 18 or 20, which were rejected, and
the residence qualification, as well as the
disqualifications to the exercise of the right of suffrage
— the second recommendation  limiting  the right of
suffrage to those who could “read and write” was — in
the language of Dr. Jose M. Aruego, one of the Delegates
to said Convention — “readily approved  in the
Convention without any dissenting vote,” although there
was some debate on whether the Fundamental Law
should specify the language or dialect that the voter
could

_______________
40  The Framing of the Philippine Constitution, by Aruego,
Vol. I, p. 215.
41  The Framing of the Philippine Constitution, by Aruego,
Vol. I, pp. 215, 221, 227-228.
42 Ibid., pp. 222-224.

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read and write, which was decided in the negative.43


What is relevant to the issue before Us is the fact that
the constitutional provision under consideration was
meant to be and is a  grant  or  conferment  of a right to
persons possessing the qualifications and none of the
disqualifications therein mentioned, which in turn,
constitute a limitation of or restriction to said right, and
cannot, accordingly, be dispensed with, except by
constitutional amendment. Obviously, every such
constitutional grant or conferment of a right is
necessarily a negation of the authority of Congress or of
any other branch of the Government to deny said right
to the subject of the grant — and, in this sense only, may
the same partake of the nature of a guarantee. But, this
does not imply not even remotely, that the Fundamental
Law allows Congress or anybody else to vest in those
lacking the qualifications and having the
disqualifications mentioned in the Constitution the right
of suffrage.
At this juncture, it is noteworthy that the committee
on suffrage responsible for the adoption of section 1 of
Art. V of the Constitution was “strongly influenced by
the election laws then in force in the Philippines.” Our
first Election Law was Act 1582, passed on January 9,
1907, which was partly amended by Acts 1669, 1709,
1726 and 1768, and incorporated into the Administrative
Code of 1916 — Act 2657 — as chapter 20 thereof, and
then in the Administrative Code of 1917 — Act 2711 —
as chapter 18 thereof, which, in turn, was amended by
Act 3387, approved on December 3, 1927. Sections 431
and 432 of said Code of 1917, prescribing, respectively,
the qualifications for and disqualifications from voting,
are quoted below.44  In all of these legislative acts, the
provisions concerning the qualifications of voters
partook of the nature of a  grant  or recognition of the
right of suffrage, and, hence, of a

_______________
43 Id., pp. 224-227.
44  SEC. 431.  Qualifications prescribed for voters.  —  Every male
person who is not a citizen or subject of a foreign power, twenty-one
years of age or over, who shall have been a resident of the Philippines
for one year and of the municipality in which he shall offer to vote for
six months next preceding the day of voting is entitled to vote in all
elections if comprised within either of the

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denial  thereof to those who lacked the requisite


qualification and possessed any of the statutory
disqualifications. In short, the history of section 1, Art. V
of the Constitution, shows beyond doubt than the same
conferred — not guaranteed — the authority to persons
having the qualifications prescribed therein and none of
disqualifications to be specified in ordinary laws and,
necessary implication, denied such right to those lacking
any said qualifications, or  having  any of the
aforementioned disqualifications.
This view is further bolstered by the fact that the
1971 Constitutional Convention sought the submission
to a plebiscite of a “partial amendment” to said section 1
of Art. V of the 1935 Constitution, by reducing the voting
age from

_______________
following three classes:
“(a) Those who, under the laws in force in the Philippine Islands
upon the twenty-eighth day of August, nineteen hundred and sixteen,
were legal voters and had exercised the right of suffrage.
“(b) Those who own real property to the value of five hundred pesos,
declared in their name for taxation purposes for a period not less than
one year prior to the date of the election, or who annually pay thirty
pesos or more of the established taxes.
“(c) Those who are able to read and write either Spanish, English, or
a native language.
“SEC. 432.  Disqualifications.  —  The following persons shall be
disqualified from voting:
“(a) Any person who, since the thirteenth day of August, eighteen
hundred and ninety-eight, has been sentenced by final judgment to
suffer not less than eighteen months of imprisonment, such disability
not having been removed by plenary pardon.
“(b) Any person who has violated an oath of allegiance taken by him
to the United States.
“(c) Insane or feeble-minded persons.
“(d) Deaf-mutes who cannot read and write.
“(e) Electors registered under subsection (c) of the next preceding
section who, after failing to make a sworn statement to the satisfaction
of the board of inspectors at any of its two meetings for registration
and revision, that they are incapacitated preparing their ballots due to
permanent physical disability, present themselves at the hour of
voting as incapacitated, irrespective whether such incapacity be real or
feigned.”

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twenty-one (21) years to eighteen (18) years, which,


however, did not materialize on account of the decision
of this Court in  Tolentino v. Commission on
Elections,45  granting the writs, of prohibition and
injunction therein applied for, upon the ground that,
under the Constitution, all of the amendments adopted
by the Convention should be submitted in “an election”
or a single election, not separately or in several or
distinct elections, and that the proposed amendment
sought to be submitted to a plebiscite was  not even a
complete amendment, but a “partial amendment” of said
section 1,  which could be amended further, after its
ratification, had the same taken place, so that the
aforementioned partial amendment was, for legal
purposes, no more than a  provisional  or
temporary  amendment. Said partial amendment was
predicated upon the generally accepted contemporary
construction that, under the 1935 Constitution, persons
below twenty-one (21) years of age could not exercise the
right of suffrage, without a previous amendment of the
Constitution.
Upon the other hand, the question, whether 18-year-
old members of barrio assemblies may vote in barrio
assembly plebiscites is, to say the least, a debatable one.
Indeed, there seems to be a conflict between the last
paragraph of said section 6 of Rep. Act No.
3590,46  pursuant to which the “majority vote of all the
barrio assembly members” (which include all barrio
residents 18 years of age or over, duly registered in the
list of barrio assembly members) is necessary for the
approval, in an assembly plebiscite, of “any budgetary,
supplemental appropriations or special tax ordinances,”
whereas, according to the paragraph preceding the
penultimate one of said section,47  ”(a)ll duly registered
barrio assembly

_______________
45 L-34150, October 16 and November 4, 1971.
46  “For taking action on any of the above enumerated measures,
majority vote of all the barrio assembly members registered in the list
of the barrio secretary is necessary.”
47  “All duly registered barrio assembly members  qualified to
vote may vote in the plebiscite. Voting procedures may be made either
in writing as in regular elections, and/or declaration by the voters to
the board of election tellers. The board of election tellers shall be the
same board envisioned by section 8, paragraph 2 of this Act, in case of
vacancies in this body, the barrio council may fill the same.”

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members  qualified to vote” — who, pursuant to section


10 of the same Act, must be citizens “of the
Philippines, twenty-one years of age or over, able to read
and write,” and residents the barrio “during the six
months immediately preceding election, duly registered
in the list of voters” and “ otherwise disqualified x x x” —
just like the provisions of present and past election codes
of the Philippines and Art. V of the 1935 Constitution —
“may vote in the plebiscite.”
I believe, however, that the apparent conflict should
resolved in favor of the 21-year-old members of the
assembly, not only because this interpretation is in
accord with Art. V the Constitution, but, also, because
provisions of a Constitution — particularly of a written
and rigid one, like ours generally accorded a mandatory
status — unless the intention to the contrary is
manifest, which is not so as regards said Art. V — for
otherwise they would not have been considered
sufficiently important to be included in the Fundamental
Law of the land.48  Besides, it would be illogical, if not
absurd, believe that Republic Act No. 3590 requires, for
the most important measures for which it demands — in
addition to favorable action of the  barrio council — the
approval of  barrio assembly  through aplebiscite, lesser
qualifications than those prescribed in dealing with
ordinary measures for which such plebiscite need not be
held.
It is similarly inconceivable that those who drafted
the 1935 Constitution intended section 1 of Art. V
thereof to apply  only  to elections of  public officers, not
to  plebiscites  for the ratification of amendments to the
Fundamental Law or revision thereof, or of an entirely
new Constitution, and permit the legislature to require
lesser qualifications for such ratification,
notwithstanding the fact that the object thereof much
more important — if not fundamental, such as the basic
changes introduced in the draft of the revised
Constitution adopted by the 1971 Constitutional
Convention, which a intended to be in force
permanently, or, at least, for many

_______________
48  Edwards v. Lesueur, 33 S.W. 1130; Johnson v. Grand Forks
County, 113 N.W. 1071; Ellingham v. Dye (1912), 178 Ind. 336, 99 N.E.
1; State v. Marcus, 160 Wis. 354, 152 N.W. 419.

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decades, and to affect the way of life of the nation —


and, accordingly, demands greater experience and
maturity on the part of the electorate than that required
for the election of public officers,49  whose average term
ranges from 2 to 6 years.
It is admitted that persons 15 years of age or over,
but below 21 years, regardless of whether or not they
possessed the other qualifications laid down in both the
Constitution and the present Election Code,50  and of
whether or not they are disqualified under the
provisions of said Constitution and Code,51  or those of
Republic Act No. 3590,52 have participated

_______________
49 In Alcantara v. Secretary of the Interior, 61 Phil. 459, this Court
held that “when a state constitution enumerates and fixes the
qualifications of those  who may exercise the right of suffrage, the
legislature cannot  take from nor add to said qualifications unless the
power to do so is conferred upon it by the constitution itself.”
Since suffrage, according to Webster, is a voice given not only in the
choice of a man for an office or trust, but, also,  in deciding a
controverted question, it follows, considering the said ruling in
Alcantara, that the constitutional qualifications for voters apply
equally to voters in elections to public office and to voters in a
plebiscite.
Similarly, the Revised Election Code provides in its section 2 that
all elections of public officers by the people and  all votings in
connection with plebiscites  shall be conducted in conformity with the
provisions of said Code.
50 Republic Act No. 6388, section 101 of which, in part, provides:
“SEC. 101.  Qualifications prescribed for a voter.—Every citizen of
the Philippines, not otherwise disqualified by law, twenty-one years of
age or over, able to read and write, who shall have resided in the
Philippines for one year and in the city, municipality or municipal
district wherein he proposes to vote for at least six months
immediately preceding the election, may vote at any election.
“xxx xxx xxx.”
51 “SEC. 102. Disqualifications.—The following persons shall not be
qualified to vote:
“(a) Any person who has been sentenced by final judgment to suffer
an imprisonment of not less than one year, such disability not having
been removed by plenary pardon: Provided, however, That any person
disqualified to vote under this paragraph shall

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and voted in the Citizens’ Assemblies that have allegedly


ratified the new or revised Constitution drafted by the
1971 Constitutional Convention.
In fact, according to the latest official data, the total
number of registered voters 21 years of age or over in
the entire Philippines, available in January 1973, was
less than 12 million. Yet, Proclamation No. 1102 states
that 14,976,56 “members of all the Barangays (Citizens
Assemblies) voted for the adoption of the proposed
Constitution, as against x x x 743,869 who voted for its
rejection,” whereas, on the question whether or not the
people still wanted a plebiscite to be called to ratify the
new Constitution, “x x x 14,298,814 answered that there
was no need for a plebiscite and that the vote of the
Barangays (Citizens Assemblies) should be considered as
a vote in a plebiscite.” In other words, it is conceded that
the number of people who allegedly voted at the
Citizens’ Assemblies  for exceeded the number of
registered voters  under the Election Code in force in
January 1973.
It is thus clear that the proceedings held in such
Citizens’ Assemblies — and We have more to say on this
point in subsequent pages — were fundamentally
irregular, in that persons lacking the qualifications
prescribed in section 1 of

_______________

automatically reacquire the right to vote upon expiration of ten years


after service of sentence unless during such period, he shall have been
sentenced by final judgment to suffer an imprisonment of not less than
one year.
“(b) Any person who has been adjudged by final judgment by
competent court of having violated his allegiance to the Republic of the
Philippines.
“(c) Insane or feeble-minded persons.
“(d) Persons who cannot prepare their ballots themselves.”
52 “SEC. 10. x x x
“The following persons shall not be qualified to vote:
“a. Any person who has been sentenced by final judgment to suffer
one year or more of imprisonment, within two years after service of his
sentence;
“b. Any person who has violated his allegiance to the Republic of the
Philippines; and
“c. Insane or feeble-minded persons.”

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Art. V of the Constitution were allowed to vote in said


Assemblies. And, since there is no means by which the
invalid votes of those less than 21 years of age can be
separated or segregated from those of the qualified
voters, the proceedings in the Citizens’ Assemblies must
be considered null and void.53
It has been held that “(t)he power to reject
an  entire  poll x  x  x  should be exercised  x  x  x in a case
where it is  impossible to ascertain with reasonable
certainty the true vote,” as where “it is  impossible to
separate  the legal votes from the illegal or spurious
x x x.”54
In  Usman v. Commission on Elections, et al.,55  We
held:

“Several circumstances, defying exact description and


dependent mainly on the factual milieu of the particular
controversy, have the effect of destroying the integrity and
authenticity of disputed election returns and of avoiding
their prima facie value and character. If satisfactorily proven,
although in a summary proceeding, such circumstances as
alleged by the affected or interested parties, stamp the election
returns with the indelible mark of falsity and irregularity, and,
consequently, of unreliability, and justify their exclusion from
the canvass.”

Then, too, the 1935 Constitution requires “a majority


of the votes cast” for a proposed amendment to the
Fundamental Law to be “valid” as part thereof, and the
term “votes cast” has a well-settled meaning.
 

“The term ‘votes cast’ x  x  x was held in  Smith v. Renville


County Commissioners, 65 N.W. 956, 64 Minn. 16, to have been
used as an equivalent of ‘ballots  cast.’ ”56“The word ‘cast’ is
defined as ‘to deposit formally or officially.’ ”57

_______________
53 20 C.J., 179-181, quoted in Demetrio v. Lopez, 50 Phil. 45, 60. See, also,
Garchitorena v. Crescini, 39 Phil. 258.
54 Baldauf v. Gunson, 8 P. 2d. 265. See, also, Martin v. McGarr, 117 P. 323,
Glenn v. Gnau, 64 S.W. 2d. 168. Italics ours.
55 L-33325 and L-34043, December 29, 1971.
56 Hopkins v. City of Duluth, 83 N.W. 536, 538. Italics ours.
57 Maddox v. Board of State Canvassers, 149 P. 2d. 112, 115. Italics ours.

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“It seems to us that a vote is cast when
a ballot is deposited indicating a ‘choice.’ x x x The word “cast”
means “deposit (a ballot) formally or officially x x x.’
“x x x In simple words, we would define a ‘vote cast’ as the
exercise on a ballot  of the choice of the voter on the measure
proposed.”58

In short, said Art. XV envisages — with the term


“votes cast” — choices made on ballots — not orally or by
raising — by the persons taking part in plebiscites. This
is but natural and logical, for, since the early years of
the American regime, we had adopted the Australian
Ballot System, with its major characteristics,
namely, uniform official ballots  prepared and furnished
by the Government and secrecy in the voting, with the
advantage of keeping records that permit judicial
inquiry, when necessary, into the accuracy of the
election returns. And the 1935 Constitution has been
consistently interpreted in  all  plebiscites for the
ratification rejection of proposed amendments thereto,
from 1935 to 1967. Hence, the  viva voce  voting in the
Citizens’ Assemblies was and is null and void ab initio.
b. How should the plebiscite be held? (COMELEC
supervision indispensable; essential requisites)
Just as essential as compliance with said Art. V of the
19 Constitution is that of Art. X thereof, particularly its
sections 1 and 2. Indeed, section 1 provides that “(t)here
shall be an independent Commission on Elections x x x.”
The point to be stressed here is the term “independent.”
Indeed, why was the term used?
In the absence of said constitutional provision as to
the independence of the Commission, would it have been
depends upon either Congress or the Judiciary? The
answer must be the negative, because the functions of
the Commission — “enforcement and administration” of
election laws — are neither legislative nor judicial in
nature, and, hence, beyond

_______________
58  Port of Palm Beach District v. State, 22 So. 2d. 581, 582-583.
Italics ours.

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the field allocated to either Congress or courts of justice.


Said functions are by their nature essentially  executive,
for which reason, the Commission would be under the
“control” of the President, pursuant to section 10,
paragraph (1) of Art. VII of the Constitution, if Art. X
thereof did not explicitly declare that it (the
Commission) is an “independent” body. In other words,
in amending the original 1935 Constitution, by inserting
therein said Art. X, on the Commission on Elections, the
purpose was to make said Commission  independent
principally of the Chief Executive.
And the reason therefor is, also, obvious. Prior to the
creation of the Commission on Elections as a
constitutional organ, election laws in the Philippines
were enforced by the then Department of the Interior,
through its Executive Bureau, one of the offices under
the supervision and control of said Department. The
same — like other departments of the Executive Branch
of the Government — was, in turn, under the control of
the Chief Executive, before the adoption of the 1935
Constitution, and had been — until the abolition of said
Department, sometime ago — under the control of the
President of the Philippines, since the effectivity of said
Fundamental Law. Under the provisions thereof, the
Executive could so use his power of control over the
Department of the Interior and its Executive Bureau as
to place the minority party at such a great, if not
decisive, disadvantage, as to deprive it, in effect, of the
opportunity to defeat the political party in power, and,
hence, to enable the same to perpetuate itself therein. To
forestall this possibility, the original 1935 Constitution
was amended by the establishment of the Commission
on Elections as a constitutional body  independent
primarily of the President of the Philippines.
The independence of the Commission was sought to
be strengthened by the long term of office of its members
— nine (9) years, except those first appointed59  — the
longest under the Constitution, second only to that of the
Auditor General60; by

_______________
59 Art. X, section 1 of the 1935 Constitution.
60 Ten (10) years.

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providing that they may not be removed from office


except by impeachment, placing them, in this respect, on
the same plane as the President, the Vice-President, the
Justices of the Supreme Court and the Auditor General;
that they may not be reappointed; that their salaries,
“shall be neither increased nor diminished during their
term of office”; that the decisions the Commission “shall
be subject to review by the Supreme Court” only61; that
“(n)o pardon, parole, or suspension sentence for the
violation of any election law may be granted without the
favorable recommendation of the Commission”62; and,
that its chairman and members “shall not, during the
continuance in office, engage in the practice of any
profession or intervene, directly or indirectly, in the
management or control of any private enterprise which
in anyway may affected by the functions of their office;
nor shall they, directly or indirectly, be financially
interested in any contract with the Government or any
subdivision or instrumentality thereof.”63  Thus, the
framers of the amendment to the original Constitution of
1935 endeavored to do everything possible protect and
insure the independence of each member of the
Commission.
With respect to the functions thereof as a body,
section 2 of said Art. X ordains that “(t)he Commission
on Elections shall have  exclusive  charge of the
enforcement and administration all laws relative to the
conduct of elections,” apart from such other “functions
which may be conferred upon it by law.” It further
provides that the Commission “shall decide, save those
involving the right to vote,  all  administrative question
affecting elections, including the determination of the
number and location of polling places, and the
appointment of election inspectors and of other election
officials.” And, to forests possible conflicts or frictions
between the Commission, on one hand, and the other
offices or agencies of the executive department, on the
other, said section 2 postulates that “(a)ll  law
enforcement agencies and instrumentalities of the
Government, when so  required  by the Commission,
shall act as

_______________
61 Art. X, section 2 of the 1935 Constitution.
62 Ibid.
63 Art. X, section 3 of the 1935 Constitution.

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its deputies for the purpose of insuring free, orderly, and


honest elections.” Not satisfied with this, it declares, in
effect, that “(t)he decisions, orders, and ruling of the
Commission” shall not be subject to review, except by
the Supreme Court.
In accordance with the letter and spirit of said Art. X
of the Constitution, Rep. Act No. 6388, otherwise known
as the Election Code of 1971, implements the
constitutional powers of the Commission on Elections
and grants additional powers thereto, some of which are
enumerated in sections 5 and 6 of said Act, quoted
below.64 Moreover, said Act contains, inter alia, detailed
provisions regulating contributions and other

_______________
64  “SEC. 5.  Organization of the Commission on Elections.—The
Commission shall adopt its own rules of procedure. Two members of
the Commission shall constitute  a quorum. The concurrence of two
members shall be necessary for the pronouncement or issuance of a
decision, order or ruling.
“The Commission shall have an executive and such other
subordinate officers and employees as may be necessary for the
efficient performance of its functions and duties, all of whom shall be
appointed by the Commission in accordance with the Civil Service Law
and rules.
“The executive officer of the Commission, under the direction of the
Chairman, shall, have charge of the administrative business of the
Commission, shall have the power to administer oaths in connection
with all matters involving the business of the Commission, and shall
perform such, other duties as may he required of him by the
Commission.
“SEC. 6.  Power of the Commission to Investigate and to Hear
Controversy and Issue Subpoena.—The Commission or any of the
members thereof shall, in compliance with the requirement of due
process, have the power to summon the parties to a controversy
pending before it, issue  subpoenae and  subpoenae duces tecum  and
otherwise take testimony in any investigation or hearing pending
before it, and delegate such power to any officer of the Commission
who shall be a member of the Philippine Bar. In case of failure of a
witness to attend, the Commission, upon proof of service of the
subpoenae to said witness, may issue a warrant to arrest the witness
land bring him before the Commission or officer before whom his
attendance is required. The Commission shall have the power to
punish contempts provided for in the Rules of Court under the same

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110 SUPREME COURT REPORTS ANNOTATED


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(corrupt) practices; the establishment of election


precincts; the designation and arrangement of polling
places, including voting booths, to protect the secrecy of
the ballot; formation of lists of voters, the identification
and registration of voters, the proceedings therefor, as
well as for the inclusion in, or exclusion or cancellation
from said list and the publication thereof; the
establishment of municipal, provincial and files of
registered voters; the composition and appointment of
board of election inspectors; the particulars of the official
ballots to be used and the precautions to be taken to
insure authenticity thereof; the procedure for the casting
of votes; the counting of votes by boards of inspectors;
the rules for the appreciation of ballots and the
preparation and disposition of election returns; the
constitution and operation of municipal, provincials and
national boards of canvassers; the presentation of the
political parties and/or their candidates in each election
precinct; the proclamation of the results, including, in
the case of election of public officers, election contests;
and the jurisdiction of courts of justice in cases of
violation of the provisions of said Election Code and the
penalties for such violations.
Few laws may be found with such meticulous and
elaborate set of provisions aimed at “insuring free,
orderly, and honest election,” as envisaged in section 2 of
Art. X of the Constitution. Yet, none of the foregoing
constitutional and statutory provisions was followed by
the so-called Barangays or Citizens’ Assemblies. And no
reasons have been given, or

_______________
controversy submitted to the Commission shall after compliance with
the requirements of due process be heard and decided by it within
thirty days after submission of the case.
“The Commission may, when it so requires, deputized any member
of any national or local law enforcement agency and/or instrumentality
of the government to execute under its direct and immediate
supervision any of its final decisions, orders, instructions or rulings.
“Any decision, order or ruling of the Commission on election
controversies may be reviewed by the Supreme Court by writ of
a certiorari  in accordance with the Rules of Court or such applicable
laws as may enacted.
“Any violation of any final executory decision, order or ruling of the
Commission shall constitute contempt thereof.”

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even  sought  to be given therefor. In many, if not most,


instances, the election were held a  viva voce, thus
depriving the electorate of the right to vote secretly —
one of the most, fundamental and critical features of our
election laws from time immemorial — particularly at a
time when the same was of utmost importance, owing to
the existence of Martial Law.
In  Glen v. Gnau,65  involving the casting of many
votes, openly, without complying with the requirements
of the law pertinent thereto, it was held that the
“election officers” involved “cannot be too strongly
condemned” therefor and that if they “could legally
dispense with such requirement ... they could with equal
propriety dispense with all of them,  including the one
that the vote shall be by secret ballot, or even by ballot at
all x x x.”
Moreover, upon the formal presentation to the
Executive of the proposed Constitution drafted by the
1971 Constitutional Convention, or on December 1,
1972, Presidential Decree No. 73 (on the validity of
which — which was contested in the plebiscite cases, as
well as in the 1972  habeas corpus  cases66  — We need
not, in the case of bar, express any opinion) was issued,
calling a plebiscite, to be held on January 15, 1973, at
which the proposed Constitution would be submitted to
the people for ratification or rejection; directing the
publication of said proposed Constitution; and
declaring, inter alia, that “(t)he provision of the Election
Code of 1971, insofar as they are not inconsistent” with
said decree — excepting those “regarding right and
obligations of political parties and candidates” — “shall
apply to the conduct of the plebiscite.” Indeed, section 2
of said Election Code of 1971 provides that “(a)ll
elections of public officers except barrio officials  and
plebiscites shall be

_______________
65 64 S.W. 2d. 168.
66 L-35538, Roses, et al. v. Secretary of National Defense, et al.; L-
35539, Diokno v. Hon. Enrile, et al.; L-35540, Soliven, et al. v.
Secretary of National Defense, et al.; L-35546, Aquino, Jr., et al. v.
Hon. Enrile, et al.; L-35547, Garcia II v. Hon. Enrile, et al.; L-35567
Doronila, et al. v. Secretary of National Defense, et al.; L-35573,
Randon v. Hon. Enrile, et al.

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112 SUPREME COURT REPORTS ANNOTATED


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conducted in the manner provided by this Code.”


General Order No. 20, dated January 7, 1973,
postponing until further notice, “the plebiscite scheduled
to be held on January 15, 1973,” said nothing about the
procedure to be followed in plebiscite to take place at
such notice, and no other order or decree has been
brought to Our attention, expressly or impliedly
repealing the provisions of Presidential Decree 73,
insofar as said procedure is concerned.
Upon the other hand, said General Order No. 20
expressly suspended “the provisions of Section 3 of
Presidential Decree No. 73 insofar as they allow free
public discussion of proposed Constitution x  x  x
temporarily suspending effects of Proclamation No. 1081
for the purposes of free open debate on the proposed
Constitution x x x.” This specific mention of the portions
of the decrees or orders or instructions suspended by
General Order No. 20 necessarily implies that all  other
portions of said decrees, orders or instructions — and,
hence, the provisions of Presidential Decree No. 73
outlining the procedure to be followed in the plebiscite
for ratification or rejection of the proposed Constitution
— remained in force, assuming that said Decree is valid.
It is claimed that by virtue of Presidential Decree No.
86-A — the text of which is quoted below67  — the
Executive declared,

_______________
67 “PRESIDENTIAL DECREE NO. 86-A
“STRENGTHENING AND DEFINING THE ROLE OF
BARANGAYS (CITIZENS ASSEMBLIES)
“WHEREAS, on the basis of preliminary and initial reports from the
field as gathered from barangays (citizens assemblies) have so far been
established, the people would like to decide themselves questions or
issues, both local and national, affecting their day to day lives and
their future.
“WHEREAS, the barangays (citizens assemblies) would like
themselves to be the vehicle for expressing the views of the people on
important national issues;
“WHEREAS, such barangays (citizens assemblies) desire that they
be given legal status and due recognition as constituting the genuine,
legitimate and valid expression of the popular will; and
“WHEREAS, the people would like the citizens assemblies to

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inter alia, that the collective views expressed in the


Citizens’ Assemblies “shall be  considered  in the
formulation of national policies or programs and,
wherever practicable, shall be translated into concrete
and specific decision”; that such Citizens’ Assemblies
“shall consider vital national issues x x x like the holding
of the plebiscite on the new Constitution x x x and others
in the future, which shall serve as  guide  or  basis for
action or decision by the national government”; and that
the Citizens’ Assemblies “shall conduct between January
10 and 15, 1973, a  referendum  on important national
issues, including

_______________
conduct immediately a referendum on certain specified questions such
as the ratification of the new Constitution, continuance of martial law,
the convening of Congress on January 22, 1973, and the elections in
November 1973 pursuant to the 1935 Constitution.
“NOW, THEREFORE, I, FERDINAND E. MARCOS, President of
the Philippines, by virtue of the powers vested in me by the
Constitution as Commander-in-Chief of all Armed Forces of the
Philippines, do hereby declare as part of the law of the land the
following.
“1. The present barangays (citizens assemblies) are created under
Presidential Decree No. 86 dated December 31, 1972, shall constitute
the base for citizen participation in governmental affairs and their
collective views shall be considered in the formulation of national
policies or programs and, wherever practicable, shall be translated into
concrete and specific decision;
“2. Such barangays (citizens assemblies) shall consider vital
national issues now confronting the country, like the holding of the
plebiscite on the new Constitution, the continuation of martial rule,
the convening of Congress on January 22, 1973, and the holding of
elections in November 1973, and others in the future, which shall serve
as guide or basis for action or decision by the national government;
“3. The barangays (citizens assemblies) shall conduct between
January 10 and 15, 1973, a referendum on important national issues,
including those specified in paragraph 2 hereof, and submit the results
thereof to the Department of Local Governments and Community
Development immediately thereafter, pursuant to the express will of
the people as reflected in the reports gathered from the many
thousands of barangays (citizens assemblies) throughout the country.
“4. This Decree shall take effect immediately.
“Done in the City of Manila, this 5th day of January, in the year of
Our Lord, nineteen hundred and seventy-three.” (Italics ours.)

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114 SUPREME COURT REPORTS ANNOTATED


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those specified in paragraph 2 hereof, and submit the


results thereof to the Department of Local Governments
and Community Development immediately thereafter,
x x x.” As in Presidential Decree No. 86, this Decree No.
86-A does not and cannot exclude the exercise of the
constitutional supervisory power of the Commission on
Elections or its participation in the proceedings in said
Assemblies, if the same had been intended to constitute
the “election” or Plebiscite required Art. V of the 1935
Constitution. The provision of Decree No. 86-A directing
the immediate submission of the result thereof to the
Department of Local Governments Community
Development is not necessarily inconsistent with, and
must be subordinate to the constitutional power of the
Commission on Elections to exercise its “exclusive
authority over the enforcement and administration of all
laws to the conduct of elections,” if the proceedings in
the Assemblies would partake of the nature of an
“election” or plebiscite for the ratification or rejection of
the proposed Constitution.
We are told that Presidential Decree No. 86 was
further amended by Presidential Decree No. 86-B, dated
1973, ordering “that important national issues shall
from time to time; be referred to the Barangays (Citizens
Assemblies) for resolution in accordance with
Presidential Decree No. 86-A dated January 5, 1973 and
that the initial referendum include the matter of
ratification of the Constitution by the 1971
Constitutional Convention” and that “(t)he Secretary of
the Department of Local Governments and Community
Development shall insure the implementation of this
order.” As in the case of Presidential Decrees Nos. 86
and 86-A, the foregoing directives do not necessarily
exclude exercise of the powers vested by the 1935
Constitution in the Commission on Elections, even if the
Executive had the authority to repeal Art. X of our
Fundamental Law — which he does not possess. Copy of
Presidential Decree No. 86-B is appended hereto as
Annex B hereof.
The point is that, such of the Barrio Assemblies as
were held took place without the intervention of the
Commission on Elections, and without complying with
the provisions of the Election Code of 1971 or even of
those of Presidential Decree

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Javellana vs. The Executive Secretary
No. 73. What is more, they were held under the
supervision  of the very officers and agencies of the
Executive Department sought to be excluded  therefrom
by Art. X of the 1935 Constitution. Worse still, said
officers and agencies of the 1935 Constitution would be
favored thereby, owing to the practical indefinite
extension of their respective terms of office in
consequence of section 9 of the Transitory Provisions,
found in Art. XVII of the proposed Constitution, without
any elections therefor. And the procedure therein mostly
followed is such that there is  no reasonable means of
checking the accuracy of the returns files by the officers
who conducted said plebiscites. This is another patent
violation of Art. of the Constitution which can hardly be
sanctioned. And, since the provisions of this article form
part of the  fundamental  scheme set forth in the 1935
Constitution, as amended, to insure the “free, orderly,
and honest” expression of the people’s will, the
aforementioned violation thereof renders null and void
the contested proceedings or alleged plebiscite in the
Citizens’ Assemblies, insofar as the same are claimed to
have ratified the revised Constitution proposed by the
1971 Constitutional Convention. “x  x  x (a)ll the
authorities agree that the legal definition of an election,
as well as that which is usually and ordinarily
understood by the term, is a choosing or as election by
those having a right to participate (in the selection) of
those who shall fill the offices,  or of the adoption or
rejection of any public measure affecting the territory
involved. 15 Cyc. 279; Lewis v. Boynton, 25 Colo. 486, 55
Pac. 732;  Saunders v. Haynes, 13 Cal. 145;  Seaman v.
Baughman, 82 Iowa 216, 47 N.W. 1091, 11 L.R.A.
354; State v. Hirsh, 125 Ind. 207, 24 N.E. 1062, 9 L.R.A.
170; Bouvier’s Law Dictionary.68

_______________
68 McKinney v. Baker, 180 Ky. 526 203 S.W. 303, 304. Italics ours.

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116 SUPREME COURT REPORTS ANNOTATED
Javellana vs. The Executive Secretary

IV
Has the proposed Constitution aforementioned been
approved by a majority of the people in Citizens’
Assemblies allegedly held throughout the Philippines?
Respondents maintain the affirmative, relying upon
Proclamation No. 1102, the validity of which is precisely
being contested by petitioners herein. Respondents claim
that said proclamation is “conclusive” upon this Court,
or is, at least, entitled to full faith and credence, as an
enrolled bill; that the proposed Constitution has been, in
fact, ratified, approved or adopted by the
“overwhelming” majority of the people; that Art. XV of
the 1935 Constitution has thus been “substantially”
complied with; and that the Court refrain from passing
upon the validity of Proclamation No. 1102, not only
because such question is political in nature, but, also,
because should the Court invalidate the proclamation,
the former would, in effect, veto the action of the people
in whom sovereignty resides and from its power are
derived.
The major flaw in this process of rationalization is
that it assumes, as a fact, the very premise on which it is
predicated, and which, moreover, is contested by the
petitioners. As the Supreme Court of Minnessota has
aptly put it —

“x x x every officer under a constitutional government must


act according to law and subject to its restrictions, and  every
departure  therefrom or disregard thereof must subject him to
the restraining and controlling of the people,  acting through
the agency of the judiciary; for it must be remembered that the
people act through courts, as well as through the executive or
the Legislature. One department is just as representative as
the other, and the judiciary is the department which is charged
with the special duty of determining the limitations which the
law places upon all official action. x x x.”
Accordingly, the issue boils downs to whether or not
the Executive acted within the limits of his authority
when he

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certified in Proclamation No. 1102 “that the Constitution


proposed by the nineteen hundred and seventy-one
(1971) Constitutional Convention has been ratified by an
overwhelming majority of all of the votes cast by the
members of all the Barangays (Citizens Assemblies)
throughout the Philippines and has thereby come into
effect.”
In this connection, it is not claimed that the Chief
Executive had personal knowledge of the data he
certified in said proclamation. Moreover, Art. X of the
1935 Constitution was precisely inserted to
place  beyond  the Executive the power to supervise or
even exercise  any  authority whatsoever over “all  laws
relative to the conduct of elections,” and, hence, whether
the elections are for the choice or selection of public
officers or for the ratification or rejection of any proposed
amendment, or revision of the Fundamental Law, since
the proceedings for the latter are, also, referred to in
said Art. XV as “elections.”
The Solicitor General stated, in his argument before
this Court, that he had been informed that there was in
each municipality a municipal association of presidents
of the citizens’ assemblies for each barrio of the
municipality; that the president of each such municipal
association formed part of a provincial or city association
of presidents of such municipal associations; that the
president of each one of these provincial or city
associations in turn formed part of a National
Association or Federation of Presidents of such
Provincial or City Associations; and that one Francisco
Cruz from Pasig, Rizal, as President of said National
Association or Federation, reported to the President of
the Philippines, in the morning of January 17, 1973, the
total result of the voting in the citizens’ assemblies all
over the country from January 10 to January 15, 1973.
The Solicitor General further intimated that the said
municipal associations had reported the results of the
citizens’ assemblies in their respective municipalities to
the corresponding Provincial Association, which, in turn,
transmitted the results of the voting in the to the
Department of Local Governments and Community
Development, which tabulated the results of the voting
in the citizens’ assemblies throughout the Philippines
and then turned them over to Mr. Francisco Cruz, as
President or acting

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118 SUPREME COURT REPORTS ANNOTATED


Javellana vs. The Executive Secretary

President of the National Association or Federation,


whereupon Mr. Cruz, acting in a ceremonial capacity,
reported said results (tabulated by the Department of
Governments and Community Development) to the
Chief Executive, who, accordingly, issued Proclamation
No. 1102.
The record shows, however, that Mr. Cruz was  not
even a member of any barrio council since 1972, so that
he could possibly have been a  member  on January 17,
1973, of a municipal association of presidents of barrio or
ward citizens’ assemblies, much less of a Provincial, City
or National Association or Federation of  Presidents  of
any such provincial or city associations.
Secondly, at the conclusion of the hearing of these
cases February 16, 1973, and in the resolution of this
Court of same date, the Solicitor General was asked to
submit, together with his notes on his oral argument, a
true copy of aforementioned report of Mr. Cruz to the
President and of “(p)roclamation, decree, instruction,
order, regulation or circular, if any, creating or directing
or authorizing creation, establishment or organization”
of said municipal, provincial and national associations,
but neither a copy of alleged report to the President, nor
a copy of any “(p)roclamation, decree, instruction, order,
regulation or circular,” has been submitted to this Court.
In the absence of said report, “(p)roclamation, decree,
instruction,” etc., Proclamation No. 1102 is devoid of
any factual and legal foundation. Hence, the conclusion
set forth in the dispositive portion of said Proclamation
No. 1102, to the effect that the proposed new or revised
Constitution had been ratified by majority of the votes
cast by the people, can not possibly have any legal effect
or value.
The theory that said proclamation is “conclusive upon
Court is clearly untenable. If it were, acts of the
Executive and those of Congress could not possibly be
annulled or invalidated by courts of justice. Yet, such is
not the case. In fact, even a resolution of Congress
declaring that a given person has been elected President
or Vice-President of the Philippines as

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provided in the Constitution,69 is not conclusive upon


the courts. It is  no more  than  prima facie  evidence of
what is attested to by said resolution.70  If assailed
directly in appropriate proceedings, such as an election
protest, if and when authorized by law, as it is in the
Philippines, the Court may receive evidence and declare,
in accordance therewith, who was duly elected to the
office involved.71  If prior to the creation of the
Presidential Electoral Tribunal, no such protest could be
filed, it was  not  because the resolution of Congress
declaring who had been elected President or Vice-
President was  conclusive  upon courts of justice, but
because there was  no law  permitting the filing of such
protest and declaring what court or body would hear and
decide the same. So, too, a declaration to the effect that a
given amendment to the Constitution or revised or new
Constitution has been ratified by a majority of the votes
cast therefor,  may be duly assailed  in court and  be the
object of judicial inquiry, in  direct  proceedings therefor
— such as the cases at bar — and the issue raised
therein may and should be decided  in accordance with
the evidence presented.
The case of In re McConaughy72 is squarely in point.
“As the Constitution stood from the organization of the
state” — of Minnessota — “all taxes were required to be
raised under the system known as the ‘general property
tax.’ Dissatisfaction with the results of this method and
the development of more scientific and satisfactory
methods of raising revenue induced

_______________
69 Art. VII, section 2, 1935 Constitution.
70  Michael W. Roche v. Lamb, 306 N.Y.S. 2d. 515 (Dec. 17, 1969);
State ex rel. Sathre v. Bryne, 258 N.W. 121; State ex rel. Shriver v.
Hayes, 76 N.E. 2d. 869; Smith v. Bangham, 76 p 2d. 1022. McKim v.
Brast, 117 S.E. 875; Head v. Wood, 107 So. 854; State ex rel. Watson v.
Pigg, 46 N.E. 2d. 232.
71  See cases cited in the preceding footnote. See, also, Tiegs v.
Patterson, 318 P. 2d. 588; State ex rel. Brown v. St. Joseph Circuit
Court, 95 N.E. 2d. 632; Williamson v. State Election Board, 431 P. 2d.
352, Baker v. Conway, 108 So. 18; Cohoon v. Swain, 5 S.E. 2d. 1; State
ex rel. Mitchell v. Walcott, 83 A. 2d. 762; Doyle v. Ries, 285 N.W. 480;
Grossglaus v. Board of Elections of Stark County, 88 N.E. 2d. 245;
Walker v. Hughes, 36 A. 2d. 47; Reese v. Dempsey, 152 P. 2d. 157;
Dodd v. Gower, 62 S.W. 2d. 1; Galloway v. Bradburn, 82 S.W. 1013;
Hagan v. Henry, 76 S.W. 2d. 994.
72 106 Minn 392, 119 N.W. 408, 409.

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the Legislature to submit to the people an amendment to


the Constitution which provided merely that taxes shall
be uniform upon the same class of subjects. This
proposed amendment was submitted at the general
election held in November, 1906, and in due time it
was  certified  by the state canvassing board and
proclaimed by the Governor as having been legally
adopted. Acting upon the assumption that the
amendment had become a part of the Constitution, the
Legislature enacted statutes providing for a State Tax
Commission and a mortgage registry tax, and the latter
statute, upon the same theory, was held constitutional”
by said Court. “The district court found that the
amendment had no in fact been adopted, and on this
appeal” the Supreme Court was “required to determine
the correctness of that conclusion.”
Referring to the effect of the certification of the State
Board of Canvassers created by the Legislature and of
the proclamation  made by the Governor based thereon,
the Court held: “It will be noted that this board does no
more than tabulate the reports received from the various
county board and add up and certify the results. State v.
Mason, 45 Wash. 234, 88 Pac. 126, 9 L.R.A. (U.S.) 1221.
It is  settled  law that the decisions of election officers,
and canvassing boards are  not conclusive  and that  the
final decision must rest with the courts, unless the law
declares that the decisions of the board shall be final” —
and there is no such law in the cases at bar. “x x x The
correctness of the conclusion of the state board rests
upon the correctness of the returns made by the county
boards and it is inconceivable that it was intended that
this statement of result should be  final and conclusive
regardless of the actual facts. The proclamation of the
Governor adds  nothing  in the way of conclusiveness to
the legal effect of the action of the canvassing board. Its
purpose is to formally notify the people of the state of
the result of the voting as found by the canvassing
board. James on Const. Conv. (4th Ed.) sec. 523.”
In Bott v. Wartz,73  the Court  reviewed  the statement
of results of the election made by the canvassing board,
in order that the true results could be judicially
determined. And so did

_______________
73 63 N.J. Law, 289, cited in In re McConaughy, supra.

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the court in Rice v. Palmer.74


Inasmuch as Art. X of the 1935 Constitution places
under the “exclusive” charge of the Commission on
Elections, “the enforcement and administration of all
laws relative to the conduct of
elections,”  independently  of the Executive, and  there is
not even a certification by the Commission in support of
the alleged results of the citizens’ assemblies relied upon
in Proclamation No. 1102 — apart from the fact that on
January 17, 1973 neither the alleged president of the
Federation of Provincial or City Barangays nor the
Department of Local Governments had certified to the
President the alleged result of the citizens’ assemblies
all over the Philippines — it follows necessarily that,
from a constitutional and legal viewpoint, Proclamation
No. 1102 is not even prima facie evidence of the alleged
ratification of the proposed Constitution.
Referring particularly to the cases before Us, it will
be noted that, as pointed out in the discussion of the
preceding topic, the new or revised Constitution
proposed by the 1971 Constitutional Convention
was not ratified in accordance with the provisions of the
1935 Constitution. In fact, it has not even been, ratified
in accordance with said proposed Constitution, the
minimum age requirement therein for the exercise of the
right of suffrage being eighteen  (18) years, apart from
the fact that Art. VI of the proposed Constitution
requires “secret” voting, which was not observed in
many, if not most, Citizens’ Assemblies.
Besides,  both  the 1935 Constitution and the proposed
Constitution require a “majority of the votes cast” in an
election or plebiscite called for the ratification of an
amendment or revision of the first Constitution or the
effectivity of the proposed Constitution, and the phrase
“votes cast” has been construed to mean “votes made in
writing not orally, as it was in many Citizens’
Assemblies.75
Even counsel for Gil J. Puyat and Jose Roy, as
respondents in L-36165, asserts openly that Art. XV of
the Constitution has not been complied with, and since
the alleged substantial compliance with the
requirements thereof partakes of the

_______________
74 78 Ark. 439, 96 S.W. 396, cited in In re McConaughy, supra.
75 See cases listed on pages 105-106, footnotes 56, 57 and 58.

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nature of a defense set up by the other respondents in


these cases, the burden of proving such defense —
which, if true, should be within their peculiar knowledge
— is clearly on such respondents. Accordingly, if despite
the extensive notes and documents submitted by the
parties herein, the members of the Court do not know or
are not prepared to say whether or not the majority of
the people or of those who took part in the Citizens’
Assemblies have assented to the proposed Constitution,
the logical step would be to give due course to these
cases, require the respondents to file their answers, and
the plaintiffs their reply, and, thereafter, to receive the
pertinent evidence and then proceed to the
determination of the issues raised thereby. Otherwise,
we would be placing upon the petitioners the burden of
disproving a defense set up by the respondents, who
have not so far established the truth of such defense.
Even more important, and decisive, than the
foregoing is the circumstance that there is ample reason
to believe that many, if not most, of the people did not
know that the Citizens’ Assemblies were, at the time
they were held, plebiscites for the ratification or
rejection of the proposed Constitution. Hence, in Our
decision in the plebiscite cases, We said, inter alia:
 

“Meanwhile, or on December 17, 1972, the President had


issued an order temporarily suspending the effects of
Proclamation No. 1081, for the purpose of free and open debate
on the Proposed Constitution. On December 23, the President
announced the postponement of the plebiscite for the
ratification or rejection of the Proposed Constitution. No
formal action to this effect was taken until January 7, 1973,
when General Order No. 20 was issued, directing ‘that the
plebiscite scheduled to be held on January 15, 1973, be
postponed until further notice.’ Said General Order No. 20,
moreover, ‘suspended in the meantime’ the ‘order of December
17, 1972, temporarily suspending the effects of Proclamation
No. 1081 for purposes of free and open debate on the proposed
Constitution.’
“In view of these events relative to the postponement of the
aforementioned plebiscite, the Court deemed it fit to refrain, for
the time being, from deciding the aforementioned cases, for
neither the date nor the conditions under which said plebiscite
would be held were known or announced officially. Then again,
Congress was,

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Javellana vs. The Executive Secretary
pursuant to the 1935 Constitution, scheduled to meet in regular
session on January 22, 1973, and since the main objection to
Presidential Decree No. 73 was that the President does not have
the legislative authority to call a plebiscite and appropriate
funds therefor, which Congress unquestionably could do,
particularly in view of the formal postponement of the plebiscite
by the President — reportedly after consultation with, among
others, the leaders of Congress and the Commission on
Elections — the Court deemed it more imperative to defer its
final action on these cases.”

 
And, apparently, the parties in said cases entertained
the same belief, for, on December 23, 1972 — four (4)
days after the last hearing of said cases76  — the
President announced the  postponement  of the plebiscite
scheduled by Presidential Decree No. 73 to be held on
January 15, 1973, after consultation with the
Commission on Elections and the leaders of Congress,
owing to doubts on the sufficiency of the time available
to translate the proposed Constitution into some local
dialects and to comply with some pre-electoral
requirements, as well as to afford the people a
reasonable opportunity to be posted on the contents and
implications of said transcendental document. On
January 7, 1973, General Order No. 20 was issued
formally, postponing said plebiscite “until further
notice.” How can said  postponement  be reconciled with
the theory that the proceedings in the Citizens’
Assemblies scheduled to be held from January 10 to
January 15, 1973, were “plebiscites,” in
effect, accelerated, according to the theory of the Solicitor
General, for the ratification of the proposed
Constitution? If said Assemblies were meant to be the
plebiscites or elections envisaged in Art. XV of the
Constitution, what, then, was the
“plebiscite”postponed  by General Order No. 20? Under
these circumstances, it was only reasonable for the
people who attended such assemblies to believe that the
same were not an “election” or plebiscite for the
ratification or adoption of said proposed Constitution.
And, this belief is further bolstered up by the
questions propounded in the Citizens’ Assemblies,
namely:
 

“[1] Do you like the New Society?

_______________
76 On December 19, 1972.

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“[2] Do you like the reforms under martial law?
“[3] Do you like Congress again to hold sessions?
“[4] Do you like the plebiscite to be held later?
“[5] Do you like the way President Marcos is running the
affairs of the government?  [Bulletin Today, January 10, 1973;
emphasis an additional question.]
“[6] Do you approve of the citizens assemblies as the base of
popular government to decide issues of national interests?
“[7] Do you approve of the new Constitution?
“[8] Do you want a plebiscite to be called to ratify the new
Constitution?
“[9] Do you want the elections to be held in November, 1973
in accordance with the provisions of the 1935 Constitution?
“[10] If the elections would not be held, when do you want
the next elections to be called?
“[11] Do you want martial law to continue?” [Bulletin Today,
January 11, 1973]

 
To begin with, questions nos. 1, 2, 3, 4, 5, 6, 9, 10 and
11 are not proper in a plebiscite for the ratification of a
proposed Constitution or of a proposed amendment
thereto. Secondly, neither is the language of question
No. 7 — “Do you approve the new Constitution?” One
approves “of” the act of another which does  not  need
such approval for the effectivity of said act, which the
first person, however, finds to be good, wise satisfactory.
The approval of the majority of the votes cast in
plebiscite is, however, essential for an amendment to the
Constitution to be valid as part thereof. Thirdly, if the
proceedings in the Citizens’ Assemblies constituted a
plebiscite question No. 8 would have been unnecessary
and improper, regardless of whether question No. 7 were
answered affirmatively or negatively. If the majority of
the answers to question No. 7 were in the affirmative,
the proposed Constitution would have become effective
and no other

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plebiscite could be held thereafter in connection


therewith, even if the majority of the answers to
question No. 8 were, also, in the affirmative. If the
majority of the answers to question No. 7 were in the
negative, neither may another plebiscite be held, even if
the majority of the answers to question No. 8 were in the
affirmative. In either case, not more than one plebiscite
could be held for the ratification or rejection of the
proposed Constitution. In short, the insertion of said two
(2) questions — apart from the other questions adverted
to above — indicates strongly that the proceedings
therein did  not  partake of the nature of a plebiscite or
election for the ratification or rejection of the proposed
Constitution.
Indeed, I can not, in good conscience, declare that the
proposed Constitution has been approved or adopted by
the people in the citizens’ assemblies all over the
Philippines, when it is, to my mind, a matter of judicial
knowledge that there have been  no  such citizens’
assemblies in many parts of Manila and suburbs, not to
say, also, in other parts of the Philippines. In a letter of
Governor Efren B. Pascual of Bataan, dated January 15,
1973, to the Chief Executive, the former reported:
 

“x  x  x This report includes a resumee (sic) of the activities


we undertook in effecting the  referendum  on the eleven
questions you wanted our people  consulted  on and the
Summary of Results thereof for each municipality and for the
whole province.
“xxx xxx xxx
“x  x  x Our initial plans and preparations, however, dealt
only on the original five questions. Consequently, when  we
received an instruction on January 10 to change  the
questions,  we urgently suspended all scheduled Citizens
Assembly meetings on that day and called all Mayors, Chiefs of
Offices and other government officials to another conference to
discuss with them the new set of guidelines and materials to be
used.
“On January 11, x x x another instruction from the top was
received  to include the original five questions among those to
be discussed and asked in the Citizens’ Assembly meetings.
With this latest order, we again had to make modifications in
our instructions  to all those managing and supervising the
holding of the Citizens’ Assembly meetings throughout the
province. x x x Aside from the

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coordinators we had from the Office of the Governor, the


splendid cooperation and support extended by almost  all
government officials and employees  in the province,
particularly of the Department of Education, PC and PACD
personnel, provided us with enough hands to trouble shoot and
implement sudden changes in the instructions anytime and
anywhere needed. x x x
“x  x  x As to our people, in general, their enthusiastic
participation showed their preference and readiness to accept
this new method of government to people  consultation in
shaping up government policies.”

 
Thus, as late as January 10, 1973, the Bataan
officials had to  suspend  ”all  scheduled Citizens’
Assembly meetings ...” and call all available officials
“x x x to discuss with them the new set of guidelines and
materials to be used x x x.” Then, “on January 11 x x x
another instruction from the top was received to include
the original five questions among those be discussed and
asked in the Citizens’ Assembly meetings. With this
latest order, we again had to make modifications in our
instructions to all those managing and supervising
holding of the Citizens’ Assembly meetings throughout
province. x  x  x As to our people, in general, their
enthusiastic participation showed their preference and
readiness to accept the new method of government to
people consultation in shaping up government policies.”
This communication manifestly shows: 1) that, as late
a January 11, 1973, the Bataan officials had still
to discuss— not put into operation — means and ways to
carry out the changing instructions from the top on how
to organize the citizens’ assemblies, what to do therein
and even what questions or topics to propound or touch
in said assemblies; 2) that the assemblies would involve
no more than consultations or dialogues between people
and government — not decisions be made by the people;
and 3) that said consultations were aimed only at
“shaping up  government policies” and, hence could not,
and did not, partake of the nature of a plebiscite for the
ratification or rejection of a proposed amendment of a
new or revised Constitution for the latter does not entail
the formulation of a  policy of the Government, but the
making of decision by the people on the new way of life,
as a nation, they
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wish to have, once the proposed Constitution shall have


been ratified.
If this was the situation in Bataan — one of the
provinces nearest to Manila — as late as January 11,
1973, one can easily imagine the predicament of the
local officials and people in the remote barrios in
northern and southern Luzon, in the Bicol region, in the
Visayan Islands and Mindanao. In fact, several members
of the Court, including those of their immediate families
and their household, although duly registered voters in
the area of Greater Manila, were  not even notified  that
citizens’ assemblies would be held in the places where
their respective residences were located. In the
Prohibition and Amendment case,77 attention was called
to the “duty  cast upon the court of  taking judicial
cognizance  of anything affecting the existence and
validity of any law or portion of the Constitution x x x.”
In line with its own pronouncement in another case, the
Federal Supreme Court of the United States stressed,
in Baker v. Carr,78 that “a court is not at liberty to shut
its eyes  to an  obvious mistake, when the validity of the
law depends upon the truth of what is declared.”
In the light of the foregoing, I cannot see how the
question under consideration can be answered or
resolved otherwise than in the negative.
V
Have the people acquiesced in the proposed
Constitution?
It is urged that the present Government of the
Philippines is now and has been run, since January 17,
1971, under the Constitution drafted by the 1971
Constitutional Convention; that the political department
of the Government has recognized said revised
Constitution; that our foreign relations are being
conducted under such new or revised Constitution; that
the Legislative Department has recognized the same;
and that the people, in general, have, by their acts or
omissions,

_______________
77 24 Kansas 700, 714. See, also, State ex rel. Williams v. Robb, 183
P. 2d. 223, 228; Harris v. Shanahan, 387 P. 2d. 771, 784, 785.
78  369 U.S. 186, 7 L.ed. 2d. 663, 684, citing Chaselton Corp. v.
Sinclair, 264 U.S. 543, 547, 548, 68 L. ed. 841, 843, 44 S. Ct. 405.

 
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indicated their conformity thereto.


As regards the so-called political organs of the
Government, gather that respondents refer mainly to
the offices under the Executive Department. In a sense,
the latter performs some functions which, from a
constitutional viewpoint, are politics in nature, such as
in recognizing a new state or government, in accepting
diplomatic representatives accredited to our
Government, and even in devising administrative means
and ways to better carry into effect. Acts of Congress
which define the goals or objectives thereof, but are
either imprecise or silent on the particular measures to
be resorted to in order to achieve the said goals or
delegate the power to do so, expressly or impliedly, to
the Executive. This, notwithstanding, the political organ
of a government that purports to be republican is
essentially the Congress or Legislative Department.
Whatever may be the functions allocated to the
Executive Department — specially under a written, rigid
Constitution with a republican system of Government
like ours — the role of that Department is inherently,
basically and fundamentally executive in nature — to
“take care that the laws be faithfully executed,” in the
language of our 1935 Constitution.79
Consequently, I am not prepared to concede that the
acts the officers and offices of the Executive Department,
in line with Proclamation No. 1102, connote a
recognition thereof o an acquiescence thereto. Whether
they recognized the proposed Constitution or acquiesce
thereto or  not  is something that cannot legally, much
less necessarily or even normally, be deduced from their
acts in accordance therewith, because they are bound to
obey and act in conformity with the orders of the
President, under whose “control” they are,  pursuant to
the 1935 Constitution. They have absolutely  no other
choice, specially in view of Proclamation No. 1081
placing the Philippines under Martial Law. Besides, by
virtue of the very decrees, orders and instructions issued
by the President thereafter, he had assumed all powers
of Government — although some question his authority
to do so — and, consequently, there is hardly anything
he has done since the issuance of Proclamation No. 1102,
on January 17, 1973 — declaring that the Constitution

_______________
79 Art. VII, section 10, paragraph (1).

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proposed by the 1971 Constitutional Convention has


been ratified by the overwhelming majority of the people
— that he could not do under the authority he claimed to
have under Martial Law, since September 21, 1972,
except the power of supervision over inferior courts and
its personnel, which said proposed Constitution would
place under the Supreme Court, and which the
President has not ostensibly exercised, except as to some
minor routine matters, which the Department of Justice
has continued to handle, this Court having preferred to
maintain the status quo in connection therewith pending
final determination of these cases, in which the
effectivity of the aforementioned Constitution is
disputed.
Then, again, a given department of the Government
cannot generally be said to have “recognized”  its
own  acts. Recognition normally connotes the
acknowledgment by a party of the acts of  another.
Accordingly, when a subordinate officer or office of the
Government complies with the commands of a superior
officer or office, under whose supervision and control he
or it is, the former merely  obeys  the latter. Strictly
speaking, and from a legal and constitutional viewpoint,
there is no act of recognition involved therein. Indeed,
the lower officer or office, if he or it acted otherwise,
would just be guilty of insubordination.
Thus, for instance, the case of  Taylor v.
Commonwealth80  — cited by respondents herein in
support of the theory of the people’s acquiescence —
involved a constitution ordained in 1902 and
“proclaimed by a convention duly called by a direct vote
of the people of the state to revise and amend the
Constitution of 1869. The result of the work of that
Convention has been recognized, accepted and acted
upon as the only valid Constitution of the State” by —
1. The “Governor of the State in swearing fidelity to it
and proclaiming it, as directed thereby”;
2. The “Legislature in its formal official act adopting
a  joint resolution, July 15, 1902, recognizing the
Constitution ordained by the Convention x x x”;

_______________
80 101 Va. 529, 44 S.E. 754.

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3. The “individual oaths of its members to support it,
and  by its having been engaged for nearly a year, in
legislating under it and putting its provisions
into operation x x x”;
4. The “judiciary in taking the oath prescribed
thereby to support it and by enforcing its provisions
x x x”; and
5. The “people in their primary capacity by peacefully
accepting it and acquiescing in it, by registering as
voters under it to the extent of thousands throughout
the State, and by voting, under its provisions, at a
general election for their representatives in the Congress
of the United States.”
Note that the New Constitution of Virginia, drafted
by a convention whose members were elected directly by
the people, was  not  submitted to the people for
ratification or rejection thereof. But, it was
recognized,  not  by the convention itself, but
by  other  sectors of the Government, namely, the
Governor; the Legislature — not merely by individual
acts of its members, but by formal joint resolution of its
two (2) chambers; by the judiciary; and by the people, in
the various ways specified above. What is more, there
was  no martial law. In the present cases,  none  of the
foregoing acts of acquiescence was present. Worse still,
there is martial law, the strict enforcement of which was
announced  shortly before  the alleged citizens’
assemblies. To top it all, in the Taylor case, the
effectivity of the contested amendment was not
contested judicially until about  one (1) year  after the
amendment had been put into operation in all branches
of the Government, and complied with by the people who
participated in the elections held pursuant to the
provisions of the new Constitution. In the cases under
consideration, the legality of Presidential Decree No. 73
calling a plebiscite to be held on January 15, 1973, was
impugned as early as December 7, 1972, or five (5)
weeks  before  the scheduled plebiscite, whereas the
validity of Proclamation No. 1102 declaring on January
17, 1973, that the proposed Constitution had been
ratified — despite General Order No. 20, issued on
January 7, 1972, formally and officially suspending the
plebiscite until further notice — was impugned as early
as January 20, 1973, when L-36142 was filed, or  three
(3) days after the issuance of Proclamation No. 1102.

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It is further alleged that a majority of the members of
our House of Representatives and Senate have
acquiesced in the new or revised Constitution, by filing
written statements opting to serve in the Ad Interim
Assembly established in the Transitory Provisions of
said Constitution. Individual acts of recognition by
members of our legislature, as well as of other collegiate
bodies under the government, are invalid as acts of said
legislature or bodies, unless its members have performed
said acts in  session duly assembled, or unless the law
provides otherwise, and there is no such law in the
Philippines. This is a well-established principle of
Administrative Law and of the Law of Public Officers,
and no plausible reason has been adduced to warrant
departure therefrom.81
Indeed, if the members of Congress were generally
agreeable to the proposed Constitution, why did it
become necessary to padlock its premises to prevent its
meeting in session on January 22, 1973, and thereafter
as provided in the 1935 Constitution? It is true that,
theoretically, the members of Congress, if bent on
discharging their functions under said Constitution,
could have met in any other place, the building in which
they perform their duties being immaterial to the
legality of their official acts. The force of this argument
is, however, offset or dissipated by the fact that, on or
about December 27, 1972, immediately after a
conference between the Executive, on the one hand, and
members of Congress, on the other, some of whom
expressed the wish to meet in session on January 22,
1973, as provided in the 1935 Constitution, a Daily
Express columnist (Primitivo Mijares) attributed to
Presidential Assistant Guillermo de Vega a statement to
the effect that “ ‘certain members of the Senate appear
to be missing the point in issue’ when they
reportedly  insisted on taking up first the question of
convening Congress.” The Daily Express of that
date,82  likewise, headlined, on its front page, a
“Senatorial  Plot Against ‘Martial Law Government’
Disclosed.”

_______________
81 Marifosque, et al. v. Luna, 101 Phil. 1223 (unreported); 37 Am.
Jur. 669; 62 C.J.S. 749-750; Guevara v. Inocentes, L-25577, March 15,
1966.
82  Which, in some respects, is regarded as an organ of the
Administration, and the news items published therein are indisputably
censored by the Department of Public Information.

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Then, in its issue of December 29, 1972, the same paper


imputed to the Executive an appeal “to diverse groups
involved in a  conspiracy  to undermine” his powers”
under martial law to desist from provoking  a
constitutional crisis x  x  x which may result in the
exercise by me of authority I have not exercised.”
No matter how good the intention behind these
statement may have been, the idea implied therein was
too clear and ominous for any member of Congress who
thought of organizing, holding or taking part in a session
of Congress, not to get the impression that he could
hardly do so without inviting or risking the application
of Martial Law to him. Under these conditions, I do not
feel justified in holding that the failure of the members
of Congress to meet since January 22, 1973, was due to
their recognition, acquiescence in or conformity with the
provisions of the aforementioned Constitution, or its
alleged ratification.
For the same reasons, especially because of
Proclamation No. 1081, placing the entire Philippines
under Martial Law, neither am I prepared to declare
that the people’s inaction as regards Proclamation No.
1102, and their compliance with a number of
Presidential orders, decrees and/or instructions — some
or many of which have admittedly had salutary effects
— issued subsequently thereto amounts, constitutes or
attests to a ratification, adoption or approval of said
Proclamation No. 1102. In the words of the Chief
Executive, “martial law connotes power of the gun,
meant  coercion  by the military,
83
and  compulsion  and  intimidation.”   The failure to use
the gun against those who comply with the orders of the
party wielding the weapon does not detract from the
intimidation that Martial Law necessarily connotes. It
may reflect the good, reasonable and wholesome attitude
of the person who has the gun, either pointed at others,
without pulling the trigger, or merely kept in its holster,
but not without warning that he may or would use it if
he deemed it necessary. Still, the intimidation is there,
and inaction or obedience of the people, under these
conditions, is not necessarily an act of conformity or
acquiescence. This is specially so when we consider that
the masses are, by and

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83 Daily Express, November 29, 1972, p. 4. Italics ours.

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large,  unfamiliar  with the parliamentary system, the


new form of government introduced in the proposed
Constitution, with the particularity that it is  not even
identical to that existing in England and other parts of
the world, and that even experienced lawyers and social
scientists find it difficult to grasp the full implications of
some provisions incorporated therein.
As regards the applicability to these cases of the
“enrolled bill” rule, it is well to remember that the same
refers to a document certified to the President — for his
action under the Constitution — by the Senate President
and the Speaker of the House of Representatives, and
attested to by the Secretary of the Senate and the
Secretary of the House of Representatives, concerning
legislative measures approved by the two Houses of
Congress. The argument of the Solicitor General is,
roughly, this: If the enrolled bill is entitled to full faith
and credence and, to this extent, it is conclusive upon
the President and the judicial branch of the
Government, why should Proclamation No. 1102 merit
less consideration than in enrolled bill?
Before answering this question, I would like to ask
the following: If, instead of being certified by the
aforementioned officers of Congress, the so-called
enrolled bill were certified by, say, the President of the
Association of Sugar Planters and/or Millers of the
Philippines, and the measure in question were a
proposed legislation concerning Sugar Plantations and
Mills sponsored by said Association, which even
prepared the draft of said legislation, as well as lobbied
actually for its approval, for which reason the officers of
the Association, particularly, its aforementioned
president — whose honesty and integrity are
unquestionable — were present at the deliberations in
Congress when the same approved the proposed
legislation, would the enrolled bill rule apply thereto?
Surely, the answer would have to be in the negative.
Why? Simply, because said Association President has
absolutely no official authority to perform in connection
therewith, and, hence, his certification is legally, as good
as non-existent.
Similarly, a certification, if any, of the Secretary of
the Department of Local Governments and Community
Development about the tabulated results of the voting in
the

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Citizens Assemblies allegedly  held all over  the


Philippines — and the records do not show that any such
certification, to the President of the Philippines or to the
President Federation or National Association of
presidents of Provincial Associations of presidents of
municipal association presidents of barrio or ward
assemblies of citizens — would not, legally and
constitutionally, be worth the paper on which it is
written. Why? Because said Department Secretary is not
the officer designated by law to superintend plebiscites
or elections held for the ratification or rejection of a
proposed amendment or revision of the Constitution
and, hence, to tabulate the results thereof. Worse still, it
is the department which, according to Article X of the
Constitution, should not and must not be all participate
in said plebiscite — if plebiscite there was.
After citing approvingly its ruling in United States v.
Sandoval,84 the Highest Court of the United States that
courts “will  not stand impotent  before an obvious
instance of a  manifestly unauthorized exercise of
power.”85
I cannot honestly say, therefore, that the people
impliedly or expressly indicated their conformity to the
proposed Constitution.
VI
Are the Parties entitled to any relief?
Before attempting to answer this question, a few
words be said about the procedure followed in these five
(5) cases. In this connection, it should be noted that the
Court has not decided whether or not to give due course
to the petitions herein or to require the respondents to
answer thereto. Instead, it has required the respondents
to comment on the respective petitions — with three (3)
members of the voting to dismiss them outright — and
then considers comments thus submitted by the
respondents as motions to dismiss, as well as set the
same for hearing. This was due to

_______________
84 231 U.S. 28, 58 L. ed. 107, 114, 34 S. Ct. 1.
85 Baker v. Carr, 369 U.S. 186, 7 L. ed. 2d. 663, 82 S.Ct. 691.

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the transcendental nature of the main issue raised, the


necessity of deciding the same with utmost dispatch, and
the main defense set up by respondents herein, namely,
the alleged political nature of said issue, placing the
same, according to respondents, beyond the ambit of
judicial inquiry and determination. If this defense was
sustained, the cases could readily be dismissed; but,
owing to the importance of the questions involved, a
reasoned resolution was demanded by public interest. At
the same time, respondents had cautioned against a
judicial inquiry into the merits of the issues posed on
account of the magnitude of the evil consequences, it was
claimed, which would result from a decision thereon, if
adverse to the Government.
As a matter of fact, some of those issues had been
raised in the plebiscite cases, which were dismissed as
moot and academic, owing to the issuance of
Proclamation No. 1102 subsequently to the filing of said
cases, although before the rendition of judgment therein.
Still one of the members of the Court (Justice Zaldivar)
was of the opinion that the aforementioned issues should
be settled in said cases, and he, accordingly, filed an
opinion passing upon the merits thereof. On the other
hand, three (3) members of the Court — Justices
Barredo, Antonio and Esguerra — filed separate
opinions favorable to the respondents in the plebiscite
cases, Justice Barredo holding “that the 1935
Constitution has pro tanto passed into history and has
been legitimately supplanted by the Constitution in
force by virtue of Proclamation 1102.”86  When the
petitions at bar were filed, the same three (3) members
of the Court, consequently, voted for the dismissal of
said petitions. The majority of the members of the Court
did not share, however, either view, believing that the
main question that arose before the rendition of said
judgment had not been sufficiently discussed and argued
as the nature and importance thereof demanded.
The parties in the cases at bar were accordingly given
every possible opportunity to do so and to elucidate on
and discuss said question. Thus, apart from hearing the
parties in oral argument for five (5) consecutive days —
morning and

_______________
86 Justice Barredo’s opinion in the plebiscite cases.

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afternoon, or a total of exactly 26 hours and 31 minutes


— the respective counsel filed extensive notes on their or
arguments, as well as on such additional arguments as
they wished to submit, and reply notes or memoranda,
in addition to rejoinders thereto, aside from a sizeable
number of document in support of their respective
contentions, or as required by the Court. The arguments,
oral and written, submitted have been so extensive and
exhaustive, and the documents filed in support thereof
so numerous and bulky, that, for all intents and
purposes, the situation is as if — disregarding forms —
the petitions had been given due course and the cases
had been submitted for decision.
Accordingly, the majority of the members of the Court
believe that they should express their views on the
aforementioned issues as if the same were being decided
on the merits, and they have done so in their individual
opinion attached hereto. Hence, the resume of the votes
cast and the tenor of the resolution, in the last pages
hereof, despite the fact that technically the Court has
not, as yet, formally given due course to the petitions
herein.
And, now, here are my views on the reliefs sought by
the parties.
In L-36165, it is clear that we should not issue the
writ of  mandamus  prayed for against Gil J. Puyat and
Jose Roy, President and President Pro Tempore
respectively of the Senate, it being settled in our
jurisdiction, based upon the theory of separation of
powers, that the judiciary will not issue such writ to the
head of a co-equal department, like the aforementioned
officers of the Senate.
In all other respects and with regard to the other
respondent in said case, as well as in cases L-36142, L-
36164, L-36236 and L-36283, my vote is that the
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
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Javellana vs. The Executive Secretary

Fundamental Law of the Land, without prejudice to the


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

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and myself, or six (6) members of the Court also hold


that the Constitution proposed by the 1971
Constitutional Convention was not validly ratified in
accordance with Article XV, section 1 of the 1935
Constitution, which provides only one way for
ratification, i.e., “in an election or plebiscite held in
accordance with law and participated in only by
qualified and duly registered voters.”87
Justice Barredo qualified his vote, stating that “(A)s
to whether or not the 1973 Constitution has been validly
ratified pursuant to Article XV, I still maintain that in
the light of traditional concepts regarding the meaning
and intent of said Article, the referendum in the
Citizens’ Assemblies, specially in the manner the votes
therein were cast, reported and canvassed, falls short of
the requirements thereof. In view, however, of the fact
that I have no means of refusing to recognize as a judge
that factually there was voting and that the majority of
the votes were for considering as approved the 1973
Constitution without the necessity of the usual form of
plebiscite followed in past ratifications, I am constrained
to hold that, in the political sense, if not in the orthodox
legal sense, the people may be deemed to have cast their
favorable votes in the belief that in doing so they did the
part required of them by Article XV, hence, it may be
said that in its political aspect, which is what counts
most, after all, said Article has been substantially
complied with, and, in effect, the 1973 Constitution has
been constitutionally ratified.”
Justices Makasiar, Antonio and Esguerra, or three (3)
members of the Court hold that under their view there
has been in effect substantial compliance with the
constitutional requirements for valid ratification.
3. On the third question of acquiescence by the
Filipino people in the aforementioned proposed
Constitution, no majority vote has been reached by the
Court.
Four (4) of its members, namely, Justices Barredo,
Makasiar, Antonio and Esguerra hold that “the people
have already

_______________
87 Joint Opinion of Justices Makalintal and Castro, p. 153.

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140 SUPREME COURT REPORTS ANNOTATED


Javellana vs. The Executive Secretary

accepted the 1973 Constitution.”


Two (2) members of the Court, namely, Justice
Zaldivar and myself hold that there can be no free
expression, and there has even been no expression, by
the people qualified to vote all over the Philippines, of
their acceptance or repudiation of the proposed
Constitution under Martial Law. Justice Fernando
states that “(I)f it is conceded that the doctrine stated in
some American decisions to the effect that
independently of the validity of the ratification, a new
Constitution once accepted acquiesced in by the people
must be accorded recognition by the Court, I am not at
this stage prepared to state that such doctrine calls for
application in view of the shortness of time that has
elapsed and the difficulty of ascertaining what is the
mind of the people in the absence of the freedom of
debate that is a concomitant feature of martial law.”88
Three (3) members of the Court express their lack of
knowledge and/or competence to rule on the question.
Justices Makalintal and Castro are joined by Justice
Teehankee in their statement that “Under a regime of
martial law, with the free expression of opinions through
the usual media vehicle restricted, (they) have no means
of knowing, to the point of judicial certainty, whether
the people have accepted the Constitution.”89
4. On the fourth question of relief, six (6) members of
the Court, namely, Justices Makalintal, Castro, Barredo,
Makasiar, Antonio and Esguerra voted to DISMISS the
petition. Justice Makalintal and Castro so voted on the
strength of their view that “(T)he effectivity of the said
Constitution, in the final analysis, is the basic and
ultimate question posed by these cases to resolve which
considerations other than judicial, an therefore beyond
the competence of this Court,90  are relevant and
unavoidable.”91
 

_______________
88 Justice Barredo’s language.
89 At p. 153, joint opinion of Justices Makalintal and Castro.
90 Joint Opinion of Justices Makalintal and Castro, p. 153.
91 At p. 8, Idem.

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Four (4) members of the Court, namely, Justices
Zaldivar, Fernando, Teehankee and myself voted to deny
respondents’ motion to dismiss and to give due course to
the petitions.
5. On the fifth question of whether the new
Constitution of 1973 is in force:
Four (4) members of the Court, namely, Justices
Barredo, Makasiar, Antonio and Esguerra hold
that it is in force by virtue of the people’s
acceptance thereof;
Four (4) members of the Court, namely, Justices
Makalintal, Castro, Fernando and Teehankee cast
no vote thereon on the premise stated in their votes
on the third question that they could not state with
judicial certainty whether the people have accepted
or not accepted the Constitution; and
Two (2) members of the Court, namely, Justice
Zaldivar and myself voted that the Constitution
proposed by the 1971 Constitutional Convention is
not in force;
with the result that there are not enough votes to
declare that the new Constitution is not in force.
ACCORDINGLY, by virtue of the majority of six (6)
votes of Justices Makalintal, Castro, Barredo, Makasiar,
Antonio and Esguerra with the four (4) dissenting votes
of the Chief Justice and Justices Zaldivar, Fernando and
Teehankee, all the aforementioned cases are hereby
dismissed. This being the vote of the majority, there is
no further judicial obstacle to the new Constitution
being considered in force and effect.
It is so ordered.

Makalintal, Castro, Barredo, Makasiar, Antonio and


Esguerra, JJ., concur.
Concepcion, C.J., dissents.
Zaldivar, J., dissents in line with the personal
opinion of
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142 SUPREME COURT REPORTS ANNOTATED


Javellana vs. The Executive Secretary

the Chief Justice, and also dissents in a separate


opinion.
Fernando, J., dissents in conformity with the
personal views of the Chief Justice, except as to such
portions thereof on which he expresses his own thoughts
as set forth in his dissenting opinion;
Teehankee, J., dissents in conformity with the Chief
Justice’s personal opinion and files a separate dissent.

 
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ANNEX A
PERTINENT PORTIONS
OF THE
MINNESSOTA SUPREME COURT
DECISION
ON THE CASE
IN RE McCONAUGHY*
“(a) An examination of the decisions shows that
the courts have almost uniformly exercised the authority
to determine the validity of the proposal, submission, or
ratification of constitutional amendments.  It has
beenjudicially determined  whether a proposed
amendment  received the constitutional majority of
votes (Dayton v. St. Paul, 22 Minn. 400; Rice v. Palmer,
78 Ark. 432, 96 S.W. 396; Bott v. Wurtz, 63 N.J. Law,
289, 43 Atl. 744, 881, 45 L.R.A. 251; State v. Foraker, 46
Ohio St. 677, 23 N.E. 49l; 6 L.R.A. 422; Tecumseh
National Bank V. Saunders, 51 Neb. 801, 71 N.W. 779;
Green v. State Board, 5 Idaho, 130, 47 Pac. 259, 95 Am.
St. Rep. 169; In re Denny, 156 Ind. 104, 59 N.E. 359, 51
L.R.A. 722; Knight v. Shelton [C.C.] 134 Fed. 423);
whether a proposed amendment is a single amendment,
within the constitutional requirement that every
amendment must be separately submitted (State v.
Powell, 77 Miss. 543, 27 South. 927; Gabbert v. Chicago,
etc., R. Co., 171 Mo. 84, 70 S.W. 891; State v. Timme, 54
Wis. 318, 11 N.W. 785; In re Denny, 156 Ind. 104, 59
N.E. 359, 51 L.R.A. 722; Lobaugh v. Cook, 127 Iowa,
181, 102 N.W. 1121; People v. Sours, 31 Colo. 369, 74
Pac. 167, 102 Am. St. Rep. 34; State v. Board, 34 Mont.
426, 87 Pac. 450; State v. Winnett [Neb.] 110 N.W. 1113,
10 L.R.A. [N.S.] 149); whether the failure to enter the
resolution of submission upon the legislative journals
invalidates the amendment (Koehler v. Hill, 60 Iowa,
543,14 N.W. 738,15 N.W. 609; Oakland Paving Co. v.
Hilton, 69 Cal. 479, 11 Pac. 3; West v. State, 50 Fla. 154,
39 South. 412; Durfee v. Harper, 22 Mont. 354, 56 Pac.
56; State v. Tufly, 19 Nev. 391, 12 Pac. 835, 3 Am.

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144 SUPREME COURT REPORTS ANNOTATED


Javellana vs. The Executive Secretary

St. Rep. 895); whether the description of the amendment


and the form of the ballot are sufficient (Russell v. Croy,
164 M 69, 63 S.W. 849; State v. Winnett [ Neb.] 110
N.W. 1113, L.R.A. [N.S.] 149; Murphy Chair Co. v.
Attorney General [Mich.] 112 N.W. 127); whether the
method of submission sufficient (Lovett v. Ferguson,, 10
S.D. 44, 71 N.W. 765; Russell v. Croy, 164 Mo. 69, 63
S.W. 849); whether the publication of the amendment or
of a notice relative to it is sufficient (Com. v. Griest, 196
Pa. 396, 46 Atl. 505, 50 L.R.A. 568; Russell v. Croy, 164
Mo. 69, 63 S.W. 849); whether the submission may be
well by resolution as by a legislative act approved by the
executive (Com. v. Griest, 196 Pa. 396, 46 Atl. 505, 50
L.R. 568; Warfield vi Vandiver, 101 Md. 78, 60 Atl. 538;
Edward Lesueur, 132 Mo. 410, 33 S.W. 1130, 31 L.R.A.
815; Hays v. Hays, 5 Idaho, 154, 47 Pac. 732; State v.
Dahl, 6 N.D. 81, 6 N.W. 418, 34 L.R.A. 97);  at what
election the amendment be submitted  (People v. Curry,
130 Cal. 82, 62 Pac. 516).
“In  Rich v. Board of Canvassers, 100 Mich. 458, 59
N.W. 183, the court said: “It is contended that the
determination of the question whether an amendment to
the Constitution has been carried involves the exercise
of political, and not judicial, power. If this be so, it
follows that the promulgation of any purported
amendment by the executive or any executive
department is final, and that the action cannot be
questioned by the judiciary;  but, with reference to the
conditions precedent to submitting a proposed
amendment to a vote of the people, it has been repeatedly
held, by courts of the highest respectability, that it is
within the power of the judiciary to inquire into the
question, even in a collateral proceeding. * * * It is to be
noted that under section 1 of article 20 of the
Constitution of the state no amendment can become a
part of the Constitution  until ratified by a vote of the
people. One prerequisite is equally as essential as the
other. The amendment must first receive the requisite
majority in the Legislature, and afterwards be adopted
by the requisite vote. * * * It is the fact of a majority vote
which makes the amendment a part of the Constitution.’
“In considering the cases it is necessary to note
whether in the particular case the court was called upon
to determine between rival governments, or whether the
Legislature, or

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Javellana vs. The Executive Secretary
some board or official, had  legally performed the duty
imposed by the Constitution or statutes. In re  State v.
McBride, 4 Mo. 303, 29 Am. Dec. 636, it was held that
the General Assembly,  under the power granted by the
Constitution, could change the Constitution  only in the
manner prescribed by it, and that  it was the duty of the
court  to determine whether all prerequisites had been
complied with. In Collier v. Frierson, 24 Ala. 100, it was
held that a Constitution can be changes only by the
peoplein convention  or in a mode described  by the
Constitution  itself, and that if the latter mode is
adopted  every requisite of the Constitution must be
observed. ‘It has been said,” says the court, “that certain
acts are to be done, certain requisitions are to be
observed, before a change can be effected; but to what
purpose are these acts required, or these requisitions
enjoined, if the Legislature or any other department of
the government can dispense with them. To do so would
be to violate the instrument which they are sworn to
support; and  every principle of public law and sound
constitutional policy requires the court to pronounce
against every amendment which is shown not to have
been made in accordance with the rules prescribed by the
fundamental law.’
“In State v. Swift, 69 Ind. 505, it was said that: ‘The
people of a state may form an  original  Constitution, or
abrogate an old one and form a new one, at any time,
without any political restriction, except the Constitution
of the United States, but  if they undertake to add an
amendment, by the authority of legislation to a
Constitution already in existence, they can do it only by
the method pointed out by the Constitution to which the
amendment is added. The power to amend a
Constitution by legislative action does  not  confer the
power to break it, any more than it confers the power to
legislate on any other subject contrary to its
prohibitions.’ So, in  State v. Timme, 54 Wis. 318, 11
N.W. 785, it was held that no amendments can be made
to the Constitution of the state  without a compliance
with the provisions thereof, both in the passage of such
amendment by the Legislature  and the manner of
submitting it to the people. The courts have not all
agreed as to the strictness of compliance which should be
required.
“In the Prohibition and Amendment Case, 24 Kan.
700, the

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146 SUPREME COURT REPORTS ANNOTATED


Javellana vs. The Executive Secretary

court  determined judicially  whether an amendment to


the Constitution had been legally adopted. After
approving the statement quoted from  Collier v.
Frierson,  supra, that ‘we entertain  no doubt  that, to
change the Constitution in an other mode than by a
convention,  every requisite which is demanded by the
instrument itself must be observed, and the omission of
any one is fatal to the amendment,’ the court held that,
‘as substance of right is grander and more potent than
methods of form,’ there had been substantial compliance
with the constitutional requirement that a proposed
amendment to the Constitution must be  entered at
length  on the legislative journal. It appears that the
joint resolution making submission simply provided that
a proposition should be submitted to the electors at the
general election of 1880. It did not declare that the
machinery of the general election law should control, or
that any particular officers or board would receive, count,
or canvass the votes cast. But the existing election
machinery was adequate, and the votes were received,
counted, and canvassed, and the result declared as fully
as though it had been in terms so ordered.  These
methods had been followed in the adoption of previous
amendments, and was held that, conceding the
irregularity of the proceedings the Legislature and the
doubtful scope of the provisions for the election, yet in
view of the very uncertainty of such provision the  past
legislative history  of similar propositions, 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, and in view of  the duty cast
upon the court taking judicial knowledge of anything
affecting the existence and validity of any law or portion
of the Constitution, it must be adjudged that the
proposed amendment became part of the Constitution.
The effect was to hold that a provision of the
Constitution requiring the proposed amendment to be
entered in full on the journals was  directory, and not
mandatory. This  liberal  view was approved in State v.
Winnett (Neb.) 110 N. 1113, 10 L.R.A. (N.S.) 149, and
People v. Sours, 31 Colo. 369, Pac. 167, 102 Am. St. Rep.
34. But it has not been universally accepted.
“In Oakland Paving Co. v. Hilton, 69 Cal. 479, 11 Pac.
3, the court, in commenting upon the Kansas case said:
‘The

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Javellana vs. The Executive Secretary

reasoning by which the learned court reached the


conclusion it did is  not  based on  any sound  legal
principles, but  contrary to them.  Neither  the
argument nor the conclusion can command our assent or
approval. The argument is  illogical, and based on
premises which are  without any sound foundation,
and  rests merely on assumption.’ See, also, the well-
considered case of  Kadderly v. Portland, 44 Or. 118, 74
Pac. 710, 75 Pac. 222.  All these cases  concede the
jurisdiction of the court  to determine whether, in
submitting a proposed amendment to the people, the
Legislature legally observed the constitutional provisions
as to the manner of procedure. InLivermore v. Waite, 102
Cal. 113, 36 Pac. 424, 25 L.R.A. 312, the court, at the
instance of a citizen and a taxpayer, restrained the
Secretary of State from taking steps to submit to the
people a proposed amendment to the Constitution
agreed to by the Legislature on the ground that the
Legislature had not acted in conformity with the
Constitution and that the proposed amendment was of
such a character that it could not properly become a part
of the Constitution. The Supreme Court of Colorado,
in  People v. Sours,  supra, refused to exercise this
authority.
“The entire  question received elaborate consideration
in Koehler v. Hill, 60 Iowa, 543, 14 N.W. 738, 15 N.W.
609. The amendment, which  concededly had been
adopted by the people,  had  not, before its submission,
been entered in full upon the legislative journals, as
required by the Constitution, and it was held that this
was a materialvariance in both form and substance from
the constitutional requirements, and that the
amendment did  not, therefore, become a part of the
Constitution. As to the claim that the question was
political, and not judicial, it was said that, while it is not
competent for courts to inquire into the validity of the
Constitution and the form of government under which
they themselves exist, and from which they derive their
powers, yet, where the existing Constitution prescribes a
method for its own amendment, an amendment thereto,
to be valid, must be adopted in strict conformity to that
method; and it is the duty of the courts in a proper case,
when an amendment does not relate to their own power
or functions,  to inquire  whether, in the adoption of the
amendment,  the provisions of the existing Constitution
have been observed, and, if not, to declare the amendment
invalid and of no force. This case was followed in State v.
Brookhart,

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148 SUPREME COURT REPORTS ANNOTATED


Javellana vs. The Executive Secretary
113 Iowa, 250, 84 N.W. 1064.
“In  University v. McIver, 72 N.C. 76, the question
whether a proposed amendment to the Constitution had
been legally adopted was treated as a judicial question.
By the Constitution a proposed amendment was
required to be approved by Legislatures before its
submission to the people. In this instance a bill was
passed which contained 17 amendments. The next
Legislature rejected 9 and adopted 8 of the amendments,
and submitted them to the people.  The majority of the
people voted for their adoption; but it was contended that
the Constitution contemplated and required that the
same bill and the same amendments,  without change,
should approved by both Legislatures, and that it did not
follow because the second Legislature adopted
separately 8 out of 17 amendments adopted by the first
Legislature, it would have adopted the 17, or any of
them, if they had been voted upon the second in the form
adopted by the first body. The substance of the
contention was that there had not been a concurrence of
the  two  Legislatures on the same amendments,
according to the letter and spirit of the Constitution. The
court held that the power of the Legislature in
submitting amendments could not be distinguished from
the powers of convention, and that, as the people had
spoken and ratified the amendments, they became a
part of the Constitution.
“In  Westinghausen v. People, 44 Mich. 265, 6 N.W.
641, it was held that prior to 1876 a proposed
amendment to Constitution could not be submitted to
the people at any other than a general election; but, as
the amendment under consideration had been
submitted  after  the Constitution been changed, it had
been legally submitted and adopted.
“In  State v. Powell, 77 Miss. 543, 27 South. 927, the
question whether an amendment to the Constitution had
been legally submitted and adopted by the
people  was  held to be judicial, and  not  political, in its
nature. The amendment under
consideration changed the Constitution by providing for
an elective, instead of an appointive, judiciary. It was
contented that the amendments had
been improperly submitted and adopted by a majority of
the qualified voters voting at election, as required by the
Constitution. The law did not

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direct how the result of the election should be


determined.  The Legislature  by joint resolution recited
that the election had been duly held throughout the
state, and, as it appeared from the returns made to the
Secretary of State, that 21,169 votes were cast in favor
of, and 8,643 votes against, the amendment, it resolved
‘that said amendment be, and hereby is, inserted into the
Constitution of the state of Mississippi as a part of the
Constitution.’ In fact, the amendment was  not
submitted in the manner prescribed by the Constitution,
and it  did not receive a majority of all the qualified
voters voting at the election. It was argued that the rules
prescribed by the Constitution “are all for the guidance
of the Legislature, and from the very nature of the thing
the Legislature must be the  exclusive  judge of all
questions to be measured or determined by these rules.
Whether the question be political, and certainly a
legislative one, or judicial, to be determined by the
courts, this section of rules, not only of procedure, but of
final judgment as well, confides to the separate
magistracy of the  legislative  department  full  power to
hear, consider, and adjudge that question. The
Legislature puts the question to the  qualified  electors.
The qualified electors answer back to the Legislature. “If
it shall appear” to the Legislature that its question has
been answered in the affirmative, the amendment is
inserted and made a part of the Constitution. The
Governor and the courts have no authority to speak at
any stage of the proceedings between the sovereign and
the Legislature, and when the matter is thus concluded
it is closed, and the judiciary is as powerless to interfere
as the executive.’ But it was held that the question
whether the proposition submitted to the voters
constituted one, or more than one, amendment, whether
the submission was according to the requirements of the
Constitution, and whether the proposition was  in fact
adopted, were all judicial, and  not political, questions.
‘We do not,’ said Chief Justice Whitfield, ‘seek a
jurisdiction not imposed upon us by the Constitution. We
could not, if we would, escape the exercise of that
jurisdiction  which the Constitution has imposed upon
us. In the particular instance in which we are now
acting, our duty to know what the Constitution of the
state is, and in accordance with our oaths to support and
maintain it in its integrity, imposed on us a most
difficult and embarrassing duty,  one which we have not
sought, but one which, like all others, must be
discharged.’

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“In Bott v. Wurtz, 63 N.J. Law, 289, 43 Atl. 744, 881,
45 L.R.A. 251, it was held that it was the  duty  of the
judicial department of the government  to determine
whether the legislative department or its officers had
observed the constitutional injunctions in attempting to
amend the Constitution, and to annul their acts if they
had not done so. The case is an interesting and well-
considered one. The Constitution provided the manner
in which proposed amendments should be submitted to
the people, but did not provide a  method for
canvassing  the votes. The Legislature having agreed to
certain proposed amendments, passed an act for
submitting the same to the people. This statute provided
for the transmission to the Secretary of State of
certificate showing the result of the voting throughout
the state, and made it the duty of the Governor at the
designated time summon four or more Senators, who,
with the Governor, should constitute a board of state
canvassers to canvass and estimate the votes for and
against each amendment. This board was to determine
and declare which of the proposed amendments had
been adopted and to deliver a statement of the results to
the Secretary of State, and “any proposed amendment,
which by said certificate and determination of the board
of canvassers shall appear to have received in its favor
the majority of all the votes cast in the state for and
against said proposed amendment, shall from the time of
filing such certificate be and become an amendment to
and a part of the Constitution of the state; and it shall
be the duty of the Governor of the state forthwith, after
such a determination, to issue a proclamation declaring
which of the said proposed amendments have been
adopted by the people.” This board was required to file a
statement of the result of the election, and the Governor
to issue his proclamation declaring that the amendment
had been adopted and become a part of the Constitution.
At the instance of a taxpayer the Supreme
Court allowed a writ of certiorari to remove into the court
for review  the statement of the results of the election
made by the canvassing board, in order that it might be
judicially determined whether on the facts shown in that
statement the board had legally determined that the
proposed amendment had been adopted. The Supreme
Court decided that the concurrence of the board of state
canvassers and the executive department of the
government in their respective official
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functions placed the subject-matter  beyond  the
cognizance of the judicial department of the state. The
Court of Appeals, after a full review of the
authorities,  reversed  this decision, and held that the
questions were  of a judicial nature, and properly
determinable by the court on their merits. Mr. Justice
Dixon, after stating the facts, said: ‘It thus becomes
manifest that there was present in the Supreme Court,
and is now pending in this court, every element tending
to maintain jurisdiction over the subject-matter, unless
it be true, as insisted, that the judicial department of the
government has not the right to consider whether the
legislative department and its agencies have observed
constitutional injunctions in attempting to amend the
Constitution, and  to annul their acts in case that they
have not done so. That such a proposition is not true
seems to be indicated by the  whole  history of
jurisprudence in this country.’ The court, after
considering the case on the merits, held that the proper
conclusion had been drawn therefrom, and that the
amendment in question was legally submitted and
adopted.
“The recent case of  Rice v. Palmer, 78 Ark. 432, 96
S.W. 396, presented the identical question which we
have under consideration. In reference to the contention
that the Constitution intended to delegate to the
Speaker of the House of Representatives the power to
determine whether an amendment had been adopted,
and that the question was political, and not judicial, the
court observed: “The argument has often been made in
similar cases to the courts, and it is found in many
dissenting opinions; but, with probably a few exceptions,
it is not found in any prevailing opinion.”
“In State v. Tooker, 15 Mont. 8, 37 Pac. 840, 25 L.R.A.
560, it was held that the constitutional requirement of
publication of a proposed constitutional provision for
three months prior to the election at which it is to be
submitted to the people is  mandatory  and
that noncompliance therewith renders the adoption of an
amendment of no effect.”
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ANNEX B
MALACAÑANG
MANILA
BY THE PRESIDENT OF THE PHILIPPINES
PRESIDENTIAL DECREE NO. 86-B
Defining Further the Role of Barangays (Citizens
Assemblies)
WHEREAS, since their creation pursuant to
Presidential Decree No. 86 dated December 31, 1972, the
Barangays (Citizens Assemblies) have petitioned the
Office of the President to submit to them for resolution
important national issues;
WHEREAS, one of the questions persistently mention
refers to the ratification of the Constitution proposed by
the 1971 Constitutional Convention;
WHEREAS, on the basis of the said petitions, it is
evident that the people believe that the submission of
the proposed Constitution to the Citizens Assemblies or
Barangays should taken as a plebiscite in itself in view
of the fact that freedom of debate has always been
limited to the leadership in political, economic and social
fields, and that it is now necessary to bring this down to
the level of the people themselves through the
Barangays or Citizens Assemblies;
NOW, THEREFORE, I, FERDINAND E. MARCOS,
President of the Philippines, by virtue of the powers in
me vested by the Constitution, do hereby order that
important national issues shall from time to time be
referred to the Barangays (Citizens Assemblies) for
resolution in accordance with Presidential Decree No.
86-A dated January 5, 1973 an that the initial
referendum shall include the matter of ratification of the
Constitution proposed by the 1971 Constitutional
Convention.

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The Secretary of the Department of Local
Government and Community Development shall insure
the implementation of this Order.
Done in the City of Manila, this 7th day of January in
the year of Our Lord, nineteen hundred and seventy-
three.
(SGD.) FERDINAND E. MARCOS
By the President:
(SGD.) ALEJANDRO MELCHOR
          Executive Secretary
 
MAKALINTAL and CASTRO, JJ.:
The preliminary question before this Court was
whether or not the petitioners had made out a
sufficient  prima facie case in their petitions to justify
their being given due course. Considering on the one
hand the urgency of the matter and on the other hand
its transcendental importance, which suggested the need
for hearing the side of the respondents before that
preliminary question was resolved, We required them to
submit their comments on the petitions. After the
comments were filed We considered them as motions to
dismiss so that they could be orally argued. As it turned
out, the hearing lasted five days, morning and afternoon,
and could not have been more exhaustive if the petitions
had been given due course from the beginning.
The major thrust of the petitions is that the act of the
Citizens Assemblies as certified and proclaimed by the
President on January 17, 1973 (Proclamation No. 1102)
was not an act of ratification, let alone a valid one, of the
proposed Constitution, because it was not in accordance
with the existing Constitution (of 1935) and the Election
Code of 1971. Other grounds are relied upon by the
petitioners in support of their basic proposition, but to
our mind they are merely subordinate and peripheral.

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Article XV, Section 1, of the 1935 Constitution
provides that amendments (proposed either by Congress
in joint session or by a Convention called by it for the
purpose) “shall be valid part of this Constitution when
approved by a majority of votes cast at an  election  at
which the amendments submitted to the people for their
ratification.” At the time Constitution was approved by
the Constitutional Convention on February 8, 1935, and
ratified in a plebiscite held on following May 14, the
word “election” had already a definite meaning in our
law and jurisprudence. It was not a vague and
amorphous concept, but a procedure prescribed by
statute ascertaining the people’s choices among
candidates for public offices, or their will on important
matters submitted to the pursuant to law, for approval.
It was in this sense that word was used by the framers
in Article XV (also in Articles VI and VII), and in
accordance with such procedure that plebiscites were
held to ratify the very same Constitution in 1935 as well
as the subsequent amendments thereto, thus: in 1939
(Ordinance appended to the Constitution); 1940
(establishment of a bicameral legislature; eligibility of
the President and the Vice President for re election;
creation of the Commission of Elections); 1947 (Parity
Amendment); and 1967 (increase in membership of the
House of Representatives and eligibility of members of
Congress to run for the Constitutional Convention
without forfeiture of their offices).
The Election Code of 1971, in its Section 2, states that
“all elections of public officers except barrio officials and
plebiscites shall be conducted in the manner provided by
this Code.” This is a statutory requirement designed, as
were the other election laws previously in force, to carry
out the constitutional mandate relative to the exercise of
the right suffrage, and with specific reference to the
term “plebiscites,” the provision of Article XV regarding
ratification of constitutional amendments.
The manner of conducting elections and plebiscites
provided by the Code is spelled out in other sections
thereof. Section 99 requires that qualified voters be
registered in a permanent list, the qualifications being
those set forth in Article V, Section 1, of the 1935
Constitution on the basis of age (21), literacy and
residence. These qualifications are reiterated

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in Section 101 of the Election Code. Section 102


enumerates the classes of persons disqualified to vote.
Succeeding sections prescribe the election paraphernalia
to be used, the procedure for registering voters, the
records, of registration and the custody thereof, the
description and printing of official ballots, the actual
casting of votes and their subsequent counting by the
boards of inspectors, the rules for appreciation of ballots,
and then the canvass and proclamation of the results.
With specific reference to the ratification of the 1972
draft Constitution, several additional circumstances
should be considered:
(1) This draft was prepared and approved by a
Convention which had been convened pursuant to
Resolution No. 2 passed by Congress on March 16, 1967,
which provides:

“Sec. 7. The amendments proposed by the Convention shall


be valid and considered part of the Constitution when
approved by a majority of the votes cast in an election at which
they are submitted to the people for their ratification pursuant
to Article XV of the Constitution.”

(2) Article XVII, Section 16, of the draft itself states:

“Sec. 16. This Constitution shall take effect immediately


upon its ratification by a majority of the votes cast in a
plebiscite called for the purpose and, except as herein provided,
shall supersede the Constitution of nineteen hundred and
thirty-five and all amendments thereto.”

The same procedure is prescribed in Article XVI,


Section 2, for the ratification of any future amendment
to or revision of the said Constitution.
(3) After the draft Constitution was approved by the
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Constitutional Convention on November 30, 1972 the


said body adopted Resolution No. 5843, proposing “to
President Ferdinand E. Marcos that a decree be issued
calling a plebiscite  for the ratification of the proposed
New Constitution on such appropriate date as he shall
determine and providing for the necessary funds
therefor.” Pursuant to said Resolution the President
issued Decree No. 73 on the same day, calling a
plebiscite to be held on January 15, 1973, at which the
proposed Constitution “shall be submitted to the people
for ratification or rejection.” The Decree had eighteen
(18) sections in all, prescribing in detail the different
steps to be taken to carry out the process of ratification,
such as: (a) publication of the proposed Constitution in
English and Pilipino; (b) freedom of information and
discussion; (c) registration of voters: (d) appointment of
boards of election inspectors and designation of watchers
in each precinct; (e) printing of official ballots; (f)
manner of voting to insure freedom and secrecy thereof;
(g) canvass of plebiscite returns; and (h) in general,
compliance with the provisions of the Election Code of
1971, with the Commission on Elections exercising its
constitutional and statutory powers of supervision of the
entire process.
There can hardly be any doubt that in everybody’s
view — from the framers of the 1935 Constitution
through all the Congresses since then to the 1971
Constitutional Convention — amendments to the
Constitution should be ratified in only one way, that is,
in an election or plebiscite held in accordance with law
and participated in only by qualified and duly registered
voters. Indeed, so concerned was this Court with the
importance and indispensability of complying with the
mandate of the (1935) Constitution in this respect that
in the recent case of  Tolentino vs. Commission on
Elections, No. L-34150, October 16, 1971 (41 SCRA 702),
a resolution of the (1971) Constitutional Convention
submitting a proposed amendment for ratification to a
plebiscite to be held in November 1971 was declared null
and void. The amendment sought to reduce the voting
age from twenty-one to eighteen years and was approved
by the Convention for submission to a plebiscite ahead of
and separately from other amendments still being or to
be considered by it, so as to enable the youth to be thus
enfranchised to participate in the plebiscite for the
ratification of such other amendments later. This Court
held

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that such separate submission was violative of Article
XV, Section 1, of the Constitution, which contemplated
that “all the amendments to be proposed by the same
Convention must be submitted to the people in a single
“election” or plebiscite.”*  Thus a grammatical
construction based on a singular, instead of plural,
rendition of the word “election” was considered a
sufficient ground to rule out the plebiscite which had
been called to ratify a proposed amendment in
accordance with the procedure and under all the
safeguards provided in the Election Law.
In the cases now before Us what is at issue is not
merely the ratification of just one amendment, as
in  Tolentino vs. COMELEC, but the ratification of an
entire charter setting up a new form of government; and
the issue has arisen not because of a disputed
construction of one word or one provision in the 1935
Constitution but because no election or plebiscite in
accordance with that Constitution and with the Election
Code of 1971 was held for the purpose of such
ratification.
The Citizens Assemblies which purportedly ratified
the draft Constitution were created by Presidential
Decree No. 86 dated December 31, 1972, “to broaden the
base of citizen participation in the democratic process
and to afford ample opportunities for the citizenry
to express their views on important national issues.” The
Assemblies “shall consist of all persons who are
residents of the barrio, district or ward for at least six
months,  fifteen  years of age or over, citizens of the
Philippines and who are registered in the lists of Citizen
Assembly members kept by the barrio, district or ward
secretary.” By Presidential Decree No. 86-A, dated
January 5, 1973, the Assemblies were convened for a
referendum between January 10 and 15, to “consider
vital national issues now confronting the country, like
the holding of the plebiscite on the new Constitution, the
continuation of martial rule, the convening of Congress
on January 22, 1973, and the holding of elections in
November 1973.”
_______________
*  The undersigned (Justice Querube C. Makalintal) who had
reserved his right to do so, filed a separate dissenting opinion when the
Court denied a motion for reconsideration, and voted in favor of the
validity of the questioned Resolution. Mr. Justice Enrique M.
Fernando joined in the dissent.

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On January 5, 1973 the newspapers came out with a
list of four questions to be submitted to the Citizens
Assemblies, the fourth one being as follows: “How soon
would you like plebiscite on the new Constitution to be
held?” It should be noted in this connection that the
President had previously announced that he had ordered
the postponement of plebiscite which he had called for
January 15, 1973 (Presidential Decree No. 73) for the
ratification of the Constitution, and that he was
considering two new dates for the purpose — February
19 or March 5; that he had ordered that the registration
of voters (pursuant to Decree No. 73) be extended to
accommodate new voters; and that copies of the new
Constitution would be distributed in eight dialects the
people. (Bulletin Today, December 24, 1972.)
On January 10, 1973 it was reported that one more
question would be added to the original four which were
to be submitted to the Citizens Assemblies. The question
concerning plebiscite was reworded as follows: “Do you
like the plebiscite to be held later?” The implication, it
may likewise be noted, was that the Assemblies should
express their views as to the plebiscite should be held,
not as to whether or not it should be held at all.
The next day, January 11, it was reported that six
additional questions would be submitted, namely:
“(1) Do you approve of the citizens assemblies as the base of
popular government to decide issues of national interest?
“(2) Do you approve of the new Constitution?
“(3) Do you want a plebiscite to be called to ratify the new
Constitution?
“(4) Do you want the elections to be held in November, 1973
accordance with the provisions of the 1935 Constitution?
“(5) If the elections would not be held, when do you want the
next elections to be called?
“(6) Do you want martial law to continue? [Bulletin Today,
January 11, 1973; emphasis supplied].

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Appended to the six additional questions above
quoted were the suggested answers, thus:

“COMMENTS ON
QUESTION No. 1
In order to broaden the base of citizens’ participation in
government.
QUESTION No. 2
But we do not want the Ad Interim Assembly to be
convoked. Or if it is to be convened at all, it should not be
done so until after at least seven (7) years from the
approval of the New Constitution by the Citizens
Assemblies.
QUESTION No. 3
If the Citizens Assemblies approve of the New
Constitution, then the new Constitution should be
deemed ratified.
The vote of the Citizens Assemblies should already be
considered the plebiscite on the New Constitution.
QUESTION No. 4
We are sick and tired of too frequent elections. We are
fed up with politics, of so many debates and so much
expenses.
QUESTION No. 5
Probably a period of at least seven (7) years moratorium
on elections will be enough for stability to be established
in the country, for reforms to take root and normalcy to
return.
QUESTION No. 6
We want President Marcos to continue with Martial
Law. We want him to exercise his powers with more
authority. We want him to be strong and firm so that he
can accomplish all his reform program and establish
normalcy in the country. If all other measures fail, we
want President Marcos to declare a

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revolutionary government along the lines of the new


Constitution without the ad interim Assembly.” 

So it was that on January 11, 1973, the second day of


the purported referendum, the suggestion was broached,
for the first time, that the plebiscite should be done
away with and a favorable vote by the Assemblies
deemed equivalent ratification. This was done, not in the
questionnaire itself, but in the suggested answer to
question No. 3. Strangely, however, it was not similarly
suggested that an unfavorable vote be considered as
rejection.
There should be no serious dispute as to the fact that
the manner in which the voting was conducted in the
Citizen Assemblies, assuming that such voting was held,
was not within the intendment of Article XV, Section 1,
of the 1935 Constitution nor in accordance with the
Election Code of 1971. The referendum can by no means
be considered as the plebiscite contemplated in Section 2
of said Code and in Article XVII, Section 16, of the draft
Constitution itself, or as the election intended by
Congress when it passed Resolution No. 2 on March 16,
1967 calling a Convention for the revision of the 1935
Constitution. The Citizens Assemblies were not limited
to qualified, let alone registered voters, but included all
citizens from the age of fifteen, and regardless of
whether or not they were illiterates, feeble-minded, or ex
convicts* — these being the classes of persons expressly
disqualified from voting by Section 102 of the Election
Code. In short, the constitutional and statutory
qualifications were not considered in the determination
of who should participate. No official ballots were used
in the voting; it was done mostly by acclamation or open
show of hands. Secrecy, which is one of the essential
features of the election process, was not therefore
observed. No set of rules for counting the votes or of
tabulating them and

_______________
*  Thus by Presidential Decree No. 86 what the Constitutional
Convention itself had proposed unsuccessfully as an amendment to the
1935 Constitution, reducing the voting age from 21 to 18, but the
submission of which to a plebiscite was declared invalid by this Court
in Tolentino vs. COMELEC, became a reality of an even more far-
reaching import — since fifteen-year olds were included in the Citizens
Assemblies.

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reporting the figures was prescribed or followed. The


Commission on Elections, which is the constitutional
body charged with the enforcement and administration
of all laws relative to the conduct of elections, took no
part at all, either by way of supervision or in the
assessment of the results.
It has been suggested that since according to
Proclamation No. 1102 the overwhelming majority of all
the members of the Citizens Assemblies had voted for
the adoption of the proposed Constitution there was a
substantial compliance with Article XV, Section 1, of the
1935 Constitution and with the Election Code of 1971.
The suggestion misses the point entirely. It is of the
essence of a valid exercise of the right of suffrage that
not only must a majority or plurality of the voters carry
the day but that the same must be duly ascertained in
accordance with the procedure prescribed by law. In
other words the very existence of such majority or
plurality depends upon the manner of its ascertainment,
and to conclude that it exists even if it has not been
ascertained according to law is simply to beg the issue,
or to assume the very fact to be established. Otherwise
no election or plebiscite could be questioned for non-
compliance with the provisions of the Election Law as
long as it is certified that a majority of the citizens had
voted favorably or adversely on whatever it was that was
submitted to them to vote upon.
However, a finding that the ratification of the draft
Constitution by the Citizens Assemblies, as certified by
the President in Proclamation No. 1102, was not in
accordance with the constitutional and statutory
procedure laid down for the purpose does not quite
resolve the questions raised in these cases. Such a
finding, in our opinion, is on a matter which is
essentially justiciable, that is, within the power of this
Court to inquire into. It imports nothing more than a
simple reading and application of the pertinent
provisions of the 1935 Constitution, of the Election Code
and of other related laws and official acts. No question of
wisdom or of policy is involved. But from this finding it
does not necessarily follow that this Court may
justifiably declare that the Constitution has not become
effective, and for that reason give due course to these
petitions or grant the writs herein prayed for. The
effectivity of the said Constitution, in the final analysis,
is the basic and
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ultimate question posed by these cases, to resolve which


considerations other than judicial, and therefore beyond
the competence of this Court, are relevant and
unavoidable.
Several theories have been advanced respectively by
the parties. The petitioners lay stress on the invalidity of
the ratification process adopted by the Citizens
Assemblies and on that premise would have this Court
grant the reliefs they seek. The respondents represented
by the Solicitor General, whose theory may be taken as
the official position of the Government, challenge the
jurisdiction of this Court on the ground that the
questions raised in the petitions are political and
therefore non-justiciable, and that in any case popular
acquiescence in the new Constitution and the prospect of
unsettling acts done in reliance thereon should caution
against interposition of the power of judicial review.
Respondents Gil J. Puyat and Jose Roy (in L-36165), in
their respective capacities as President and President
Pro Tempore of the Senate of the Philippines, and
through their counsel, Senator Arturo Tolentino,
likewise invoke the political question doctrine, but on a
ground not concurred in by the Solicitor General,
namely, that approval of the 1973 Constitution by the
people was made under a revolutionary government, in
the course of a successful political revolution, which was
converted by act of the people to the present  de jure
government under the 1973 Constitution.”
Heretofore, constitutional disputes which have come
before this Court for adjudication proceeded on the
assumption, conceded by all, that the Constitution was
in full force and effect, with the power and authority of
the entire Government behind it; and the task of this
Court was simply to determine whether or not the
particular act or statute that was being challenged
contravened some rule or mandate of that Constitution.
The process employed was one of interpretation and
synthesis. In the cases at bar there is no such
assumption: the Constitution (1935) has been derogated
and its continued existence as well as the validity of the
act of derogation is issue. The legal problem posed by the
situation is aggravated by the fact that the political
arms of the Government — the Executive Departments
and the two Houses of Congress — have accepted the
new Constitution as effective: the former by organizing
themselves and discharging their functions under it,

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and the latter by not convening on January 22, 1973 or


at any time thereafter, as ordained by the 1935
Constitution, and in the case of a majority of the
members by expressing their option to serve in the
Interim National Assembly in accordance with Article
XVIII, Section 2, of the 1973 Constitution.*
The theory advanced by Senator Tolentino, as counsel
for respondents Puyat and Roy, may be taken up and
restated at same length if only because it would
constitute, if sustained, the most convenient ground for
the invocation of the political-question doctrine. In
support of his theory, Senator Tolentino contends that
after President Marcos declared martial law on
September 21, 1972 (Proclamation No. 1081) he
established a revolutionary government when he issued
General Order No. 1 the next day, wherein he
proclaimed “that I shall govern the nation and direct the
operation of the entire government, including all its
agencies and instrumentalities, in my capacity, and
shall exercise all the powers and prerogatives
appurtenant and incident to my position as such
Commander-in-Chief of all the Armed Forces of the
Philippines.” By this order, it is pointed out, the
Commander-in-Chief of the Armed Forces assumed all
the powers of government — executive, legislative, and
judicial; and thereafter proceeded to exercise such
powers by a series of Orders and Decrees which
amounted to legislative enactments not justified under
martial law and, in some instances, trenched upon the
domain of the judiciary, by removing from its
jurisdiction certain classes of cases, such as “those
involving the validity, legality, or constitutionality of
Proclamation No. 1081, or of any decree, order or act
issued, promulgated or performed by me or by my duly
designated representative pursuant thereto.” (General
Order No. 3 as amended by General Order No. 3-A,
dated September 24, 1972.) The ratification by the
Citizens Assemblies, it is averred, was the culminating
act of the revolution, which thereupon converted the
government into a  de jure  one under the 1973
Constitution.

_______________
*  According to the Solicitor General 92 Congressmen and 15
Senators (both numbers constituting majorities) have expressed their
option.

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Javellana vs. The Executive Secretary

 
If indeed it be accepted that the Citizens Assemblies
had ratified the 1973 Constitution and that such
ratification as well as the establishment of the
government thereunder formed part of a revolution,
albeit peaceful, then the issue of whether or not that
Constitution has become effective and, as necessary
corollary, whether or not the government legitimately
functions under it instead of under the 1935
Constitution, is political and therefore non-judicial in
nature. Under such a postulate what the people did in
the Citizen Assemblies should be taken as an exercise of
the ultimate sovereign power. If they had risen up in
arms and by force deposed the then existing government
and set up a new government in its place, there could
not be the least doubt that their act would be political
and not subject to judicial review but only to the
judgment of the same body politic act, in the context just
set forth, is based on realities. If a new government
gains authority and dominance through force, it can be
effectively challenged only by a stronger force; judicial
dictum can prevail against it. We do not see that
situation would be any different, as far as the doctrine of
judicial review is concerned, if no force had been
resorted to and the people, in defiance of the existing
Constitution but peacefully because of the absence of
any appreciable opposition, ordained a new Constitution
and succeeded in having the government operate under
it. Against such a reality there can be no adequate
judicial relief; and so courts forbear to take cognizance of
the question but leave it to be decided through political
means.
The logic of the political-question doctrine is
illustrated in statement of the U.S. Supreme Court in a
case*  relied upon, curiously enough, by the Solicitor
General, who disagrees with the revolutionary
government theory of Senator Tolentino. The case
involved the issue of which of two opposing governments
struggling for supremacy in the State of Rhode Island
was the lawful one. The issue had previously come up in
several other cases before the courts of the State, which
uniformly held that the inquiry belonged to the political
power and not to the judicial. Commenting on the ruling
thus arrived at, the U.S. Supreme Court said: “And if a
State court should

_______________
* Luther v. Borden, 48 U.S. (7 Haw.) 1, 12 L. Ed. 581 (1849).
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enter upon the inquiry proposed in this case, and should


come to the conclusion that the government under which
it acted had been put aside and displaced by an opposing
government, it would cease to be a court, and incapable
of pronouncing a judicial decision upon the question it
undertook to try. If it decides at all as a court, it
necessarily affirms the existence and authority of the
government under which it is exercising judicial power.”
In other words, since the court would have no choice but
to decide in one way alone in order to be able to decide at
all, the question could not be considered proper for
judicial determination.
It should be noted that the above statement from
Luther vs. Borden would be applicable in the cases at
bar only on the premise that the ratification of the
Constitution was a revolutionary act and that the
government now functioning it is the product of such
revolution. However, we are not prepared to agree that
the premise is justified.
In the first, place, with specific reference to the
questioned ratification, several significant circumstances
may be noted. (1) The Citizens Assemblies were created,
according to Presidential Decree No. 86, “to broaden the
base of citizen participation in the democratic process
and to afford ample opportunities for the citizenry
to express their views  on important national issues.” (2)
The President announced, according to the  Daily
Express of January 2, 1973, that “the referendum will be
in the nature of a loose consultation with the people.” (3)
The question, as submitted to them on the particular
point at issue here, was “Do you approve of  the
Constitution?” (4) President Marcos, in proclaiming that
the Constitution had been ratified, stated as follows:
“(S)ince the referendum results show that more than
ninety-five (95) per cent of the members of the
Barangays (Citizens Assemblies) are in favor of the new
Constitution, the  Katipunan ng mga
Barangay  has  strongly recommended  that the new
Constitution should already  be deemed  ratified by the
Filipino people.” (5) There was not enough time for the
Citizens Assemblies to really familiarize themselves
with the Constitution, much less with the many other
subjects that were submitted to them. In fact the
plebiscite planned for January 15, 1973 under
Presidential Decree No. 73 had been postponed

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to an indefinite date, the reasons for the postponement


being, as attributed to the President in the newspapers,
that “there was little time to campaign for or against
ratification” (Daily Express, Dec. 22, 1972); that he
would base his decision (as to the date, of the plebiscite)
on the compliance by the Commission (on Elections) on
the publication requirement of the new Charter and on
the position taken by national leaders” (Daily Express,
Dec. 23, 1972); and that “the postponement would give
us more time to debate on the merits of the Charter.”
(Bulletin Today, Dec. 24, 1972.)
The circumstances above enumerated lead us to the
conclusion that the Citizens Assemblies could not have
understood the referendum to be for the ratification of
the Constitution, but only for the expression of their
views on a consultative basis. Indeed, if the expression of
those views had been intended as an act of ratification
(or of rejection as a logical corollary) — there would have
been no need for the  Katipunan ng mga Barangay to
recommend  that the Constitution should already be
deemed ratified, for recommendation imports recognition
of some higher authority in whom the final decision
rests.
But then the President, pursuant to such
recommendation, did proclaim that the Constitution had
been ratified and had come into effect. The more
relevant consideration, therefore, as far as we can see,
should be as to what the President had in mind in
convening the Citizens Assemblies, submitting the
Constitution to them and proclaiming that the favorable
expression of their views was an act of ratification. In
this respect subjective factors, which defy judicial
analysis and adjudication, are necessarily involved.
In positing the problem within an identifiable frame
of reference we find no need to consider whether or not
the regime established by President Marcos since he
declared martial law and under which the new
Constitution was submitted to the Citizens Assemblies
was a revolutionary one. The pivotal question is rather
whether or not the effectivity of the said Constitution by
virtue of Presidential Proclamation No. 1102, upon the
recommendation of the Katipunan ng mga Barangay,
was intended to be definite and irrevocable, regardless of

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non-compliance with the pertinent constitutional and


statutory provisions prescribing the procedure for
ratification. We must confess that after considering all
the available evidence and all the relevant
circumstances we have found no reasonably reliable
answer to the question. On one hand we read, for
instance, the following public statements of the
President:
Speaking about the proclamation of martial law, he
said: 
“I reiterate what I have said in the past: there is no turning
back for our people.
“We have committed ourselves to this revolution. We have
pledged to it our future, our fortunes, our lives, our destiny. We
have burned our bridges behind us. Let no man misunderstand
the strength of our resolution.” (A Report to the Nation, Jan. 7,
1973.) 

On the occasion of the signing of Proclamation No.


1102 on January 17, 1973, the President said the
following, among other things: 

“... We can, perhaps delimit the power of the people to speak


on legal matters, on justiciable matters, on matters that may
come before the experts and interpreters of the law. But we
cannot disqualify the people from speaking on what we and the
people consider purely political matters especially those that
affect the fundamental law of the land.
“... The political questions that were presented to the people
are exactly those that refer to the form of government which
the people want ... The implications of disregarding the
people’s will are too awesome to be even considered. For if any
power in government should even dare to disregard the
people’s will there would be valid ground for revolt.
“... Let it be known to everybody that the people have
spoken and they will no longer tolerate any attempt to
undermine the stability of their Republic; they will rise up in
arms not in revolt against the Republic but in protection of the
Republic which they have installed. It is quite clear when the
people say, we ratify the Constitution, that they mean they
will not discard, the Constitution.” 

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On January 19, 1973 the  Daily Express  published
statement of the President made the day before, from
which the following portion is quoted:

“... the times are too grave and the stakes too high for us
permit the customary concessions to traditional democratic
process to hold back our people’s clear and unequivocal resolve
and mandate to meet and overcome the extraordinary
challenges presented by these extraordinary times.”

On the same occasion of the signing of Proclamation


No. 1102 the President made pointed reference to “the
demand of some of our citizens ... that when all other
measures should fail, that the President be directed to
organize and establish a Revolutionary Government,”
but in the next breath added: “... if we do ratify the
Constitution, how can we speak of Revolutionary
Government? They cannot be compatible ...” “(I)t is my
feeling,” he said, “that the Citizens’ Assemblies which
submitted this recommendation merely sought
articulate their impatience with the status quo that has
brought about anarchy, confusion and misery to the
masses ...” The only alternatives which the President
clearly implied by the foregoing statements were the
ratification of the new Constitution and the
establishment of a revolutionary government, the latter
being unnecessary, in his opinion, because precisely the
Constitution had been ratified. The third obvious
alternative was entirely ruled out, namely, a return to
the 1935 Constitution, for it was the  status quo  under
that Constitution that had caused “anarchy, confusion
and misery.” The message seems clear: rather than
return to such  status quo, he would heed the
recommendation of the Citizens’ Assemblies to establish
a revolutionary government, because that would be the
only other way to carry out the reforms he had
envisioned and initiated — reforms which, in all fairness
and honesty, must be given credit for the improved
quality of life in its many aspects, except only in the field
of civil liberties.
If there is any significance, both explicit and implicit,
and certainly unmistakable, in the foregoing
pronouncements, it is that the step taken in connection
with the ratification of the Constitution was meant to be
irreversible, and that nothing

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anyone could say would make the least difference. And if


this is a correct and accurate assessment of the
situation, then we would say that since it has been
brought about by political action and is now maintained
by the government that is in undisputed authority and
dominance, the matter lies beyond the power of judicial
review.
On the other hand, by avowals no less significant if
not so emphatic in terms, President Marcos has
professed fealty to the Constitution. In “Today’s
Revolution: Democracy” he says:

“I believe, therefore, in the necessity of Revolution as an


instrument of individual and social change ... but that in a
democratic society, revolution is of necessity, constitutional,
peaceful, and legal.”

In his TV address of September 23, 1972, President


Marcos told the nation: 

“I have proclaimed martial law in accordance with the


powers  vested in the President by the Constitution of the
Philippines.
“xxx xxx xxx
“I repeat, this is not a military takeover of civil government
functions. The Government of the  Republic of the Philippines
which was established by our people in 1946 continues.
“xxx xxx xxx
“I assure you that I am utilizing this power vested in me by
the Constitution to save the Republic and reform our society...
“I have had to use this constitutional power in order that we
may not completely lose the civil rights and freedom which we
cherish...
“... We are against the wall. We must now defend the
Republic with the stronger powers of the Constitution.”
(Vital Documents, pp. 1-12; emphasis supplied). 

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In the report of an interview granted by the President
to the Newsweek Magazine (published in the issue of
January 29, 1973), the following appears: 

“xxx xxx xxx


“Q. Now that you have gotten off the constitutional track,
won’t you be in serious trouble if you run into critical problems
with your programs?
“A. I have never gotten off the constitutional track.
Everything I am doing is in accordance with the 1935
Constitution. The only thing is that instead of 18-year-olds
voting, we have allowed 15-year-olds the right to vote. But the
15-year-olds of today are high-school students, if not
graduates, and they are better informed than my
contemporaries at that age. On the matter of whether it is
constitutional to proclaim martial law, it is constitutional
because the Constitution provides for it in the event of
invasion, insurrection, rebellion or immediate danger thereof.
We may quarrel about whether what we have gone through is
sufficient cause to proclaim martial law but at the very least
there is a danger of rebellion because so many of our soldiers
have been killed. You must remember this (martial law
provision) was lifted from the American legislation that was
the fundamental law of our country.
“xxx xxx xxx.” 

In the light of this seeming ambivalence, the choice of


what course of action to pursue belongs to the President.
We have earlier made reference to subjective factors on
which this Court, to our mind, is in no position to pass
judgment. Among them is the President’s own
assessment of the will of the people as expressed
through the Citizens Assemblies and of the importance
of the 1973 Constitution to the successful
implementation of the social and economic reforms he
has started or envisioned. If he should decide that there
is no turning back, that what the people recommended
through the Citizens Assemblies, as they were reported
to him, demand that the action he took pursuant thereto
be final and irrevocable, then judicial review is out of the
question.
In articulating our view that the procedure of
ratification

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that was followed was not in accordance with the 1935


Constitution and related statutes, we have discharged
our sworn duty as we conceive it to be. The President
should now perhaps decide, if he has not already
decided, whether adherence to such procedure is weighty
enough a consideration, if only to dispel any cloud of
doubt that may now and in the future shroud the
nation’s Charter.
In the deliberations of this Court one of the issues
formulated for resolution is whether or not the new
Constitution, since its submission to the Citizens
Assemblies, has found acceptance among the people,
such issue being related to the political question theory
propounded by the respondents. We have not tarried on
the point at all since we find no reliable basis on which
to form a judgment. Under a regime of martial law, with
the free expression of opinions through the usual media
vehicles restricted, we have no means of knowing, to the
point of judicial certainty, whether the people have
accepted the Constitution. In any event, we do not find
the issue decisive insofar as our vote in these cases is
concerned. To interpret the Constitution — that is
judicial. That the Constitution should be deemed in
effect because of popular acquiescence — that is
political, and therefore beyond the domain of judicial
review.
We therefore vote not to give due course to the instant
petitions. 
SEPARATE OPINION 
BARREDO, J.:
As far as I am concerned, I regard the present
petitions as no more than mere reiterations of the
Supplemental Petitions filed by Counsel Lorenzo M.
Tañada on January 15, 1973 in the so called Plebiscite
Cases decided by this Court on January 22, 1978. Of
course, there are amplifications of some of the grounds
previously alleged and in the course of the
unprecedented five-day hearing that was held from
February 12 to 16 last, more extensive and illuminating
arguments were

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heard by Us, but, in my estimation, and with due


recognition of the sincerity, brilliance and eloquence of
counsels, nothing more cogent and compelling than what
had already been previously presented by Counsel
Tañada is before Us now. Accordingly, I cannot see any
reason why I should change the position I took in regard
to the earlier cases. I reiterate, therefore, the vote I cast
when these petitions were initially considered by the
Court; namely, to dismiss them.
In view, however, of the transcendental importance of
the issues before the Court and the significance to our
people and in history of the individual stands of the
members of the Court in relation to said issues and to
the final outcome of these cases, and considering that I
reserved before the filing of a more extended opinion, I
will take this opportunity to explain further why I hold
that the 1973 Constitution is already in force, if only to
clarify that apart from the people’s right of revolution to
which I made pointed reference in my previous opinion, I
can see now, after further reflection, that the vote of the
people in the referendum in the Citizens Assemblies
held on January 10 to 15, 1973, upon the result of which
Proclamation 1102 is based, may be viewed more
importantly as a political act than as a purely legal one
with the result that such vote to consider the 1973
Constitution as ratified without the necessity of holding
a plebiscite in the form followed in the previous
ratification plebiscites in 1935 of the Constitution itself,
1937 of women’s suffrage, 1939 of the amendments to
the Ordinance Appended to the Constitution, 1940 of the
re-election of the President, the bicameral legislature
and the Commission on Elections, 1947 of the parity
amendment and 1967, rejecting the proposed increase in
the members of the House of Representatives and
eligibility of members of Congress to the Constitutional
Convention, may be deemed as a valid ratification
substantially in compliance with the basic intent of
Article XV of the 1935 Constitution. If indeed this
explanation may be considered as a modification of my
rationalization then, I wish to emphasize that my
position as to the fundamental issue regarding the
enforceability of the new Constitution is even firmer now
than ever before. As I shall elucidate anon, paramount
considerations of national import have led me to the
conviction that the best interests of all concerned would
be best served by the Supreme Court holding that the
1973

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Javellana vs. The Executive Secretary
Constitution is now in force, not necessarily as a
consequence of the revolutionary concept previously
suggested by me, but upon the ground that as a political,
more than as a legal, act of the people, the result of the
referendum may be construed as a compliance with the
substantiality of Article XV of the 1935 Constitution.
I
The facts that gave rise to these proceedings are
historical and well known. Generally, they may be taken
judicial notice of. They revolve around the purported
ratification of the Constitution of 1973 declared in
Proclamation 1102 issued by the President on January
17, 1973.
Pursuant to a joint resolution of the Congress sitting
as a constituent assembly approved on March 16, 1967,
delegates to a constitutional convention to propose
amendments to the Constitution of 1935 were elected in
accordance with the implementing law, Republic Act
6132, on November 10, 1970. Known as the
Constitutional Convention of 1971, the assembly began
its sessions on June 1, 1971. After encountering a lot of
difficulties, due to bitter rivalries over important
positions and committees and an incomprehensible fear
of overconcentrating powers in their officers, the
delegates went about their work in comparatively slow
pace, and by the third quarter of 1972 had finished
deliberations and second-reading voting only on an
insignificant number of proposals — until September 21,
1972, when the President, not altogether unexpectedly,
yet abruptly, issued Proclamation 1081 declaring
martial law throughout the country. An attempt was
made to have the Convention recessed until after the
lifting of martial law, and not long after the motion of
Delegate Kalaw to such effect was turned down, the
activities within the assembly shifted to high gear. As if
unmindful of the arrest and continued detention of
several of its members, the convention gathered swift
momentum in its work, and on November 30, 1972, it
approved by overwhelming vote the draft of a complete
constitution, instead of mere specific amendments of
particular portions of the Constitution of 1935. Needless
to say, before martial law was declared, there was full
and unlimited coverage of the workings in the
convention by the mass media. At the same

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time, public debates and discussions on various aspects


of proposed amendments were not uncommon.
Earlier, on November 22, 1972, the Convention had
Resolution No. 5843 proposing “to President Ferdinand
Marcos that a decree be issued calling a plebiscite for
ratification of the proposed new Constitution on
appropriate date as he shall determine and providing for
necessary funds therefor.” Acting under this authority,
December 1, 1972, the President issued Presidential
Decree No. 73 submitting the draft constitution for
ratification by the people at a plebiscite set for January
15, 1973. This order contained provisions more or less
similar to the plebiscite laws passed by Congress
relative to the past plebiscites held in connection with
previous proposed amendments.
In connection with the plebiscite thus contemplated,
General Order No. 17 was issued ordering and enjoining
the authorities to allow and encourage public and free
discussions on proposed constitution. Not only this,
subsequently, under date of December 17, 1972, the
President ordered the suspension the effects of martial
law and lifted the suspension of privilege of the writ
of habeas corpus insofar as activities connected with the
ratification of the draft constitution were concerned.
These two orders were not, however, to last very long.
On January 7, 1973, the President, invoking information
related to him that the area of public debate and
discussion had opened by his previous orders was being
taken advantage of by subversive elements to defeat the
purposes for which they were issued and to foment
public confusion, withdrew said orders and enjoined full
and stricter implementation of martial law.
In the meantime, the President had issued on
December 3, 1972 Presidential Decree No. 86 creating
Citizens Assemblies “so as to afford ample opportunities
for the citizenry to express their views on important
national issues” and one of the questions presented to
said assemblies was: “Do you like the plebiscite on the
proposed Constitution to be held later” So, the same
order of January 7, 1973, General Order No. 20, the
President ordered, “that the plebiscite scheduled to be
held January 15, 1973, be postponed until further
notice.”

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In the meanwhile also, on January 5, 1973, the
President issued Presidential Decree, No. 86-A providing
as follows: 

“PRESIDENTIAL DECREE NO. 86-A


STRENGTHENING AND DEFINING THE ROLE OF
BARANGAYS (CITIZENS ASSEMBLIES)
WHEREAS, on the basis of preliminary and initial reports
from the field as gathered from barangays (citizens assemblies)
that have so far been established, the people would like to
decide for themselves questions or issues, both local and
national, affecting their day-to-day lives and their future;
WHEREAS, the barangays (citizens assemblies) would like
themselves to be the vehicle for expressing the views of the
people on important national issues;
WHEREAS, such barangays (citizens assemblies) desire
that they be given legal status and due recognition as
constituting the genuine, legitimate and valid expression of the
popular will; and
WHEREAS, the people would like the citizens assemblies to
conduct immediately a referendum on certain specified
questions such as the ratification of the new Constitution,
continuance of martial law, the convening of Congress on
January 22, 1973, and the elections in November 1973
pursuant to the 1935 Constitution.
NOW, THEREFORE, I, FERDINAND E. MARCOS,
President of the Philippines, by virtue of the powers vested in
me by the Constitution as Commander-in-Chief of all Armed
Forces of the Philippines, do hereby declare as part of the law
of the land the following:
1. The present barangays (citizens assemblies) are created
under Presidential Decree No. 86 dated December 31, 1972,
shall constitute the base for citizen participation in
governmental affairs and their collective views shall be
considered in the formulation of national policies or programs
and, wherever practicable, shall be translated into concrete
and specific decision;
2. Such barangays (citizens assemblies) shall consider vital
national issues now confronting the country, like the holding of
the plebiscite on the new Constitution, the continuation of
martial rule, the convening of Congress on January 22, 1973,
and the holding of elections in November 1973, and others in
the future, which shall

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serve as guide or basis for action or decision by the national


government;
3. The barangays (citizens assemblies) shall conduct
between January 10 and 15, 1973, a referendum on important
national issues, including those specified in paragraph 2
hereof, and submit results thereof to the Department of Local
Governments Community Development immediately
thereafter, pursuant to express will of the people as reflected
in the reports gathered from the many thousands of barangays
(citizens assemblies) throughout the country.
4. This Decree shall take effect immediately.
Done in the City of Manila, this 5th day of January, in the
year of Our Lord, nineteen hundred and seventy three. 

And on January 7, 1973, this was followed by


Presidential Decree No. 86-B reading thus: 

“PRESIDENTIAL DECREE NO. 86-B


DEFINING FURTHER THE ROLE OF BARANGAYS
(CITIZENS ASSEMBLIES)
WHEREAS, since their creation pursuant to Presidential
Decree No. 86 dated December 31, 1972, the Barangays
(Citizens Assemblies) have petitioned the Office of the
President to submit them for resolution important national
issues;
WHEREAS, one of the questions persistently mentioned
refers to the ratification of the Constitution proposed by the
1971 Constitutional Convention;
WHEREAS, on the basis of the said petitions, it is evident
that the people believe that the submission of the proposed
Constitution to the Citizens Assemblies or Barangays should
be taken as a plebiscite in itself in view of the fact that freedom
of debate has always been limited to the leadership in political,
economic and social fields, and that it is now necessary to bring
this down to the level of the people themselves through the
Barangays or Citizens Assemblies;

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NOW THEREFORE, I, FERDINAND E. MARCOS,
President of the Philippines, by virtue of the powers in me
vested by the Constitution, do hereby order that important
national issues shall from time to time be referred to the
Barangays (Citizens Assemblies) for resolution in accordance
with Presidential Decree No. 86-A dated January 5, 1973 and
that the initial referendum shall include the matter of
ratification of the Constitution proposed by the 1971
Constitutional Convention.
The Secretary of the Department of Local Governments and
Community Development shall insure the implementation of
this Order.
Done in the City of Manila, this 7th day of January in the
year of Our Lord, nineteen hundred and seventy-three." 

And so it was that by January 10, 1973, when the


Citizens Assemblies thus created started the referendum
which was held from said date to January 15, 1973, the
following questions were submitted to them: 

“(1) Do you like the New Society?


“(2) Do you like the reforms under martial law?
“(3) Do you like Congress again to hold sessions?
“(4) Do you like the plebiscite to be held later?
“(5) Do you like the way President Marcos is running the
affairs of the government?.” 

but on January 11, 1973, six questions were added as


follows: 

“(1) Do you approve of the citizens assemblies as the base of


popular government to decide issues of national interests?

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“(2) Do you approve of the New Constitution?
“(3) Do you want a plebiscite to be called to ratify the new
Constitution?
“(4) Do you want the elections to be held in November, 1973
in accordance with the provisions of the 1935 Constitution?
“(5) If the elections would not be held, when do you want it
to be called?
“(6) Do you want martial law to continue?” 
It is not seriously denied that together with the
question the voters were furnished “comments” on the
said questions more or less suggestive of the answer
desired. It may assumed that the said “comments” came
from official sources, albeit specifically unidentified. As
petitioners point out, the most relevant of these
“comments” were the following:

“COMMENTS ON
“xxx xxx xxx
“QUESTION No. 2
But we do not want the Ad Interim Assembly to be
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.” 

The Solicitor General claims, and there seems to be


no

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showing otherwise, that the results of the referendum


were determined in the following manner: 

“Thereafter, the results of the voting were collated and sent


to the Department of Local Governments. The transmission of
the results was made by telegram, telephone, the provincial
government SSB System in each province connecting all towns;
the SSB communication of the PACD connecting most
provinces; the Department of Public Information Network
System; the Weather Bureau Communication System
connecting all provincial capitals and the National Civil
Defense Network connecting all provincial capitals. The
certificates of results were then flown to Manila to confirm the
previous figures received by the aforementioned means of
transmission. The certificates of results tallied with the
previous figures taken with the exception of few cases of
clerical errors.
“The Department adopted a system of regionalizing the
receiving section of the Citizens Assemblies operation at the
Department wherein the identity of the barrio and the
province was immediately given to a staff in charge of each
region. Every afternoon at 2:00 o’clock, the 11 regions
submitted the figures they received from the field to the
central committee to tabulate the returns. The last figures
were tabulated at 12 midnight of January 16, 1973 and early
morning of January 17, 1973 and were then communicated to
the President by the Department of Local Governments.” 

The development culminated in the issuance by the


President of Proclamation 1102 on January 17, 1973.
Said proclamation reads:

“PROCLAMATION NO. 1102 ANNOUNCING THE


RATIFICATION BY THE FILIPINO PEOPLE OF THE
CONSTITUTION PROPOSED BY THE 1971
CONSTITUTIONAL CONVENTION.
WHEREAS, the Constitution proposed by the nineteen
hundred seventy-one Constitutional Convention is subject to
ratification by the Filipino people;
WHEREAS, Citizens Assemblies were created in barrios in
municipalities and in districts/wards in chartered cities
pursuant to Presidential Decree No. 6, dated December 31,
1972, composed of all

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persons who are residents of the barrio, district or ward for at


least six months, fifteen years of age or over, citizens of the
Philippines and who are registered in the list of Citizen
Assembly members kept by the barrio, district or ward
secretary;
WHEREAS, the said Citizens Assemblies were establish
precisely to broaden the base of citizen participation in the
democratic process and to afford ample opportunity for the
citizen to express their views on important national issues;
WHEREAS, responding to the clamor of the people an
pursuant to Presidential Decree No. 86-A, dated January 5,
1973, the following questions were posed before Citizens’
Assemblies or Barangays: Do you approve of the New
Constitution? Do you still want a plebiscite to be called to
ratify the new Constitution?
WHEREAS, fourteen million nine hundred seventy-six
thousand five hundred sixty one (14,976,561) members of all
the Barangays (Citizens Assemblies) voted for the adoption of
the proposed Constitution, as against seven hundred forty-
three thousand eight hundred sixty nine (743,869) who voted
for its rejection; while on the question as to whether or not the
people would still like a plebiscite to be called to ratify the new
Constitution fourteen million two hundred ninety-eight
thousand eight hundred fourteen (14,298,814) answered that
there was no need for plebiscite and that the vote of the
Barangays (Citizens Assemblies) should be considered as a
vote in a plebiscite;
WHEREAS, since the referendum results show that more
than ninety-five (95) percent of the members of the Barangays
(Citizen Assemblies) are in favor of the New Constitution, the
Katipunan ng Mga Barangay has strongly recommended that
the new Constitution should already be deemed ratified by the
Filipino people;
NOW, THEREFORE, I, FERDINAND E. MARCOS,
President of the Philippines, by virtue of the powers in me
vested by the Constitution, do hereby certify and proclaim that
the Constitution proposed by the nineteen hundred and
seventy-one (1971) Constitutional Convention has been ratified
by an overwhelmingly majority of all of the votes cast by the
members of all the Barangays (Citizens Assemblies)
throughout the Philippines, and has thereby come into effect.
IN WITNESS WHEREOF, I have hereunto set my hand and
caused the seal of the Republic of the Philippines to be affixed.

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Done in the City of Manila, this 17th day of January, in the
year of Our Lord, nineteen hundred and seventy-three.” 

The first attempt to question the steps just


enumerated taken by the President was in the so-called
Plebiscite Cases, ten in number, which were filed by
different petitioners during the first half of December
1972.1 Their common target then was Presidential
Decree No. 73, but before the said cases could be
decided, the series of moves tending in effect to make
them moot and academic insofar as they referred
exclusively to the said Presidential Decree began to take
shape upon the issuance of Presidential Decree No. 86-A,
quoted above. And when Presidential Decree No. 86-B,
also above quoted, was issued and the six additional
questions which were first publicized on January 11,
1973 were known, together with the “comments,”
petitioners sensed that a new and unorthodox procedure
was being adopted to secure approval by the people of
the new Constitution, hence Counsel Tañada, not being
satisfied with the fate of his urgent motion for early
decision of the above ten cases dated January 12, 1973,
filed on January 15, 1973, his supplemental motion
seeking the prohibition against and injunction of the
proceedings going on. Principal objective was to prevent
that the President be furnished the report of the results
of the referendum and thereby disable him from
carrying out what petitioners were apprehensively
foreseeing would be done — the issuance of some kind of
proclamation, order or decree, declaring that the new
Constitution had been ratified. Reacting swiftly, the
Court resolved on the same day, January 15, which was
Monday, to consider the supplemental motion as a
supplemental petition and to require the

_______________
1 Charito Planas vs. Comelec, et al., L-35925, January 22, 1973;
Pablo C. Sanidad vs. Comelec,  L-35929, January 22, 1973; Gerardo
Roxas, etc., et al. vs. Comelec, et al., L-35940, January 22, 1973; Eddie
B. Monteclaro vs. Comelec, et al., L-35941, January 22, 1973; Sedfrey
A. Ordoñez, et al. vs. The National Treasurer of the Philippines, et al.,
L-35942, January 22, 1973; Vidal Tan, et al. vs. Comelec, et al., L-
35948, January 22, 1973; Jose W. Diokno, et al., vs. Comelec, L-35953,
January 22, 1973; Jacinto Jimenez vs. Comelec, et al., L-35961,
January 22, 1973; Raul M. Gonzales vs. Comelec, et al., L-35965,
January 22, 1973 and Ernesto Hidalgo vs. Comelec, et al., L-35979,
January 22, 1973.

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respondents to answer the same the next Wednesday,


January 17th, before the hour of the hearing of the
petition which set for 9:30 o’clock in the morning of that
day. The details what happened that morning form part
of the recital of facts the decision rendered by this Court
in the ten cases on January 22, 1973 and need not be
repeated here. Suffice it to state no that before the
hearing could be closed and while Counsel Tañada was
still insisting on his prayer for preliminary injunction or
restraining order, the Secretary of Justice arrived and
personally handed to the Chief Justice a copy
Proclamation 1102 which had been issued at about 11:00
o’clock that same morning. In other words, the valiant
and persistent efforts of petitioners and their counsels
were overtaken by adverse developments, and in the
mind of the majority of the members of the Court, the
cases had become academic. For my part, I took the view
that even on the basis of the supplemental petition and
the answer thereto filed by respondents, the Court could
already decide on the fundamental issue of the validity
Proclamation 1102, as Justices Zaldivar, Antonio and
Esguerra also believed, inasmuch as Counsel Tañada’s
pleading and argument had anticipated its issuance, but
the majority felt it was not ready to resolve the matter,
for lack, according them, of full ventilation, and so, the
decision reserved petitioners the filing of the
“appropriate” cases, evidently, the present ones.
II
At the threshold, I find myself confronted by a matter
which, although believed to be inconsequential by my
learned brethren, I strongly feel needs special attention.
I refer to the point raised by Counsel Arturo M.
Tolentino for respondent Gil J. Puyat and Jose Roy, who
have been sued as President and President Pro Tempore
of the Senate, to the effect that change in the
composition of the Supreme Court provided for the 1973
Constitution, from the 11-man tribunal under the 1935
Constitution to a 15-man Court, makes of these cases
which were filed after January 17, 1973 the date when
Proclamation 1102 declared the new Constitution as
ratified, political nature and beyond our jurisdiction.
The main consideration submitted in this connection is
that inasmuch as the number votes needed for a decision
of this Court has been increased

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from six to eight in ordinary cases and from eight to ten


for the declaration of unconstitutionality of a treaty,
executive agreement 2 or law, the Court would have to
resolve first as a prejudicial question whether the Court
is acting in these cases as the 15-man or the 11-man
Court, in which event, it would be faced with the
dilemma that if it acts either as the former or as the
latter, it would be prejudging the very matter in issue
one way or the other, and, in effect, it would be choosing
between two constitutions, which is a political
determination not within the Court’s competence.
While I agree that the problem is at first blush rather
involved, I do not share the view that the premises laid
down by counsel necessarily preclude this Court from
taking a definite stand on whether the Court is acting in
these cases as the 15-Man or the 11-man Court. I feel
very strongly that the issue should not be ignored or
dodged, if only to make the world know that the
Supreme Court of the Philippines is never incognizant of
the capacity in which it is acting, much less lacking in
courage or wisdom to resolve an issue that relates
directly to its own composition. What a disgrace it would
be to admit that this Supreme Court does not know, to
use a common apt expression, whether it is fish or fowl.
Withal, scholars and researchers who might go over our
records in the future will inevitably examine minutely
how each of us voted and upon what considerations we
have individually acted, and, indeed, doubts may arise
as to whether or not, despite the general result we might
announce, there had been the requisite number of votes
for a valid collegiate action.
For instance, it may be argued that the present cases
do not involve an issue of unconstitutionality, hence, if
we are acting as the 11-man Court, only six votes would
suffice to declare Proclamation 1102 ineffective, and if
upon analysis of our respective opinions it should be
inferable therefrom that six of us have considered the
matter before the Court as justiciable and at the same
time have found the procedure of ratification adopted in
Presidential Decrees 86-A and 86-B and related orders of
the President as not being in conformity with Article

_______________
2 Executive Agreements are not included in the corresponding
provision of the 1935 Constitution.
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XV of the old Constitution, a cloud would exist as to


efficacy of the dispositive portion of Our decision dismiss
these cases, even if we have it understood that by the
vote of justices in favor of such dismissal, We intended to
mean the implementation or enforcement of the new
Constitution now being done could continue.
Be that as it may, I am against leaving such an
important point open to speculation. By nature I am
averse to ambiguity and equivocation and as a member
of the Supreme Court, last thing I should knowingly
countenance is uncertainty as to the juridical
significance of any decision of the Court which is
precisely being looked upon as the haven in which
doubts are supposed to be authoritatively dispelled.
Besides, from very nature of things, one thing is
indubitably beyond dispute — we cannot act in both
capacities of a 15-man and an 11-man Court at the same
time, in like manner that it is inconceivable that the
1935 and 1973 Constitution can be considered by Us
both in force. Our inescapable duty is to make a choice
between them, according to what law and other
considerations inherent to our function dictate. I cannot
bear the thought that someone may someday say that
the Supreme Court of the Philippines once decided a
case without knowing the basis of its author to act or
that it was ever wanting in judicial courage to define the
same.
Accordingly, with full consciousness of my limitations
but compelled by my sense of duty and propriety to
straighten out this grave of issue touching on the
capacity in which the Court acting in these cases, I hold
that we have no alternative but adopt in the present
situation the orthodox rule that when validity of an act
or law is challenged as being repugnant constitutional
mandate, the same is allowed to have effect until the
Supreme Court rules that it is unconstitutional. Stated
differently, We have to proceed on the assumption that
the new Constitution is in force and that We are acting
in these cases as the 15-man Supreme Court provided
for there Contrary to counsel’s contention, there is here
no prejudgment for or against any of the two
constitutions. The truth of matter is simply that in the
normal and logical conduct governmental activities, it is
neither practical nor wise to defer the course of any
action until after the courts have ascertained

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their legality, not only because if that were to be the


rule, the functioning of government would
correspondingly be undesirably hesitative and
cumbersome, but more importantly, because the courts
must at the first instance accord due respect to the acts
of the other departments, as otherwise, the smooth
running of the government would have to depend
entirely on the unanimity of opinions among all its
departments, which is hardly possible, unless it is
assumed that only the judges have the exclusive
prerogative of making and enforcing the law, aside from
being its sole interpreter, which is contrary to all norms
of juridical and political thinking. To my knowledge,
there is yet no country in the world that has recognized
judicial supremacy as its basic governmental principle,
no matter how desirable we might believe the idea to be.
Indeed, it is not hard to visualize the difficulty if not
absurdity of Our acting on the assumption that this
Court is still functioning under the 1935 Constitution. It
is undeniable that the whole government, including the
provincial, municipal and barrio units and not excluding
the lower courts up to the Court of Appeals, is operating
under the 1973 Constitution. Almost daily, presidential
orders and decrees of the most legislative character
affecting practically every aspect of governmental and
private activity as well as the relations between the
government and the citizenry are pouring out from
Malacañang under the authority of said Constitution.
On the other hand, taxes are being exacted and
penalties in connection therewith are being imposed
under said orders and decrees. Obligations have been
contracted and business and industrial plans have been
and are being projected pursuant to them.
Displacements of public officials and employees in big
numbers are going on in obedience to them. For the ten
justices of the Supreme Court to constitute an island of
resistance in the midst of these developments, which
even unreasoning obstinacy cannot ignore, much less
impede, is unimaginable, let alone the absurd and
complicated consequences such a position entails in the
internal workings within the judiciary amount its
different components, what with the lower courts
considering such orders and decrees as forming part of
the law of the land in making their orders and decisions,
whereas the

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Supreme Court is holding, as it were, their effectivity at


bay if it is not being indifferent to or ignoring them.
It is suggested that the President, being a man of law,
committed to abide by the decision of the Supreme
Court, and if the Court feels that it cannot in the
meantime consider the enforcement of the new
Constitution, he can wait for its decision. Accepting the
truth of this assertion, it does necessarily follow that by
this attitude of the President, considers the Supreme
Court as still operating under the Constitution. Quite on
the contrary, it is a fact that he has given instructions
for the payment of the justices in accordance with the
rate fixed in the New Constitution. Not only that,
official  alter ego, the Secretary of Justice, has been
shoving this Court, since January 18, 1973, all matters
related to the administrative supervision of the lower
courts which by the new charter has been transferred
from the Department of Justice to the Supreme Court,
and as far as I know, President has not countermanded
the Secretary’s steps in that direction. That, on the other
hand, the President has not augmented the justices of
the Court to complete the prescribed number of fifteen
is, in my appraisal, of no consequence considering that
with the presence of ten justices who are the Court now,
there is a working quorum, and the addition of new
justices cannot in anyway affect the voting on the
constitutional questions now before Us because, while
there sufficient justices to declare by their unanimous
vote illegality of Proclamation 1102, the votes of the
justices to added would only be committed to upholding
the same, since they cannot by any standard be expected
to vote against legality of the very Constitution under
which they would be appointed.
Moreover, what makes the premise of presumptive
valid preferable and, even imperative, is that We are
dealing here with a whole constitution that radically
modifies or alters only the form of our government from
presidential parliamentary but also other
constitutionally institutions vitally affecting all levels of
society. It is, to mind, unrealistic to insist on that,
fundamentally, the 1973 Constitution is the same 1935
Constitution, with a few

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improvements. A cursory perusal of the former should
convince anyone that it is in essence a new one. While it
does retain republicanism as the basic governmental
tenet, the institutional changes introduced thereby are
rather radical and its social orientation is decidedly
more socialistic, just as its nationalistic features are
somewhat different in certain respects. One cannot but
note that the change embraces practically every part of
the old charter, from its preamble down to its amending
and effectivity clauses, involving as they do the
statement of general principles, the citizenship and
suffrage qualifications, the articles on the form of
government, the judiciary provisions, the spelling out of
the duties and responsibilities not only of citizens but
also of officers of the government and the provisions on
the national economy as well as the patrimony of the
nation, not to mention the distinctive features of the
general provisions. What is more, the transitory
provisions notably depart from traditional and orthodox
views in that, in general, the powers of government
during the interim period are more or less concentrated
in the President, to the extent that the continuation or
discontinuance of what is now practically a one-man-
rule, is even left to his discretion. Notably, the express
ratification of all proclamations, orders, decrees and acts
previously issued or done by the President, obviously
meant to encompass those issued during martial law, is
a commitment to the concept of martial law powers
being implemented by President Marcos, in defiance of
traditional views and prevailing jurisprudence, to the
effect that the Executive’s power of legislation during a
regime of martial law is all inclusive and is not limited
to the matters demanded by military necessity. In other
words, the new constitution unlike any other
constitution countenances the institution by the
executive of reforms which normally is the exclusive
attribute of the legislature.
Withal, the best proofs that by its expressed and
implied intent, the Constitution of 1973 is a new one, are
that (1) Section 16 of its Article XVII which provides
that this constitution shall “supersede the Constitution
of nineteen hundred and thirty-five and all amendments
thereto” and (2) its transitory provisions expressly
continue the effectivity of existing laws, offices and
courts as well as the tenure of all incumbent officials,
not adversely affected by it, which would

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have been unnecessary if the old constitution were being


merely amended.
The new Constitution, in its Section 10, Article XVII,
provides that “(T)he incumbent members of the
Judiciary (which include the Chief Justice and Associate
Justices of Supreme Court) may continue in office (under
the constitution) until they reach the age of seventy
years, etc.” By virtue of the presumptive validity of the
new charter, all of form part of the 15-man-Court
provided for therein correspondingly, We have in legal
contemplation, ceased in the meanwhile to be members
of the 11-man-Court in the 1935 Constitution. Should
the Court finally decide that the Constitution is invalid,
then We would automatically revert to our positions in
the 11-man- Court, otherwise, We would just continue to
be in our membership in the 15-man-Court, unless We
feel We cannot in conscience accept the legality of
existence. On the other hand, if it is assumed that We
are the 11-man-Court and it happens that Our collective
decision is in favor of the new constitution, it would be
problematical for any dissenting justice to consider
himself as included automatically in the 15-man-Court,
since that would tantamount to accepting a position he
does not honestly believe exists.
III
In brief, the main contention of the petitioners is that
Proclamation 1102 is invalid because the ratification of
the 1973 Constitution it purports to declare as having
taken place as a result of the referendum 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. More specifically, they maintain that the word
“election” in the said Article has already acquired a
definite accepted meaning out of the consistent holding
in the past of ratification plebiscites, and accordingly, no
other form of ratification can be considered
contemplated by the framers of the Old Constitution
than that which had been followed 1935, 1937, 1939,
1940, 1946 and 1967, the last three or four which were
held under the supervision of the Commission on

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Elections. Furthermore, they emphatically deny the


veracity of the proclaimed results of the referendum
because, according to them the referendum was a farce
and its results were manufactured or prefabricated,
considering that Mr. Francisco Cruz, who is supposed to
have submitted the final report to the President, which
served as basis for Proclamation 1102, had no official
authority to render the same, and it is inconceivable and
humanly impossible for anyone to have been able to
gather, tabulate and canvass the 15 million votes
allegedly reported within the short period of time
employed. Of course, they also contend that in any
event, there was no proper submission because martial
law  per se  creates constructive duress which deprives
the voters of the complete freedom needed for the
exercise of their right of choice and actually, there was
neither time nor opportunity for real debate before they
voted.
On the other hand, the position of the Solicitor
General as counsel for the respondents is that the
matter raised in the petitions is a political one which the
courts are not supposed to inquire into, and, anyway,
there has been a substantial compliance with Article XV
of the 1935 Constitution, inasmuch as, disregarding
unessential matters of form, the undeniable fact is that
the voting in the referendum resulted in the approval by
the people of the New Constitution.
I need not dwell at length on these variant positions
of the parties. In my separate opinion in the Plebiscite
Cases, I already made the observation that in view of the
lack of solemnity and regularity in the voting as well as
in the manner of reporting and canvassing conducted in
connection with the referendum, I cannot say that
Article XV of the Old Constitution has been complied
with, albeit I held that nonetheless, the Constitution of
1973 is already in force. In order, however, to make
myself clearer on some relevant points, I would like to
add a few considerations to what I have already said in
the former cases.
In my opinion in those cases, the most important
point I took into account was that in the face of the
Presidential certification through Proclamation 1102
itself that the New Constitution has been approved by a
majority of the people and

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having in mind facts of general knowledge which I have


judicial notice of, I am in no position to deny that the
result of the referendum was as the President had
stated. I can believe that the figures referred to in the
proclamation may not accurate, but I cannot say in
conscience that all of them are manufactured or
prefabricated, simply because I saw with own eyes that
people did actually gather and listen discussions, if brief
and inadequate for those who are abreast of current
events and general occurrences, and that they did vote. I
believe I can safely say that what I have seen have also
been seen by many others throughout the country and
unless it can be assumed, which honestly, I do not
believe to be possible, that in fact there were actually no
meetings held and no voting done in more places than
those wherein there were such meetings and votings, I
am not prepared to discredit entirely the declaration
that there was voting and that the majority of the votes
were in favor of the New Constitution. If in fact there
were substantially less than 14 million votes of approval,
the real figure, in my estimate, could still be significant
enough and legally sufficient to serve as basis for a valid
ratification.
It is contended, however, that the understanding was
that the referendum among the Citizens Assemblies was
to be in the nature merely of a loose consultation and not
an outright submission for purposes of ratification. I can
see that at the outset, when the first set of questions was
released, such may have been the idea. It must not be
lost sight of, however, that if the newspaper reports are
to be believed, and I say this only because petitioners
would consider the newspapers as the official gazettes of
the administration, the last set of six questions were
included precisely because the reaction to the idea of
mere consultation was that the people wanted greater
direct participation, thru the Citizens Assemblies, in
decision-making regarding matters of vital national
interest. Thus, looking at things more understandingly
and realistically the two questions emphasized by
counsel, namely, (1) Do you approve of the New
Constitution? and (2) Do you want plebiscite to be called
to ratify the new Constitution? should be considered no
longer as loose consultations but as direct inquiries
about the desire of the voters regarding the matters
mentioned. Accordingly, I take it that if the majority had

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expressed disapproval of the new Constitution, the


logical consequence would have been the complete
abandonment of the idea of holding any plebiscite at all.
On the other hand, it is very plain to see that since the
majority has already approved the new Constitution, a
plebiscite would be superfluous. Clear as these
rationalizations may be, it must have been thought that
if the holding of a plebiscite was to be abandoned, there
should be a direct and expressed desire of the people to
such effect in order to forestall as much as possible any
serious controversy regarding the non-holding of the
plebiscite required by the letter of Section 16 of Article
XVII, the effectivity clause, of the new Constitution.
Oddly enough, the “comments” accompanying the
questions do strongly suggest this view. And as it turned
out, the majority found no necessity in holding a
plebiscite.
In connection with the question, Do you approve of
the New Constitution? capital is being made of the point
that as so framed, the thrust of the said question does
not seek an answer of fact but of opinion. It is argued
that it would have been factual were it worded
categorically thus — Do you approve the New
Constitution? The contention would have been weighty
were it not unrealistic. I remember distinctly that the
observation regarding the construction of the subject
question was not originally made by any of the talented
counsels for petitioners. It came from Mr. Justice Fred
Ruiz Castro whose mastery of the English language can
rightly be the cause of envy of even professors of
English. None of the other members of the Court, as far
as I can recall, ever noticed how the said question is
phrased, or if anyone of Us did, I am not aware that he
gave it more than passing attention. What I mean is
that if neither any of the distinguished and learned
counsels nor any member of the Court understood the
said question otherwise than calling for a factual answer
instead of a mere opinion, how could anyone expect the
millions of unlettered members of the Citizens
Assemblies to have noticed the point brought out by
Justice Castro? Truth to tell, I myself did not realize the
difference until Justice Castro gave it emphasis.
Besides, reading the question in the light of the
accompanying “comment” corresponding to it in
particular, I am certain that any one who answered the
same understood it in no other sense than a direct
inquiry as to whether or not, as a matter of fact,

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he approves the New Constitution, and naturally,


affirmative answer must be taken as a categorical vote
of approval thereof, considering, particularly, that
according to the reported result of the referendum said
answer was even coupled with the request that the
President defer the convening of the Interim National
Assembly.
It is also contended that because of this reference in
answer to that question to the deferment of the
convening of the interim assembly, the said answer is at
best a conditional approval not proper nor acceptable for
purposes of ratification plebiscite. The contention has no
basis. In interest of accuracy, the additional answer
proposed in pertinent “comment” reads as follows: “But
we do not want Ad Interim Assembly to be convoked
etc.” On the assumption that the actual answer, as
reported, was of similar tenor, it is not fair to ascribe to
it the imposition of a condition. At most, the intention is
no more than a suggestion or a wish.
As regards said “comments,” it must be considered
that a martial law was declared, the circumstances
surrounding making of the Constitution acquired a
different and more meaningful aspect, namely, the
formation of a new society. From the point of view of the
President and on the basis of intelligence reports
available to him, the only way to meet situation created
by the subversive elements was to introduce
immediately effective reforms calculated to redeem the
people from the depth of retrogression and stagnation
caused by rampant graft and corruption in high places,
influence peddling, oligarchic political practices, private
armies, anarchy, deteriorating conditions of peace and
order, the so inequalities widening the gap between the
rich and the poor, and many other deplorable long
standing maladies crying for early relief and solution.
Definitely, as in the case of rebellious movement that
threatened the Quirino Administration, the remedy was
far from using bullets alone. If a constitution was to be
approved as an effective instrument towards the
eradication of such grave problems, it had to be
approved without loss of time and sans the cumbersome
processes that, from the realistic viewpoint, have in the
past obstructed rather than hastened the progress of the
people. Stated otherwise, in the context of actualities,
the evident

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objective in having a new constitution is to establish new


directions in the pursuit of the national aspirations and
the carrying out of national policies. Only by bearing
these considerations in mind can the “comments”
already referred to be properly appreciated. To others
said “comments” may appear as evidence of corruption of
the will of those who attended the assemblies, but
actually, they may also be viewed in the same light as
the sample ballots commonly resorted to in the elections
of officials, which no one can contend are per se means of
coercion. Let us not forget that the times are abnormal,
and prolonged dialogue and exchange of ideas are not
generally possible, nor practical, considering the need for
faster decisions and more resolute action. After all
voting on a whole new constitution is different from
voting on one, two or three specific proposed
amendments, the former calls for nothing more than a
collective view of all the provisions of the whole charter,
for necessarily, one has to take the good together with
the bad in it. It is rare for anyone to reject a constitution
only because of a few specific objectionable features, no
matter how substantial, considering the ever present
possibility that after all it may be cured by subsequent
amendment. Accordingly, there was need to indicate to
the people the paths open to them in their quest for the
betterment of their conditions, and as long as it is not
shown that those who did not agree to the suggestions in
the “comments” were actually compelled to vote against
their will, I am not convinced that the existence of said
“comments” should make any appreciable difference in
the court’s appraisal of the result of the referendum.
I must confess that the fact that the referendum was
held during martial law detracts somehow from the
value that the referendum would otherwise have had. As
I intimated, however, in my former opinion, it is not fair
to condemn and disregard the result of the referendum
barely because of martial law  per se. For one thing,
many of the objectionable features of martial law have
not actually materialized, if only because the
implementation of martial law since its inception has
been generally characterized by restraint and
consideration, thanks to the expressed wishes of the
President that the same be made “Philippine style,”
which means without

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the rigor that has attended it in other lands and other
times. Moreover, although the restrictions on the
freedom of speech, the press and movement during
martial law do have their corresponding adverse effects
on the area of information which should be open to a
voter, in its real sense what “chills” his freedom of choice
and mars his exercise of discretion is suspension of the
privilege of the writ of  habeas corpus. The reason is
simply that a man may freely and correctly vote even if
the needed information he possesses as to the candidates
or issues being voted upon is more or less incomplete,
but when he is subject to arrest and detention without
investigation and without being informed of the cause
thereof, that is something else which may actually cause
him to cast a captive vote. Thus it is the suspension of
the writ of habeas corpus accompanying martial law that
can cause possible restraint on the freedom choice in an
election held during martial law. It is a fact, however,
borne by history and actual experience, that in the
Philippines, the suspension of the privilege of the
writ  habeas corpus  has never produced any chilling
effect upon the voters, since it is known by all that only
those who run afoul the law, saving inconsequential
instances, have any cause for apprehension in regard to
the conduct by them of the normal activities of life. And
so it is recorded that in the elections 1951 and 1971, held
while the privilege of writ of  habeas corpus  was under
suspension, the Filipino voters gave the then opposition
parties overwhelming if not sweeping victories, in
defiance of the respective administrations that ordered
the suspensions.
At this juncture, I think it is fit to make it clear that I
am not trying to show that the result of the referendum
may considered as sufficient basis for declaring that the
New Constitution has been ratified in accordance with
the amending clause of the 1935 Constitution. I reiterate
that in point of law, I find neither strict nor substantial
compliance. The foregoing discussion is only to counter,
if I may, certain impression regarding the general
conditions obtaining during and in relation to the
referendum which could have in one way or another
affected the exercise of the freedom of choice and the use
of discretion by the members of the Citizens Assemblies,
to the end that as far as the same conditions may be
relevant in my subsequent discussions of the acceptance
by the people of the New Constitution they may also be
considered.

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IV
It is my sincere conviction that the Constitution of
1973 has been accepted or adopted by the people. And on
this premise, my considered opinion is that the Court
may no longer decide these cases on the basis of purely
legal considerations. Factors which are non-legal but
nevertheless ponderous and compelling cannot be
ignored, for their relevancy is inherent in the issue itself
to be resolved.
In my opinion in the Plebiscite Cases, I joined my
colleagues in holding that the question of whether or not
there was proper submission under Presidential Decree
No. 73 is justiciable, and I still hold that the propriety of
submission under any other law or in any other form is
constitutionally a fit subject for inquiry by the courts.
The ruling in the decided cases relied upon by
petitioners are to this effect. In view, however, of the
factual background of the cases at bar which include
ratification itself, it is necessary for me to point out that
when it comes to ratification, I am persuaded that there
should be a boundary beyond which the competence of
the courts no longer has any reason for being, because
the other side is exclusively political territory reserved
for their own dominion by the people.
The main basis of my opinion in the previous cases
was acceptance by the people. Others may feel there is
not enough indication of such acceptance in the record
and in the circumstances the Court can take judicial
notice of. For my part, I consider it unnecessary to be
strictly judicial in inquiring into such fact. Being
personally aware, as I have already stated, that the
Citizens Assemblies did meet and vote, if irregularly and
crudely, it is not for me to resort, for the purposes of
these cases, to judicial tape and measure, to find out
with absolute precision the veracity of the total number
of votes actually cast. After all, the claims that upon a
comparison of conflicting reports, cases of excess votes
may be found, even if extrapolated will not, as far as I
can figure out, suffice to overcome the outcome officially
announced. Rather than try to form a conclusion out of
the raw evidence before Us which the parties did not
care to really complete, I feel safer by

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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.

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1. Consider that in the present case what is involved
is not just an amendment of a particular provision of an
existing Constitution; here, it is, as I have discussed
earlier above, an entirely new Constitution that is being
proposed. This important circumstance makes a great
deal of difference.
No less than counsel Tolentino for herein respondents
Puyat and Roy, who was himself the petitioner in the
case I have just referred to is, now inviting Our
attention to the exact language of Article XV and
suggesting that the said Article may be strictly applied
to proposed amendments but may hardly govern the
ratification of a new Constitution. It is particularly
stressed that the Article specifically refers to nothing
else but “amendments to this Constitution” which if
ratified “shall be valid as part of this Constitution.”
Indeed, how can a whole new constitution be by any
manner of reasoning an amendment to any other
constitution and how can it, if ratified, form part of such
other constitution? In fact, in the Tolentino case I
already somehow hinted this point when I made
reference in the resolution denying the motion for
reconsideration to the fact that Article XV must be
followed “as long as any amendment is formulated and
submitted under the aegis of the present Charter.” Said
resolution even added. “(T)his is not to say that the
people may not, in the exercise of their inherent
revolutionary powers, amend the Constitution or
promulgate an entirely new one otherwise.”
It is not strange at all to think that the amending
clause of a constitution should be confined in its
application only to proposed changes in any part of the
same constitution itself, for the very fact that a new
constitution is being adopted implies a general intent to
put aside the whole of the old one, and what would be
really incongrous is the idea that in such an eventuality,
the new Constitution would subject its going into effect
to any provision of the constitution it is to supersede, to
use the language precisely of Section 6, Article XVII, the
effectivity clause, of the New Constitution. My
understanding is that generally, constitutions are self-
born, they very rarely, if at all, come into being, by
virtue of any provision of another
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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

_______________
3 It must be recalled that in the Tolentino case, the Constitutional
Convention intended to submit one amendment which was to form part
of the Constitution still being prepared by it separately from the rest of
the other parts of such constitution still unfinished, and We held that a
piece-meal submission was improper. We had no occasion to express
any view as to how a whole new Constitution may be ratified.

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regular session. It must be assumed that being


composed of experienced, knowledgeable and courageous
members, it would not have been difficult for said
parliamentary bodies to have conceived some ingenious
way of giving evidence of their determined adherence to
the Constitution under which they were elected.
Frankly, much as I admire the efforts of the handful of
senators who had their picture taken in front of the
padlocked portals of the Senate chamber, I do not feel
warranted to accord such act as enough token of
resistance. As counsel Tolentino has informed the court,
there was noting to stop the senators and the
congressmen to meet in any other convenient place and
somehow officially organize themselves in a way that
can logically be considered as a session, even if nothing
were done than to merely call the roll and disperse.
Counsel Tolentino even pointed out that if there were
not enough members to form  a quorum, any smaller
group could have ordered the arrest of the absent
members. And with particular relevance to the present
cases, it was not constitutionally indispensable for the
presiding officers to issue any call to the members to
convene, hence the present prayers for mandamus  have
no legal and factual bases. And to top it all, quite to the
contrary, the records of the Commission on Elections
show that at least 15 of 24 senators and over 95 out of
less than 120 members of the House of Representatives,
have officially and in writing exercised the option given
to them to join the Interim National Assembly under the
New Constitution, thereby manifesting their acceptance
of the new charter.
Now, having these facts in mind, and it being obvious
that of the three great departments of the government
under the 1935 Constitution, two, the Executive and the
Legislative, have already accepted the New Constitution
and recognized its enforceability and enforcement, I
cannot see how this Supreme Court can by judicial fiat
hold back the political developments taking place and for
the sake of being the guardian of the Constitution and
the defender of its integrity and supremacy make its
judicial power prevail against the decision of those who
were duly chosen by the people to be their authorized
spokesmen and representatives. It is not alone the
physical futility of such a gesture that concerns me.
More than that,

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there is the stark reality that the Senators and the


Congressmen, no less than the President, have taken the
same oath of loyalty to the Constitution that we, the
Justices, have taken and they are, therefore, equally
bound with Us to preserve and protect the Constitution.
If as the representatives of the people, they have already
opted to accept the New Constitution as the more
effective instrument for fulfillment of the national
destiny, I really wonder if there is even any idealistic
worth in our desperately clinging by Ourselves alone to
Our sworn duty vis-a-vis the 1935 Constitution.
Conscious of the declared objectives of the new
dispensation and cognizant of the decisive steps being
with the least loss of time, towards their
accomplishment, cannot but feel apprehensive that
instead of serving the best interests of our people, which
to me is in reality the real meaning of our oath of office,
the Court might be standing in the way of the very thing
our beloved country needs to retrieve its past glory and
greatness. In other words, it is my conviction that what
these cases demand most of all is not a decision
demonstrative of our legal erudition and Solomonic
wisdom but an all rounded judgment resulting from the
consideration of all relevant circumstances, principally
the political, or, in brief, a decision more political than
legal, which a court can render only by deferring to the
apparent judgment of the people and the announcement
thereof by the political departments of the government
and declaring the matter non-justiciable.
4. Viewed from the strictly legal angle and in the light
of judicial methods of ascertainment, I cannot agree with
the Solicitor General that in the legal sense, there has
been at least substantial compliance with Article XV of
the 1935 Constitution, but what I can see is that in a
political sense, the answers to the referendum questions
were not given by the people as legal conclusions. I take
it that when they answered that by their signified
approval of the New Constitution, they do not consider it
necessary to hold a plebiscite, they could not have had in
mind any intent to do what was constitutionally
improper. Basically accustomed to proceed along
constitutional channels, they must have acted in the
honest conviction that what was being done was in
conformity with

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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

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consider this view out of respect to the import of


Tolentino vs. Comelec,  supra, would be well advised to
bear in mind that the case was decided in the context of
submission, not accomplished ratification.
V
The language of the disputed amending clause of the
1935 Constitution should not be deemed as the be all
and end all the nation. More important than even the
Constitution itself with all its excellent features, are the
people living under it — their happiness, their posterity
and their national destiny. There is nothing that cannot
be sacrificed in the pursuit of these objectives, which
constitute the totality of the reasons for national
existence. The sacred liberties and freedom enshrined in
it and the commitment and consecration thereof to the
forms of democracy we have hitherto observed are mere
integral parts of this totality; they are less important by
themselves.
What seems to me to be bothering many of our
countrymen now is that by denying the present
petitions, the Court would be deemed as sanctioning, not
only the deviations from traditional democratic concepts
and principles but also the qualified curtailment of
individual liberties now being practiced, and this would
amount, it is feared, to a repudiation of our oath to
support and defend the Constitution of 1935. This is
certainly something one must gravely ponder upon.
When I consider, however, that the President, the Vice
President, the members of both Houses of Congress, not
to speak of all executive departments and bureaus under
them as well as all the lower courts, including the Court
of Appeals have already accepted the New Constitution
as an instrument of a meaningful nationwide-all-level
change in our government and society purported to
make more realistic and feasible, rather than idealistic
and cumbersomely deliberative, the attainment of our
national aspirations, I am led to wonder whether or not
we, as members of the Supreme Court are being true to
our duty to our people by refusing to follow suit and
accept the realities of the moment, despite our being
convinced of the sincerity and laudableness of their
objectives, only because we feel that by the people’s own
act of ratifying the

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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.

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In this momentous juncture of our history, what is
imperative is national unity. May God grant that the
controversies the events leading to these cases have
entail will heal after the decision herein is promulgated,
so that all us Filipinos may forever join hands in the
pursuit of our national destiny.
IN VIEW OF ALL THE FOREGOING, I vote to
dismiss these petitions for  mandamus  and prohibition
without costs.
 
MAKASIAR, J., concurring:
Assuming, without conceding, that Article XV of the
1935 Constitution prescribes a procedure for the
ratification of constitutional amendments or of a new
Constitution and that such procedure was no complied
with, the validity of Presidential Proclamation No. 1102
is a political, not a justiciable, issue; for it is inseparably
or inextricably link with and strikes at, because it is
decisive of, the validity of ratification and adoption of, as
well as acquiescence of people in, the 1973 Constitution
and the legitimacy of the government organized and
operating thereunder. And being political, it is beyond
the ambit of judicial inquiry, tested by the definition of a
political question enunciated 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, 522-526,
1892).

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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

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submission as they are considered merely directory after


such ratification or adoption or acquiescence by the
people. As Mr. Justice Brewer, then of the Kansas State
Supreme Court and later Associate Justice of the
Federal Supreme Court, stated in re Prohibitory
Amendment Cases (24 Kansas 700 & 710 Reprint 499,
506): “The two important, vital elements of the
Legislature and a majority of the popular vote. Beyond
these, other provisions are mere machineries and forms.
They may not be disregarded, because by them certainty
as to the essentials is secured. But they are not
themselves the essentials.” (Cited in Larken vs. Gronna,
285 NW 59, 61-64, 1939).
This was the ruling by the American Supreme Court
in the 1939 case of Coleman vs. Miller (307 U.S. 433, 83
L.ed. 1385), where Chief Justice Hughes, speaking for
the majority, stated that:

“x x x 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 x  x  x. 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,

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whether submission, intervening procedure or Congressional


determination of ratification conforms to the commands of the
Constitution, calls for decisions by a ‘political department’ of
questions of a type which this Court has frequently designated
‘political.’ And decision of a ‘political question’ by the ‘political
department’ to which the Constitution has committed it
‘conclusively binds the judges, as well as all other officers,
citizens and subjects of...government.’ Proclamation under
authority of Congress that an amendment has been ratified
will carry with it a solemn assurance by the Congress that
ratification has taken place as the Constitution commands.
Upon this assurance a proclaimed amendment must be
accepted as a part of the Constitution, leaving to the judiciary
its traditional authority of interpretation. To the extent that
the Court’s opinion in the present case even impliedly assumes
a power to make judicial interpretation of the exclusive
constitutional authority of Congress over submission and
ratification of amendments, we are unable to agree...”
(American Constitutional Issues, by Pritchett, 1962 Ed., p. 44).

The doctrine in the aforesaid case of Coleman vs.


Miller was adopted by Our Supreme Court  in
toto in Mabanag vs. Lopez Vito (78 Phil. 1).
The ruling in the cases of Gonzales vs. Comelec, et al.
(L-28224, Nov. 29, 1967, 21 SCRA 774) and Tolentino vs.
Comelec, et al. (L-34150, Oct. 16, 1971, 41 SCRA 702) on
which petitioners place great reliance — that the courts
may review the propriety of a submission of a proposed
constitutional amendment  before the ratification or
adoption of such proposed amendment by the sovereign
people, hardly applies to the cases at bar; because the
issue involved in the aforesaid cases refers to only the
propriety of the submission of a proposed constitutional
amendment to the people for ratification, unlike the
present petitions, which challenge inevitably the validity
of the 1973 Constitution after its ratification or adoption
thru acquiescence by the sovereign people. As heretofore
stated, it is specious and pure sophistry to advance the
reasoning that the present petitions pray only for the
nullification of the 1973 Constitution and the
government operating thereunder.
It should be stressed that even in the Gonzales
case, supra, We held that:

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“Indeed, the power to amend the Constitution or to propose


amendments thereto is not included in the general grant of
legislative powers to Congress. It is part of the inherent powers
of the people — as the repository of sovereignty in a republican
state, such as ours — to make, and hence, to amend their own
Fundamental Law. Congress may propose amendments to the
same explicitly grants such power. Hence, when exercising the
same, it is said that Senators and Members of the House of
Representatives act,  not  as members, but as component
elements of a  constituent assembly. When acting as such, the
members of  Congress  derive their authority from the
Constitution,  unlike the people, when performing the same
function, for their authority does  not  emanate from the
Constitution — they are  the very source of  all powers of
government, including the Constitution itself.” (21 SCRA 787)

We did not categorically and entirely overturn the


doctrine in Mabanag vs. Lopez Vito (78 Phil. 1) that both
the proposal to amend and the ratification of such a
constitutional amendment are political in nature
forming as they do the essential parts of one political
scheme — the amending process. WE merely stated
therein that the force of the ruling in the said case
of  Mabanag vs. Lopez Vito  has been weakened by
subsequent cases. Thus, We pronounced therein:

It is true that in Mabanag vs. Lopez Vito, this Court


characterizing the issue submitted thereto as a political one,
declined to pass upon the question whether or not a given
number of votes cast in Congress in favor of a proposed
amendment to the Constitution — which was being submitted
to the people for ratification — satisfied the three fourths vote
requirement of the fundamental law. The force of this
precedent has been weakened, however, by Suanes vs. Chief
Accountant of the Senate, Avelino vs. Cuenco, Tañada vs.
Cuenco and Macias vs. Commission on Elections. In the first,
we held the officers and employees of the Senate Electoral
Tribunal are supervision and control, not of that of the Senate
President, claimed by the latter; in the second, this Court
proceeded to determine the number of Senators necessary for a
quorum in the Senate; in the third we nullified the election, by
Senators belonging to the party having the largest number of
votes in said chamber purporting to act on behalf of the party
having the second largest number of votes therein, of two (2)
Senators belonging to the first party, as members, for the
second party, of the Senate Electoral Tribunal; and in the
fourth, we declared unconstitutional an act of
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Congress purporting to apportion the representative districts


for the House of Representatives, upon the ground that the
apportionment had not been made as may be possible
according to the number of inhabitants of each province. Thus
we rejected the theory advanced in these four (4) cases, that
the issues therein raised were political questions the
determination of which is beyond judicial review. (21 SCRA pp.
785-786);

for which reason We concluded

“In short, the issue whether or not a resolution of Congress


before acting as a constituent assembly — violates the
Constitution is essentially justiciable, not political, and, hence,
subject to judicial review, and to the extent that this view may
be inconsistent with the stand taken in Mabanag vs. Lopez Vito,
the latter should be deemed modified accordingly.” (p. 787,
emphasis supplied.)

In the Tolentino case,  supra, We reiterated the


foregoing statements (41 SCRA 703-714).
The inevitable consequence therefore is that the
validity of the ratification or adoption of or acquiescence
by the people in the 1973 Constitution, remains a
political issue removed from the jurisdiction of this
Court to review.
One more word about the Gonzales and Tolentino
cases. Both primarily stressed on the impropriety of the
submission of a proposed constitutional amendment.
Courts do not deal with propriety or wisdom or absence
of either of an official act or of a law. Judicial power
concerns only with the legality or illegality,
constitutionality or unconstitutionality of an act: it
inquires into the existence of power or lack of it. Judicial
wisdom is not to be pitted against the wisdom of the
political department of the government.
The classic example of an illegal submission that did
not impair the validity of the ratification or adoption of a
new Constitution is the case of the Federal Constitution
of the United States. It should be recalled that the
thirteen (13) original states of the American Union —
which succeeded in liberating themselves from England
after the revolution which

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began on April 19, 1775 with the skirmish at Lexington,


Massachusetts and ended with the surrender of General
Cornwallis at Yorktown, Virginia, on October 19,
1781(Encyclopedia Brit., Vol. I, 1933 Ed., p. 776) —
adopted their Articles of Confederation and Perpetual
Union, that was written from 1776 to 1777 and ratified
on March 1, 1781 (Encyclopedia Brit., Vol. II, 1966 Ed.,
p. 525). About six thereafter, the Congress of the
Confederation passed a resolution on February 21, 1787
calling for a Federal Constitutional Convention  “for the
sole and express purpose of revising the articles of
confederation  x  x  x.” (Appendix I, Federalist, Modern
Library ed., p. 577, emphasis supplied).
The Convention convened at Philadelphia on May 14,
1787. Article XIII of the Articles of Confederation and
Perpetual Union stated specifically:

“The articles of this confederation shall be inviolably


observed in every state, and the union shall be perpetual; nor
shall any alterations at any time hereafter be made in any of
them; unless such alteration be agreed to in a congress of the
united states, and be afterwards confirmed by the legislatures
of every state.” (See the Federalist, Appendix II, Modern
Library Ed., 1937, p. 584; emphasis supplied.)
But the foregoing requirements prescribed by the
Articles of Confederation and Perpetual Union for the
alteration for the ratification of the Federal Constitution
as drafted by the Philadelphia Convention were not
followed. Fearful the said Federal Constitution would
not be ratified by the legislatures as prescribed, the
Philadelphia Convention adopted a resolution
requesting the Congress of the Confederation to pass a
resolution providing that the Constitution should be
submitted to elected state conventions and if ratified by
the conventions in nine (9) states, not necessarily in all
thirteen (13) states, the said Constitution shall take
effect.
Thus, history Professor Edward Earle Mead of
Princeton University recorded that:

“It would have been a counsel of perfection to consign the


new

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constitution to the tender mercies of the legislatures of each


and all of the 13 states. Experience clearly indicated that
ratification then would have had the same chance as the
scriptural camel passing through the eye of a needle.  It was
therefore determined to recommend to Congress that the new
Constitution be submitted to conventions in the several states
especially elected to pass upon it and that, furthermore, the new
government should go into effect if and when it should be
ratified by nine of the thirteen states  x  x  x.” (The Federalist,
Modern Library Ed., 1937, Introduction by Edward Earle
Mead, pp. viii-ix; emphasis supplied)

Historian Samuel Eliot Morison similarly recounted:

“The Convention, anticipating that the influence of many


state politicians would be Antifederalist, provided for
ratification of the Constitution by popularly elected
conventions in each state. Suspecting that Rhode Island, at
least, would prove recalcitrant, it declared that the
Constitution would go into effect as soon as nine states
ratified. The convention method had the further advantage
that judges, ministers, and others ineligible to state
legislatures, could be elected to a convention. The nine-state
provision was, of course, mildly revolutionary. But the
Congress of the Confederation, still sitting in New York to
carry on federal government until relieved, formally submitted
the new constitution to the states and politely faded out before
the first presidential inauguration.” (The Oxford History of the
Am. People, by Samuel Eliot Morison, 1965 ed., p. 312).

And so the American Constitution was ratified by


nine (9) states on June 21, 1788 and by the last four
states on May 29, 1790 (12 C.J. p. 679 footnote, 16
C.J.S., 27 — by the state conventions and not by all
thirteen (13) state legislatures as required by Article
XIII of the Articles of Confederation and Perpetual
Union aforequoted  —  and in spite of the fact that the
Federal Constitution as originally adopted suffers from
two basic infirmities, namely,  the absence of a bill of
Rights and of a provision affirming the power of judicial
review.
The liberties of the American people were guaranteed
by subsequent amendments to the Federal Constitution.
The doctrine of judicial review has become part of
American constitutional law only by virtue of a judicial
pronouncement

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by Chief Justice Marshall in the case of  Marbury vs.


Madison (1803, 1 Cranch 137).
Until this date, no challenge has been launched
against the validity of the ratification of the American
Constitution, nor against the legitimacy of the
government organized and functioning thereunder.
In the 1946 case of Wheeler vs. Board of Trustees (37
SE 2nd 322, 326-330), which enunciated the principle
that the validity of a new or revised Constitution does
not depend on the method of its submission or
ratification by the people, but  on the fact or fiat or
approval or adoption or acquiescence by the people which
fact of ratification or adoption or acquiescence is all that
is essential, the Court cited precisely the case of the
irregular revision and ratification by state conventions
of the Federal Constitution, thus: 

“No case identical in its facts with the case now under
consideration has been called to our attention, and we have
found none. We think that the principle which we apply in the
instant case was very clearly applied in the creation of the
constitution of the United States. The convention created by a
resolution of Congress had authority to do one thing, and one
only, to wit, amend the articles of confederation. This they did
not do, but submitted to the sovereign power, the people, a new
constitution. In this manner was the constitution of the United
States submitted to the people and it became operative as the
organic law of this nation when it had been properly adopted by
the people.
“Pomeroy’s Constitutional Law, p. 55, discussing the
convention that formulated the constitution of the United
States, has this to say: ‘The convention proceeded to do, and
did accomplish, what they were not authorized to do by a
resolution of Congress that called them together. That
resolution plainly contemplated amendments to the articles of
confederation, to be submitted to and passed by the Congress,
and afterwards ratified by all the State legislatures, in the
manner pointed out by the existing organic law. But the
convention soon became convinced that any amendments were
powerless to effect a cure; that the disease was too deeply seated
to be reached such tentative means. They saw that the system
they were called to improve must be totally abandoned, and
that the national idea must be re-established at the center of
their political society. It was
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objected by some members, that they had no power, no


authority, to construct a new government. They had no
authority, if their decisions were to be final; and no authority
whatsoever, under the articles of confederation, to adopt the
course they did. But they knew that their labors were only to
be suggestions; and that they as well as any private
individuals, and any private individuals as well as they, had a
right to propose a plan of government to the people for their
adoption. They were, in fact, a mere assemblage of private
citizens, and their work had no more binding sanction than a
constitution drafted by Mr. Hamilton in his office would have
had. The people, by their expressed will, transformed this
suggestion, this proposal, into an organic law, and the people
might have done the same with a constitution submitted to
them by a single citizen.’
xx xx xx xx xx xx xx
“xx  When the people adopt a completely revised or new
constitution, the framing or submission of the instrument is not
what gives it binding force and effect. The fiat of the people and
only the fiat of the people, can breathe life into a constitution.
xx xx xx xx xx xx
“x x x We do not hesitate to say that a court is never justified
in placing by implication a limitation upon the sovereign. This
would be an authorized exercise of sovereign power by the court.
In State v. Swift, 69 Ind. 505, 519, the Indiana Supreme Court
said: ‘The people of a State may form an original constitution,
or abrogate an old one and form a new one, at any time,
without any political restriction except the constitution of the
United States; x x x.’ (37 SE 327-328, 329, emphasis supplied.) 

In the 1903 case of Weston vs. Ryan, the Court held:

“It remains to be said that if we felt at liberty to pass upon


this question, and were compelled to hold that the act of
February 23, 1887, is unconstitutional and void, it would not,
in our opinion, by any means follow that the amendment is not
a part of our state Constitution. In the recent case of Taylor vs.
Commonwealth  (Va.) 44 S.E. 754,  the Supreme Court of
Virginia hold that their state Constitution of 1902, having been
acknowledged and accepted by the officers administering the
state government, and by the people, and being in force without
opposition, must be regarded as an existing Constitution
irrespective of the question as to whether or not the

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convention which promulgated it had authority so to do without


submitting it to a vote of the people. In Brittle v. People, 2 Neb.
198, is a similar holding as to certain provisions of the
Nebraska Constitution of 1886, which were added by the
Legislature at the requirement of Congress, though never
submitted to the people for their approval.” (97 NW 349-350;
emphasis supplied).

Against the decision in the Wheeler case,  supra,


confirming the validity of the ratification and adoption of
the American Constitution, in spite of the fact that such
ratification was in clear violation of the prescription on
alteration and ratification of the Articles of
Confederation and Perpetual Union, petitioners in G.R.
No. L-36165 dismissed this most significant historical
fact by calling the Federal Constitution of the United
States as a revolutionary one, invoking the opinion
expressed in Vol. 16, Corpus Juris Secundum, p. 27, that
it was a revolutionary constitution because it did not
obey the requirement that the Articles of Confederation
and Perpetual Union can be amended only with the
consent of all thirteen (13) state legislatures. This
opinion does not cite any decided case, but merely refers
to the footnotes on the brief historic account of the
United States Constitution on p. 679 of Vol. 12, CJS.
Petitioners, on p. 18 of their main Notes, refer US to pp.
270-316 of the  Oxford History of the American People,
1965 Ed. by Samuel Eliot Morison, who discusses the
Articles of Confederation and Perpetual Union in
Chapter XVIII captioned “Revolutionary Constitution
Making, 1775-1781” (pp. 270-281). In Chapter XX on
“The Creative Period in Politics, 1785-1788,” Professor
Morison delineates the genesis of the Federal
Constitution, but does not refer to it even implicitly as
revolutionary constitution (pp. 297-316). However, the
Federal Constitution may be considered revolutionary
from the view point of McIver if the term  revolution  is
understood in “its wider sense to embrace decisive
changes in the character of government, even though
they do not involve the violent overthrow of an
established order, x  x  x.” (R.M. MacIver, The Web of
Government, 1965 ed., p. 203).
It is rather ridiculous to refer to the American
Constitution as a revolutionary constitution. The
Articles of Confederation and Perpetual Union that was
in force from July 12, 1776 to 1788, forged as it was
during the war of independence was a

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revolutionary constitution of the thirteen (13) states. In


the existing Federal Constitution of the United States
which was adopted seven (7) or nine (9) years after the
thirteen (13) states won their independence and long
after popular support for the government of the
Confederation had stabilized was not a product of a
revolution. The Federal Constitution was a “creation of
the brain and purpose of man” in an era of peace. It can
only be considered revolutionary in the sense that it is a
radical departure from its predecessor, the Articles of
Confederation and Perpetual Union.
It is equally absurd to affirm that the present Federal
Constitution of the United States is not the successor to
the Articles of Confederation and Perpetual Union. The
fallacy of the statement is so obvious that no further
refutation is needed.
As heretofore stated, the issue as to the validity of
Proclamation No. 1102 strikes at the validity and
enforceability of the 1973 Constitution and of the
government established and operating thereunder.
Petitioners pray for a declaration that the 1973
Constitution is inoperative (L-36164). If Proclamation
No. 1102 is nullified, then there is no valid ratification of
the 1973 Constitution and the inevitable conclusion is
that the government organized and functioning
thereunder is not a legitimate government.
That the issue of the legitimacy of a government is
likewise political and not justiciable, had long been
decided as early as the 1849 case of Luther vs. Borden (7
How. 1, 12 L.ed., 581), affirmed in the 1900 case
of Taylor vs. Beckham (178 U.S. 548, 44 L.ed. 1187) and
re-enunciated in 1912 in the case of  Pacific States
Telephone and Telegraph Company vs. Oregon (223 U.S.
118, 133-151, 56 L.ed. 377-386). Because it reaffirmed
the pronouncements in both Borden and Beckham cases,
it is sufficient for us to quote the decision in Pacific
States Telephone and Telegraph Co.,  supra, penned by
Mr. Chief Justice White, who re-stated: 

“In view of the importance of the subject, the apparent


misapprehension on one side and seeming misconception on
the other, suggested by the argument as to the full significance
of the

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previous doctrine, we do not content ourselves with a mere


citation of the cases, but state more at length than we otherwise
would the issues and the doctrine expounded in the leading and
absolutely controlling case  —  Luther v. Borden,  7 How. 1, 12
L.ed. 581.
xx xx xx xx
“x x x On this subject it was said (p. 38):
“ ‘For if this court is authorized  to enter upon this inquiry,
proposed by the plaintiff, and it should be decided that the
character government had no legal existence during the period
of time above mentioned, — if it had been annulled by the
adoption of the opposing government, —  then the laws passed
by its legislature during that time were nullities; its taxes
wrongfully collected, its salaries and compensations to its
officers illegally paid; its public accounts improperly settled
and the judgments and sentences of its courts in civil and
criminal cases null and void, and the officers who carried their
decisions into operation answerable as trespassers, if not in
some cases as criminals.’
xx xx xx xx
“ ‘The fourth section of the fourth article of the Constitution
of the United States shall guarantee to every state in the
Union a republican form of government, and shall protect each
of them against invasion; and on the application of the
Legislature or of the Executive (when the legislature cannot be
convened) against domestic violence.
“ ‘Under this article of the Constitution it rests with
Congress to decide what government is established one in a
state. For, as the United State guarantee to each state a
republican government, Congress must necessarily decide what
government is established in the state before it can determine
whether it is republican or not. And when the senators and
representatives of a state are admitted into the Councils of the
Union, the authority of the government under which they were
appointed, as well as its republican character, is recognized by
the proper constitutional authority. And its decision is binding
on every other department of the government, and could not be
questioned in a judicial tribunal. It is true that the contest in
this case did not last long enough to bring the matter to this
issue; and as no senators or representatives were elected under
the authority of the government of which Mr. Dorr was the
head, Congress was not called upon to decide the
controversy. Yet the right to decide is

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placed there and not in the courts.”


xx xx xx
“x x x We do not stop to cite other cases which indirectly or
incidentally refer to the subject, but conclude by directing
attention to the statement by the court, speaking through Mr.
Chief Justice Fuller, in Taylor vs. Beckham, 178 U.S. 548, 44
L.ed. 1187, 20 Sup. Ct. Rep. 890, 1009, where, after disposing
of a contention made concerning the 14th Amendment, and
coming to consider a proposition which was necessary to be
decided concerning the nature and effect of the guaranty of S 4
of article 4, it was said (p. 578):
“ ‘But it is said that the 14th Amendment must be read with
S 4 of article 4, of the Constitution, providing that the United
States shall guarantee to every state in this Union a
republican form of government, and shall protect each of them
against invasion; and on application of the legislature, or the
Executive (when the legislature cannot be convened), against
domestic violence.”
xx xx xx xx
“ ‘It was long ago settled that the enforcement of this
guaranty belonged to the political department. Luther v.
Borden, 7 How. 1, 12 L.ed. 581. In that case it was held that
the question, which of the two opposing governments of Rhode
Island, namely, the charter government or the government
established by a voluntary convention, was the legitimate one,
was a question for the determination of the political
department; and when that department had decided, the
courts were bound to take notice of the decision and follow it.’
xx xx xx xx
“As the issues presented, in their very essence, are, and have
long since by this Court been, definitely determined to be
political and governmental, and embraced within the scope of
the scope of the powers conferred upon Congress, and  not,
therefore within the reach of judicial power, it follows that the
case presented is not within our jurisdiction, and the writ of
error must therefore be, and it is, dismissed for want of
jurisdiction.” (223 U.S. pp. 142-151; emphasis supplied). 

Even a constitutional amendment that is only


promulgated by the Constitutional Convention without
authority therefor

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and without submitting the same to the people for


ratification, becomes valid, when recognized, accepted
and acted upon the by Chief of State and other
government functionaries, as well as by the people. In
the 1903 case of  Taylor vs. Commonwealth  (44 SE 754-
755), the Court ruled: 

“The sole ground urged in support of the contention that


Constitution proclaimed in 1902 is invalid is that it was
ordained and promulgated by the convention without being
submitted for ratification or rejection by the people of the
commonwealth.
“The Constitution of 1902 was ordained and proclaimed by
convention duly called by direct vote of the people of the state
to revise and amend the Constitution of 1869. The result of the
work that the convention has been recognized, accepted, and
acted upon as the only valid Constitution of the state by the
Governor in swearing fidelity to it and proclaiming it, as
directed thereby; by the Legislature in its formal official act
adopting a joint resolution, July 15, 1902, recognizing the
Constitution ordained by the convention which assembled in
the city of Richmond on the 12th day of June 1901, as the
Constitution of Virginia; by the individual oaths of members to
support it, and by its having been engaged for nearly a year in
legislating under it and putting its provisions into operation
but the judiciary in taking the oath prescribed thereby to
support and by enforcing its provisions; and by the people in
their primary capacity by peacefully accepting it and
acquiescing in it, registering as voters under it to the extent of
thousands through the state, and by voting, under its
provisions, at a general election for their representatives in the
Congress of the United States.” (p. 755). 

The Court in the Taylor case above-mentioned further


said:

“While constitutional procedure for adoption or proposal to


amend the constitution must be duly followed, without
omitting any requisite steps, courts should uphold amendment,
unless satisfied that the Constitution was violated in
submitting the proposal. xx xx  Substance more than form
must be regarded in considering whether the complete
constitutional system for submitting the proposal to amend the
constitution was observed.”

In the 1925 case of  Taylor vs. King  (130 A 407, 408
410), the Court stated:

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“There may be technical error in the manner in which a


proposed amendment is adopted, or in its advertisement, yet, if
followed, unobjected to, by approval of the electors, it becomes
part of the Constitution. Legal complaints to the submission
may be made prior to taking the vote, but, if once sanctioned,
the amendment is embodied therein, and cannot be attacked,
either directly or collaterally, because of any mistake
antecedent thereto. Even though it be submitted at an
improper time, it is effective for all purposes when accepted by
the majority. Armstrong v. King, 281 Pa. 207, 126 A. 263.” (130
A 409).

Even if the act of the Constitutional Convention is


beyond its authority, such act becomes valid upon
ratification or adoption or acquiescence by the people.
Thus, in the 1905 case of Ex parte Birmingham and A.R.
Company (42 SO pp. 118 & 123), the Alabama Supreme
Court upheld this principle and stated that: “The
authorities are almost uniform that this ratification of
an unauthorized act by the people (and the people are
the principal in this instance) renders the act valid and
binding.”
It has likewise been held that it is not necessary that
voters ratifying the new Constitution are registered in the
book of voters; it is enough that they are electors voting
on the new Constitution. (Bott vs. Wurts, 40 A 740
[1899]; 45 LRA 251, emphasis supplied).
In the 1956 case of  Thomson vs. Peoples State
Bank  (75 NW 2nd 370, 375), the Supreme Court of
Wisconsin ruled that “irregularity in the procedure for
the submission of the proposed constitutional
amendment will not defeat the ratification by the
people.”
Again, in the 1958 case of  Swaim vs. Tuscaloosa
County  (103 SO 2nd 769), the Alabama Supreme Court
pronounced that “the irregularity in failing to publish
the proposed constitutional amendment once in each of
the 4 calendar weeks next preceding the calendar week
in which the election was held or once in each of the 7-
day periods immediately preceding the day of the
election as required by the Constitution, did not
invalidate the amendment which was ratified by the
people.”
The same principle was reiterated in 1961 by
the Mississippi

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Supreme Court in Barnes, et al. v. Ladner (131) SO 2nd


45 462), where they admitted irregularities or illegalities
committed in the procedure for submission of the
proposed constitutional amendment to the people for
ratification consisted of: “(a) the alleged failure of the
county election commissioners of the several counties to
provide a sufficient number of ballot boxes ‘secured by
good and substantial locks,’ as provided by Section 3249,
Code of 1942, Rec., to be used in the holding of the
special election on the constitutional amendment, and
(b) the alleged failure of the State Election
Commissioners to comply with the requirements of Code
Sections 3204 and 3205 in the appointment of election
commissioners in each of the 82 counties.  The
irregularities complained of, even if proved, were not
such irregularities would have invalidated the election.”
(Emphasis supplied; see also Sylvester vs. Tindall, 8 SO
2nd 892; 154 Fla. 663).
Even prior to the election in November, 1970 of
delegates of the Constitutional Convention and during
the deliberations of the Constitutional Convention from
June 1, 1971 until martial law was proclaimed on Sept.
21, 1972, the salient reforms contained in the 1973
Constitution which have long been desired by the people,
had been thoroughly discussed in the various
committees of the Constitutional Convention, on the
floor of the Convention itself, in civic forums and in all
the media of information. Many of the decrees
promulgated by the Chief Executive from Sept. 22, 1972
to Jan. 17, 1973 implement some of the reforms and had
been ratified in Sec. 3(2) of Article XVII of the 1973
Constitution.
Petitioners cannot safely state that during martial
law the majority of the people cannot freely vote for
these reforms and are not complying with the
implementing decrees promulgated by the President.
Free election is not inevitably incompatible with
martial law. We had free elections in 1951 and 1971
when the opposition won six out of eight senatorial seats
despite the suspension of the privileges of the writ
of habeas corpus (see Lansang vs. Garcia, et al., Dec. 14,
1971, 42 SCRA 448), which suspension implies
constraint on individual freedom as the proclamation

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of martial law. In both situations, there is no total


blackout of human rights and civil liberties.
All the local governments, dominated either by
Nacionalistas or Liberals, as well as officials of the
Legislative and Executive branches of the government
elected and/or appointed under the 1935 Constitution
have either recognized or are now functioning under the
1973 Constitution, aside from the fact of its ratification
by the sovereign people through the Citizens Assemblies.
Ninety-five (95) of a total of one hundred ten (110)
members of the House of Representatives including the
Speaker and the Speaker Pro Tempore as well as about
eleven (11) Congressmen who belong to the Liberal
Party and fifteen (15) of a total of twenty-four (24)
senators including Liberal senators Edgar U. Ilarde and
John Osmeña opted to serve in the Interim Assembly,
according to the certification of the Commission on
Elections dated February 19, 1973 (Annex Rejoinder-3 to
Consolidated Rejoinder of petitioners in L-36165). Only
the five (5) petitioners in L-36165 close their eyes to
a fait accompli. All the other functionaries recognize the
new government and are performing their duties and
exercising their powers under the 1973 Constitution,
including the lower courts. The civil courts, military
tribunals and quasi-judicial bodies created by
presidential decrees have decided some criminal, civil
and administrative cases pursuant to such decrees. The
foreign ambassadors who were accredited to the
Republic of the Philippines before martial law continue
to serve as such in our country; while two new
ambassadors have been accepted by the Philippines
after the ratification of the 1973 Constitution on
January 17, 1973. Copies of the 1973 Constitution had
been furnished the United Nations Organization and
practically all the other countries with which the
Philippines has diplomatic relations. No adverse
reaction from the United Nations or from the foreign
states has been manifested. On the contrary, our
permanent delegate to the United Nations Organization
and our diplomatic representatives abroad appointed
before martial law continue to remain in their posts and
are performing their functions as such under the 1973
Constitution.
Even the Commission on Elections is now
implementing the provisions of the 1973 Constitution by
requiring all election

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registrars to register 18-year olds and above whether


literates or not, who are qualified electors under the
1973 Constitution (see pars. 1-A(c), (d), & (e) of Annex A
to Notes of respondents Puyat and Roy in L-36165).
In brief, it cannot be said that the people are ignoring
the 1973 Constitution and the government which is
enforcing the same for over 10 weeks now With the
petitioners herein, secessionists, rebels and subversives
as the only possible exceptions, the rest of the citizenry
are complying with decrees, orders and circulars issued
by the incumbent President implementing the 1973
Constitution.
Of happy relevance on this point is the holding
in Miller vs. Johnson, 18 SW 522: 
“If a set of men, not selected by the people according to the
forms of law, were to formulate an instrument and declare it
the constitution, it would undoubtedly be the duty of the courts
declare its work a nullity. This would be revolution, and this
the courts of the existing government must resist until they
are overturned by power, and a new government
established. The convention, however, was the offspring of law.
The instrument which we are asked to declare invalid as a
constitution has been made and promulgated according to the
forms of law. It is a matter of current history that both the
executive and legislative branches of the government have
recognized its validity as a constitution, and are now daily
doing so. Is the question,  therefore, one of a judicial
character?  It is our undoubted duty, if a statute be
unconstitutional to so declare it; also, if a provision of the state
constitution be in conflict with the federal constitution, to hold
the former invalid. But this is a very different case. It may be
said, however, that, for every violation of or non-compliance
with the law, there should be a remedy in the courts. This is
not, however, always the case. For instance, the power of a court
as to the acts of the other departments of the government is not
an absolute one, but merely to determine whether they have kept
within constitutional limits, it is a duty rather than a power,
The judiciary cannot compel a co-equal department to perform
a duty. It is responsible to the people; but if it does act, then,
when the question is properly presented, it is the duty of the
court to say whether it has conformed to the organic law. While
the judiciary should protect the rights of the people with great
care and jealousy, because this is its duty, and also because, in
times

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of great popular excitement, it is usually their last resort, yet it


should at the same time be careful to overstep the proper
bounds of its power, as being perhaps equally dangerous; and
especially where such momentous results might follow as would
be likely in this instance, if the power of the judiciary permitted,
and its duty required, the overthrow of the work of the
convention.
“After the American Revolution the state of Rhode Island
retained its colonial character as its constitution, and no law
existed providing for the making of a new one. In 1841 public
meetings were held, resulting in the election of a convention to
form a new one, — to be submitted to a popular vote. The
convention framed one, submitted it to a vote, and declared it
adopted. Elections were held for state officers, who proceeded
to organize a new government. The charter government did not
acquiesce in these proceedings, and finally declared the state
under martial law. It called another convention, which in 1843
formed a new constitution. Whether the charter government, or
the one established by the voluntary convention, was the
legitimate one, was uniformly held by the courts of the state not
to be a judicial, but a political question; and the political
department having recognized the one, it was held to be the
duty of the judiciary to follow its decision. The supreme court of
the United States, in Luther v. Borden, 7 How. 1, while not
expressly deciding the principle, as it held the federal court, yet
in the argument approves it, and in substance says that where
the political department has decided such a matter the
judiciary should abide by it.
“Let us illustrate the difficulty of a court deciding the
question: Suppose this court were to hold that the convention,
when it reassembled, had no power to make any material
amendment, and that such as were made are void by reason of
the people having theretofore approved the instrument. Then,
next, this court must determine what amendments were
material; and we find the court, in effect, making a
constitution. This would be arrogating sovereignty to itself.
Perhaps the members of the court might differ as to what
amendments are material, and the result would be confusion
and anarchy. One judge might say that all the amendments,
material and immaterial, were void; another, that the
convention had then the implied power to correct palpable
errors, and then the court might differ as to what amendments
are material. If the instrument as ratified by the people could
not be corrected or altered at all, or if the court must
determine what changes were material, then the instrument,
as passed upon by the people or as fixed by the court would be
lacking a promulgation by the

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convention; and, if this be essential, then the question would


arise, what constitution are we now living under, and what is
the organic law of the state? A suggestion of these matters
shows what endless confusion and harm to the state might and
likely would arise. If, through error of opinion, the convention
exceeded its power, and the people are dissatisfied, they have
ample remedy, without the judiciary being asked to overstep the
proper limits of its power. The instrument provides for
amendment and change. If a wrong has been done, it can, in the
proper way in which it should be remedied, is by the people
acting as a body politic. It is not a question of whether merely
an amendment to a constitution, made without calling a
convention, has been adopted, as required by that constitution.
If it provides how it is to be done, then, unless the manner be
followed, the judiciary, as the interpreter of that constitution,
will declare the amendment invalid.  Koehler v. Hill, 60 Iowa,
543, 14 N.W. Rep. 738, and 15 N.W. Rep. 609; State v. Tuffy, 1
Nev. 391, 12 Pac. Rep. 835.  But it is a case where a new
constitution has been formed and promulgated according to the
forms of law. Great interests have already arisen under it;
important rights exist by virtue of it; persons have been
convicted of the highest crime known to the law, according to its
provisions; the political power of the government has in many
ways recognized it; and, under such circumstances, it is our
duty to treat and regard it as a valid constitution, and now the
organic law of our commonwealth.
“We need not consider the validity of the amendments made
after the convention reassembled. If the making of them was in
excess of its powers, yet, as the entire instrument has been
recognized as valid in the manner suggested, it would be
equally an abuse of power by the judiciary and violative of the
rights of the people, — who can and properly should remedy
the matter, if not to their liking, — if it were to declare the
instrument of a portion invalid, and bring confusion and
anarchy upon the state. (italics supplied). 

If this Court inquires into the validity of


Proclamation No. 1102 and consequently of the adoption
of the 1973 Constitution it would be exercising a veto
power on the act of the sovereign people, of whom this
Court is merely an agent, which to say the least, would
be anomalous. This Court cannot dictate to our
principal, the sovereign people, as to how the approval of
the new Constitution should be manifested or expressed.
The sovereign people have spoken and we must abide by
their decision, regardless of our notion as to what is the
proper

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method of giving assent to the new Charter. In this


respect, WE cannot presume to know better than the
incumbent Chief Executive, who, unlike the members of
this Court, only last January 8, 1973, We affirmed
in Osmeña vs. Marcos (Pres. Election Contest No. 3, Jan.
8, 1973), was re-elected by the vote of over 5 million
electors in 1969 for another term of four years until noon
of December 30, 1973 under the 1935 Constitution. This
Court, not having a similar mandate by direct fiat from
the sovereign people, to execute the law and administer
the affairs of government, must restrain its enthusiasm
to sally forth into the domain of political action expressly
and exclusively reserved by the sovereign people
themselves.
The people in Article XV of the 1935 Constitution did
not intend to tie their hands to a specific procedure for
popular ratification of their organic law. That would be
incompatible with their sovereign character of which We
are reminded by Section 1, of Article II of both the 1935
and the 1973 Constitutions.
The opinion of Judge Thomas McIntire Cooley that
the sovereign people cannot violate the procedure for
ratification which they themselves define in their
Constitution, cannot apply to a unitary state like the
Republic of the Philippines. His opinion expressed in
1868 may apply to a Federal State like the United
States, in order to secure and preserve the existence of
the Federal Republic of the United States against any
radical innovation initiated by the citizens of the fifty
(50) different states of the American Union, which states
may be jealous of the powers of the Federal government
presently granted by the American Constitution. This
dangerous possibility does not obtain in the case of our
Republic.
Then again, Judge Cooley advanced the aforesaid
opinion in 1868 when he wrote his opus “Constitutional
Limitations.”*

_______________
*  In 1880, he also wrote his “Constitutional Law.” Judge Cooley,
who was born in Attica, New York in 1824, died in 1898. Judge Cooley
was also professor and later dean of the Law Department of the
University of Michigan and Justice of the State Supreme Court of
Michigan from 1864 to 1885, when he failed to win re-election to the
court.

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226 SUPREME COURT REPORTS ANNOTATED


Javellana vs. The Executive Secretary

(Vol. 6, Encyclopedia Brit., 1969 ed., pp. 445 446). It is


possible that, were he live today, in a milieu vastly
different from 1868 to 1898, he might have altered his
views on the matter.
Even if conclusiveness is to be denied to the truth of
the declaration by the President in Proclamation No.
1102 that the people through their Citizens’ Assemblies
had overwhelmingly approved the new Constitution due
regard to a separate, coordinate and co-equal branch of
the government demands adherence to the presumption
of correctness of the President’s declaration. Such
presumption is accorded under the law and
jurisprudence to officials in the lower levels of the
Executive branch, there is no over-riding reason to deny
the same to the Chief of State as head of the Executive
Branch. WE cannot reverse the rule on presumptions,
without being presumptuous, in the face of the
certifications by the Office the Secretary of the
Department of Local Government and Community
Development. (Annexes 1 to 1-E, Annexes 2 to 2-O to the
compliance with manifestation filed by the Solicitor
General on behalf of the respondents public officers
dated March 7, 1973). There is nothing in the records
that contradicts, much less overthrow the results of the
referendum as certified. Much less are We justified in
reversing the burden of proof — by shifting it from the
petitioners to the respondents. Under the rules on
pleadings, the petitioners have the duty to demonstrate
by clear and convincing evidence their claim that the
people did not ratify through the Citizens’ Assemblies
nor adopt by acquiescence the 1973 Constitution. And
have failed to do so.
No member of this Tribunal is justified in resolving
the issues posed by the cases at bar on the basis of
reports relayed to him from private sources which could
be biased and hearsay, aside from the fact that such
reports are not contained in the record. Proclamation
No. 1102 is not just an ordinary act of the Chief
Executive. It is a well-nigh solemn declaration which
announces the highest act of the sovereign people —
their imprimatur to the basic Charter that shall govern
their lives hereafter — may be for decades, if not for
generations.
Petitioners decry that even 15-year olds, ex convicts
and
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illiterates were allowed to vote in the Citizens’


Assemblies, despite their admission that the term
“Filipino people” in the preamble as well as  “people”  in
Sections 1 and 5 of Article II of the 1935 Constitution
and in Section 1(3) of Article III of the Bill of Rights
includes all Filipino citizens of all ages, of both sexes,
whether literate or illiterate, whether peaceful citizens,
rebels, secessionists, convicts or ex-convicts. Without
admitting that ex-convicts voted in the referendum,
about which no proof was even offered, these sectors of
our citizenry, whom petitioners seem to regard with
contempt or decision and whom petitioners would deny
their sovereign right to pass upon the basic Charter that
shall govern their lives and the lives of their progenies,
are entitled as much as the educated, the law abiding,
and those who are 21 years of age or above to express
their conformity or non conformity to the proposed
Constitution, because their stake under the new Charter
is not any less than the stake of the more fortunate
among us. As a matter of fact, these citizens, whose
juridical personality or capacity to act is limited by age,
civil interdiction or ignorance deserve more solicitude
from the State than the rest of the citizenry. In the
ultimate analysis, the inclusion of those from 15 years
up to below 21 years old, the ex-convicts and the
ignorant, is more democratic as it broadens the base of
democracy and therefore more faithful to the express
affirmation in Section 1 of Article II of the Declaration of
Principles that “sovereignty resides in the people and all
government authority emanates from them.”
Moreover, ex-convicts granted absolute pardon are
qualified to vote. Not all ex-convicts are banned from
voting. Only those who had been sentenced to at least
one year imprisonment are disenfranchised but they
recover their right of suffrage upon expiration of ten
years after service of sentence (Sec. 102, 1971 Rev. Elec.
Code). Furthermore, ex-convicts and imbeciles constitute
a very negligible number in any locality or barrio,
including the localities of petitioners.
Included likewise in the delegated authority of the
President, is the prerogative to proclaim the results of
the plebiscite or the voting the Citizens’ Assemblies.
Petitioners deny the accuracy or correctness of
Proclamation No. 1102 that the 1973

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Javellana vs. The Executive Secretary

Constitution was ratified by the overwhelming vote of


close to 15 million citizens because there was no official
certification to the results of the same from the
Department of Local Governments. But there was such
certification as per Annexes 1 to 1-A to the Notes
submitted by the Solicitor General counsel for
respondents public officers. This should suffice to
dispose of this point. Even in the absence of such
certification, in much the same way that in passing law,
Congress or the legislative body is presumed to be in
possession of the facts upon which such laws are
predicated (Justice Fernando, The Power of Judicial
Review, 1967 Ed., pp. 112-113, citing Lorenzo vs. Dir.,
etc., [1927] 50 Phil. 595 and O’Gonmore, et al. vs.
Hartford, etc., [1931] 282 U.S. 251), it should likewise be
presumed that the President was in possession of the
fact upon which Proclamation No. 1102 was based. This
presumption is further strengthened by the fact that the
Department of Local Governments, the Department
National Defense and the Philippine Constabulary as
well the Bureau of Posts are all under the President,
which offices as his alter ego, are presumptively acting
for and in behalf of the President and their acts are valid
until disapproved or reprobated by the President (Planas
vs. Gil, 67 Phil. 62; Villen vs. Secretary of Interior, 67
Phil. 451). To deny the truth or the proclamation of the
President as to the overwhelming majority vote in the
Citizens’ Assemblies in favor of the new Constitution, is
to charge the President with falsification, which is a
most grievous accusation. Under the, rules of pleadings
and evidence, the petitioners have the burden of proof by
preponderance of evidence in civil cases and by proof
beyond reasonable doubt in criminal prosecutions, where
the accused is always presumed to be innocent. Must
this constitutional right be reversed simply because the
petitioner all assert the contrary? Is the rule of law they
pretend invoke only valid as long as it favors them?
The presumption of regularity in the performance of
official functions is accorded by the law and
jurisprudence to acts of public officers whose category in
the official hierarchy is very much lower than that of the
Chief of State. What reason is there to withhold such a
presumption in favor of the President? Does the fact that
the President belong to the party in power and that four
(4) of the five (5) senators who are petitioners in

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Javellana vs. The Executive Secretary

L-36165 belong to the opposition party, justify a


discrimination against the President in matters of this
nature? Unsupported as their word is by any credible
and competent evidence under the rules of evidence,
must the word of the petitioners prevail over that of the
Chief Executive, because they happen to be former
senators and delegates to the Constitutional
Convention? More than any of the petitioners herein in
all these cases, the incumbent President realizes that he
risks the wrath of his people being visited upon him and
the adverse or hostile verdict of history; because of the
restrictions on the civil liberties of his people, inevitable
concomitants of martial law, which necessarily entail
some degree of sacrifice on the part of the citizenry.
Until the contrary is established or demonstrated,
herein petitioners should grant that the Chief Executive
is motivated by what is good for the security and
stability of the country, for the progress and happiness
of the people. All the petitioners herein cannot stand on
the proposition that the rights under the 1935
Constitution are absolute and invulnerable to
limitations that may be needed for the purpose of
bringing about the reforms for which the petitioners
pretend to be clamoring for and in behalf of the people.
The five (5) petitioners in L-36165 and four (4) of the
seven (7) petitioners in L-36164 were all participants in
the political drama of this country since 1946. They are
witness to the frustrations of well-meaning Presidents
who wanted to effect the reforms, especially for the
benefit of the landless and the laboring class  —  how
politics and political bargaining had stymied the
effectuation of such reforms thru legislation. The eight
(8) petitioners in L-36164 and L-36165 may not have
participated in the systematic blocking of the desired
reforms in Congress or outside of it; but the question
may be asked as to what exactly they did to support such
reforms. For the last seven (7) decades since the turn of
the century, for the last thirty-five (35) years since the
establishment of the Commonwealth government in
1935 and for the last twenty- seven (27) years since the
inauguration of the Republic on July 4, 1946, no tangible
substantial reform had been effected, funded and
seriously implemented, despite the violent uprisings in
the thirties, and from 1946 to 1952, and the violent
demonstrations of recent memory. Congress and the
oligarchs acted like ostriches, “burying their heads in
timeless sand.

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Javellana vs. The Executive Secretary

“Now the hopes for the long-awaited reforms to be


within a year or to are brighter. It would seem therefore
to the duty of everyone including herein petitioners to
give the present leadership the opportunity to institute
and carry out the needed reforms as provided for in the
new or 1973 Constitution and thru the means prescribed
in that same Constitution.
As stated in Wheeler vs. Board of Trustees, “a court is
never justified in placing by implication a limitation
upon the sovereign.”
This Court in the Gonzales and Tolentino cases
transcended its proper sphere and encroached upon the
province exclusively reserved to and by the sovereign
people. This Court did not heed to the principle that the
courts are not the fountain of all remedies for all wrongs.
WE cannot presume that we alone can speak with
wisdom as against the judgment of the people on the
basic instrument which affects their very lives. WE
cannot determine what is good for the people or ought to
be their fundamental law. WE can only exercise the
power delegated to Us by the sovereign people, to apply
and interpret the Constitution and the laws for the
benefit of the people, not against them nor to prejudice
them. WE cannot perform an act inimical to the interest
of Our principal, who at any time may directly exercise
their sovereign power ratifying a new Constitution in
the manner convenient to them.
It is pertinent to ask whether the present Supreme
Court can function under the 1935 Constitution without
being a part of the government established pursuant
thereto. Unlike in the Borden case,  supra, where there
was at least another government claiming to be the
legitimate organ of the state of Rhode Island (although
only on paper as it had no established organ except Dorr
who represented himself to be its head; in the cases at
bar there is no other government distinct from and
maintaining a position against the existing government
headed by the incumbent Chief Executive. (See Taylor
vs. Commonwealth,  supra). There is not even a rebel
government duly organized as such even only for
domestic purposes, let alone a rebel government engaged
in international

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negotiations. As heretofore stated, both the executive


branch and the legislative branch established under the
1935 Constitution had been supplanted by the
government functioning under the 1973 Constitution as
of January 17, 1973. The vice president elected under
the 1935 Constitution does not asset any claim to the
leadership of the Republic of the Philippines. Can this
Supreme Court legally exist without being part of any
government?
Brilliant counsel for petitioners in L-36165 has been
quite extravagant in his appraisal of Chief Justice Roger
Brooke Taney whom he calls the “hero of the American
Bar,” because during the American civil war he
apparently had the courage to nullify the proclamation
of President Lincoln suspending the privileges of the
writ of  habeas corpus  in  Ex parte  Merryman (Federal
Case No. 9487 [1861]). But who exactly was Chief
Justice Roger Brooke Taney? The Editorial Board of Vol.
21 of the Encyclopedia Brit., 1966 ed. (pp. 778-779, 1969
ed., pp. 654-657), briefly recounts that he was born in
1777 in Calvert County, Maryland, of parents who were
landed aristocrats as well as slave owners. Inheriting
the traditional conservatism of his parents who belonged
to the landed aristocracy, Taney became a lawyer in
1799, practiced law and was later appointed Attorney
General of Maryland. He also was a member of the
Maryland state legislature for several terms. He was a
leader of the Federalist Party, which disintegrated after
the war of 1812, compelling him to join the Democratic
Party of Andrew Jackson, also a slave owner and landed
aristocrat, who later appointed him first as Attorney
General of the United States, then Secretary of the
Treasury and in 1836 Chief Justice of the United States
Supreme Court to succeed Chief Justice John Marshall,
in which position he continued for 28 years until he died
on October 21, 1864. His death “went largely unnoticed
and unregretted.” Because he himself was a slave owner
and a landed aristocrat, Chief Justice Taney
sympathized with the Southern States and, even while
Chief Justice, hoped that the Southern States would be
allowed to secede peacefully from the Union. That he
had no sympathy for the Negroes was revealed by his
decision in Dred Scott vs. Sandford (19 How. 398 [1857])
where he pronounced that the American Negro is not
entitled to the rights of an American citizen and that his
status as a slave is determined by his returning to a
slave state. One can

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therefore discern his hostility towards President Lincoln


when he decided Ex parte Merryman, which animosity
to say the least does no befit a judicial mind. Such a man
could hardly be spoken of as a hero of the American Bar,
least of all of the American nation. The choice of heroes
should not be expressed indiscriminately just to
embellish one’s rhetoric.
Distinguished counsel in L-36165 appears to have
committed another historical error, which may be due to
his rhetorical in the Encyclopedia Britannica (Vol. 9,
1969 ed., pp. 508-509) to this effect. On the contrary,
Encyclopedia Britannica (Vol. 17 Encyclopedia Brit.,
1966 & 1969 eds., 732-733), refers to Marshal Henri
Philippe Petain as the genuine hero or “Savior of
Verdun”; because he held Verdun against the 1916
offensive of the German army at the cost of 350,000 of
his French soldiers, who were then demoralized and
plotting mutiny. Certainly, the surviving members of the
family of Marshal Petain would not relish the error. And
neither would the members of the clan of Marshal Foch
acknowledge the undeserved accolade, although Marshal
Foch has a distinct place in history on his own merits.
The foregoing clarification is offered in the interest of
true scholarship and historical accuracy, so that the
historians, researchers and students may not be led
astray or be confused by esteemed counsel’s eloquence
and mastery of the spoken and written word as well as
by his eminence as law professor, author of law books,
political leader, and member of the newly integrated
Philippine Bar.
It is quite intriguing why the eminent counsel and co-
petitioner in L-36164 did not address likewise his
challenge to the five (5) senators who are petitioners in
L-36165 to also act as “heroes and idealists,” to defy the
President by holding sessions by themselves alone in a
hotel or in their houses if they can muster a quorum or
by causing the arrest of other senators to secure a
quorum and thereafter remove respondents Puyat and
Roy (Avelino, et al. vs. Cuenco, et al., 83 Phil. 17 [1949]),
if they believe most vehemently in the justice and
correctness of their position that the 1973 Constitution
has not been validly ratified, adopted or acquiesced in by
the people since January 18, 1973 until the present. The
proclaimed conviction of petitioners in L-36165 on this
issue would have a ring of

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credibility, if they proceeded first to hold a rump session


outside the legislative building; because it is not
unreasonable to demand or to exact that he who exhorts
others to be brave must first demonstrate his own
courage. Surely, they will not affirm that the mere filing
of their petition in L-36165 already made them “heroes
and idealists.” The challenge likewise seems to insinuate
that the members of this Court who disagree with
petitioners’ views are materialistic cowards or
mercenary fence-sitters. The Court need not be
reminded of its solemn duty and how to perform it. WE
refuse to believe that petitioners and their learned as
well as illustrious counsels, scholars and liberal thinkers
that they are, do not recognize the sincerity of those who
entertain opinions that clash with their own. Such an
attitude does not sit well with the dictum that “We can
differ without being difficult; we can disagree without
being disagreeable,” which distinguished counsel in L-
36165 is wont to quote.
WE reserve the right to prepare an extensive
discussion of the other points raised by petitioners,
which We do not find now necessary to deal with in view
of Our opinion on the main issue.
IN VIEW OF THE FOREGOING, ALL THE
PETITIONS IN THESE FIVE CASES  SHOULD BE
DISMISSED.
 
MAKASIAR, J.:
Pursuant to Our reservation, We now discuss the
other issues raised by the petitioners.
II
EVEN IF ISSUE IS JUSTICIABLE, PEOPLE’S
RATIFICATION, ADOPTION OR ACQUIESCENCE
CREATES STRONG PRESUMPTION OF VALIDITY
OF 1973 CONSTITUTION.
As intimated in the aforecited cases, even the courts,
which affirm the proposition that the question as to
whether a constitutional amendment or the revised or
new Constitution

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has been validly submitted to the people for ratification


in accordance with the procedure prescribed by the
existing Constitution, is a justiciable question, accord all
presumption of validity to the constitutional amendment
or the revised or new Constitution after the government
officials or the people have adopted or ratified or
acquiesced in the new Constitution or amendment,
although there was an illegal or irregular or no
submission at all to the people. (Collier vs. Gray, 4th
Dec. Dig. 935 [1934], Hammond vs. Clark, 71 SE 482-
483; People vs. Sours, 31 Colo. 369, 74 Pac. 167, 102 Am.
St. Rep. 34; Thompson vs. Winneth, 78 Neb. 379, 110
NW 1113, 10 L.R.A. [N.S.] 149; State vs. Laylin, 69 Ohio
St. Rep. 1, 68 NE 574; Weston vs. Ryan, 70 Neb. 211, 97
NW 347; Combs vs. State, 81 Ga. 780, 8 SE 318;
Woodward vs. State, 103 Ga. 496, 30 SE 522; Corre vs.
Cooney, 70 Mont. 355, 225 P 1007, 1009). As late as
1971, the courts stressed that the constitutional
amendment or the new Constitution should not be
condemned “unless our judgment its nullity is manifest
beyond reasonable doubt” (1971 case of Moore vs.
Shanahan, 486 Pac. 2d 506, 207 Kan. 1, 645; and the
1956 case of Tipton vs. Smith, et al., supra).
Mr. Justice Enrique M. Fernando, speaking for the
Court, pronounced that the presumption of
constitutionality must persist in the absence of factual
foundation of record to overthrow such presumption
(Ermita-Malate Hotel, etc. vs. City Mayor, L-24698, July
31, 1967, 20 SCRA 849).
III
CONSTITUTIONAL CONVENTION — CO-EQUAL
WITH AND INDEPENDENT OF CONGRESS,
EXECUTIVE AND JUDICIARY.
The Constitutional Convention is co-ordinate and co-
equal with, as well as independent of, the three grand
departments of the Government, namely, the legislative,
the executive and the judicial. As a fourth separate and
distinct branch, to emphasize its independence, the
Convention cannot be dictated to by either of the other
three departments as to the content as well as the form
of the Charter that it proposes. It enjoys the same
immunity from interference or supervision by any of the

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aforesaid branches of the Government in its proceedings,


including the printing of its own journals (Tañada and
Fernando, Constitution of the Philippines, 1952 ed., Vol.
I, pp. 8-9; Malcolm and Laurel, Phil. Const. Law, p. 22;
Frantz vs. Autry, 91 Pac. 193). Implicit in that
independence, for the purpose of maintaining the same
unimpaired and in order that its work will not be
frustrated, the Convention has the power to fix the date
for the plebiscite and to provide funds therefor. To deny
the Convention such prerogative, would leave it at the
tender mercy of both legislative and executive branches
of the Government. An unsympathetic Congress would
not be disposed to submit the proposed Constitution
drafted by the Constitutional Convention to the people
for ratification, much less appropriate the necessary
funds therefor. That could have been the fate of the 1973
Constitution, because the same abolished the Senate by
creating a unicameral National Assembly to be presided
by a Prime Minister who wields both legislative and
executive powers and is the actual Chief Executive, for
the President contemplated in the new Constitution
exercises primarily ceremonial prerogatives. The new
Constitution likewise shortened abruptly the terms of
the members of the present Congress (whose terms end
on December 31, 1973, 1975 and 1977) which provides
that the new Constitution shall take effect immediately
upon its ratification (Sec. 16, Article XVII, 1973
Constitution). The fact that Section 2 of the same Article
XVIII secures to the members of Congress membership
in the interim National Assembly as long as they opt to
serve therein within thirty (30) days after the
ratification of the proposed Constitution, affords them
little comfort; because the convening of the interim
National Assembly depends upon the incumbent
President (under Sec. 3[1], Art. XVII, 1973
Constitution). Under the foregoing circumstances, the
members of Congress, who were elected under the 1935
Constitution, would not be disposed to call a plebiscite
and appropriate funds therefor to enable the people to
pass upon the 1973 Constitution, ratification of which
means their elimination from the political scene. They
will not provide the means for their own liquidation.
Because the Constitutional Convention, by necessary
implication as it is indispensable to its independence
and effectiveness, possesses the power to call a plebiscite
and to

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appropriate funds for the purpose, it inescapably must


have the power to delegate the same to the President,
who, in estimation of the Convention can better
determine appropriate time for such a referendum as
well as the amount necessary to effect the same; for
which reason the Convention thru Resolution No. 29
approved on November 22, 1972, which superseded
Resolution No. 5843 adopted on November 16, 1972,
proposed to the President “that a decree be issued calling
a plebiscite for the ratification of the proposed new
Constitution such appropriate date as he shall
determine and providing for the necessary funds
therefor, xx,” after stating in “whereas” clauses that the
1971 Constitutional Convention expected to complete its
work by the end of November, 1972 that the urgency of
instituting reforms rendered imperative the early
approval of the new Constitution, and that the national
and local leaders desire that there be continuity in the
immediate transition from the old to the new
Constitution.
If Congress can legally delegate to the Chief
Executive or his subaltern the power to promulgate
subordinate rules and regulations to implement the law,
this authority to delegate implementing rules should not
be denied to the Constitutional Convention, a co-equal
body.
Apart from the delegation to the Chief Executive of
the power to call a plebiscite and to appropriate funds
therefor by the Constitutional Convention thru its
Resolution No. 29, the organization of the Citizens’
Assemblies for consultation on national issues, is
comprehended within the ordinance-making power of
the President under Section 63 of the Revised
Administrative Code, which expressly confers on the
Chief Executive the power to promulgate administrative
acts and commands touching on the organization or
mode of operation of the government  or re-arranging or
re-adjusting any district, division or part of the
Philippines “or disposing of issues of general concern  xx
xx.” (Emphasis supplied). Hence, as consultative bodies
representing the localities including the barrios, their
creation by the President thru Presidential Decree No.
86 of December 31, 1972, cannot be successfully
challenged.
The employment by the President of these Citizens’

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Assemblies for consultation on the 1973 Constitution or


on whether there was further need of a plebiscite
thereon, — both issues of national concern — is still
within the delegated authority reposed in him by the
Constitutional Convention as aforesaid.
It should be noted that Resolution No. 29, which
superseded Resolution No. 5843, does not prescribe that
the plebiscite must be conducted by the Commission on
Elections in accordance with the provisions of the 1971
Revised Election Code. If that were the intention of the
Constitutional Convention in making the delegation, it
could have easily included the necessary phrase for the
purpose, some such phrase like “to call a plebiscite to be
supervised by the Commission on Elections in
accordance with the provisions of the 1971 Revised
Election Code (or with existing laws).” That the
Constitutional Convention omitted such phrase, can only
mean that it left to the President the determination of
the manner by which the plebiscite should be conducted,
who shall supervise the plebiscite, and who can
participate in the plebiscite. The fact that said
Resolution No. 29 expressly states “that copies of this
resolution as approved in plenary session be transmitted
to the President of the Philippines and the Commission
on Elections for implementation,” did not in effect
designate the Commission on Elections as supervisor of
the plebiscite. The copies of said resolution that were
transmitted to the Commission on Elections at best
serve merely to notify the Commission on Elections
about said resolution, but not to direct said body to
supervise the plebiscite. The calling as well as conduct of
the plebiscite was left to the discretion of the President,
who, because he is in possession of all the facts funnelled
to him by his intelligence services, was in the superior
position to decide when the plebiscite shall be held, how
it shall be conducted and who shall oversee it.
It should be noted that in approving said Resolution
No. 29, the Constitutional Convention itself recognized
the validity of, or validated Presidential Proclamation
No. 1081 placing the entire country under martial law
by resolving to “propose to President Ferdinand E.
Marcos that a decree be issued calling a plebiscite x x x.”
The use of the term “decree” is significant for the basic
orders regulating the conduct of all inhabitants are

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issued in that form and nomenclature by the President


as the Commander in Chief and enforcer of martial law.
Consequently, the issuance by the President of
Presidential Decree No. 73 on December 1, 1972 setting
the plebiscite on January 15, 1973 and appropriating
funds therefor pursuant to said Resolution No. 29, is a
valid exercise of such delegated authority.
Such delegation, unlike the delegation by Congress of
the rule-making power to the Chief Executive or to any
of his subalterns, does not need sufficient standards to
circumscribe the exercise of the power delegated, and is
beyond the competence of this Court to nullify. But even
if adequate criteria should be required, the same are
contained in the “Whereas” clauses of the Constitutional
Convention Resolution No. 29, thus: 

“WHEREAS, the 1971 Constitutional Convention is


expected to complete its work of drafting a proposed new
Constitution for the Republic by the end of November, 1972;
“WHEREAS, in view of the urgency of instituting reforms,
the early approval of the New Constitution has become
imperative;
“WHEREAS, it is the desire of the national and local leaders
that there be continuity in the immediate political transition
from the old to the New Constitution”; (Annex “1” of Answer,
Res. No. 29, Constitutional Convention). 

As Mr. Justice Fernando, with whom Messrs. Justices


Barredo, Antonio and the writer concurred in the
Plebiscite Cases, stated:
“x  x  x Once this work of drafting has been completed, it
could itself direct the submission to the people for ratification
as contemplated in Article XV of the Constitution. Here it did
not do so. With Congress not being in session, could the
President, by the decree under question, call for such a
plebiscite? Under such circumstances,  a negative answer
certainly could result in the work of the Convention being
rendered nugatory. The view has been repeatedly expressed in
many American state court decisions that to avoid such
undesirable consequence the task of submission becomes
ministerial, with the political branches devoid of any discretion
as to

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the holding of an election for that purpose. Nor is the


appropriation by him of the amount necessary to be considered
as offensive to the Constitution.  If it were done by him in his
capacity as President, such an objection would indeed have
been formidable, not to say insurmountable. If the
appropriation were made in his capacity as agent of the
Convention to assure that there be submission to the people,
then such an argument loses force. The Convention itself could
have done so. It is understandable why it should be thus. If it
were otherwise, then a legislative body, the appropriating arm
of the government, could conceivably make use of such authority
to compel the Convention to submit to its wishes, on pain of
being rendered financially distraught. The President then, if
performing his role as its agent, could be held as not devoid of
such competence. (pp. 2-3, concurring opinion of J. Fernando in
L-35925, etc., emphasis supplied).

IV
VAGUENESS OR AMBIGUITY DOES NOT
INVALIDATE THE 1973 CONSTITUTION
(1) Petitions challenge the 1973 draft as vague and
incomplete, and alluded to their arguments during the
hearings on December 18 and 19, 1972 on the Plebiscite
Cases. But the inclusion of questionable or ambiguous
provisions does not affect the validity of the ratification
or adoption of the 1973 Constitution itself (Pope vs.
Gray, 104 SO, 2d 841; 7th Dec. pp. 212-219, 1956-1966).
Alexander Hamilton, one of the leading founders and
defenders of the American Constitution, answering the
critics of the Federal Constitution, stated that: “I never
expect to see a perfect work from imperfect man. The
result of the deliberations of all collective bodies must
necessarily be a compound, as well of the errors and
prejudices as of the good sense and wisdom, of the
individuals of whom they are composed. The compacts
which are to embrace thirteen distinct States in a
common bond of amity and union, must necessarily be a
compromise of as many dissimilar interests and
inclinations. How can perfection spring from such
materials?” (The Federalist, Modern Library Ed., pp. xx-
xxi).
(2) The 1973 Constitution is likewise impugned on the

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ground that it contains provisions which are  ultra


vires  or beyond the power of the Constitutional
Convention to propose.
This objection relates to the wisdom of changing the
form of government from Presidential to Parliamentary
and including such provisions as Section 3 of Article IV,
Section 15 of Article XIV and Sections 3(2) and 12 of
Article XVII in the 1973 Constitution.
Article IV —

“Sec. 3. The right of the people to be secure in their persons,


houses, papers, and effects against unreasonable searches and
seizures of whatever nature and for any purpose shall not be
violated, and no search warrant or warrant of arrest shall
issue except upon probable cause to be determined by the judge,
or such other responsible officer as may be authorized by law,
after examination under oath or affirmation of the complainant
and the witnesses may produce, and particularly describing
the place to be searched, and the persons or things to be
seized.”

Article XIV —

“Sec. 15. Any provision of paragraph one, Section fourteen,


Article Eight and of this Article notwithstanding, the Prime
Minister may enter into international treaties or agreements
as the national welfare and interest may require.” (Without the
consent of the National Assembly.)

Article XVII — 

“Sec. 3(2) All proclamations, orders, decrees, instructions,


and acts promulgated, issued, or done by the incumbent
President shall be part of the law of the land, and shall remain
valid, legal, binding and effective even after lifting of martial
law or the ratification of this Constitution, unless modified,
revoked, or superseded by subsequent proclamations, orders,
decrees, instructions, or other acts of the incumbent President,
or unless expressly and explicitly modified or repealed by the
regular National Assembly.
xx xx xx xx xx
“Sec. 12. All treaties, executive agreements, and contracts
entered into by the Government, or any subdivision, agency, or
instrumentality thereof, including government-owned or
controlled

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corporations, are hereby recognized as legal, valid and binding.


When the national interest so requires, the incumbent
President of the Philippines or the interim Prime Minister may
review all contracts, concessions, permits, or other forms of
privileges for the exploration, development, exploitation, or
utilization of natural resources entered into, granted, issued or
acquired before the ratification of this Constitution.” 

In the Plebiscite Cases (L-35925, L-35929, L-35940,


L-35942, L-35948, L-35953, L-35961, L-35965, & L-
35979), Chief Justice Roberto Concepcion, concurred in
by Justices Fernando, Barredo, Antonio and the writer,
overruled this objection, thus:

“x x x Regardless of the wisdom and moral aspects of the


contested provisions of the proposed Constitution, it is
my considered view that the Convention was legally
deemed fit to propose — save perhaps what is or may be
insistent with what is now known, particularly in
international law, as Jus Cogens — not only because the
Convention exercised sovereign powers delegated thereto
by the people — although insofar only as the
determination of the proposals to be made and
formulated by said body is concerned — but also, because
said proposals cannot be valid as part of our
Fundamental Law unless and until ‘approved by the
majority of the votes cast at an election which’ said
proposals ‘are submitted to the people for their
ratification,’ as provided in Section 1 of Article XV of the
1935 Constitution.” (pp. 17-18, Decision in L-35925, etc.).

This Court likewise enunciated in  Del Rosario vs.


Comelec (L-32476, Oct. 20, 1970, 35 SCRA 367) that the
Constitutional Convention has the authority to “entirely
overhaul the present Constitution and propose an
entirely new Constitution based on an ideology foreign to
the democratic system x  x  x; because the same will be
submitted to the people for ratification. Once ratified by
the sovereign people, there can be no debate about the
validity of the new Constitution.”
Mr. Justice Fernando, concurring in the same
Plebiscite Cases, cited the foregoing pronouncement in
the Del Rosario case, supra, and added: “xx xx it seems
to me a sufficient answer that once convened, the area
open for deliberation to a constitutional convention xx
xx, is practically limitless” (citing

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Javellana vs. The Executive Secretary

Cf. Koehler vs. Hill, 14 NW 738, 60 Iowa 543 [1883];


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

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legislature only or of all state officials only or of local


officials only, or of both state and local officials; fixes the
date of the election or plebiscite limits the submission to
only electors or qualified electors; prescribes the
publication of the proposed amendment or a new
Constitution for a specific period prior to the election or
plebiscite; and designates the officer to conduct the
plebiscite, to canvass and to certify the results, including
the form of the ballot which should so state the
substance of the proposed amendments to enable the
voter to vote on each amendment separately or
authorizes expressly the Constitutional Convention or
the legislature to determine the procedure or certain
details thereof. See the State Constitutions of Alabama
[1901]; Arizona [1912]; Arkansas [1874]; Colorado
[1976]; Connecticut [1818]; Florida [1887]; Georgia
[1945]; Illinois [1970]; Indiana [1851]; Iowa [1857];
Kansas [1861]; Kentucky [1891]; Louisiana [1921];
Maryland [1867]; Massachusetts [1790]; Michigan
[1909]; Minnesota [1857]; Mississippi [1890]; and
Missouri [1945]).
As typical examples:
Constitution of Alabama (1901):

“Article XVIII. Mode of Amending the Constitution


“Sec. 284. Legislative Proposals. Amendments may be
proposed to this Constitution by the legislature in the manner
following: The proposed amendments shall be read in the
house in which they originate on three several days, and, if
upon the third reading, three-fifths of all the members elected
to that house shall vote in favor thereof, the proposed
amendments shall be sent to the other house, in which they
shall likewise be read on three several days, and if upon the
third reading, three-fifths of all the members elected that
house shall vote in favor of the proposed amendments,
the legislature shall order an election by the qualified electors
of the state upon such proposed amendments, to be held either
at the general election next succeeding the session  of the
legislature at which the amendments are proposed  or upon
another day appointed by the legislature, not less than three
months after the final adjournment  of the session of the
legislature at which the amendments were proposed. Notice of
such election, together with the proposed amendments, shall be
given by proclamation of the governor,  which shall be
published in every county  in such manner as the legislature
shall direct,  for at least eight successive weeks next preceding
the day appointed for such election. On the day so

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appointed an election shall be held for the vote of the qualified


electors of the state upon the proposed amendments. If such
election be held on the day of the general election, the officers
of such general election shall open a poll for the vote of the
qualified electors upon the proposed amendments; if it be held
on a day other than that of a general election, officers for such
election shall be appointed; and the election shall be held in all
things in accordance with the law governing general elections.
In all elections upon such proposed amendments, the votes cast
thereat shall be canvassed, tabulated, and returns thereof be
made to the secretary of state, and counted, in the same manner
as in elections for representatives to the legislature; and if it
shall thereupon appear that a majority of the qualified electors
who voted at such election upon the proposed amendments
voted in favor of the same, such amendments shall be valid to
all intents and purposes as parts of this Constitution. The
result of such election shall be made known by proclamation of
the governor. Representation in the legislature shall be based
upon population, and such basis of representation shall not be
changed by constitutional amendments.
“Sec. 285. Form of ballot for amendment. Upon the ballots
used at all elections provided for in section 284 of this
Constitution, the substance or subject matter of each proposed
amendment shall be so printed that the nature thereof shall be
clearly indicated. Following each proposed amendment on the
ballot shall be printed the word “Yes” and immediately under
that shall be printed the word “No.” The choice of the elector
shall be indicated by a cross mark made by him or under his
direction, opposite the word expressing his desire, and no
amendment shall be adopted unless it receives the affirmative
vote of a majority of all the qualified electors who vote at such
election.” 

Constitution of Arkansas (1874):

“Article XIX. Miscellaneous Provisions.


“Sec. 22. Constitutional amendments. Either branch of the
General Assembly at a regular session thereof may propose
amendments to this Constitution, and, if the same be agreed to
by a majority of all the members, elected to each house, such
proposed amendments shall be entered on the journal with the
yeas and nays, and published in at least one newspaper in each
county, where a newspaper is published, for six months
immediately preceding the next general election for Senators
and Representatives, at which time the same shall be submitted
to the electors of the State for

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approval or rejection, and if a majority of the electors voting at


such election adopt such amendments, the same shall become a
part of this Constitution; but no more than three amendments
shall be proposed or submitted at the same time. They shall be
so submitted as to enable the electors to vote on each
amendment separately.

Constitution of Kansas (1861):

“Article XIV. Amendments.


“Sec. 1. Proposal of amendments; publications; elections.
Propositions for the amendment of this constitution may be
made by either branch of the legislature; and if two thirds of
all the members elected to each house shall concur therein,
such proposed amendments, together with the yeas and nays,
shall be entered on the journal; and the secretary of state shall
cause the same to be published in at least one newspaper in
each county of the state where a newspaper is published, for
three months preceding the next election for representatives,
at which time, the same shall be submitted to the electors, for
their approval or rejection; and if a majority of the electors
voting on said amendments, at said election, shall adopt the
amendments, the same shall become a part of the constitution.
When more than one amendment shall be submitted at the
same time, they shall be so submitted as to enable the electors
to vote on each amendments separately; and not more than
three propositions to amend shall be submitted at the same
election.” 

Constitution of Maryland (1867):

“Article XIV. Amendments to the Constitution.


“Sec. 1. Proposal in general assembly; publication;
submission to voters; governor’s proclamation. The General
Assembly may propose Amendments to this Constitution;
provided that each Amendment shall be embraced in a
separate bill, embodying the Article or Section, as the same
will stand when amended and passed by three fifths of all the
members elected to each of the two Houses, by yeas and nays,
to be entered on the Journals with the proposed Amendment.
The bill or bills proposing amendment or amendments shall be
published by order of the Governor, in at least two newspapers,
in each County, where so many may be published, and where
not more than one may be published, then in the newspaper,
and in three newspapers published in the City of Baltimore,
once a week for four weeks immediately preceding the next
ensuing general

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election, at which the proposed amendment or amendments


shall be submitted, in a form to be prescribed by the General
Assembly, to the qualified voters of the State for adoption or
rejection. The votes cast for and against said proposed
amendment or amendments, severally, shall be returned to the
Governor, in the manner prescribed in other cases, and if it
shall appear to the Governor that a majority of the votes cast
at said election on said amendment or amendments, severally,
were cast in favor thereof, the Governor shall, by his
proclamation, declare the said amendment or amendments
having received said majority of votes, to have been adopted by
the people of Maryland as part of the Constitution thereof, and
henceforth said amendment or amendments shall be part of
the said Constitution. When two or more amendments shall be
submitted in the manner aforesaid, to the voters of this State
at the same election, they shall be so submitted as that each
amendment shall be voted on separately. 

Constitution of Missouri (1945): 


“Article XII. Amending the Constitution.
“Sec. 2(b). Submission of amendments proposed by general
assembly or by the initiative. All amendments proposed by the
general assembly or by the initiative shall be submitted to the
electors for their approval or rejection by official ballot title as
may be provided by law, on a separate ballot without party
designation, at the next general election, or at a special
election called by the governor prior thereto, at which he may
submit any of the amendments. No such proposed amendment
shall contain more than one amended and revised article of
this constitution, or one new article which shall not contain
more than one subject and matters properly connected
therewith. If possible, each proposed amendment shall be
published once a week for two consecutive weeks in two
newspapers of different political faith in each county, the last
publication to be not more than thirty nor less than fifteen
days next preceding the election. If there be but one newspaper
in any county, publication of four consecutive weeks shall be
made. If a majority of the votes cast thereon is in favor of any
amendment, the same shall take effect at the end of thirty
days after the election. More than one amendment at the same
election shall be so submitted as to enable the electors to vote
on each amendment separately.” 

Article XV of the 1935 Constitution does not require a


specific procedure, much less a detailed procedure for
submission or ratification. As heretofore stated, it does
not

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specify what kind of election at which the new


Constitution shall be submitted; nor does it designate
the Commission on Elections to supervise the plebiscite.
Neither does it limit the ratification to the qualified
electors as defined in Article V of the 1935 Constitution.
Much less does it require the publication of the proposed
Constitution for any specific period before the plebiscite
nor does it even insinuate that the plebiscite should be
supervised in accordance with the existing election law.
(2) As aforequoted, Article XV does not indicate the
procedure for submission of the proposed Constitution to
the people for ratification. It does not make any
reference to the Commission on Elections as the body
that shall supervise the plebiscite. And Article XV could
not make any reference to the Commission on Elections
because the original 1935 Constitution as ratified on
May 14, 1935 by the people did not contain Article X on
the Commission on Elections, which article was included
therein pursuant to an amendment by that National
Assembly proposed only about five (5) years later — on
April 11, 1940, ratified by the people on June 18, 1940 as
approved by the President of the United States on
December 1940 (see Sumulong vs. Commission, 70 Phil.
703, 713, 715; Gonzales, Phil. Const. Law, 1966 ed., p.
13). So it cannot be said that the original framers of the
1935 Constitution as ratified May 14, 1935 intended
that a body known as the Commission on Elections
should be the one to supervise the plebiscite, because the
Commission on Elections was not in existence then as
was created only by Commonwealth Act No. 607
approved on August 22, 1940 and amended by
Commonwealth Act No. 657 approved on June 21, 1941
(see Tañada & Carreon, Political Law of the Philippines,
Vol. I, 1961 ed., pp. 475-476; Sumulong vs. Commission,
170 Phil. 703, 708-715; 73 Phil. 288, 290-300; Tañada &
Fernando, Constitution of the Philippines, 1953 ed., Vol.
I, p. 5, Vol. II, pp. 11-19).
Because before August, 1940 the Commission on
Election was not yet in existence, the former
Department of Interior (now Department of Local
Governments and Community Development) supervised
the plebiscites on the 1937 amendment on woman’s
suffrage, the 1939 amendment to the Ordinance
appended to the 1935 Constitution (Tydings-
Kocialkowski Act of the U.S. Congress) and the three
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1940 amendments on the establishment of a bicameral


Congress, the re-election of the President and the Vice-
President, and the creation of the Commission on
Elections (ratified on June 18, 1940). The supervision of
said plebiscites by the then Department of Interior was
not automatic, but by virtue of an express authorization
in Commonwealth Act Nos. 34, 49 and 517.
If the National Assembly then intended that the
Commission on Elections should also supervise the
plebiscite for ratification of constitutional amendments
or revision, it should have likewise proposed the
corresponding amendment to Article XV by providing
therein that the plebiscite on amendments shall be
supervised by the Commission on Elections.
3) If the framers of the 1935 Constitution and the
people in ratifying the same on May 14, 1935 wanted
that only the qualified voters under Article V of the 1935
Constitution should participate in the referendum on
any amendment or revision thereof, they could have
provided the same in 1935 or in the 1940 amendment by
just adding a few words to Article XV by changing the
last phrase to “submitted for ratification to the qualified
electors as defined in Article V hereof,” or some such
similar phrases.
Then again, the term “people” in Article XV cannot be
understood to exclusively refer to the qualified electors
under Article V of the 1935 Constitution because the
said term “people” as used in several provisions of the
1935 Constitution, does not have a uniform meaning.
Thus in the preamble, the term “Filipino people” refer, to
all Filipino citizens of all ages of both sexes. In Section 1
of Article II on the Declaration of Principles, the term
“people” in whom sovereignty resides and from whom all
government authority emanates, can only refer also to
Filipino citizens of all ages and of both sexes. But in
Section 5 of the same Article II on social justice, the
term “people” comprehends not only Filipino citizens but
also all aliens residing in the country of all ages and of
both sexes. Likewise, that is the same connotation of the
term “people” employed in Section 1(3) of Article III on
the Bill of Rights concerning searches and seizures.

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When the 1935 Constitution wants to limit action or
the exercise of a right to the electorate, it does so
expressly as the case of the election of senators and
congressmen. Section 2 Article VI expressly provides
that the senators “shall be chosen at large by the
qualified electors of the Philippines as may provided by
law.” Section 5 of the same Article VI specifically
provides that congressmen shall “be elected by the
qualified electors.” The only provision that seems to
sustain the theory of petitioners that the term “people”
in Article XV should refer to the qualified electors as
defined in Article V of the 1935 Constitution is the
provision that the President and Vice-President shall be
elected “by direct vote of the people.” (Sec. 2 of Art. VII of
the 1935 Constitution). But this alone cannot be
conclusive as to such construction, because of explicit
provisions of Sections 2 and 5 of Article VI, which
specifically prescribes that the senators and
congressmen shall be elected by the qualified electors.
As aforesaid, most of the constitutions of the various
states of the United States, specifically delineate in
detail procedure of ratification of amendments to or
revision of said Constitutions and expressly require
ratification by qualified electors, not by the generic term
“people.”
The proposal submitted to the Ozamis Committee on
the Amending Process of the 1934-35 Constitutional
Convention  satisfied that the amendment shall be
submitted to qualified election for ratification. This
proposal was not accepted indicating that the 1934-35
Constitutional Convention did intend to limit the term
“people” in Article XV of the 1935 Constitution to
qualified electors only. As above demonstrated, the 1934-
35 Constitutional Convention limits the use of the term
“qualified electors” to elections of public officials. It did
not want to tie the hands of succeeding future
constitutional conventions as to who should ratify the
proposed amendment or revision.
(4) It is not exactly correct to opine that Article XV of
1935 Constitution on constitutional amendment
contemplates the automatic applicability of election laws
to plebiscites on proposed constitutional amendments or
revision.

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The very phraseology of the specific laws enacted by
the National Assembly and later by Congress, indicates
that there is need of a statute expressly authorizing the
application of the election laws to plebiscites of this
nature. Thus, Com. Act No. 34 on the woman’s suffrage
amendment enacted on September 30, 1936, consists of
12 sections and, aside from providing that “there shall
be held a  plebiscite on Friday, April 30, 1937, on the
question of woman’s suffrage xx 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, xx and shall be
posted in a conspicuous place in its municipal and
provincial office building and in its polling place not
later than April 22, 1937” (Sec. 12, Com. Act No. 34),
specifies that the provisions of the Election Law
regarding, the holding of a special election, insofar as
said provisions are not in conflict with it, should apply to
the said plebiscite (Sec. 3, Com. Act No. 34); and, that
the votes cast according to the returns of the board of
inspectors  shall be counted by the National
Assembly (Sec. 10, Com. Act No. 34).
The election laws then in force before 1938 were
found in Sections 392-483 of the Revised Administrative
Code.
Sec. 1 of Com. Act No. 357, the previous Election Code
enacted on August 22, 1938, makes it expressly
applicable to plebiscites. Yet the subsequent laws,
namely, Com. Act Nos. 492 and 517 and Rep. Act No. 73
calling for the plebiscite on the constitutional
amendments in 1939, 1940 and 1946, including the
amendment creating the Commission on Elections,
specifically provided that the provisions of the existing
election law shall apply to such plebiscites insofar as
they are not inconsistent with the aforesaid Com. Act
Nos. 492 and 517, as well as Rep. Act No. 73. Thus —
Commonwealth Act No. 492, enacted on September
19, 1939, calling for a plebiscite on the proposed
amendments to the Constitution adopted by the
National Assembly on September 15, 1939, consists of 8
sections and provides that the proposed amendments to
the Constitution adopted in Resolution No. 39 on
September 15, 1939 “shall be submitted to the Filipino
people for approval or disapproval at a  general
election to be

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held throughout the Philippines on Tuesday, October 24,


1939”; that the amendments to said Constitution
proposed in “Res. No. 38, adopted on the same date,
shall be submitted at following election of local officials,”
(Sec. 1, Com. Act No. 492) that the said amendments
shall be published in English and Spanish in three
consecutive issues of the Official Gazette at least ten (10)
days prior to the elections; that copies thereof shall be
posted not later than October 20, 1939 (Sec. 2, Com. Act
492); that the election shall be conducted  according to
provisions of the Election Code insofar as the same may
be applicable; that within thirty (30) days after the
election, Speaker of the National Assembly shall request
the President to call a special session of the Assembly for
the purpose of canvassing the returns and certify the
results thereof (Sec. 6, Com. Act No. 492).
Commonwealth Act No. 517, consisting of 11 sections,
was approved on April 25, 1940 and provided, among
others: that the plebiscite on the constitutional
amendments providing bicameral Congress, re-election
of the President and Vice-President, and the creation of
a Commission on Elections shall be held at a general
election on June 18, 1940 (Sec. 1); that said amendments
shall be published in three consecutive issues of the
Official Gazette in English and Spanish at least 20 days
prior to the election and posted in every local
government office building and polling place not later
than May 18, 1940 (Sec. 2); that the election shall be
conducted in conformity with the Election Code insofar
as the same may be applicable (Sec. 3) that copies of the
returns shall be forwarded to the Secretary of National
Assembly and the Secretary of Interior (Sec. 7); that the
National Assembly shall canvass the returns to certify
the results at a special session to be called by President
(Sec. 8).
Republic Act No. 73 approved on October 21, 1946
calling for a plebiscite on the parity amendment consists
of 8 sections provides that the Amendment “shall be
submitted to the people, for approval or disapproval, at a
general election which shall be held on March 11, 1947,
in accordance with the provisions of this Act” (Sec. 1,
R.A. No. 73); that the said amendment shall
be published in English and Spanish in three

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consecutive issues of the Official Gazette at least 20 days


prior to the election; that copies of the same shall
be  posted  in a conspicuous place and in every polling
place  not later than February 11, 1947  (Section 2, R.A.
No. 73); that the provisions of Com. Act No. 357 (Election
Code) and Com. Act No. 657 creating the Commission on
Elections,  shall apply to the election insofar as they are
not inconsistent with this Act  (Sec. 3, R.A. No. 73); and
that within 30 days after the election, the Senate and
House of Representatives shall hold a joint session to
canvass the returns and certify the results thereof
(Section 6, R.A. No. 73).
From the foregoing provisions, it is patent that Article
XV of the 1935 Constitution does not contemplate nor
envision the automatic application of the election law;
and even at that, not all the provisions of the election
law were made applicable because the various laws
aforecited contain several provisions which are
inconsistent with the provisions of the Revised Election
Code (Com. Act No. 357). Moreover, it should be noted
that the period for the publication of the copies of the
proposed amendments was about 10 days, 15 days or 20
days, and for posting at least 4 days, 8 days or 30 days.
Republic Acts Nos. 180 and 6388 likewise expressly
provide that the Election Code shall apply to plebiscites
(See. 2, R.A. No. 180, as amended, and Section 2, Rep.
Act No. 6388).
If the Election Code  ipso facto  applies to plebiscites
under Article XV of the 1935 Constitution, there would
be no need for Congress to expressly provide therefor in
the election laws enacted after the inauguration of the
Commonwealth government under the 1935
Constitution.
(5) Article XV of the 1935 Constitution does not
specify who can vote and how they shall vote. Unlike the
various State Constitutions of the American Union (with
few exceptions), Article XV does not state that only
qualified electors can vote in the plebiscite. As above-
intimated, most of the Constitutions of the various
states of the United States provide for very detailed
amending process and specify that only qualified electors
can vote at such plebiscite or election.

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Congress itself, in enacting Republic Act No. 3590,
otherwise known as the Barrio Charter, which was
approved on June 17, 1967 and superseded Republic Act
No. 2370, expanded the membership of the barrio
assembly to include citizens who are at least 18 years of
age, whether literate or not, provided they are also
residents of the barrio for at least 6 months (Sec. 4, R.A.
No. 3590). 

“Sec. 4. The barrio assembly. — The barrio assembly shall


consist of all persons who are residents of the barrio for at
least six months,  eighteen years of age or over, citizens of the
Republic of the Philippines and who are duly registered in the
list of barrio assembly members kept by the Barrio Secretary.
“The barrio assembly shall meet at least once a year to hear
the annual report of the barrio council concerning the activities
and finances of the barrio.
“It shall meet also at the case of the barrio council or upon
written petition of at least One-Tenth of the members of the
barrio assembly.
“No meeting of the barrio assembly shall take place unless
notice is given one week prior to the meeting except in matters
involving public safety or security in which case notice within a
reasonable time shall be sufficient. The barrio captain, or in
his absence, the councilman acting as barrio captain, or  any
assembly member selected during the meeting, shall act as
presiding officer at all meetings of the barrio assembly. The
barrio secretary or in his absence,  any member designated by
the presiding officer to act as secretary shall discharge the
duties of secretary of the barrio assembly.
“For the purpose of conducting business and taking any
official action in the barrio assembly, it is necessary that  at
least one-fifth of the members of the barrio assembly be present
to constitute a quorum. All actions shall require a majority vote
of these present at the meeting there being a quorum.
“Sec. 5. Powers of the barrio assembly. — The powers of the
barrio assembly shall be as follows:
“a. To recommend to the barrio council the adoption of
measures for the welfare of the barrio;
“b. To decide on the holding of a plebiscite as provided
for

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in Section 6 of this Act;


“c. To act on budgetary and supplemental
appropriations and special tax ordinances submitted for
its approval by the barrio council; and
“d. To hear the annual report council concerning the
activities and finances of the assembly.
“Sec. 6. Plebiscite. — A plebiscite may be held in the barrio
when authorized by a majority vote of the members present in
the barrio assembly, there being a quorum, or when called by
at least four members of the barrio council; Provided, however,
That no plebiscite shall be held until after thirty days from its
approval by either body, and such plebiscite has been given the
widest publicity in the barrio, stating the date, time, and place
thereof, the questions or issues to be decided, action to be
taken by the voters, and such other information relevant to the
holding of the plebiscite.
“All duly registered barrio assembly members qualified to
vote may vote in the plebiscite. Voting procedures may be made
either in writing as in regular election, and/or declaration by
the voters to the board of election tellers. The board of election
tellers shall be the same board envisioned by section 8,
paragraph 2 of this Act, in case of vacancies in this body, the
barrio council may fill the same.
“A plebiscite may be called to decide on the recall of any
member of the barrio council. A plebiscite shall be called  to
approve any budgetary, supplemental appropriations or special
tax ordinances.
“For taking action on any of the above enumerated measures,
majority vote of all the barrio assembly members registered in
the list of barrio secretary is necessary.
xx xx xx xx xx
“Sec. 10. Qualifications of voters and candidates. — Every
citizen of the Philippines, twenty-one years of age or over, able
to read and write, who has been a resident of the barrio during
the six months immediately preceding the election, duly
registered in the list of voters kept by the barrio secretary, who
is not otherwise disqualified, may vote or be a candidate in the
barrio elections.
“The following persons shall not be qualified to vote:
“a. Any person who has been sentenced by final
judgment to suffer one year or more of imprisonment,
within two years

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after service of his sentence;


“b. Any person who has violated his allegiance to the
Republic of the Philippines; and
“c. Insane or feeble-minded persons.” 
All these barrio assembly members, who are at least
18 years of age, although illiterate, may vote at the
plebiscite on the recall of any member of the barrio
council or on a budgetary, supplemental appropriation,
or special ordinances, a valid action on which requires “a
majority vote of all of the barrio assembly members
registered in the list of the barrio secretary” (par. 5, Sec.
6, R.A. No. 3590). Such plebiscite may be authorized by a
majority vote of the members present in the barrio
assembly, there being a quorum (par. 1, Sec. 6).
However, in the case of election of barrio officials,
only Filipino citizens, who are at least 21 years of age,
able to read and write, residents of the barrio during the
6 months immediately preceding the election and duly
registered in the list of voters kept by the barrio
secretary, not otherwise disqualified, may vote (Sec. 10,
R.A. No. 3590).
Paragraph 2 of Section 6 likewise authorizes open
voting as it provides that “voting procedures may be
made x  x  x either in writing as in regular elections,
and/or declaration by the voters  to the board of election
tellers.”
That said paragraph 2 of Section 6 provides that “all
duly registered barrio assembly members qualified to
vote may vote in the plebiscite,” cannot sustain the
position of petitioners in G.R. No. L-36165 that only
those who are 21 years of age and above and who
possess all other qualifications of a voter under Section
10 of R.A. No. 3590, can vote on the plebiscites referred
to in Section 6; because paragraph 3 of Section 6 does
not expressly limit the voting to those with the
qualifications under Section 10 as said Section 6 does
not distinguish between those who are 21 or above on
the one hand and those 18 or above but below 21 on the
other, and whether literate or not, to constitute a
quorum of the barrio assembly.
Consequently, on questions submitted for plebiscite,
all the registered members of the barrio assembly can
vote as long as
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they are 18 years of age or above; and that only those


who are 21 years of age or over and can read and write,
can vote in the elections of barrio officials.
Otherwise there was no sense in extending
membership in the barrio assembly to those who are at
least 18 years of age, whether literate or not. Republic
Act No. 3590 could simply have restated Section 4 of
Republic Act No. 2370, the old Barrio Charter, which
provided that only those who are 21 and above can be
members of the barrio assembly.
Counsels Salonga and 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.
3590 and should have known the intendment of
Congress in expanding the membership of the barrio
assembly to include all those 18 years of age and above,
whether literate or not.
If Congress in the exercise of its ordinary legislative
power, not as a constituent assembly, can include 18-
year olds as qualified electors for barrio plebiscites, this
prerogative can also be exercised by the Chief Executive
as delegate of the Constitutional Convention in regard to
the plebiscite on the 1973 Constitution.
As heretofore stated, the statement by the President
in Presidential Proclamation No. 1102 that the 1973
Constitution was overwhelmingly ratified by the people
through the Citizens’ Assemblies in a referendum
conducted from January 10 to 15, 1973, should be
accorded the presumption of correctness; because the
same was based on the certification by the Secretary of
the Department of Local Government and Community
Development who tabulated the results of the
referendum all over the country. The accuracy of such
tabulation and certification by the said Department
Secretary should likewise be presumed; because it was
done in the regular performance of his official functions
aside from the fact that the act of the Department
Secretary, as an alter ego of the President, is
presumptively the act of the President himself unless
the latter disapproves or reprobates the same (Villena
vs. Secretary of Interior, 67 Phil. 451). The truth of the
certification by the Department Secretary and the Chief

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Executive on the results of the referendum, is further


strengthened by the affidavits and certifications of
Governor Isidro Rodriguez of Rizal, Mayor Norberto S.
Amoranto of Quezon City and Councilor Eduardo T.
Parades of Quezon City.
The procedure for the ratification of the 1937
amendment on woman suffrage, the 1939 amendment to
the ordinance appended to the 1935 Constitution, the
1940 amendments establishing the bicameral Congress,
creating the Commission on Elections and providing for
two consecutive terms for the President, and the 1947
parity amendment, cannot be invoked; because those
amendments were proposed by the National Assembly
as expressly authorized by Article V of the 1935
Constitution respecting woman suffrage and as a
constituent assembly in all the other amendments
aforementioned and therefore as such, Congress had also
the authority to prescribe the procedure for the
submission of the proposed amendments to the 1935
Constitution.
In the cases at bar, the 1973 Constitution was
proposed by an independent Constitutional Convention,
which as heretofore discussed, has the equal power to
prescribe the modality for the submission of the 1973
Constitution to the people for ratification or delegate the
same to the President of the Republic.
The certification of Governor Isidro Rodriguez of Rizal
and Mayor Norberto Amoranto could be utilized as the
basis for the extrapolation of the Citizens’ Assemblies in
all the other provinces, cities and municipalities in all
the other provinces, cities and municipalities, and the
affirmative votes in the Citizens’ Assemblies resulting
from such extrapolation would still constitute a majority
of the total votes cast in favor of the 1973 Constitution.
As claimed by petitioners in L-36165, against the
certification of the Department of Local Government and
Community Development that in Rizal there were
1,126,000 Yes votes and 100,310 No votes, the
certification of Governor Isidro Rodriguez of Rizal, shows
only 614,157 Yes votes against 292,530 No votes. In
Cavite province, there were

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249,882 Yes votes against 12,269 No votes as disclosed


in Annex 1-A of respondents’ Compliance (the
certification by the Department of Local Government
and Community Development), while the alleged
certification of Governor Lino Bocalan of Cavite shows
only 126,163 Yes votes and 5,577 No votes. If such a
ratio is extended by way of extrapolation to the other
provinces, cities and towns of the country, the result
would still be an overwhelming vote in favor of the 1973
Constitution.
The alleged certification by Governor Lino Bocalan of
Cavite, is not true; because in his duly acknowledged
certification dated March 16, 1973, he states that since
the declaration of martial law and up to the present
time, he has been under house arrest in his residence in
Urdaneta Village, Makati, Rizal; that he never
participated in the conduct of the Citizens’ Assemblies
on January 10 15, 1973 in the province of Cavite; that
the acting chairman and coordinator of the Citizens’
Assemblies at that time was Vice-Governor Dominador
Camerino; and that he was shown a letter for his
signature during the conduct of the Citizens’ Assemblies,
which he did not sign but which he referred to Vice-
Governor Camerino (Annex 1-Rejoinder of the Sol. Gen.
dated March 20, 1973).
Mayor Pablo Cuneta likewise executed an affidavit
dated March 16, 1973 stating that on January 15, 1973,
he caused the preparation of a letter addressed to
Secretary Jose Roño of the Department of Local
Government and Community Development showing the
results of the referendum in Pasay City; that on the
same day, there were still in any Citizens’ Assemblies
holding referendum in Pasay City, for which reason he
did not send the aforesaid letter pending submittal of
the other results from the said Citizens’ Assemblies; and
that in the afternoon of January 15, 1973, he indorsed
the complete certificate of results on the referendum in
Pasay City to the Office of the President (Annex 5-
Rejoinder of Sol. Gen. dated March 20, 1973).
Pablo F. Samonte, Assistant City Treasurer and
Officer in Charge of Pasay City also issued an affidavit
dated March 15, 1973 stating that a certain Atty. Delia
Sutton of the Salonga Law Office asked him for the
results of the referendum; that he

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informed her that he had in his possession unsigned


copies of such results which may not be considered
official as they had then no knowledge whether the
original thereof had been signed by the mayor; and that
in spite of his advice that said unsigned copies were not
official, she requested him if she could give her the
unofficial copies thereof, which he gave in good faith
(Annex C-Rejoinder to the Sol. Gen.).
There were 118,010 Yes votes as against 5,588 No
votes in the Citizens’ Assemblies of Quezon city (Annex
V to Petitioners’ Notes in L-36165). The fact that a
certain Mrs. Remedio Gutierrez, wife of alleged barrio
treasurer Faustino Gutierrez, of barrio South Triangle,
Quezon City, states that “as far as we know, there has
been no Citizens’ Assembly meeting in our Area,
particularly in January of this year,” does not
necessarily mean that there was no such meeting in said
barrio; for she may not have been notified thereof and as
a result she was not able to attend said meeting. Much
less can it be a basis for the claim that there was no
meeting at all in the other barrios of Quezon City. The
barrio captain or the secretary of the barrio assembly
could have been a credible witness.
Councilor Eduardo T. Paredes, chairman of the
Secretariat of Quezon City Ratification and Coordinating
Council, certified on March 12, 1973 that as such
chairman he was in charge of the compilation and
tabulation of the results of the referendum among the
Citizens’ Assemblies in Quezon City based on the results
submitted to the Secretariat by the different Citizens’
Assemblies; but many results of the referendum were
submitted direct to the national agencies having to do
with such activity and all of which he has no knowledge,
participation and control (Annex 4 Rejoinder of the Sol.
Gen.).
Governor Isidro Rodriguez of Rizal issued a
certification dated March 16, 1973 that he prepared a
letter to the President dated January 15, 1973 informing
him of the results of the referendum in Rizal, in
compliance with the instruction of the National
Secretariat to submit such letter 2 or 3 days from
January 10 to show the trend of voting in the Citizens’
Assemblies; that the figures 614,157 and 292,530
mentioned in said letter were based on the certificates of
results in his possession as of January 14, 1973, which
results were made the

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basis of the computation of the percentage of voting trend


in the province; that his letter was never intended to
show the final or complete result in the referendum in the
province as said referendum was then still going on from
January 14-17, 1973, for which reason the said letter
merely stated that it was only a “summary result”;  and
that after January 15, 1973, he sent to the National
Secretariat all the certificates of results in 26
municipalities of Rizal for final tabulation (Annex 3-
Rejoinder of the Sol. Gen.; italics supplied).
Lydia M. Encarnacion, acting chief of the Records
Section, Department of Local Government and
Community Development, issued a certificate dated
March 16, 1973 that she was shown xerox copies of
unsigned letters allegedly coming from Governor Lino
Bocalan dated January 15, 1973 and marked “Rejoinder
Annex Cavite” addressed to the President of the
Philippines through the Secretary of the Department of
Local Government and Community Development and
another unsigned letter reportedly from Mayor Pablo
Cuneta dated January 15, 1973 and marked “Rejoinder
Annex Pasay City” addressed to the Secretary of the
Department of Local Government and Community
Development; that both xerox copies of the unsigned
letters contain figures showing the results of the
referendum of the Citizens’ Assemblies in those areas;
and that the said letters were not received by her office
and that her records do not show any such documents
received by her office (Annex 2-Rejoinder of the Sol.
Gen.).
Thus it would seem that petitioners in L-36165 have
attempted to deceive this Court by representing said
unsigned letters and/or certificates as duly signed and/or
containing the complete returns of the voting in the
Citizens’ Assemblies.
The observation We made with respect to the
discrepancy between the number of Yes votes and No
votes contained in the summary report of Governor
Rodriguez of Rizal as well as those contained in the
alleged report of Governor Lino Bocalan of Cavite who
repudiated the same as not having been signed by him
for he was then under house arrest, on the one hand,
and the number of votes certified by the Department of
Local Government and Community Development, on the
other, to the effect that even assuming the correctness of
the figures

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insisted on by counsel for petitioners in L-36165, if they


were extrapolated and applied to the other provinces
and cities of the country, the Yes votes would still be
overwhelmingly greater than the No votes, applies
equally to the alleged discrepancy between the figures
contained in the certification of the Secretary of the
Department of Local Government and Community
Development and the figures furnished to counsel for
petitioners in L-36165 concerning the referendum in
Camarines Sur, Bataan and Negros Occidental.
The fact that the referendum in the municipality of
Pasacao, Camarines Sur, shows that there were more
votes in favor of the plebiscite to be held later than those
against, only serve to emphasize that there was freedom
of voting among the members of the Citizens’ Assemblies
all over the country during the referendum from
January 10 to 15, 1973 (Annex-6 Camarines Sur to
Rejoinder of Petitioners in L-36165). If there was no
such freedom of choice, those who wanted a plebiscite
would not outnumber those against holding such
plebiscite.
The letter of Governor Felix O. Alfelor, Sr. dated
January 1973 confirms the “strong manifestation of
approval of the new Constitution by almost 97% by the
members of the Citizens’ Assemblies in Camarines Sur”
(Annex-Camarines Sur to Rejoinder of Petitioners in L-
36165).
The report of Governor Efren B. Pascual of Bataan
shows that the members of the Citizens’ Assemblies
voted overwhelmingly in favor of the new Constitution
despite the fact that the second set of questions
including the question “Do you approve of the new
Constitution?” was received only on January 10.
Provincial Governor Pascual stated that “orderly
conduct and favorable results of the referendum” were
due not only to the coordinated efforts and cooperation of
all teachers and government employees in the area but
also to the enthusiastic participation by the people,
showing “their preference and readiness to accept this
new method of government to people consultation in
shaping up government policies.” (Annex-Bataan to
Rejoinder of Petitioners in L-36165).
As heretofore stated, it is not necessary that voters
ratifying

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the new Constitution are registered in the book of


voters; it is enough that they are electors voting on the
new Constitution (Bott vs. Wurts, 40 A 740 [1898]; 43 A
744, 881 [1899]; 45 LRA 251). The fact that the number
of actual voters in the referendum in certain localities
may exceed the number of voters actually registered for
the 1971 elections, can only mean that the excess
represents the qualified voters who are not yet
registered including those who are at least 15 years of
age and the illiterates. Although ex-convicts may have
voted also in the referendum, some of them might have
been granted absolute pardon or were sentenced to less
than one year imprisonment to qualify them to vote (Sec.
201, 1971 Rev. Election Code). At any rate, the ex-
convicts constitute a negligible number, discounting
which would not tilt the scale in favor of the negative
votes.
Similarly, the fact that Mayor Marcial F. Samson of
Caloocan City, who belongs to the Liberal Party, stated
in his letter dated March 13, 1973 that he does not “feel
authorized by the proper authorities to confirm or deny
the data” concerning the number of participants, the Yes
votes and No votes in the referendum on the new
Constitution among the members of the Citizens’
Assemblies in Caloocan City, does not necessarily give
rise to the inference that Mayor Samson of Caloocan
City is being intimidated, having been recently released
from detention; because in the same letter of Mayor
Samson, he suggested to counsel for petitioners in L-
36165 that he can secure “the true and legitimate results
of the referendum” from the Office of the President
(Annex Caloocan-B to Rejoinder of Petitioners in L-
36165). Why did not learned and eminent counsel heed
such suggestion?
Counsel for petitioners in L-36165, to sustain their
position, relies heavily on the computation of the
estimated turnover in the Citizens’ Assemblies
referendum on January 10 to 15, 1973 by a certain
Professor Benjamin R. Salonga, of the Mapua Institute
of Technology, ostensibly a close relative of former
Senator Jovito R. Salonga, eminent counsel for
petitioners in L-36165 (Annex M-as amended, to
Consolidated Rejoinder of petitioners in L-36165 to the
Notes of Arguments and Memorandum of respondents).
Professor Salonga is not a qualified statistician, which
all the more impairs his
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credibility. Director Tito A. Mijares of the Bureau of


Census and Statistics, in his letter dated March 16, 1973
address to the Secretary of the Department of Local
Government and Community Development, refutes the
said computation of Professor Benjamin R. Salonga,
thus:

“1) I do not quite understand why (Problem 1) all qualified


registered voters and the 15-20-year-old youths (1972) will
have to be estimated in order to give a 101.9% estimate of the
percentage participation of the ‘15-20 year old plus total
number of qualified voters’ which does not deem to answer the
problem. This computation apparently fails to account for some
5.6 million persons ‘21 years old and over’ who were not
registered voters (COMELEC), but who might be qualified to
participate at the Citizen’s Assembly.
“2) The official population projection of this office (medium
assumption) for ‘15 year olds and over’ as of January 1, 1973 is
22.506 million. If total number of participants at the Citizens’
Assembly Referendum held on January 10-15, 1973 was 16.702
million, participation rate will therefore be the ratio of the
latter figure to the former which gives 74.2%.
“3) I cannot also understand c-2 ‘Solution to Problem 11.’
The ‘difference or implied number of 15-20 year olds’ of
5,039,906 would represent really not only all 15-year olds and
over who participated at the Citizens’ Assembly but might not
have been registered voters at the time, assuming that all the
11,661,909 registered voted at Citizens’ Assembly. Hence, the
‘estimate percentage participation of 15-20 years olds’ of
105.6% does not seem to provide any meaningful information.
“To obtain the participation rate of ‘15-20 years old’ one
must divide the number in this age group, which was
estimated to be 4.721 million as of January 1, 1973 by the
population of ‘15 years old and over’ for the same period which
was estimated to be 22.506 million, giving 21.0%.
“In Problem III, it should be observed that registered voters
also include names of voters who are already dead. It cannot
therefore be assumed that all of them participated at the
Citizens’ Assembly. It can therefore be inferred that ‘a total
number of persons 15 and over unqualified/disqualified to vote’
will be more than 10,548,197 and hence the ‘difference or
implied number of registered voters that participated’ will be
less than 6,153,618.

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“I have reservations on whether an ‘appropriate number of
qualified voters that supposedly voted’ could be meaningfully
estimated.
“5) The last remark will therefore make the ratio (a)
[Solution to Problem] more than 1.71 and that for (b),
accordingly, will also be less than 36.8%.” (Annex F
Rejoinder). 

From the foregoing analysis of the Director of Census


and Statistics as of January 21, 1973, the official
population projection for 15-year olds and over is
22,506,000. If 16,702,000 voted in the referendum, the
participation ratio would be 74.2% of 22,506,000.
If the registered electors as of the election of
November 8, 1971 numbered 11,661,909, the difference
between 16,702,000 who participated in the referendum
and the registered electors of 11,661,909 for the
November 8, 1971 elections, is 5,040,091, which may
include not only the 15-year olds and above but below 21
but also the qualified electors who were not registered
before the November 8, 1971 elections as well as
illiterates who are 15 years old and above but below 21.
Moreover, in the last Presidential election in
November, 1969, We found that the incumbent
President obtained over 5,000,000 votes as against about
3,000,000 votes for his rival LP Senator Sergio Osmeña,
Jr., garnering a majority of from about 896,498 to
1,436,118 (Osmeña, Jr. vs. Marcos, Presidential Election
Contest No. 3, Jan. 8, 1973).
The petitioners in all the cases at bar cannot state
with justification that those who voted for the incumbent
President in 1969 did not vote in favor of the 1973
Constitution during the referendum from January 10 to
15, 1973. It should also be stressed that many of the
partisans of the President in the 1969 Presidential
elections, have several members in their families and
relatives who are qualified to participate in the
referendum because they are 15 years or above including
illiterates, which fact should necessarily augment the
number of votes who voted for the 1973 Constitution.
(6) It is also urged that martial law being the rule of
force, is
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necessarily inconsistent with freedom of choice, because


the people fear to disagree with the President and
Commander-in-Chief of the Armed Forces of the
Philippines and therefore cannot voice views opposite to
or critical of the position of the President on the 1973
Constitution and on the mode of its ratification.
It is also claimed or urged that there can be no free
choice during martial law which inevitably generates
fear in the individual. Even without martial law, the
penal, civil or administrative sanction provided for the
violation of ordinarily engenders fear in the individual
which persuades the individual to comply with or obey
the law. But before martial law was proclaimed, many
individuals fear such sanctions of the law because of lack
of effective equal enforcement or implementation thereof
— in brief, compartmentalized justice and extraneous
pressures and influences frustrated the firm and just
enforcement of the laws. The fear that is generated by
martial law is merely the fear of immediate execution
and swift enforcement of the law and therefore
immediate infliction of the punishment or sanction
prescribed by the law whenever it is transgressed during
the period of martial law. This is not the fear that affects
the voters’ freedom of choice or freedom to vote for or
against the 1973 Constitution. Those who cringe in fear
are the criminals or the law violators. Surely, petitioners
do not come under such category.
(7) Petitioners likewise claim that open voting by viva
voce or raising of hands violates the secrecy of the ballot
as by the election laws. But the 1935 Constitution does
not require secret voting. We search in vain for such
guarantee or prescription in said organic law. The
Commission on Elections under the 1940 Amendment,
embodied as Article X is merely mandated to insure
“free, orderly and honest election.” Congress, under its
plenary law-making authority, could have validly
prescribed in the election law open voting in the election
of public officers, without trenching upon the
Constitution. Any objection to such a statute concerns its
wisdom or propriety, not its legality or constitutionality.
Secret balloting was demanded by partisan strife in
elections for elective officials. Partisanship based on
party or personal loyalties

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does not generally obtain in a plebiscite on proposed


constitutional amendments or on a new Constitution.
We have seen even before and during martial law that
voting in meetings of government agencies or private
organizations is usually done openly. This is specially
true in sessions of Congress, provincial boards, city
councils, municipal boards and barrio councils when
voting on national or local issues, not on personalities.
Then again, open voting was not a universal
phenomenon in the Citizens’ Assemblies. It might have
been true in certain areas, but that does not necessarily
mean that it was done throughout the country.
The recent example of an open voting is the last
election on March 3, 1973 of the National Press Club
officers who were elected by acclamation presided over
by its former president, petitioner Eduardo Monteclaro
in L-36236 (see Bulletin Today, p. 8, March 3, 1973
issue). There can be no more hardboiled group of persons
than newspapermen, who cannot say that voting among
them by acclamation was characterized by fear among
the members of the National Press Club.
Moreover, petitioners would not be willing to affirm
that all the members of the citizenry of this country are
against the new Constitution. They will not deny that
there are those who favor the same, even among the
400,000 teachers among whom officers of the
Department of Education campaigned for the ratification
of the new Constitution.
Not one of the petitioners can say that the common
man — farmer, laborer, fisherman, lowly employee,
jeepney driver, taxi driver, bus driver, pedestrian,
salesman, or salesgirl — does not want the new
Constitution, or the reforms provided for therein.
(8) Petitioners likewise claim that there was no
sufficient publicity given to the new Constitution. This is
quite inaccurate; because even before the election in
November, 1970 of delegates to the Constitutional
Convention, the proposed reforms were already
discussed in various forums and through the press as
well as other media of information. Then after the

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Constitutional Convention convened in June, 1971,


specific reforms advanced by the delegates were
discussed both in committee hearings as well as in the
tri-media — the press, radio and television. Printed
materials on the proposed reforms were circulated by
their proponents. From June, 1971 to November 29,
1972, reforms were openly discussed and debated except
for a few days after the proclamation of martial law on
September 21, 1972. From the time the Constitutional
Convention reconvened in October, 1972 until January
7, 1973, the provisions of the new Constitution were
debated and discussed in forums sponsored by private
organizations universities and debated over the radio
and on television. The Philippines is a literate country,
second only to Japan in the Far East, and more literate
perhaps than many of mid-western and southern states
of the American Union and Spain. Many residents in
about 1,500 towns and 33,000 barrios of the country
have radios. Even the illiterates listened to radio
broadcasts on and discussed the provisions of the 1973
Constitution.
As reported by the eminent and widely read
columnist, Teodoro Valencia in his column in Bulletin
Today, March 4, 1973 issue, “Otto Lang, Hollywood
producer director (Tora, Tora, Tora) went around the
country doing a 30-minute documentary on the
Philippines for American television stated that what
impressed him most in his travel throughout the country
was the general acceptance of the New Society by the
people which he saw in his 6-week travel from Aparri to
Jolo.”
The report of Frank Valeo (Bulletin Today, March 3
and 4, 1973 and Daily Express, March 3, and Sunday
Express, March 4), Secretary of the United States
Senate, who conducted a personal survey of the country
as delegate of Senator Mike Mansfield, Chairman,
Committee on US-Philippine relations, states: 
“Martial law has paved the way for a re-ordering of the basic
social structure of the Philippines. President Marcos has been
prompt and sure-footed in using the power of presidential
decree under martial law for this purpose. He has zeroed in on
areas which have been widely recognized as prime sources of
the nation’s

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difficulties — land tenancy, official corruption, tax evasion and


abuse of oligarchic economic power. Clearly, he knows the
targets. What is not yet certain is how accurate have been his
shots.  Nevertheless, there is marked public support for his
leadership and tangible alternatives have not been forthcoming.
That would suggest that he may not be striking too far from the
mark.
“The United States business community in Manila seems to
have been re-assured by recent developments xx. (Emphasis
supplied.) 

Petitioners cannot safely assume that all the peaceful


citizens of the country, who constitute the majority of
the population, do not like the reforms stipulated in the
new Constitution, as well as the decrees, orders and
circulars issued to implement the same. It should be
recalled, as hereinbefore stated, that all these reforms
were the subject of discussion both in the committee
hearings and on the floor of the Constitutional
Convention, as well as in public forums sponsored by
concerned citizens or civic organizations at which Con-
Con delegates as well as other knowledgeable
personages expounded their views thereon and in all the
media of information before the proclamation of martial
law on September 21, 1972. This is the reason why the
Constitutional Convention, after spending close to P30
million during the period from June 1, 1971 to
November 29, 1972, found it expedient to accelerate
their proceedings in November, 1972 because all views
that could possibly be said on the proposed provisions of
the 1973 Constitution were already expressed and
circulated. The 1973 Constitution may contain some
unwise provisions. But this objection to such unwise or
vague provisions, as heretofore stated, refers to the
wisdom of the aforesaid provisions, which issue is not for
this Court to decide; otherwise We will be substituting
Our judgment for the judgment of the Constitutional
Convention and in effect acting as a constituent
assembly.
VI
PRESIDENT AS COMMANDER IN CHIEF
EXERCISES LEGISLATIVE POWERS DURING
MARTIAL LAW.
The position of the respondent public officers that
under

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Javellana vs. The Executive Secretary

martial law, the President as Commander-in-Chief is


vested with legislative powers, is sustained by the ruling
in the 1949 case of Kuroda vs. Jalandoni, et al. (83 Phil.
171, 177-178) which reiterates the 1945 case
of Yamashita vs. Styer (75 Phil. 563, 571-72). The trial of
General Kuroda was after the surrender of Japan on
October 2, 1945 (23 Encyc. Brit. 1969 ed., p. 799) and
hence no more martial law in the Philippines.
 

“x  x  x Consequently, in the promulgation and enforcement


of Executive Order No. 68, the President of the Philippines has
acted in conformity with the generally accepted principles and
policies of international law which are part of our Constitution.
“The promulgation of said executive order is an exercise by
the President of his powers as Commander in Chief of all our
armed forces, as upheld by this Court in the case of Yamashita
vs. Styver (L-129, 42 Off. Gaz., 664) when we said —
“ ‘War is not ended simply because hostilities have
ceased. After cessation of armed hostilities, incidents of
war may remain pending which should be disposed of as
in time of war. ‘An important incident to a conduct of war
is the adoption measures by the military command not
only to repel and defeat the enemies but to seize and
subject to disciplinary measures those enemies who in
their attempt to thwart or impede our military effort have
violated the law of war.’ (Ex parte Quirin, 317 U.S., 1; 63
Sup. Ct., 2.) Indeed, the power to create a military
commission for the trial and punishment of war
criminals is an aspect of waging war. And, in the
language of a writer, a military commission ‘has
jurisdiction so long as the technical state of war
continues. This includes the period of an armistice, or
military occupation, up to the effective date of treaty of
peace, and may extend beyond, by treaty agreement.’
(Cowles, Trial of War Criminals by Military Tribunals,
American Bar Association Journal, June, 1944).’
“Consequently, the President as Commander-in-Chief is fully
empowered to consummate this unfinished aspect of war,
namely the trial and punishment of war criminals, through the
issuance and enforcement of Executive Order No. 68.” (83 Phil.
177-178; italics supplied). 

Chief Justice Stone of the United States Supreme


Court likewise appears to subscribe to this view, when,
in his

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concurring opinion in Duncan vs. Kahanamoku (327


U.S. 304 [1946]), he defined martial law as “the exercise
of the power which resides in the executive branch of the
government to preserve order and insure the public safety
in times of emergency, when other branches of the
government are unable to function, or their functioning
would itself threaten the public safety.” (Italics supplied).
There is an implied recognition in the aforesaid
definition of martial law that even in places where the
courts can function, such operation of the courts may be
affected by martial law  should their
“functioning  x  x  x  threaten the public safety.”  It is
possible that the courts, in asserting their authority to
pass upon questions which may adversely affect the
conduct of the punitive campaign against rebels,
secessionists, dissidents as well as subversives, martial
law may restrict such judicial function until the danger
to the security of the state and of the people shall have
been decimated.
The foregoing view appears to be shared by Rossiter
when he stated:

“Finally,  this strong government, which in some instances


might become an outright dictatorship, can have no other
purposes than the preservation of the independence of the state,
the maintenance of the existing constitutional order, and the
defense of the political and social liberties of the people. It is
important to recognize the true and limited ends of any
practical application of the principle of constitutional
dictatorship. Perhaps the matter may be most clearly stated in
this way: the government of a free state is proceeding on its
way and meeting the usual problems of peace and normal
times within the limiting framework of its established
constitutional order. The functions of government are parceled
out among a number of mutually independent offices and
institutions; the power to exercise those functions is
circumscribed by well-established laws, customs, and
constitutional prescriptions; and the people for whom this
government was instituted are in possession of a lengthy
catalogue of economic, political, and social rights which their
leaders recognize as inherent and inalienable.  A severe crisis
arises  —  the country is invaded by a hostile power, or a
dissident segment of the citizenry revolts, or the impact of a
world-wide depression threatens to bring the nation’s economy
in ruins. The government meets the crisis by assuming more
powers and respecting fewer rights. The result is a regime
which can act

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arbitrarily and even dictatorially in the swift adoption of


measures designed to save the state and its people from the
destructive effects of the particular crisis. And the narrow duty
to be pursued by this strong government, this constitutional
dictatorship? Simply this and nothing more:  to end the crisis
and restore normal times. The government assumes no power
and abridges no right unless plainly indispensable to that end;
it extends no further in time than the attainment of that end;
and it makes no alteration in the political, social and economic
structure of the nation which cannot be eradicated with the
restoration of normal times. In short, the aim of constitutional
dictatorship is the complete restoration of the status quo ante
bellum. This historical fact does not comport with philosophical
theory,  that there never has been a perfect constitutional
dictatorship, is an assertion that can be made without fear of
contradiction. But this is true of all institutions of government,
and the principle of constitutional dictatorship remains
eternally valid no matter how often and seriously it may have
been violated in practice. (Constitutional Dictatorship, 1948
ed., by Clinton L. Rossiter, p. 7; italics supplied.)

Finally, Rossiter expressly recognizes that during


martial law, the Chief Executive exercises legislative
power, whether of temporary or permanent character,
thus: 

“The measures adopted in the prosecution of a constitutional


dictatorship should never be permanent in character or effect.
Emergency powers are strictly conditioned by their purpose
and this purpose is the restoration of normal conditions.
The actions directed to this end should therefore be provisional.
For example,  measures of a legislative nature which work a
lasting change in the structure  of the state or constitute
permanent derogations from existing law  should not be
adopted under an emergency enabling act, at least not without
the positively registered approval of the legislature. Permanent
laws, whether adopted in regular or irregular times, are for
parliaments to enact. By this same token, the decisions and
sentences of extraordinary courts should be reviewed by the
regular courts after the termination of the crisis.
“But what if a radical act of permanent character, one
working lasting changes in the political and social fabric, is
indispensable  to the successful prosecution of the particular
constitutional dictatorship? The only answer can be: it must be
resolutely taken and openly acknowledged. President Lincoln
found it necessary to proceed to the revolutionary step of
emancipation in aid of his conservative purpose of preserving
the Union; as a constitutional

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dictator he had a moral right to take this radical


action. Nevertheless, it is imperative that any action with such
lasting effects should eventually receive the positive approval of
the people or of their representatives in the legislature. (p. 303,
italics supplied). 

From the foregoing citations, under martial law


occasioned by severe crisis generated by revolution,
insurrection or economic depression or dislocation, the
government exercises more powers and respects fewer
rights in order “to end the crisis and restore normal
times.” The government can assume additional powers
indispensable to the attainment of that end — the
complete restoration of peace. In our particular case,
eradication of the causes that incited rebellion and
subversion as secession, is the  sine qua non  to the
complete restoration of normalcy. Exercise of legislative
power by the President as Commander in Chief, upon
his proclamation of martial law, is justified because, as
he professes, it is directed towards the institution of
radical reforms essential to the elimination of the causes
of rebellious, insurgent or subversive conspiracies and
the consequent dismantling of the rebellious, insurgent
or subversive apparatus.
Hence, the issuance of Presidential Decree Nos. 86
and 86-A as well as Proclamation No. 1102 is
indispensable to the effectuation of the reforms within
the shortest possible time to hasten the restoration of
normalcy.

“Must the government be too strong for the liberties of the


people; or must it be too weak to maintain its existence?” That
was the dilemma that vexed President Lincoln during the
American Civil War, when without express authority in the
Constitution and the laws of the United States, he suspended
one basic human freedom — the privilege of the writ of habeas
corpus — in order to preserve with permanence the American
Union, the Federal Constitution of the United States and all
the civil liberties of the American people. This is the same
dilemma that presently confronts the Chief Executive of the
Republic of the Philippines, who, more than the Courts and
Congress, must, by express constitutional mandate, secure the
safety of our Republic and the rights as well as lives of the

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people against open rebellion, insidious subversion secession.


The Chief Executive announced repeatedly that in choosing to
proclaim martial law, the power expressly vested in him by the
1935 Constitution (Sec. 10[2], Art. VII, 1935 Constitution) to
insure our national and individual survival in peace and
freedom, he is in effect waging a peaceful, democratic
revolution from the center against the violent revolution and
subversion being mounted by the economic oligarchs of the
extreme right, who resist reforms to maintain their economic
hegemony, and the communist rebels a Maoist oriented
secessionists of the extreme left who demand swift institution
of reforms. In the exercise of his constitutional and statutory
powers, to save the state and to protect the citizenry against
actual and threatened assaults from insurgents, secessionists
and subversives, doctrinaire concepts and principles, no matter
how revered they may be by jurisprudence and time, should
not be regarded as peremptory commands; otherwise the dead
hand of the past will regulate and control the security and
happiness of the living present. A contrary view would be to
deny the self-evident proposition that constitutions and laws
are mere instruments for the well-being, peace, security and
prosperity of the country and its citizenry. The law as a means
of social control is not static but dynamic. Paraphrasing Mr.
Justice Frankfurter, the Constitution is neither a printed
finality nor the imprisonment of the past, but the enfolding of
the future. In the vein of Mr. Justice Holmes, the meaning of
the words of the Constitution is not to be determined by merely
opening a dictionary. Its terms must be construed in the
context of the realities in the life of a nation it is intended to
serve. Because experience may teach one generation to doubt
the validity and efficacy of the concepts embodied in the
existing Constitution and persuade another generation to
abandon them entirely, heed should be paid to the wise counsel
of some learned jurists that in the resolution of constitutional
questions — like those posed before Us — the blending of
idealism and practical wisdom or progressive legal realism
should be applied (see Alexander M. Bickel, the Supreme Court
and the Idea of Progress, 1970 ed., pp. 19-21). To Justice
Frankfurter, law is “a vital agency for human betterment” and
constitutional law “is applied politics using the word in its
noble sense.” (Frankfurter, Law and Politics, 1939 ed., pp. 3 &
6; italics supplied). Justice Brandeis

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gave utterance to the truth that “Our Constitution is not a
straight jacket. It is a living organism. As such, it is capable of
growth  — or expansion  and adaptation to new conditions.
Growth implies changes, political, economic and social.”
(Brandeis Papers, Harvard Law School; emphasis supplied).
Harvard Professor Thomas Reed Powell emphasizes “practical
wisdom,” for “the logic of constitutional law is the common
sense of the Supreme Court.” (Powell, the Validity of State
Legislation, under the Webb-Kenyon Law, 2 Southern Law
Quarterly, pp. 112, 138-139, cited in Bickel’s Opus,  supra;
italics supplied). 

The eternal paradox in this finite world of mortal and


fallible men is that nothing is permanent except change.
Living organisms as well as man-made institutions are
not immutable. Civilized men organize themselves into a
State only for the purpose of serving their supreme
interest — their welfare. To achieve such end, they
created an agency known as the government. From the
savage era thru ancient times, the Middle Ages, the
Dark Ages and the Renaissance to this era of
sophisticated electronics and nuclear weaponry, states
and governments have mutated in their search for the
magic instrument for their well-being. It was trial and
error then as it is still now. Political philosophies and
constitutional concepts, forms and kinds of government,
had been adopted, overturned, discarded, re-adopted or
modified to suit the needs of a given society at a
particular given epoch. This is true of constitutions and
laws because they are not “the infallible instruments of a
manifest destiny.” No matter how we want the law to be
stable, it cannot stand still. As Mr. Justice Holmes aptly
observed, every “constitution is an experiment as all life
is an experiment,” (Abrahms vs. U.S., 250 US 616, 631)
for “the life of the law is not logic, but experience.” In the
pontifical tones of Mr. Justice Benjamin Nathan
Cardozo, “so long as society is inconstant, there can be
no constancy in law,” and “there will be change whether
we will it or not.” As Justice Jose P. Laurel was wont to
say, “We cannot, Canute-like, command the waves of
progress to halt.”
Thus, political scientists and jurists no longer exalt
with vehemence a “government that governs least.”
Adherents there are to the poetic dictum of Alexander
Pope: “For forms

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of government let fools contest; whatever is best


administered is best.” (Poems of Pope, 1931 Cambridge
ed., p. 750). In between, the shades vary from direct
democracy, representative democracy, welfare states,
socialist democracy, mitigated socialism, to outright
communism which degenerated in some countries into
totalitarianism or authoritarianism.
Hence, even the scholar, who advances academic
opinions unrelated to factual situations in the seclusion
of his ivory tower, must perforce submit to the
inexorable law of change in his views, concepts, methods
and techniques when brought into the actual arena of
conflict as a public functionary — face to face with the
practical problems of state, government and public
administration. And so it is that some learned jurists, in
the resolution of constitutional issues that immediately
affect the lives, liberties and fortunes of the citizens and
the nation, recommend the blending of idealism with
practical wisdom which legal thinkers prefer to identify
as progressive legal realism. The national leader, who
wields the powers of government, must and has to
innovate if he must govern effectively to serve the
supreme interests of the people. This is especially true in
times of great crises where the need for a leader with
vision, imagination, capacity for decision and courageous
action is greater, to preserve the unity of people, to
promote their well-being, and to insure the safety and
stability of the Republic. When the methods of rebellion
and subversion have become covert, subtle and
insidious, there should be a recognition of the
corresponding authority on the part of the Commander-
in-Chief of the Armed Forces to utilize all the available
techniques to suppress the peril to the security of the
government and the State.
Over a century and a half ago, Thomas Jefferson, one
of the founding fathers of the American Constitution and
former President of the United States, who personifies
the progressive liberal, spoke the truth when he said
that some men “ascribe men of the preceding age a
wisdom more than human, and suppose what they did to
be beyond amendment. xx xx But I know also, that laws
and institutions must go hand in hand with the progress
of the human mind. As that becomes more developed,
more enlightened, as new discoveries are made, new

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truths disclosed and manners and opinions change, with


the change of circumstances, institutions must also
advance, and keep pace with the times.” (Vol. 12,
Encyclopedia Britanica, 1969 ed., p. 989).
The wisdom of the decision of the Chief Executive can
only be judged in the perspective of history. It cannot be
adequately and fairly appraised within the present
ambience, charged as it is with so much tension and
emotion, if not partisan passion. The analytical,
objective historians will write the final verdict in the
same way that they pronounced judgment on President
Abraham Lincoln who suspended the privilege of the
writ of  habeas 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. President Lincoln
not only emancipated the Negro slaves in America, but
also saved the Federal Republic of the United States
from disintegration by his suspension of the privilege of
the writ of  habeas corpus, which power the American
Constitution and Congress did not then expressly vest in
him. No one can deny that the successful defense and
preservation of the territorial integrity of the United
States was due in part, if not to a great extent, to the
proclamation of martial law over the territory of Hawaii
— main bastion of the outer periphery or the outpost of
the American defense perimeter in the Pacific — which
protected the United States mainland not only from
actual invasion but also from aerial or naval
bombardment by the enemy. Parenthetically, the
impartial observer cannot accurately conclude that the
American Supreme Court acted with courage in its
decision in the cases of  Ex parte Milligan and Duncan
vs. Kahanamoku  (filed on May 10, 1865 argued on
March 5 to 13, 1866, decided on April 3, 1866, and
opinion delivered on December 17, 1866) after the lifting
of the proclamation suspending the privilege of the writ
of  habeas corpus, long after the Civil War and the
Second World ended respectively on April 9 or 26, 18-65
(Vol. 1, Encyclopedia Britannica, 1969 ed., pp. 730, 742)
and on September 2, 1945 (Vol. 23, Encyclopedia
Britannica, 1969 ed., p. 799). Was the delay on the part
of the American Supreme Court in deciding these cases
against the position of the United States President — in
suspending the privilege of the writ of habeas corpus in

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one case and approving the proclamation of martial law


in the other — deliberate as an act of judicial
statesmanship and recognition on their part that an
adverse court ruling during the period of such a grave
crisis might jeopardize the survival of the Federal
Republic of the United States in its life-and-death
struggle against an organized and well armed rebellion
within its own borders and against a formidable enemy
from without its territorial confines during the last
global armageddon?
VIII
DOCTRINE OF SEPARATION OF POWERS
PRECLUDES MANDAMUS AGAINST SENATORS.
In G.R. No. L-36165, mandamus will not lie to compel
respondents Gil Puyat and Jose Roy to convene the
Senate of the Philippines even on the assumption that
the 1935 Constitution still subsists; because pursuant to
the doctrine of separation of powers under the 1935
Constitution, the processes of this Court cannot legally
reach a coordinate branch of the government or its head.
This is a problem that is addressed to the Senate itself
for resolution; for it is purely an internal problem of the
Senate. If a majority of the senators can convene, they
can elect a new Senate President and a new Senate
President Pro Tempore. But if they have no quorum,
those present can order the arrest of the absent
members (Sec. 10[2], Art. VI, 1935 Constitution). If this
fails, then there is no remedy except an appeal to the
people. The dictum  ubi jus, ubi remedium, is not
absolute and certainly does not justify the invocation of
the power of this Court to compel action on the part of a
co-equal body or its leadership. This was emphasized
with sufficient clarity by this Court in the 1949 case of
Avelino vs. Cuenco (83 Phil. 17, 22, 24), with which the
distinguished counsels for the petitioners in L-36164 and
L-36165 are familiar. We stress that the doctrine of
separation of powers and the political nature of the
controversy such as this, preclude the interposition of
the Judiciary to nullify an act of a coordinate body or to
command performance by the head of such a co-ordinate
body of his functions.
Mystifying is the posture taken by counsels for
petitioners
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in referring to the political question doctrine — almost


in mockery — as a magic formula which should be
disregarded by this Court, forgetting that this magic
formula constitutes an essential skein in the
constitutional fabric of our government, which, together
with other basic constitutional precepts, conserves the
unity of our people, strengthens the structure of the
government and assures the continued stability of the
country against the forces of division, if not of anarchy.
Moreover, if they have  a quorum, the senators can
meet anywhere. Validity of the acts of the Senate does
not depend on the place of session; for the Constitution
does not designate the place of such a meeting. Section 9
of Article VI imposes upon Congress to convene in
regular session every year on the 4th Monday of
January, unless a different date is fixed by law, or on
special session called by the President. As former
Senator Arturo Tolentino, counsel for respondents Puyat
and Roy in L-36165, stated, the duty to convene is
addressed to all members of Congress, not merely to its
presiding officers. The fact that the doors of Congress
are padlocked, will not prevent the senators — especially
the petitioners in L-36165 — if they are minded to do so,
from meeting elsewhere — at the Sunken Gardens, at
the Luneta Independence Grandstand, in any of the big
hotels or theaters, in their own houses, or at the Araneta
Coliseum, which is owned by the father-in-law of
petitioner Gerardo Roxas in L-36165.
However, a session by the Senate alone would be
purely an exercise in futility, for it cannot validly meet
without the lower House (Sec. 10[5], Art. VI, 1935
Constitution). Hence, this petition by five former
senators for mandamus in L-36165 is useless.
And as pointed out by former Senator Arturo
Tolentino, counsel for respondents Puyat and
Roy, mandamus  will lie only if there is a law imposing
on the respondents the duty to convene the body. The
rule imposing such a duty invoked by petitioners in L-
36165 is purely an internal rule of the Senate; it is not a
law because it is not enacted by both Houses and
approved by the President.

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The Constitutional provision on the convening of
Congress, is addressed to the individual members of the
legislative body (Sec. 9, Art. VI of 1935 Constitution).
IX
TO NULLIFY PROCLAMATION NO. 1102 AND 1973
CONSTITUTION REQUIRES EIGHT OR TEN VOTES
OF SUPREME COURT.
The petitioners in L-36164 and L-36236 specifically
pray for a declaration that the alleged ratification of the
1973 Constitution is null and void and that the said
1973 Constitution be declared unenforceable and
inoperative.
As heretofore stated, Proclamation No. 1102 is an
enactment of the President as Commander-in-Chief
during martial law as directly delegated to him by
Section 10(2) of Article VII of the 1935 Constitution.
A declaration that the 1973 Constitution is
unenforceable and inoperative is practically deciding
that the same is unconstitutional. The proposed
Constitution is an act of the Constitutional Convention,
which is co-equal and coordinate with as well as
independent of either Congress or the Chief Executive.
Hence, its final act, the 1973 Constitution, must have
the same category at the very least as the act of
Congress itself.
Consequently, the required vote to nullify
Proclamation No. 1102 and the 1973 Constitution should
be eight (8) under Section 10 of Article VIII of the 1935
Constitution in relation to Section 9 of the Judiciary Act
or Republic Act No. 296, as amended, or should be ten
(10) under Section 2(2) of Article X of the 1973
Constitution. Should the required vote of eight (8) or ten
(10), as the case may be, for the declaration of invalidity
or unconstitutionality be not achieved, the 1973
Constitution must be deemed to be valid, in force and
operative.

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X
ARTICLE OF FAITH
WE yield to no man as devotees of human rights and
civil liberties. Like Thomas Jefferson, We swear “eternal
hostility towards any form of tyranny over the mind of
man” as well as towards bigotry and intolerance, which
are anathema to a free spirit. But human rights and civil
liberties under a democratic or republican state are
never absolute and never immune to restrictions
essential to the common weal. A civilized society cannot
long endure without peace and order, the maintenance
of which is the primary function of the government.
Neither can civilized society survive without the natural
right to defend itself against all dangers that may
destroy its life, whether in the form of invasion from
without or rebellion and subversion from within. This is
the first law of nature and ranks second to none in the
hierarchy of all values, whether human or
governmental. Every citizen, who prides himself in being
a member or a civilized society under an established
government, impliedly submits to certain constraints on
his freedom for the general welfare and the preservation
of the State itself, even as he reserves to himself certain
rights which constitute limitations on the powers of
government. But when there is an inevitable clash
between an exertion of governmental authority and the
assertion of individual freedom, the exercise of which
freedom imperils the State and the civilized society to
which the individual belongs, there can be no alternative
but to submit to the superior right of the government to
defend and preserve the State. In the language of Mr.
Justice Holmes — often invoked by herein petitioners —
“when it comes to a decision involving its (state life, the
ordinary rights of individuals must yield to what he (the
President) deems the necessities of the moment. Public
danger warrants the substitution of executive process for
judicial process. (See Keely vs. Sanders, 99 U.S. 441,
446, 25 L ed. 327, 328). This was admitted with regard
to killing men in the actual clash of arms. And we think
it is obvious, although it was disputed, that the same is
true of temporary detention to prevent apprehended
harm.” (Moyer vs. Peabody, 212 U.S. 77, 85, 53 L ed.,
411, 417).
The rhetoric of freedom alone is not enough. It must
be the

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rhetoric of freedom with order and security for all, that


should be the shibboleth; for freedom cannot be enjoyed
in an environment of disorder and anarchy.
The incumbent Chief Executive who was trying to
gain the support for his reform program long before
September 21, 1972, realized almost too late that he was
being deceived by his partymates as well as by the
opposition, who promised him cooperation, which
promises were either offered as a bargaining leverage to
secure concessions from him or to delay the institution of
the needed reforms. The people have been victimized by
such bargaining and dilly-dallying. To avert a terrifying
blood bath and the breakdown of the Republic, the
incumbent President proclaimed martial law to save the
Republic from being overrun by communists,
secessionists and rebels by effecting the desired reforms
in order to eradicate the evils that plague our society,
which evils have been employed by the communists, the
rebels and secessionists to exhort the citizenry to rise
against the government. By eliminating the evils, the
enemies of the Republic will be decimated. How many of
the petitioners and their counsels have been utilizing
the rebels, secessionists and communists for their own
personal or political purposes and how many of them are
being used in turn by the aforesaid enemies of the State
for their own purposes?
If the petitioners are sincere in their expression of
concern for the greater mass of the populace, more than
for their own selves, they should be willing to give the
incumbent Chief Executive a chance to implement the
desired reforms. The incumbent President assured the
nation that he will govern within the framework of the
Constitution and if at any time, before normalcy is
restored, the people thru their Citizens’ Assemblies,
cease to believe in his leadership, he will step down
voluntarily from the Presidency. But if, as apprehended
by the petitioners, he abuses and brutalizes the people,
then to the battlements we must go to man the ramparts
against tyranny. This, it is believed, he knows only too
well; because he is aware that he who rides the tiger will
eventually end inside the tiger’s stomach. He who toys
with revolution will be swallowed by that same
revolution. History is replete with examples of
libertarians who turned tyrants and were burned at
stake or

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beheaded or hanged or guillotined by the very people


whom they at first championed and later deceived. The
most bloody of such mass executions by the wrath of a
wronged people, was the decapitation by guillotine of
about 15,000 Frenchmen including the leaders of the
French revolution, like Robespierre, Danton, Desmoulins
and Marat. He is fully cognizant of the lessons of history.
HENCE, THE DISMISSAL OF THESE FIVE CASES
IS JUSTIFIED.
 
ESGUERRA, J.: For Dismissal of Petitions
These petitions seek to stop and prohibit the
respondents Executive Officers from implementing the
Constitution signed on November 30, 1972; in L-36165,
to compel respondents Gil Puyat and Jose J. Roy,
President and President Pro-Tempore, respectively, of
the Senate under the 1935 Constitution, to convene the
Senate in regular session which should have started on
January 22, 1973; to nullify Proclamation No. 1102 of
the President, issued on January 17, 1973, which
declared the ratification of the Constitution on
November 30, 1972, by the Filipino people, through the
barangays or Citizens Assemblies established under
Presidential Decree No. 86 issued on December 31, 1972,
which were empowered under Presidential Decree No.
86-A, issued on January 5, 1973, to act in connection
with the ratification of said Constitution.
Grounds for the petitions are as follows:
1. That the Constitutional Convention was not a free
forum for the making of a Constitution after the
declaration of Martial Law on September 21, 1972.
2. The Convention was not empowered to incorporate
certain provisions in the 1972 Constitution because they
are highly unwise and objectionable and the people were
not sufficiently informed about them.
3. The President had no authority to create and
empower the Citizens’ Assemblies to ratify the new
Constitution at the

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referendum conducted in connection therewith, as said


assemblies were merely for consultative purposes, and
4. The provisions of Article XV of the 1935
Constitution prescribing the manner of amending the
same were not duly observed.
The petitions were not given due course immediately
but were referred to the Solicitor General as counsel for
the respondents for comment, with three members of the
Court, including the undersigned, voting to dismiss
them outright. The comments were considered motions
to dismiss which were set for hearing and extensively
argued. Thereafter both parties submitted their notes
and memoranda on their oral arguments.
I.
The issues raised for determination, on which the
resolution of the Motion to Dismiss hinges, are as
follows:
1. Is the question presented political and, hence,
beyond the competence of this Court to decide, or is it
justiciable and fit for judicial determination?
2. Was the new Constitution of November 30, 1972,
ratified in accordance with the amending process
prescribed by Article XV of the 1935 Constitution?
3. Has the new Constitution been accepted and
acquiesced in by the Filipino people?
4. Is the new Constitution actually in force and effect?
5. If the answers to questions Nos. 3 and 4 be in the
affirmative, are petitioners entitled to the reliefs prayed
for?
II.
The pivotal question in these cases is whether the
issue raised is highly political and, therefore, not
justiciable. I maintain that this Court should abstain
from assuming jurisdiction, but, instead, as an act of
judicial statesmanship,

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should dismiss the petitions. In resolving whether or not


the question presented is political, joint discussion of
issues Nos. 1, 3 and 4 is necessary so as to arrive at a
logical conclusion. For after the acceptance of a new
Constitution and acquiescence therein by the people by
putting it into practical operation, any question
regarding its validity should be foreclosed and all
debates on whether it was duly or lawfully ushered into
existence as the organic law of the state become political
and not judicial in character.
The undisputed facts that led to the issuance of
Proclamation No. 1102 and Presidential Decrees Nos. 86
and 86-A are fully set forth in the majority and
dissenting opinions in the Plebiscite cases decided on
January 22, 1973, and need not be repeated here.
Petitioners seek to set at naught Proclamation No.
1102 and Presidential Decrees Nos. 86 and 86-A,
claiming that the ratification of the new Constitution
pursuant to the said decrees is invalid and of no effect.
Presidential Decree No. 86 organized the barangays or
Citizens Assemblies composed of all citizens at least
fifteen years of age, and through these assemblies the
proposed 1972 Constitution was submitted to the people
for ratification. Proclamation No. 1102 of the President
announced or declared the result of the referendum or
plebiscite conducted through the Citizens Assemblies,
and that 14,976,561 members thereof voted for the
ratification of the new Constitution and 743,869 voted
against it. Petitioners assail these two acts of the
President as unauthorized and devoid of legal effect.
But looking through the veneer of judicial conformity
with which the petitions have been adroitly contrived,
what is sought to be invalidated is the new Constitution
itself — the very framework of the present Government
since January 17, 1973. The reason is obvious. The
Presidential decrees set up the means for the ratification
and acceptance of the new Constitution and
Proclamation No. 1102 simply announced the result of
the referendum or plebiscite by the people through the
Citizens Assemblies. The Government under the new
Constitution has been running on its tracks normally
and apparently without obstruction in the form of
organized

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resistance capable of jeopardizing its existence and


disrupting its operation. Ultimately the issue is whether
the new Constitution may be set aside by this Court. But
has it the power and authority to assume such a
stupendous task when the result of such invalidation
would be to subject this nation to divisive controversies
that may totally destroy the social order which the
Government under the new Constitution has been
admirably protecting and promoting under Martial Law?
That the new Constitution has taken deep root and the
people are happy and contended with it is a living reality
which the most articulate critics of the new order cannot
deny. 95 out of 108 members of the House of
Representatives have opted to serve in the interim
National Assembly provided for under the new
Constitution. 15 out of 24 Senators have done likewise.
The members of the Congress did not meet anymore last
January 22, 1973, not because they were really
prevented from so doing but because of no serious effort
on their parts to assert their offices under the 1935
Constitution. In brief, the Legislative Department under
the 1935 Constitution is a thing of the past. The
Executive Department has been fully reorganized; the
appointments of key executive officers including those of
the Armed Forces were extended and they took an oath
to support and defend the new Constitution. The courts,
except the Supreme Court by reason of these cases, have
administered justice under the new constitution. All
government offices have dealt with the public and
performed their functions according to the new
Constitution and laws promulgated thereunder.
If the real purpose of the petitions is to set aside the
new Constitution, how can this Court justify its
assumption of jurisdiction when no power has x  x  x
conferred upon it the jurisdiction to declare the
Constitution or any part thereof null and void? It is the
height of absurdity and impudence for a court to wage
open war against the organic act to which it owes its
existence. The situation in which this Court finds itself
does not permit it to pass upon the question whether or
not the new Constitution has entered into force and has
superseded the 1935 Constitution. If it declares that the
present Constitution has not been validly ratified, it has
to uphold the 1935 Constitution as still the prevailing
organic law. The result would be too anomalous to
describe, for then this Court would

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have to declare that it is governed by one Constitution or


the 1935 Constitution, and the legislative and executive
branches by another or the 1972 Constitution.
If it declares that the 1972 Constitution is now
operative, how can it exercise judicial discretion in these
cases when it would have no other choice but to uphold
the new Constitution as against any other one? In the
circumstances it would be bereft of judicial attributes as
the matter would then be not meet for judicial
determination, but one addressed to the sovereign power
of the people who have already spoken and delivered
their mandate by accepting the fundamental law on
which the government of this Republic is now
functioning. To deny that the new Constitution has been
accepted and actually is in operation would be flying in
the face of reason and pounding one’s bare head against
a veritable stone wall or a heavily reinforced concrete, or
simply “kicking the deadly pricks” with one’s bare foot in
an effort to eliminate the lethal points.
When a Constitution has been in operation for
sometime, even without popular ratification at that,
submission of the people thereto by the organization of
the government provided therein and observance of its
prescriptions by public officers chosen thereunder, is
indicative of approval. Courts should be slow in
nullifying a Constitution claimed to have been adopted
not in accordance with constitutional or statutory
directives [Miller vs. Johnson, 92 Ky. 589; 189 S.W. 522;
Taylor vs Commonwealth, 101; Va. 829; 44 S.E. 754;
Smith vs. Good, 34 F 204, 207; Wiston vs. Ryan, 70 Neb.
211; 97 N.W. 347].
In Miller vs. Johnson, supra, the Court said:

“x x  x But it is a case where a new constitution has been


formed and promulgated according to the forms of law. Great
interests have already arisen under it; important rights exist
by virtue of it; persons have been convicted of the highest
crimes known to the law, according to its provisions; the
political power of the government has in many ways recognized
it;  and, under such circumstances, it is our duty to treat and
regard it as a valid constitution, and now the organic law of
our state. We need not consider the validity of the amendments
made after the convention

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Javellana vs. The Executive Secretary

reassembled. If the making of them was in excess of its power,


yet as the entire instrument has been recognized as valid in the
manner suggested, it would be equally an abuse of power by the
judiciary, and violative of the rights of the people, — who can
and properly should remedy the matter, if not to their liking, —
if it were to declare the instrument or a portion invalid, and
bring confusion and anarchy upon the state.” (Emphasis
supplied)

In Smith vs. Good, supra, the Court said:

“It is said that a state court is forbidden from entering upon


such an inquiry when applied to a new constitution, and not an
amendment, because the judicial power presupposes an
established government, and if the authority of that
government is annulled and overthrown, the power of its
courts is annulled with it; therefore, if a state court should
enter upon such an inquiry, come to the conclusion that the
government under which it acted had been displaced by an
opposing government, it would cease to be a court, and it would
be incapable of pronouncing a judicial decision upon the
question before it; but, if it decides at all, it must necessarily
affirm the existence of the government under which it
exercises its judicial powers.” (Emphasis supplied)

These rules are all traceable to Luther vs. Borden, 48


U.S (7 How.), 12 L. Ed. 581, 598 (1849) where it was
held:

“Judicial power presupposes an established government


capable of enacting laws and enforcing their execution, and
appointing judges to expound and administer them. The
acceptance of the judicial office is a recognition of the authority
of government from which it is derived. And if the authority of
the government is annulled and overthrown, the power of its
courts and other officers is annulled with it. And if a State
court should enter upon the inquiry proposed in this case, and
should come to conclusion that the government under which it
acted had been put aside and displaced by an opposing
government it would cease to be a court, and be incapable of
pronouncing a judicial decision upon the question it undertook
to try. If it decides at all as a court, it necessarily affirms the
existence and authority of the government under which it is
exercising judicial power.”

The foreign relations of the Republic of the


Philippines have been normally conducted on the basis
of the new Constitution

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and no state with which we maintain diplomatic


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

“The Court’s authority — possessed neither of the purse nor


the sword — ultimately rests on sustained public confidence in
its moral sanction. Such feeling must be nourished by the
Court’s complete detachment, in fact and appearance, from
political entanglements and abstention from injecting itself into
the clash of political forces in political settlement....” (Emphasis
supplied)

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The people have accepted and submitted to a
Constitution to replace the 1935 Constitution. The new
organic law is now in the plenitude of its efficacy and
vigor. We are now living under its aegis and protection
and only the cynics will deny this. This Court should not
in the least attempt to act as a 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. The sober
realization of its proper role and delicate function and its
consciousness of the limitations on its competence,
especially situations like this, are more in keeping with
the preservation of our democratic tradition than the
blatant declamations of those who wish the Court to
engage in their brand of activism and would not mind
plunging it into the whirlpool of passion and emotion in
an effort to capture the intoxicating applause of the
multitude.
For all the foregoing, I vote to dismiss all petitions. 
ZALDIVAR, J., concurring and dissenting:
In these five cases, the main issue to be resolved by
Court is whether or not the Constitution proposed by the
Constitutional Convention of 1971 had been ratified in
accordance with the provisions of Article XV of the 1935
Constitution. In the plebiscite cases, which were decided
by this Court on January 22, 1973,1 I held the view that
this issue could be properly resolved by this Court, and
that it was in the public interest that this Court should
declare then whether or not the proposed Constitution
had been validly ratified. The

_______________
1 Charito Planas v. Commission on Elections, et al., L-35925; Pablo
C. Sanidad v. Commission on Elections, L-35929; Gerardo Roxas, etc.,
et al. v. Commission on Elections, et al., L-35940; Eddie B. Monteclaro
v. The Commission on Elections, et al., Sedfrey A. Ordoñez, et al. v.
The National Treasurer of Philippines, et al., L-35942; Vidal Tan, et al.
v. Commission on Elections, et al., L-35948; Jose W. Diokno, et al. v.
The Commission on Elections, L-35953; Jacinto Jimenez v.
Commission on Elections, et al., L-35961; Raul M. Gonzales v. The
Honorable Commission on Elections, et al., L-35965; Ernesto Hidalgo
v. Commission Elections, et al., L-35979.

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majority of this Court, however, was of the view that the


issue was not squarely raised in those cases, and so the
Court, as a body, did make any categorical
pronouncement on the question of whether or not the
Constitution proposed by the 1971 Convention was
validly ratified. I was the only one who expressed the
opinion that the proposed Constitution was not validly
ratified and therefore “it should not be given force and
effect.”
The Court is now called upon to declare, and to
inform the people of this country, whether or not that
proposed Constitution had been validly ratified and had
come into effect.
The Solicitor General, however, contends that this
Court has no jurisdiction to resolve the issue that we
have mentioned because that issue is a political question
that cannot be decided by this Court. This contention by
the Solicitor General is untenable. A political question
relates to “those questions which under the Constitution
are to be decided by the people in their sovereign
capacity or in regard to which full discretionary
authority has been delegated to the legislative, or to the
executive, branch of the government.2 The courts have
the power to determine whether the acts of the executive
are authorized by the Constitution and the laws
whenever they are brought before the court in a judicial
proceeding. The judicial department of the government
exercises a sort of controlling, or rather restraining,
power over the two other departments of the
government. Each of the three departments, within its
proper constitutional sphere, acts independently of the
other, and restraint is only placed on one department
when that sphere is actually transcended. While a court
may not restrain the executive from committing an
unlawful act, it may, when the legality of such an act is
brought before it in a judicial proceeding, declare it to be
void, the same as it may declare a law enacted by the
legislature to be unconstitutional.3 It is a settled
doctrine that every officer under a constitutional
government must act according to law and subject to its
restrictions, and every departure therefrom, or disregard

_______________
2 See Tañada, et al. v. Cuenco, L-10520, Feb. 28, 1957; Baker v.
Carr, 369 U.S. 186 (1962).
3 See 16 Am. Jur. 2d. p. 468, Note 14, and cases cited therein. 

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Javellana vs. The Executive Secretary

thereof, must subject him to the restraining and


controlling power of the people, acting through the
agency of the judiciary. It must be remembered that the
people act through the courts, as well as through the
executive or the legislature. One department is just as
representative as the other, and judiciary is the
department which is charged with the special duty of
determining the limitations which the law places upon
all official actions.4 In the case of  Gonzales v.
Commission on Elections,5 this Court ruled that the
issue as to whether or not a resolution of Congress
acting as a constituent assembly violates the
Constitution is not a political question and is therefore
subject to judicial review. In the case of  Avelino v.
Cuenco,6 this Court held that the exception to the rule
that courts will not interfere with a political question
affecting another department is when such political
question involves an issue as to the construction and
interpretation of the provision of the constitution. And
so, it has been held that the question of whether a
constitution shall be amended or not is a political
question which is not in the power of the court to decide,
but whether or not the constitution has been legally
amended is a justiciable question.7
My study on the subject of whether a question before
the court is political or judicial, based on decisions of the
courts in the United States — where, after all, our
constitutional system has been patterned to a large
extent — made me arrive at the considered view that it
is in the power of this Court, as the ultimate interpreter
of the Constitution, to determine the validity of the
proposal, the submission, and the ratification of any
change in the Constitution. Ratification or non-
ratification of a constitutional amendment is a vital
element in the procedure to amend the constitution, and
I believe that the Court can inquire into, and decide on,
the question of whether or not an amendment to the
constitution, as in the present cases, has been ratified in
accordance with the

_______________
4 Cooke v. Iverson, 108 Minn. 388, 122 NW 251.
5 L-38196, November 9, 1967, 21 SCRA 774.
6 83 Phil. 1957.
7 McConaughy v. Secretary of State, 119 N.W. 408, 413; 32A
Words and Phrases p. 516. See also the plebiscite cases,
mentioned in footnote 1, ante.

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requirements prescribed in the Constitution that was


amended. And so, in the cases now before Us, I believe
that the question of whether or not the Constitution
proposed by the 1971 Constitutional Convention had
been validly ratified or not is a justiciable question.
The Chief Justice, in his opinion, has discussed
lengthily the subject on whether or not, the cases, before
Us involve a political, or a judicial, question. I fully
concur with his conclusion that the question involved in
these cases is justiciable.
On the question now of whether or not the
Constitution proposed by the 1971 Constitutional
Convention has been validly ratified, I am reproducing
herein pertinent portions of my dissenting opinion in the
plebiscite cases: 
“The ratification of the Constitution proposed by the 1971
Constitutional Convention must be done in accordance with
the provisions of Section 1, Article XV of the 1935 Constitution
of the Philippines, which reads:
‘Section 1. The Congress in joint session assembled by
a vote of three fourths of all the Members of the Senate
and of the House of Representatives voting separately,
may propose amendments to the Constitution or call a
convention for that purpose. Such amendments shall be
valid as part of this Constitution when approved by a
majority of the votes cast at an election at which the
amendments are submitted to the people for their
ratification.’
“It is in consonance with the abovequoted provision of the
1935 Constitution that on March 16, 1967, the Congress of the
Philippines Resolution No. 2 calling a convention to propose
amendments to the Constitution of the Philippines. Sec. 7 of
said Resolution No. 2 reads as follows:
‘Section 7. The amendments proposed by the
Convention shall be valid and considered part of the
Constitution when approved by a majority of the votes
cast in an election at which they are submitted to the
people for their ratification pursuant to Article XV of the
Constitution.’

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“It follows that from the very resolution of the Congress of
the Philippines which called for the 1971 Constitutional
Convention, there was a clear mandate that the amendments
proposed by the 1971 Convention, in order to be valid and
considered part of the Constitution, must be approved by
majority of the votes cast in an election at which they are
submitted to the people for the ratification as provided in the
Constitution.
“This Court, in the case of  Tolentino vs. Commission
Elections, L-35140, October 16, 1971 (41 SCRA 715), speaking
through Mr. Justice Barredo, said:
‘The Constitutional Convention of 1971, as any other
convention of the same nature, owes its existence and all
its authority and power from the existing Constitution of
the Philippines. This Convention has not been called by
the people directly as in the case of a revolutionary
convention which drafts the first Constitution of an
entirely new government born of either a war of
liberation from a mother country or of revolution against
an existing government or of a bloodless seizure of
power a la coup d’etat. As to such kind of conventions, it
is absolutely true that the convention is completely
without restraint and omnipotent all wise, and it as to
such conventions that the remarks of Delegate Manuel
Roxas of the Constitutional Convention of 1934 quoted
by Senator Pelaez refer. No amount of rationalization
can belie the fact that the current convention came into
being only because it was called by a resolution of a joint
session of Congress acting as a constituent assembly by
authority of Section 1, Article XV of the present
Constitution x x x.’
x x x
‘As to matters not related to its internal operation and
the performance of its assigned mission to propose
amendments to the Constitution, the Convention and its
officers and members are all subject to all the provisions
of the existing Constitution. Now we hold that even as to
its latter  task of proposing amendments to the
Constitution, it is subject to the provisions of Section 1 of
Article XV.’
“In Proclamation No. 1102, issued on January 17, 1973, the

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President of the Philippines certified that as a result of the
voting before the barangays (Citizens Assemblies) 14,976,561
members of the barangays voted for the adoption of the
proposed Constitution, as against 743,869 who voted for its
rejection, and on the basis of the overwhelming majority of the
votes cast by the members of all the barangays throughout the
Philippines, the President proclaimed that the Constitution
proposed by the 1971 Convention has been ratified and has
thereby come into effect.
“It is very plain from the very wordings of Proclamation No.
1102 that the provisions of Section 1 of Article XV of the
Constitution of 1935 were not complied with. It is not
necessary that evidence be produced before this Court to show
that no elections were held in accordance with the provisions of
the Election Code. Proclamation No. 1102 unequivocally states
that the proposed Constitution of 1972 was voted upon by the
barangays. It is very clear, therefore, that the voting held in
these barangays is not the election contemplated in the
provisions of Section 1, Article XV, of the 1935 Constitution.
The election contemplated in said constitutional provision is an
election held in accordance with the provisions of the election
law, where only the qualified and registered voters of the
country would cast their votes, where official ballots prepared
for the purpose are used, where the voters would prepare their
ballots in secret inside the voting booths in the polling places
established in the different election precincts throughout the
country, where the election is conducted by election inspectors
duly appointed in accordance with the election law, where the
votes are canvassed and reported in a manner provided for in
the election law. It was this kind of election that was held on
May 14, 1935, when the Constitution of 1935 was ratified; on
April 30, 1937, when the amendment to the Constitution
providing for Women’s Suffrage was ratified; on June 18, 1940,
when the 1940 Amendments to the Constitution were ratified;
on March 11, 1947 when the Parity Amendment to the
Constitution was ratified; and on November 14, 1967 when the
amendments to the Constitution to increase the number of
Members of the House of Representatives and to allow the
Members of Congress to run in the elections for Delegates to
the Constitutional Convention of 1971 were rejected.
“I cannot see any valid reason why the practice or procedure
in the past, in implementing the constitutional provision
requiring the holding, of an election to ratify or reject an
amendment to the Constitution, has not been followed in the
case of the Constitution proposed by the 1971 Constitutional
Convention.

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Javellana vs. The Executive Secretary

 
“It is my view that the President of the Philippines cannot
by decree order the ratification of the proposed 1972
Constitution thru a voting in the barangays and make said
result the basis for proclaiming the ratification of the proposed
constitution. It is very clear, to me, that Proclamation No. 1102
was issued in complete disregard or in violation, of the
provisions of Section 1 of Article X of the 1935 Constitution.
“Proclamation No. 1102 mentions, furthermore, that on the
question as to whether or not the people would still like a
plebiscite to be called to ratify the new Constitution,
14,298,814 members of the barangays answered that there was
no need for a plebiscite but that the vote of the barangays
should be considered a vote in a plebiscite. It would thus
appear that the barangays assumed the power to determine
whether a plebiscite as ordained in the Constitution be held or
not. Indeed, the provision of Section 1, Article XV of the
Constitution was completely disregarded.
“The affirmative votes cast in the barangays are not the
votes contemplated in Section 1 of Article XV of the 1935
Constitution. The votes contemplated in said constitutional
provision are votes obtained through the election processes as
provided by law.
‘An election is the embodiment of the popular will, the
expression of the sovereign power of the people. In
common parlance, an election is the act of casting and
receiving the ballots, counting them, and making the
return.’ (Hontiveros vs. Altavas, 24 Phil. 632, 637).
‘Election’ implies a choice by an electoral body at the
time and substantially in the manner and with the
safeguards provided by law with respect to some
question or issue. (Leffel v. Brown, Com. P1., 159 N.E. 2d
807, 808 cited in 29 C.J.S. 13 at footnote 6.5).
‘* * * the statutory method whereby qualified voters or
electors pass on various public matters submitted to
them — the election of officers, national, state, county,
township — the passing on various other questions
submitted for their determination.’ (29 C.J.S. 13, citing
Iowa-Illinois Gas & Elec. Co. v. City of Bettendorf, 41
N.W. 2d 1, 5, 241 Iowa 358).
‘Election’ is expression of choice by  voters  of body
politic. (Ginsburg v. Giles, 72 S.W. 2d 438, 254 Ky. 720,
in Words and

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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.’ (Italics supplied). (Please see also Sections
100-102, Election Code of 1971, R.A. No. 6388)
“It is stated in Proclamation No. 1102 that the voting was
done by the members of citizens assemblies who are 15 years of
age or over. Under the provision of Section I of Article V of the
1935 Constitution, the age requirement to be a qualified voter
is 21 years or over.
“But what is more noteworthy is the fact that the voting in
the barangays, except in very few instances, was done by the
raising of hands by the persons indiscriminately gathered to
participate in the voting, where even children below 15 years
of age were included. This is a matter of common observation,
or of common knowledge, which the Court may take judicial
notice of. To consider the votes in the barangays as expressive
of the popular will and use them as the basis in declaring
whether a Constitution is ratified or rejected is to resort to a
voting by demonstrations, which is would mean the rule of the
crowd, which is only one degree higher than the rule by the
mob. Certainly, so important a question as to whether the
Constitution, which is the supreme law of the land, should be
ratified or not, must not be decided by simply gathering people
and asking

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Javellana vs. The Executive Secretary

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.’ (Black’s Constitutional Law, Second
Edition, pp. 47-48).
‘The theory of our political system is that the ultimate
sovereignty is in the people, from whom springs all
legitimate authority. The people of the Union created a
national constitution, and conferred upon it powers of
sovereignty on certain subjects, and the people of each
State created a State government, to exercise the
remaining powers of sovereignty so

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far as they were disposed to allow them to be exercised


at all. By the constitution which they establish, they not
only tie up the hands of their official agencies, but their
own hands as well; and neither the officers of the State,
nor the whole people as an aggregate body, are at liberty
to take action in opposition to this fundamental law.’
(Cooley’s Constitutional Limitations, 8th Edition, Vol. I,
p. 81 cited in Graham v. Jones, 3 So. 2d. 761, 782).
‘The theory that a favorable vote by the electorate,
however unanimous, on a proposal to amend a
constitution, may cure, render innocuous, all or any
antecedent failures to observe commands of that
Constitution in respect of the formulation or submission
of proposed amendments thereto, does not prevail in
Alabama, where the doctrine of the stated theory was
denied, in obvious effect, by the pronouncement 60 years
ago of broad, wholesome constitutional principles
in  Collier v. Frierson,  supra, as quoted in the original
opinion, ante. The people themselves are bound by the
Constitution; and, being so bound, are powerless,
whatever their numbers, to change or thwart its
mandates, except through the peaceful means of a
constitutional convention, or of an amendment according
to the mode therein prescribed, or through the exertion
of the original right of revolution. ‘The Constitution may
be set aside by revolution, but it can only be amended in
the way it provides,’ said Hobson, C.J., in McCreary v.
Speer, 156 Ky. 783, 791, 162 S.W. 99, 103. (Johnson vs.
Craft, et al., 87 So. 375, 385, 387, On Rehearing).
‘The fact that a majority voted for the amendment,
unless the vote was taken as provided by the
Constitution, is not sufficient to make a change in that
instrument. Whether a proposed amendment has been
legally adopted is a judicial question, for the court must
uphold and enforce the Constitution as written until it is
amended in the way which it provides for.’  Wood v.
Tooker, 15 Mont. 8, 37 Pac 840, 25 L.R.A.
560;McConaughty v. State, 106 Minn. 409, 119 N.W.
408; Oakland Paving Company v. Hilton, 69 Cal. 499, 11
Pac. 3; Utter v. Mosely, 16 Idaho 274, 100 Pac. 1958, 133
Am. St. Rep. 94, 18 Ann. Cas. 723. (McCreary v. Speer,
162 S.W. 99, 104).
‘Provisions of a constitution regulating its own
amendment, *  *  * are not merely directory, but are
mandatory; and a strict observance of every substantial
mandatory; and a strict observance of every substantial
requirement is essential to the validity of the proposed
amendment. These provisions are as binding on the
people as

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Javellana vs. The Executive Secretary

on the legislature, and the former are powerless by vote


of acceptance to give legal sanction to an amendment the
submission of which was made in disregard of the
limitations contained in the constitution.’ (16 C.J.S. 35-
36. cited in Graham v. Jones, 3 So. 2d 761, 782).
‘It is said that chaos and confusion in the government
affairs of the State will result from the Court’s action in
declaring the proposed constitutional amendment void.
This statement is grossly and manifestly inaccurate. If
confusion and chaos should ensue, it will not be due to
the action of the Court but will be the result of the
failure of the drafters joint resolution to observe, follow
and obey the plain essential provisions of the
Constitution. Furthermore, to say that, the Court
disregards its sworn duty to enforce the Constitution,
chaos and confusion will result, is an inherently weak
argument in favor of the alleged constitutionality of the
proposed amendment. It is obvious that, if the Court
were to countenance the violations of the sacramental
provisions Constitution, those who would thereafter
desire to violate it disregard its clear mandatory
provisions would resort to the scheme of involving and
confusing the affairs of the State then simply tell the
Court that it was powerless to exercise one of its primary
functions by rendering the proper decree to make the
Constitution effective.’ (Graham v. Jones, 3 So. 2d. 761,
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

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with 2,291 votes, and Nico was proclaimed elected. Monsale


filed a protest against the election of Nico in the Court of First
Instance of Iloilo. In the count of the ballots during the
proceedings in the trial court, it appeared that Monsale had
obtained 2,877 votes while Nico obtained 2,276 votes, or a
margin of 601 votes in favor of Monsale. The Court of First
Instance of Iloilo decided the election protest in favor of
Monsale. Upon appeal by Nico, this Court reversed the
decision of the lower court. This Court declared that because
Monsale withdrew his certificate of candidacy, his attempt to
revive it by withdrawing his withdrawal of his certificate of
candidacy did not restore the effectiveness of his certificate of
candidacy, and this Court declared Nico the winner in spite of
the fact that Monsale had obtained more votes than he.
“We have cited this Monsale case to show that the will of the
majority of the voters would not be given effect, as declared by
this Court, if certain legal requirements have not been
complied with in order to render the votes valid and effective to
decide the result of an election.
“And so, in the cases now before this Court, the fact that the
voting in the citizens assemblies (barangays) is not the election
that is provided for in the 1935 Constitution for the ratification
of the amendment to the Constitution, the affirmative votes
cast in those assemblies can not be made the basis for
declaring the ratification of the proposed 1972 Constitution, in
spite of the fact that it was reported that 14,976,561 members
of the citizens assemblies voted for the adoption as against
743,869 for the rejection, because the votes thus obtained were
not in accordance with the provisions of Section 1 of Article XV
of the 1935 Constitution of the Philippines. The rule of law
mast be upheld.
“My last observation: One of the valid grounds against the
holding of the plebiscite on January 15, 1973, as provided in
Presidential Decree No. 73, is that there is no freedom on the
part of the people to exercise their right of choice because of
the existence of martial law in our country. The same ground
holds true as regards to the voting of the barangays on
January 10 to 15, 1973. More so, because by General Order No.
20, issued on January 7, 1973, the President of the Philippines
ordered ‘that the provisions of Section 3 of Presidential Decree
No. 73 in so far as they allow free public discussion of the
proposed constitution, as well as my order of December 17,
1972 temporarily suspending the effects of Proclamation No.
1081 for the purpose of free and open debate on the proposed
constitution, be suspended in the meantime.’ It is,

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therefore, my view that voting in the barangays on January 10,


1973 was not free, and so this is one added reason why the
results of the voting in the barangays should not be made the
basis for proclamation of the ratification of the proposed
Constitution.
“It is my view, therefore, that Proclamation No. 1102
repugnant to the 1935 Constitution, and so it is invalid, and
should not be given effect. The Constitution of 1972 proposed
by the 1971 Constitutional Convention should be considered as
not yet ratified by the people of this Republic, and so it should
not be given force and effect.” 

It is urged by the Solicitor General, however, that the


voting in the citizens assemblies was a substantial
compliance with the provisions of Article XV of the 1935
Constitution. The Solicitor General maintains that the
primary thrust of the provision of Article XV of the 1935
Constitution is that “to be valid, amendments must gain
the approval of the majority recognition of the
democratic postulate that sovereign resides in the
people.” It is not disputed that in a democratic
sovereignty resides in the people. But the
term  “people”  must be understood in its constitutional
meaning, and they are “those persons who are permitted
by the Constitution to exercise the elective franchise.”8
Thus, in Section 2 of Article VII of the 1935
Constitution, it is provided that “the President shall hold
his office during a term of four years and, together with
the Vice-President chosen for the same term, shall be
elected by direct vote of the people...” Certainly under
that constitutional provision, the  “people”  who elect
directly the President and the 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,

_______________
8 Cooley, Constitutional Limitation, 8th Ed., Vol. I, p. 82.
9 39 Phil. 258, 268.

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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 receptacle 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
performance of a duty in the nature of a public trust,
and in that respect constitute him a representative of the
whole people. This duty requires that the privilege thus
bestowed exclusively for the benefit of the citizen or
class of citizens professing it, but in good faith and with
an intelligent zeal for the general benefit and welfare of
the state. (U.S. v. Cruikshauk, 92 U.S. 588)...” There is
no question, therefore, that when we talk of sovereign
people, what is meant are the people who act through
the duly qualified and registered voters who vote during
an election that is held as provided in the Constitution
or in the law.
The term “election” as used in Section 1 of Article XV
of the

_______________
10 69 Phil. 199, 204.
11 70 Phil. 28, 31.

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1935 Constitution should be construed along with the


term “election” as used in the Provisions of Section 4 of
the Philippine Independence Act of the Congress of the
United States, popularly known as the Tydings-
McDuffie Law (Public Act No. 127). Said Section 4 of the
Tydings-McDuffie Law provides as follows:

“Section 4. After the President of the United States certified


that the constitution conforms with the provisions of this act, it
shall be submitted to the people of the Philippine Islands for
their ratification or rejection at  an election  to he held within
months after the date of such certification, on a date to be fixed
by the Philippine Legislature  at which election, the qualified
voters of the Philippine Islands shall have an opportunity to
vote directly or against the proposed constitution  and
ordinances append thereto. Such election shall be held in such
manner as may prescribed by the Philippine Legislature to
which the return of the election shall be made. The Philippine
Legislature shall certify the result to the Governor-General of
the Philippine Islands, together with a statement of the votes
cast, and a copy of said constitution ordinances. If a majority of
the votes cast shall be for the constitution, such vote shall be
deemed an expression of the will of the people of the Philippine
Independence, and the Governor-General shall, within thirty
days after receipt of the certification from the Philippine
Legislature, issue a proclamation for the  election  of officers of
the government of the Commonwealth of the Philippine
Islands provided for in the Constitution...”

It can safely be said, therefore, that when the framers


of the 1935 Constitution used, the word “election” in
Section I Article XV of the 1935 Constitution they had
no other idea in mind except the elections that were
periodically held in the Philippines for the choice of
public officials prior to the drafting of the 1935
Constitution, and also the “election” mentioned in the
Independence Act at which “the qualified voters of the
Philippine Islands shall have an opportunity to vote
directly for or against the proposed constitution...” It is
but logical to expect that the framers of the 1935
Constitution would provide a mode of ratifying an
amendment to that Constitution similar to the mode of
ratifying the original Constitution itself.

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It is clear therefore, that the ratification or any
amendment to the 1935 Constitution could only be done
by holding an election, as the term “election” was
understood, and practiced, when the 1935 Constitution
as drafted. The alleged referendum in the citizens
assemblies — participated in by persons aged 15 years
or more, regardless of whether they were qualified
voters or not, voting by raising their hands, and the
results of the voting reported by the barrio or ward
captain, to the municipal mayor, who in turn submitted
the report to the provincial Governor, and the latter
forwarding the reports to the Department of Local
Governments, all without the intervention of the
Commission on Elections which is the constitutional
body which has exclusive charge of the enforcement and
administration of all laws, relative to the conduct of
elections — was not only a non-substantial compliance
with the provisions of Section 1 of Article XV of the 1935
Constitution but a downright violation of said
constitutional provision. It would be indulging in
sophistry to maintain that the voting in the citizens
assemblies amounted to a substantial compliance with
the requirements prescribed in Section 1 of Article XV of
the 1935 Constitution.
It is further contended by the Solicitor General, that
even if the Constitution proposed by the 1971
Constitutional Convention was not ratified in accordance
with the provisions of Section 1 of Article XV of the 1935
Constitution, the fact is that after the President of the
Philippines had issued Proclamation No. 1102 declaring
that the said proposed Constitution “has been ratified by
overwhelming majority of all the votes cast by the
members of all the barangays (citizens assemblies)
throughout the Philippines and had thereby come into
effect” the people have accepted the new Constitution.
What appears to me, however, is that practically it is
only the officials and employees under the executive
department of the Government who have been
performing their duties apparently in observance of the
provisions of the new Constitution. It could not be
otherwise, because the President of the Philippines, who
is the head of the executive department, had proclaimed
that the new Constitution had come into effect, and his
office had taken the steps to implement the provisions of
the new Constitution. True it is, that some 92 members
of the

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House of Representatives and 15 members of the Senate,


of the Congress of the Philippines had expressed their
option to serve in the interim National Assembly that is
provided for in Section 2 of Article XVII of the proposed
Constitution. It must be noted, however, that of the 15
senators who expressed their option to serve in the
interim National Assembly only one them took his oath
of office; and of the 92 members of the House of
Representatives who opted to serve in the interim
National Assembly, only 22 took their oath of office. The
fact that only one Senator out of 24, and only 22
Representative out of 110, took their oath of office, is an
indication that only a small portion of the members of
Congress had manifested the acceptance of the new
Constitution. It is in the taking of the oath of office
where the affiant says that he swears to “support and
defend the Constitution” that the acceptance of the
Constitution is made manifest. I agree with counsel
petitioners in L-36165 (Gerardo Roxas, et al. v.
Alejandro Melchor, et al.) when he said that the
members of Congress who opted to serve in the interim
National Assembly did only ex abundante cautela, or by
way of a precaution, making sure, that in the event the
new Constitution becomes definitely effective and the
interim National Assembly convened, they can
participate in legislative work in the capacity as duly
elected representatives of the people, which otherwise
they could not do if they did not manifest their option to
serve, and that option had to be made within 30 day
from January 17, 1973, the date when Proclamation No.
110 was issued. Of course, if the proposed Constitution
does not become effective, they continue to be members
of Congress under the 1935 Constitution. Let it be
considered that the members of the House of
Representatives were elected in 1969 to serve a term
which will yet expire on December 31, 1973. Whereas, of
the Senators who opted to serve in the interim National
Assembly, the term of some of them will yet expire on
December 31, 1973, some on December 31, 1975, and the
rest on December 31, 1977. Let if be noted that 9
Senators did not opt to serve in the interim National
Assembly, and 18 members of the House of
Representatives also did not opt to serve in the interim
National Assembly.
Neither can it be said that the people have accepted
the new Constitution. I cannot, in conscience, accept the
reported

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affirmative votes in the citizens assemblies as a true and


correct expression by the people of their approval, or
acceptance, of the proposed Constitution. I have my
serious doubts regarding the freedom of the people to
express their views regarding the proposed Constitution
during the voting in the citizens assemblies, and I have
also my serious doubts regarding the truthfulness and
accuracy of the reports of the voting in the citizens
assemblies. This doubt has been engendered in my mind
after a careful examination and study of the records of
these cases, particularly with respect to the reports of
the voting in the citizens assemblies. Perhaps, it may be
said that the people, or the inhabitants of this country,
have acquiesced to the new Constitution, in the sense
that they have continued to live peacefully and orderly
under the government that has been existing since
January 17, 1973 when it was proclaimed that the new
Constitution came into effect. But what could the people
do? In the same way that the people have lived under
martial law since September 23, 1972, they also have to
live under the government as it now exists, and as it has
existed since the declaration of martial law on
September 21, 1972, regardless of what Constitution is
operative — whether it is the 1935 Constitution or the
new Constitution. Indeed, there is nothing that the
people can do under the circumstances actually
prevailing in our country today — circumstances, known
to all, and which I do not consider necessary to state in
this opinion. I cannot agree, therefore, with my worthy
colleagues in the Court who hold the view that the
people have accepted the new Constitution, and that
because the people have accepted it, the new
Constitution should be considered as in force, regardless
of the fact that it was not ratified in accordance with the
provisions of Section 1 of Article XV of the 1935
Constitution.
It is my honest view that the Constitution proposed
by the 1971 Constitutional Convention has not come into
effect. I do not say, however, that the proposed
Constitution is invalid. To me, the validity of the
proposed Constitution is not in issue in the cases before
Us. What the petitioners assail is not the validity of the
proposed Constitution but the validity of Presidential
Proclamation No. 1102 which declares the proposed
Constitution as having been ratified and has come into
effect. It being my considered view that the ratification
of

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the proposed Constitution, as proclaimed in


Proclamation No. 1102, is not in accordance with the
provisions of Section 1 of Article XV, of the 1935
Constitution, I hold that Proclamation No. 1102 is
invalid and should not be given force and effect. Their
proposed Constitution, therefore, should be considered
as not yet validly ratified, and so it is not in force. The
proposed Constitution may still be submitted to a
plebiscite in conformity with Section 1 of Article XV of
the 1935 Constitution. Incidentally, I must state that
the Constitution is still in force, and this Court is still
functioning under the 1935 Constitution.
I sincerely believe that the proposed Constitution may
still be submitted to the people in an election or
plebiscite held in accordance with the provisions of
Section 1 of Article XV of the 1935 Constitution. In fact,
as we have adverted to in this opinion, this was the
mandate of Congress when, on March 16, 1967, it passed
Resolution No. 2 calling a convention to propose
amendments to the 1935 Constitution. The Court may
take judicial notice of the fact that the President of the
Philippines has reassured the nation that the
government of our Republic since the declaration of
martial law is not a revolutionary government, and that
he has been acting all the way in consonance with his
powers under the Constitution. The people of this
Republic has reason to be happy because, according to
the President, we still have a constitutional government.
It being my view that the 1935 Constitution is still in
force, I believe Congress may still convene and pass a
law calling for an election at which the Constitution
proposed by the 1971 Constitutional Convention will be
submitted to the people their ratification or rejection. A
plebiscite called pursuant to Section 1 of Article XV of
the 1935 Constitution is an assurance to our people that
we still have in our country the Rule of Law and that the
democratic system of government that has been
implanted in our country by the Americans, and which
has become part of our social and political fabric, is still
a reality.
The views that I have expressed in this opinion are
inspired by a desire on my part to bring about stability
in democratic and constitutional system in our country. I
feel that if this Court would give its imprimatur to the
ratification of the proposed Constitution, as announced
in Proclamation

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No. 1102, it being very clear that the provisions of


Section 1 of Article XV of the 1935 Constitution had not
been complied with, We will be opening the gates for a
similar disregard of the Constitution in the future. What
I mean is that if this Court now declares that a new
Constitution is now in force because the members of the
citizens assemblies had approved the said new
Constitution, although that approval was not in
accordance with the procedure and the requirements
prescribed in the 1935 Constitution, it can happen again
in some future time that some amendments to the
Constitution may be adopted, even in a manner contrary
to the existing Constitution and the law, and then said
proposed amendment is submitted to the people in any
manner and what will matter is that a basis is claimed
that there was approval by the people. There will not be
stability in our constitutional system, and necessarily no
stability in our government. As a member of this Court I
only wish to contribute my humble efforts to prevent the
happening of such a situation in the future.
It appearing to me that the announced ratification of
the proposed Constitution through the voting in the
citizens assemblies is a clear violation of the 1935
Constitution, what I say in this opinion is simply an
endeavor on my part to be true to my oath of office to
defend and support the 1935 Constitution. I am inspired
by what the great jurist and statesman, Jose P. Laurel,
said:

“Let our judges be as it were the vestal keepers of the purity


and sanctity of our Constitution, and the protection and
vindication of popular rights will be safe and secure in their
reverential guardianship.”

I only wish to help prevent, if I can, democracy and


the liberties of our people from vanishing in our land,
because, as Justice George Sutherland of the U. S.
Supreme Court said:

“(t)he saddest epitaph which can be carved in memory of a


vanished liberty is that it was lost because its possessors failed
to stretch forth a saving hand while yet there was time.”

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I concur fully with the personal views expressed by
the Chief Justice in the opinion that he has written in
these cases. Along with him, I vote to deny the motion to
dismiss and give due course to the petitions in these
cases. 
FERNANDO, J., dissenting:
No question more momentous, none impressed with
such transcendental significance is likely to confront this
Court in the near or distant future as that posed by
these petitions. For while the specific substantive issue
is the validity of Presidential Proclamation No. 1102, an
adverse judgment may be fraught with consequences
that, to say the least, are far-reaching in its
implications. As stressed by respondents, “what
petitioners really seek to invalidate is the new
Constitution.”1 Strict accuracy would of course qualify
such statement that what is in dispute, as noted in the
opinion of the Chief Justice, goes only as far as the
validity of its ratification. It could very well be though
that the ultimate outcome is not confined within such
limit, and this is not to deny that under its aegis, there
have been marked gains in the social and economic
sphere, but given the premise of continuity in a regime
under a fundamental law, which itself explicitly
recognizes the need for change and the process for
bringing it about,2 it seems to me that the more
appropriate course is this Court to give heed to the plea
of petitioners that the most serious attention be paid to
their submission that the challenged executive act fails
to meet the test of constitutionality. Under the
circumstances, with regret and with due respect for the
opinion of my brethren, I must perforce dissent. It would
follow therefore that the legal

_______________
1 Memorandum for Respondents, 2.
2 According to the 1935 Constitution: “The Congress in joint session
assembled, by a vote of three-fourths of all the members of the Senate
and of the House of Representatives voting separately may propose
amendments to this Constitution or call a convention for that purpose.
Such amendments shall be valid as part of this Constitution when
approved by a majority of the votes cast at an election at which the
amendments are submitted to the people for their ratification.” Art.
XV, Section 1.

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position taken by the Chief Justice as set forth with his


usual lucidity and thoroughness has, on the whole, my
concurrence, subject, of course, to reservations insofar as
it contains views and nuances to which I have in the
past expressed doubts. Nonetheless, I feel that a brief
expression of the reasons for the stand I take would not
be amiss.In coping with its responsibility arising from
the function of judicial review, this Court is not expected
to be an oracle given to utterances of eternal verities,
but certainly it is more than just a keen but passive
observer of the contemporary scene. It is, by virtue of its
role under the separation of powers concept, involved not
necessarily as a participant in the formation of
government policy, but as an arbiter of its legality. Even
then, there is realism in what Lerner did say about the
American Supreme Court as “the focal point of a set of
dynamic forces which [could play] havoc with the
landmarks of the American state and determine the
power configuration of the day.”3 That is why there is
this caveat. In the United States as here, the exercise of
the power of judicial review is conditioned on the
necessity that the decision of a case or controversy
before it so requires. To repeat, the Justices of the
highest tribunal are not, as Justice Frankfurter made
clear, “architects of policy. They can nullify the policy of
others, they are incapable of fashioning their own
solutions for social problems.”4 Nonetheless, as was
stressed by Professors Black5 and Murphy,6 a Supreme
Court by the conclusion it reaches and the decision it
renders does not merely check the coordinate branches,
but also by its approval stamps with legitimacy the
action taken. Thus in affirming constitutional
supremacy, the political departments could seek the aid
of the judiciary. For

_______________
3 Lerner, Ideas are Weapons, 426 (1939). Earlier, in this collection
of essays, Lerner made this not-entirely-inaccurate observation: “No
governmental institution that consists of a group of legal technicians
appointed for life can ever hope to cope with, much less solve, the
exigent problems of our polity.” Ibid., 231. He was referring of course
to the Supreme Court of the United States.
4 Frankfurter, Mr. Justice Holmes and the Supreme Court, 25-26
(1938).
5 Black, The People and the Court (1960).
6 Murphy, Elements of Judicial Strategy (1964).

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the assent it gives to what has been done conduces to its


support in a regime where the rule of law holds sway. In
discharging such a role, this Court must necessarily take
in account not only what the exigent needs of the
present demand but what may lie ahead in the
unexplored and unknown vistas of the future. It must
guard against the pitfall of lack of understanding of the
dominant forces at work to seek a better life for all,
especially those suffering from the pangs of poverty and
disease, by a blind determination to adhere to the status
quo. It would be tragic, and a clear case of its being
recreant to its trust, if the suspicion can with reason be
entertained that its approach amounts merely to a
militant vigilantism that is violently opposed to any
form of social change. It follows then that it does not
suffice that recourse be had only to what passes for
scholarship in the law that could be marred by
inapplicable erudition and narrow legalism. Even with
due recognition, such factors, however, I cannot, for
reasons to be set more lengthily and in the light of the
opinion of the Chief Justice, reach the same result as the
majority of my brethren. For, in the last analysis, it is
my firm conviction that the institution of judicial review
speaks too clearly for the point to be missed that official
action, even with due allowance made for the good faith
that invariably inspires the step taken, has to face the
gauntlet of a court suit whenever there is a proper case
with the appropriate parties.
1. Respondents are acting in the soundest
constitutional tradition when, at the outset, they would
seek a dismissal of these petitions. For them, the
question raised is political and thus beyond the
jurisdiction of this Court. Such an approach cannot be
indicted for unorthodoxy. It is implicit in the concept of
the rule of law that rights belong to the people and the
government possesses powers only. Essentially then,
unless such an authority may either be predicated on
express or implied grant in the Constitution or the
statutes, an exercise thereof cannot survive an inquiry
as to its validity. Respondents through Solicitor-General
Mendoza would deny our competence to proceed further.
It is their view, vigorously pressed and plausibly
asserted, that since what is involved is not merely the
effectivity of an amendment but the actual coming into
effect of a new constitution, the matter is not justiciable.
The immediate reaction is that such a contention is

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to be tested in the light of the fundamental doctrine of


separation of powers that it is not only the function but
the solemn duty of the judiciary to determine what the
law is and to apply it in cases and controversies that call
for decision.7 Since the Constitution pre-eminently
occupies the highest rung in the hierarchy of legal
norms, it is in the judiciary, ultimately this Tribunal,
that such a responsibility is vested. With the 1935
Constitution containing, as above noted, an explicit
article on the subject of amendments, it would follow
that the presumption to be indulged in is that the
question of whether there has been deference to its
terms is for this Court to pass upon. What is more, the
Gonzales,8 Tolentino9 and Planas10 cases speak
unequivocally to that effect. Nor is it a valid objection to
this conclusion that what was involved in those cases
was the legality of the submission and not ratification,
for from the very language of the controlling article, the
two vital steps are proposal and ratification, which as
pointed out in  Dillon v. Gloss,11 “cannot be treated as
unrelated acts, but as succeeding steps in a single
endeavor.”12 Once an aspect thereof is viewed as judicial,
there would be no justification for considering the rest as
devoid of that character. It would be for me then an
indefensible retreat, deriving no justification from
circumstances of weight and gravity, if this Court were
to accede to what is sought by respondents and rule that
the question before us is political.
On this point, it may not be inappropriate to refer to a
separate opinion of mine in  Lansang v. Garcia.13 Thus:
“The term has been made applicable to controversies
clearly non-judicial and therefore beyond its jurisdiction
or to an issue involved in a case appropriately subject to
its cognizance, as to

_______________
7 Cf. Angara v. Electoral Commission, 63 Phil. 139 (1936); Tañada
v. Cuenco, 103 Phil. 1051 (1957); Vera v. Arca, L-25721, May 26, 1969,
28 SCRA 351.
8 Gonzales v. Commission on Elections, L-28196, Nov. 9, 1967, 21
SCRA 774.
9 Tolentino v. Commission on Elections, L-24150, Oct. 16, 1971, 41
SCRA 702.
10 Planas v. Commission on Elections, L-35925, Jan. 25, 1973.
11 256 US 368 (1921).
12 Ibid., 374-375.
13 L-33964, Dec. 11, 1971, 42 SCRA 448.

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which there has been a prior legislative or executive


determination to which deference must be paid. It has
likewise been employed loosely to characterize a suit
where the party proceeded against is the President or
Congress, or any branch thereof. If to be delimited with
accuracy, “political questions” should refer to such as
would under the Constitution be decided by the people in
their sovereign capacity or in regard to full discretionary
authority is vested either in the President or Congress.
It is thus beyond the competence of the judiciary to pass
upon. Unless clearly falling within the formulation, the
decision reached by the political branches whether in the
form of a congressional act or an executive order could
be tested in court. Where private rights are affected, the
judiciary has no choice but to look into its validity. It is
not to be lost sight of that such a power comes into play
if there be an appropriate proceeding that may be filed
only after each coordinate branch has acted. Even when
the Presidency or Congress possesses plenary powers, its
improvident exercise or the abuse thereof, if shown, may
give rise to a justiciable controversy. For the
constitutional grant of authority is usually unrestricted.
There are limits to what may be done and how it is to be
accomplished. Necessarily then, the courts in the proper
exercise of judicial review could inquire into the question
of whether or not either of the two coordinate branches
has adhered to what is laid down by the Constitution.
The question thus posed is judicial rather than
political.”14 The view entertained by Professor Dodd is
not too dissimilar. For him such a term “is employed to
designate certain types of functions committed to the
political organs of government (the legislative and
executive departments, or either of them) and not
subject to judicial investigation.”15 After a thorough
study of American judicial decisions, both federal and
state, he could conclude: “The field of judicial non-
enforceability is important, but is not large when
contrasted with the whole body of written constitutional
texts. The exceptions from judicial enforceability fall
primarily within the field of public or governmental
interests.”16 Nor was Professor Weston’s formulation any

_______________
14 Ibid., 504-505.
15 Dodd, Judicially Nonenforceable Provisions of Constitutions, in I
Selected Essays on Constitutional Law 355, 387 (1938).
16 Ibid., 395.

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different. As was expressed by him: “Judicial questions,


in what may be thought the more useful sense, are those
which the sovereign has set to be decided in the courts.
Political questions, similarly, are those which the
sovereign has entrusted to the so-called political
departments of government or has reserved to be settled
by its own extra-governmental action.”17 What appears
undeniable then both from the standpoint of Philippine
as well as American decisions is the care and
circumspection required before the conclusion is
warranted that the matter at issue is beyond judicial
cognizance, a political question being raised.
2. The submission of respondents on this subject of
political question, admittedly one of complexity and
importance, deserves to be pursued further. They would
derive much aid and comfort from the writings of both
Professor Bickel18 of Yale and Professor Freund19 of
Harvard, both of whom in turn are unabashed admirers
of Justice Brandeis. Whatever be the merit inherent in
their lack of enthusiasm for a more active and positive
role that must be played by the United States Supreme
Court in constitutional litigation, it must be judged in
the light of our own history. It cannot be denied that
from the well nigh four decades of constitutionalism in
the Philippines, even discounting an almost similar
period of time dating from the inception of American
sovereignty, there has sprung a tradition of what has
been aptly termed as judicial activism. Such an
approach could be traced to the valedictory address
before the 1935 Constitutional Convention of Claro M.
Recto. He spoke of the trust reposed in the judiciary in
these words: “It is one of the paradoxes of democracy
that the people at times place more confidence in
instrumentalities of the State other than those directly
chosen by them for the exercise of their sovereignty.”20 It
would thus appear that even then this Court was
expected not to assume an attitude of timidity and
hesitancy when a constitutional question is posed. There
was

_______________
17 Weston, Political Questions, I Selected Essays an Constitutional
Law 418, 422 (1938).
18 Cf. Bickel, The Least Dangerous Branch (1962).
19 Cf. Freund, On Understanding the Supreme Court (1950). Also
his The Supreme Court of the United States (1962).
20 Laurel, S., VII Proceedings of the Philippine Constitutional
Convention (1934-1935), Appendix L, 800.

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the assumption of course that it would face up to such


a task, without regard to political considerations and
with no thought except that of discharging its trust.
Witness these words Justice Laurel in an early
landmark case, People v. Vera,21 decided in 1937: “If it is
ever necessary for us to make vehement affirmance
during this formative period of political history, it is that
we are independent of the Executive no less than of the
Legislative department of our government —
independent in the performance of our functions,
undeterred by any consideration, free from politics,
indifferent to popularity, and unafraid of criticism in the
accomplishment of our sworn duty as we see it and as we
understand it.”22 The hope of course was that such
assertion of independence impartiality was not mere
rhetoric. That is a matter more appropriately left to
others to determine. It suffices to stake that what elicits
approval on the part of our people of a judiciary ever
alert to inquire into alleged breaches of the fundamental
law is the realization that to do so is merely to do what
is expected of it and that thereby there is no invasion of
spheres appropriately belonging to the political
branches. For it needs to be kept in kind always that it
can act only when there is a suit with proper parties
before it, wherein rights appropriate for judicial
enforcement are sought to be vindicated. Then, too, it
does not approach constitutional questions with
dogmatism or apodictic certainty nor view them from the
shining cliffs of perfection. This is not to say though that
it is satisfied with an empiricism untroubled by the
search for jural consistency and rational coherence. A
balance has to be struck. So juridical realism requires.
Once allowance made that for all its care and
circumspection this Court manned by human beings
fettered by fallibility, nonetheless earnestly and
sincerely striving to do right, the public acceptance of its
vigorous pursuit of the task of assuring that the
Constitution be obeyed is easy to understand. It has not
in the past shirked its responsibility to ascertain
whether there has been compliance with and fidelity to
constitutional requirements. Such is the teaching of a
host of cases from

_______________
21 65 Phil. 56 (1937).
22 Ibid., 96.

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Javellana vs. The Executive Secretary

Angara v. Electoral  Commission23 to  Planas v.


Commission on Elections.24 It should continue to
exercise its jurisdiction, even in the face of a plausible
but not sufficiently persuasive insistence that the matter
before it is political.
Nor am I persuaded that the reading of the current
drift in American legal scholarship by the Solicitor-
General and his equally able associates presents the
whole picture. On the question of judicial review, it is
not a case of black and white; there are shaded areas. It
goes too far, in my view, if the perspective is one of
dissatisfaction, with its overtones of distrust. This
expression of disapproval has not escaped Dean Rostow
of Yale, who began one of his most celebrated legal
essays. The Democratic Character of Judicial Review,
thus: “A theme of uneasiness, and even of guilt, colors
the literature about judicial review. Many of those who
have talked, lectured, and written about the
Constitution have been troubled by a sense that judicial
review is undemocratic.”25 He went on to state: “Judicial
review, they have urged, is an undemocratic shoot on an
otherwise respectable tree. It should be cut off, or at
least kept pruned and  inconspicuous.”26 His view was
precisely the opposite. Thus: “The power of
constitutional review, to be exercised by some part of the
government, is implicit in the conception of a written
constitution delegating limited powers. A written
constitution would promote discord rather than order in
society if there were no accepted authority to construe it,
at the least in case of conflicting action by different
branches of government or of constitutionally
unauthorized governmental action against individuals.
The limitation and separation of powers, if they are to
survive, require a procedure for independent mediation
and construction to reconcile the inevitable disputes over
the boundaries of constitutional power which arise in the
process of government.”27 More than that, he took pains
to emphasize:

_______________
23 63 Phil. 139 (1936).
24 L-35925, January 22, 1973.
25 Rostow, The Democratic Character of Judicial Review in Selected
Essays on Constitutional Law 1938 1962, 1, 2 (1963).
26 Ibid.
27 Ibid, 3.

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318 SUPREME COURT REPORTS ANNOTATED


Javellana vs. The Executive Secretary
“Whether another method of enforcing the
Constitution could have been devised, the short answer
is that no such method developed. The argument over
the constitutionality of judicial review has long since
been settled by history. The power and duty of the
Supreme Court to declare statutes or executive action
unconstitutional in appropriate cases is part of the living
Constitution. ‘The course of constitutional history,’ Mr.
Justice Frankfurter recently remarked, ‘has cast
responsibilities upon the Supreme Court which it would
be “stultification” for it to evade.’ ”28 Nor is it only Dean
Rostow who could point Frankfurter, reputed to belong
to the same school of thought opposed to judicial
activism, if not its leading advocate during his long stay
in the United States Supreme Court, as one fully
cognizant of the stigma that attaches to a tribunal which
neglects to meet the demands of judicial review. There is
a statement of similar importance from Professor Mason:
“In  Stein v. New YorkFrankfurter  remarked, somewhat
self-consciously perhaps, that the ‘duty of deference
cannot be allowed imperceptibly to slide into abdication.’
”29 Professor Konefsky, like Dean Rostow, could not
accept characterization of judicial review as
undemocratic. Thus his study of Holmes and Brandeis,
the following appears: “When it is said that judicial
review is an undemocratic feature of our political
system, it ought also to be remembered that architects of
that system did not equate constitutional government
with unbridled majority rule. Out of their concern for
political stability and security for private rights, *  *  *,
they designed a structure whose keystone was to consist
of barriers to the untrammeled exercise of power by any
group. They perceived no contradiction between effective
government and constitutional checks. To James
Madison, who may legitimately be regarded as the
philosopher of the Constitution, the scheme of mutual
restraints was the best answer to what he viewed as the
chief problem in erecting a system of free representative
government: ‘In framing a government which is to be
administered by men over men, the great difficulty lies
in

_______________
28 Ibid., 3-4. The decision of Justice Frankfurter referred to is that
of Rochin v. People of California, 342 US 165 (1952).
29 Mason, The Supreme Court from Taft to Warren, 154 (1967). The
words of Justice Frankfurter found in his opinion in Stein v. New York,
346 US 156 (1953).

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Javellana vs. The Executive Secretary

this: you must first enable the government to control the


governed; and in the next place oblige it to control itself.’
”30
There is thus an inevitability to the flowering of
judicial review. Could it be that the tone of discontent
apparent in the writings of eminent authorities on the
subject evince at the most fears that the American
Supreme Court might overstep the bounds allotted to
the judiciary? It cannot be a denial of the fitness of such
competence being vested in judges and of their being
called upon to fulfill such a trust whenever appropriate
to the decision of a case before them. That is why it has
been correctly maintained that notwithstanding the
absence of any explicit provision in the fundamental law
of the United States Constitution, that distinguished
American constitutional historian, Professor Corwin,
could rightfully state that judicial review “is simply
incidental to the power of courts to interpret the law, of
which the Constitution is part, in connection with the
decision of cases.”31 This is not to deny that there are
those who would place the blame or the credit,
depending upon one’s predilection, on Marshall’s epochal
opinion in Marbury v. Madison.32 Curtis belonged to
that persuasion. As he put it: “The problem was given no
answer by the Constitution. A hole was left where the
Court might drive in the peg of judicial supremacy, if it
could. And that is what John Marshall did.”33 At any
rate there was something in the soil of American juristic
thought resulting in this tree of judicial power so
precariously planted by Marshall striking deep roots and
showing wonderful vitality and hardiness. It now
dominates the American legal scene. Through it, Chief
Justice Hughes, before occupying that exalted position,
could state in a lecture: “We are under a Constitution,
but the Constitution is what the judges say it is * * *.”34
The above statement is more than just an aphorism that
lends itself to inclusion in judicial anthologies or bar
association speeches. It could and did provoke from
Justice Jackson, an exponent of the judicial restraint
school of

_______________
30 Konefsky, The Legacy of Holmes and Brandeis, 293 (1956).
31 Corwin, Judicial Review in I Selected Essays on Constitutional
Law, 449, 450 (1938).
32 1 Cranch 137 (1803).
33 Curtis, Lions Under the Throne, 12 (1947).
34 Addresses and Papers of Charles Evans Hughes, 139-140 (1908).

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320 SUPREME COURT REPORTS ANNOTATED


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thought, this meaningful query: “The Constitution


nowhere provides that it shall be what the judges say it
is. How, did it come about that the statement not only
could be but could become current as the most
understandable comprehensive summary of American
Constitutional law?”35 It is no wonder that Professor
Haines could pithily and succinctly sum up the place of
the highest American tribunal in the scheme of things in
this wise: “The Supreme Court of the United States has
come to be regarded as the unique feature of the
American governmental system.”36 Let me not be
misunderstood. There is here no attempt to close one’s
eyes to a discernible tendency on the part of some
distinguished faculty minds to look askance at what for
them may be inadvisable extension of judicial authority.
For such indeed is the case as reflected in two leading
cases of recent vintage, Baker v. Carr,37 decided in 1962
and Powell v. MacCormack,38 in 1969, both noted in the
opinion of the Chief Justice. The former disregarded the
warning of Justice Frankfurter in Colegrove v. Green39
about the American Supreme Court declining
jurisdiction on the question of apportionment as to do so
would cut very deep into the very being of Congress.”40
For him, the judiciary “ought not to enter this political
thicket.” Baker has since then been followed; it has
spawned a host of cases.41 Powell, on the question of the
power of a legislative body to exclude from its ranks a
person whose qualifications

_______________
35 Jackson, Robert H. The Struggle for Judicial Supremacy, 3
(1949).
36 Haines, Charles Grove, The Role of the Supreme Court in
American Government and Politics, 1789-1835, 3 (1960).
37 369 US 186.
38 395 US 486.
39 328 US 549 (1946).
40 Ibid., 556.
41 Cf. Wesberry v. Sanders, 376 US 1, 11 L ed 2d 481, 84 S Ct.
(1964); Wright v. Rockefeller, 376 US 52, 11 L ed 2d 512, 84 S Ct
(1964); Reynolds v. Sims, 377 US 533, 12 L ed 2d 506, 84 S Ct 1362
(1964); WMCA v. Lomenzo, 377 US 633, 12 L ed 2d 568, 84 S Ct.
(1964); Maryland Committee v. Tauses, 377 US 656, 12 L ed 2d 595, 84
S Ct. 1442 (1964); Davis v. Mann, 377 US 678, 12 L ed 2d 609, 84 S Ct.
1453 (1964); Roman v. Sincock, 377 US 695, 12 L ed 2d 620, 84 S.Ct.
1462 (1964); Lucas v. Colorado General Assembly, 377 US 713, L ed 2d
632, 84 S Ct. 1472 (1964); Fortson v. Dorsey, 379 us 433, 13 L ed 2d
401, 85 S Ct. 498 (1965); Burns v. Richardson, 384 US 73, 16 L ed 2d
321

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Javellana vs. The Executive Secretary

are uncontested, for many the very staple of what is


essentially political, certainly goes even further than the
authoritative Philippine decision of Vera v. Avelino,42 It
does look then that even in the United States, the plea
for judicial self-restraint, even if given voice by those
competent in the field of constitutional law, has fallen on
deaf ears. There is in the comments of respondents an
excerpt from Professor Freund quoting from one of his
essays appearing in a volume published in 1968. It is not
without interest to note that in another paper, also
included therein, he was less than assertive about the
necessity for self-restraint and apparently mindful of the
claims of judicial activism. Thus: “First of all, the Court
has a responsibility to maintain the constitutional order,
the distribution of public power, and the limitations on
that power.”43 As for Professor Bickel, it has been said
that as counsel for the New York Times in the famous
Vietnam papers case,44 he was less than insistent on the
American Supreme Court exercising judicial self-
restraint. There are signs that the contending forces on
such question, for some an unequal contest, are now
quiescent. The fervor that characterized the expression
of their respective points of view appears to have been
minimized. Not that it is to be expected that it will
entirely disappear, considering how dearly cherished
are, for each group, the convictions, prejudices one might
even say, entertained. At least what once was fitly
characterized as the booming guns of rhetoric, coming
from both directions, have been muted. Of late, scholarly
disputations have been centered on the standards that
should govern the exercise of the power of judicial
review. In his celebrated Holmes lecture in 1959 at the
Harvard Law School, Professor Wechsler advocated as
basis for decision what he termed neutral principles of
constitutional law.45 It has brought forth a plethora of
law

_______________
376, 86 S Ct. 1286 (1966); Sailors v. Kent Board of Education, 387 US
105, 18 L ed 2d 650, 87 S Ct. 1549 (1967); Dusch v. Davis, 387 US 112,
18 L ed 2d 656, 87 S Ct. 1554 (1967).
42 77 Phil. 192 (1946).
43 Ibid., 56.
44 New York Times Company v. United States, 29 L ed. 822 (1971).
45 Wechsler, Toward Neutral Principles of Constitutional Law, 72
Harv. Law Review 77 (1959). It is the first essay in his Principles,
Politics and Fundamental Law.

322

322 SUPREME COURT REPORTS ANNOTATED


Javellana vs. The Executive Secretary

review articles, the reaction ranging from guarded


conformity to caustic criticism.46 There was, to be sure,
no clear call to a court in effect abandoning the
responsibility incumbent on it to keep governmental
agencies within constitutional channels. The matter has
been put in temperate terms by Professor Frank thus:
“When allowance has been made for all factors, it
nevertheless seems to me that the doctrine of political
questions ought to be very sharply confined to where the
functional reasons justify it and that in a give involving
its expansion there should be careful consideration also
of the social considerations which may militate against
it. The doctrine has a certain specious charm because of
its nice intellectualism and because of the fine deference
it permits to expertise, to secret knowledge, and to the
prerogatives of others. It should not be allowed to grow
as a merely intellectual plant.”47
It is difficult for me at least, not to be swayed by
appraisal, coming from such impeccable sources of the
worth and significance of judicial review in the United
States. I cannot resist the conclusion then that the views
advanced on this subject by distinguished counsel for
petitioners, with

_______________
46 The principal articles are: Pollak, Constitutional Adjudication:
Relative or Absolute Neutrality, 11 J. Pub. L. 48 (1962); Rostow,
American Legal Realism and the Sense of Profession, 34 Rocky Mt. L.
Rev. 123, 136-46 (1962); Henkin, Some Reflections on Current
Constitutional Controversy, 109 U. Pa. L. Rev. 637 (1961); Henson, A
Criticism of Criticism: In re Meaning, 29 Fordham L. Rev. 553 (1961);
Miller, A Note on the Criticism of Supreme Court Decisions, 10 J. Pub.
L. 139 (1961), Wright, The Supreme Court Cannot be Neutral, 40
Texas L. Rev. 599 (1961); Arnold, Professor Hart’s Theology, 73 Harv.
L. Rev. 1298 (1960); Black, The Lawfulness of the Segration Decisions,
69 Yale L. J. 421 (1960); Griswold, Of Time and Attitudes: Professor
art and Judge Arnold, 74 Harv. L. Rev. 81 (1960); Karst, Legislative
Facts in Constitutional Litigation, 1960 Supreme Court Rev. 75; Miller
and Howell The Myth of Neutrality in Constitutional Adjudication,
27U. Chi. L. Rev. 661 (1960); Mueller & Schwartz, The Principle of
Neutral Principles, 7 U.C.L.A.L. Rev. 571 (1960); Hart, Forward, The
Time Chart of the Justices, 73 Harv. L. Rev. 84 (1959); Pollak, Racial
Domination and Judicial Integrity: A Reply to Professor Wechsler, 108
U. Pa. L. Rev. 1 (1959).
47 Cahn, Supreme Court and Supreme Law, 40 (1954).

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Javellana vs. The Executive Secretary

Senators Lorenzo M. Tañada and Jovito Salonga at the


van, rather than the advocacy of the Solicitor-General,
possess the greater weight and carry persuasion. So
much then for the invocation of the political question
principle as a bar to the exercise of our jurisdiction.
3. That brings me to the issue of the validity of the
ratification. The crucial point that had to be met is
whether Proclamation No. 1102 manifests fidelity to the
explicit terms of Article XV. There is, of course, the view
not offensive to reason that a sense of the realities
should temper the rigidity of devotion to the strict letter
of the text to allow deference to its spirit to control. With
due recognition of its force in constitutional litigation,48
if my reading of the events and the process that led to
such proclamation, so clearly set forth in the opinion of
the Chief Justice, is not inaccurate, then it cannot be
confidently asserted that there was such compliance. It
would be to rely on conjectural assumptions that did
founder on the rock of the undisputed facts. Any other
conclusion would, for me, require an interpretation that
borders on the strained. So it has to be if one does not
lose sight of how the article on amendments is phrased.
A word, to paraphrase Justice Holmes may not be a
crystal, transparent and unchanged, but it is not, to
borrow from Learned Hand, that eminent jurist, a
rubber band either. It would be unwarranted in my view
then to assert that the requirements of the 1935
Constitution have been met. There are American
decisions,49 and they are not

_______________
48 Cf. Tañada v. Cuenco, 103 Phil. 1051, 1089 (1957).
49 Collier v. Frierson, 124 Ala. 100 (1854); Green v. Weller, 32 Miss.
650 (1856); Penn v. Tollison, 26 Ark. 545 (1871); Koehler v. Hill, 60
Iowa 543, 14 NW 738 (1883); McMillan v. Blattner, 67 Iowa 287, 25
NW 245 (1885); State v. Davis, 2D Neb. 220, 19 Pac. 894 (1888); State
v. Tooker, 15 Mont. 8, 37 Pac. 840 (1894); Russie v. Brazzell, 128 Mo.
93, 30 SW 526 (1895); State v. Powell, 77 Miss. 543, 27 So. 927 (1900);
State v. Brookhart, 113 Iowa 250, 84 NW 1064 (1901); In re Denny,
156 Ind. 104, 59 NE 359 (1901); Utter v. Moseley, 16 Idaho 274, 100 P.
1058 (1909); Willis v. Kalbach, 109 Va. 475, 64 SE 342 (1909); People
ex rel. Swift v. Luce, 74 Misc. Rep. 551, 133 US 9 (1912); McCreary v.
Speer, 156 Ky. 783, 162 SW 99 (1914); State v. Donald, 160 Wis. 21,
151 NW 331 (1915); State v. Marcus, 160 Wis. 354, 152 NW 419 (1915);
State v. Campbell, 94 Ohio St. 403, 115 NE 29 (1916); In re Opinion of
Justices, 226 Mars. 607, 115 NE 921 (1917); Scott v. Vouchan, 202

324
324 SUPREME COURT REPORTS ANNOTATED
Javellana vs. The Executive Secretary

few in number, which require that there be obedience


to the literal terms of the applicable provision. It is
understandable why it should be thus. If the
Constitution is the supreme law, then its mandate must
be fulfilled. No evasion is tolerated. Submission to its
commands can be shown only if each and every word is
given meaning rather than ignored or disregarded. This
is not to deny that a recognition conclusive effect
attached to the electorate manifesting its will to vote
affirmatively on the amendments proposed poses an
obstacle to the judiciary being insistent on the utmost
regularity. Briefly stated, substantial compliance is
enough. A great many American State decisions may be
cited in support of such a doctrine.50 

_______________
Mich. 692, 168 NW 709 (1918); Hooper v. State, 89 So. 593, 206 Ala.
371 (1921); Switzer v. State, 103 Ohio St. 306, 133 NE 552 (1921);
Johnson v. Craft, 87 So. 375, 205 Ala. 386 (1921); In re Opinion of the
Justices, 237 Mars. 589, 130 NE 202 (1921); Power v. Robertson, 130
Miss. 188, 93 So. 769 (1922); Hamilton v. Deland, 191 NW 829, 221
Mich. 541 (1923); In re Initiative Petition, 89 Okl. 124, 214 P. 186
(1923); Armstrong v. King, 281 Pa. 207, 126 A. 263 (1924); McAdams v.
Henley, 169 Ark. 97, 273 SW 355 (1925); Heinitsh v. Floyd, 130 SC
434, 126 SE 336 (1925); State v. Zimmerman, 187 Wis. 180, 204 NW
803 (1925); Brown v. City of New York, 125 Misc. Rep. 1, 210 NYS 786
(1926); State ex rel. Bahns v. City of New Orleans, 163 La. 777 So. 718
(1927); Duncan v. Record Pub. Co., 145 SC 196, 143 SE 31 (1928); Lane
v. Lukens, 48 Idaho 517, 283 P. 532 (1929); School Dist. of City of
Pontiac v. City of Pontiac, 262 Mich. 338, 247 NW 474 (1933); Collier v.
Gray, 116 Fla. 845, 157 So. 40 (1934); In re Opinion to Governor, 55
R.I. 56, 178 A. 433 (1935); State ex rel Landis v. Thompson, 120 Fla.
860,163 So. 270 (1935); Tausig v. Lawrence, 328 Pa. 408, 197 A. 235
(1938); Downs v. City of Bromingham, 240 Ala. 177, 198 So. 231
(1940); Graham v. Jones, 198 La. 507, 3 So. 2d 761 (1941); Pearson v.
Taylor, 159 Fla. 775, 32 So. 2d 826 (1947); Palmer v. Dunn, 216 SC
558, 59 SE 158 (1950).
50 Cf. Wells v. Bain, 75 Pa. St. 39, 15 Am. Rep. 563 (1874); Senate
File No. 31, 25 Neb. 864, 41 NW 981 (1889); State v. Grey, 21 Nev. 378,
32 Pac. 190 (1893); Nesbit v. People, 19 Colo. 441, 36 Pac. 221 (1894);
Hays v. Hays, 5 Idaho 154, 47 P. 732 (1897); Lovett v. Ferguson, 10 SD
44, 71 NW 756 (1897); Russell v. Grey, 164 Mo. 69, 63 SW 849 (1901);
Gabbert v. Chicago, R.I. Ry. Co. 171 Mo. 84, 70 SW (1902); People v.
Sours, 31 Colo. 369, 102 74 P. 167 (1903); People v. Loomis, 135 Mich.
556, 98 NW 262 (1904); West v. State, 50 Fla. 154,

325

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Javellana vs. The Executive Secretary

 
Even if the assumption be indulged in that Article XV
is not phrased in terms too clear to be misread, so that
this Court is called upon to give meaning and
perspective to what could be considered words of vague
generality, pregnant with uncertainty, still whatever
obscurity it possesses is illumined when the light of the
previous legislation is thrown on it. In the first
Commonwealth Act,51 submitting to the Filipino people
for approval or disapproval certain amendments to the
original

_______________
39 So. 412 (1905); State v. Winnett, 78 Neb. 379, 110 NW 113 (1907);
Farrell v. Port of Columbia, 50 Or. 169, 93 P. 254 (1908); In re
Mcconaughy, 106 Minn. 392, 119 NW 408 (1909); Fletcher v. Gifford,
20 Idaho 18, 115 P. 824 (1911); Hammond v. Clark, 136 Ga. 313, 71 SE
479 (1911), Crawford v. Gilchrist, 64 Fla. 41, 59 So. 963 (1912);
Cudihee v. Phelps, 76 Wash. 314, 136 P. 367 (1913); State v. Fairley,
76 Wash. 332, 136 P. 374 (1913); Tabor v. City of Walla Walla, 77
Wash. 579, 137 P. 1040 (1914); State v. Alderson, 49 Mont. 387, 142 P.
210 (1914); Ramsey v. Persinger, 43 Okl. 41,141 P. 13 (1914); Cress v.
Estes, 43 Okl. 213 P. 411 (1914); Cooney v. Foote, 142 Ga. 647, 83 SE
537 (1914); Hildreth v. Taylor, 117 Ark. 465, 175 SW 40 (1915); Jones
v. McDade, 200 Ala. 230, 75 So. 988 (1917); State v. Wetz, 40 N.D. 299,
168 NW 835 (1918); Ex Parte Ming, 42 Nev. 472, 181 P. 319 (1919);
Lee V. Price, 54 Utah, 474, 181 P. 948 (1919), Erwin v. Nolan, 280 Mo.
401, 217 SW 752 (1922); Boyd v. Olcott, 102 Or. 327, 202 P. 431 (1921);
Thompson v. Livingston, 116 S.C. 412, 107 SE 581 (1921); Thrailkill v.
Smith, 106 Ohio St. 1, 138 NE 532 (1922); Brawner v. Curran, 141 Ind.
586, 119 A. 250 (1922); Fahey v. Hackmann, 291 Mo. 351 SW 752
(1922); Goolsby v. Stephens, 155 Ga. 529, 117 SE 439 (1923); Manos v.
State, 98 Tax. Cr. 87, 263 SW 310 (1924); State v. Zimmermann, 187
Wis. 180, 208 NW 803 (1925); Taylor v. King, 284 Pa. 235, 130 A. 407
(1925); Board of Liquidation of State Debt of Louisiana v. Whitney-
Central Trust and Savings Bank, 168 La. 560, 122 So. 850 (1929);
State v. Cline, 118 Neb. 150, 224 NW 6 (1929); California Teacher’s
Ass’n. v. Collins, 1 Cal. 2d 202, 34 P. 2d 134 (1934); Collier v. Gray, 116
Fla. 845, 157 So. 40 (1934); State ex rel. v. State Bldg. Commission v.
Smith, 335 Mo. 840, 74 SW 2d 27 (1934); Mayer v. Adams, 182 Ga.
524, 186 SE 420 (1936); Doody v. State ex rel. Mobile County, 233 Ala.
287, 171 So. 504 (1937); Swanson v. State, 132 Neb. 82, 271 NW 264
(1937); Stonns v. Heck, 238 Ala. 196, 190 So. 78 (1939); Graham v.
Jones, 198 La. 507, 3 So. 2d 761 (1941); In re Initiative Petition No.
224, 197 Okl. 432, 172 P. 2d 324 (1946); City of Jackson v. Nims, 316
Mich. 694, 26 NW 2d 569 (1947); Keenan v. Price, 68 Idaho 423, 195 P.
2d 662 (1948).
51 Commonwealth Act No. 492 (1939).

326

326 SUPREME COURT REPORTS ANNOTATED


Javellana vs. The Executive Secretary

ordinance appended to the 1935 Constitution, it was


made that the election for such purpose was to “be
conducted in conformity with the provisions of the
Election Code insofar as the same may be applicable.”52
Then came the statute,53 calling for the plebiscite on the
three 1940 amendments providing for the plebiscite on
the three 1930 amendments providing for a bicameral
Congress or a Senate and a House of Representatives to
take the place of a unicameral National Assembly,54
reducing the term of the President to four years but
allowing his re-election with the limitation that he
cannot serve more than eight consecutive years,55 and
creating an independent Commission on Elections.56
Again, it was expressly provided that the election “shall
be conducted in conformity with the provisions of the
Election Code in so far as the same may be applicable.”57
The approval of the present parity amendment was by
virtue of a Republic Act58 which specifically made
applicable the then Election Code.59 There is a similar
provision in the  legislation,60 which in cotemplation of
the 1971 Constitutional Convention, saw to it that there
be an increase in the membership of the House of
Representatives a maximum of one hundred eighty and
assured the eligibility of senators and representatives to
become members of such constituent body without
forfeiting their seats, as proposed amendments to be
voted on in the 1967 elections.61 That is the

_______________
52 Ibid., Section 3.
53 Commonwealth Act No. 517 (1940).
54 Article VI of the 1935 Constitution.
55 Article VII of the 1935 Constitution.
56 It is to be noted that under Commonwealth Act No. 607 (1940),
subsequently amended by Commonwealth Act No. 657 (1940), there
was a statutory creation of an independent Commission on Elections.
57 Section 3, Commonwealth Act No. 517.
58 Republic Act No. 73 (1946).
59 Section 3 of Republic Act 73 reads as follows: “The provisions of
Commonwealth Act Numbered Three Hundred and fifty-seven,
otherwise known as the Election Code, and Commonwealth Numbered
Six hundred and fifty-seven, entitled “An Act to Reorganize the
Commission on Elections,” is so far as they are not inconsistent
herewith, are hereby made applicable to the election provided for in
this Act.”
60 Republic Act 4913 (1967).
61 Section 3 of Republic Act 4913 reads thus: “The provisions of
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Javellana vs. The Executive Secretary

consistent course of interpretation followed by the


legislative branch. It is most persuasive, if not
controlling. The restraints thus imposed would set limits
to the Presidential action taken, even on the assumption
that either as an agent of the Constitutional Convention
or under his martial law prerogatives, he was not devoid
of power to specify the mode of ratification. On two vital
points, who can vote and how they register their will,
Article XV had been given a definitive construction. That
is why I fail to see sufficient justification for this Court
affixing the imprimatur of its approval on the mode
employed for the ratification of the revised Constitution
as reflected in Proclamation No. 1102.4. Nor is the
matter before us solely to be determined by the failure to
comply with the requirements of Article XV.
Independently of the lack of validity of the ratification of
the new Constitution, if it be accepted by the people, in
whom sovereignty resides according to the
62
Constitution, then this Court cannot refuse to yield
assent to such a political decision of the utmost gravity,
conclusive in its effect. Such a fundamental principle is
meaningless if it does not imply, to follow Laski, that the
nation as a whole constitutes the “single center of
ultimate reference,” necessarily the possessor of that
“power that is able to resolve disputes by saying the last
word.”63 If the origins of the democratic polity enshrined
in the 1935 Constitution with the declaration that the
Philippines is a republican state could be traced back to
Athens and to Rome, it is no doubt true, as McIver
pointed out, that only with the recognition of the nation
as the separate political unit in public law is there the
juridical recognition of the people composing it “as the
source of political authority.”64 From them, as Corwin
_______________
Republic Act Numbered One hundred eighty, as amended, insofar as
they are not inconsistent herewith, are made applicable to the election
provided for in this Act.” It is to be remembered that in the plebiscite
held, the two proposals last. Cf. on this point, Gonzales v. Commission
on Elections, L-28196, Nov. 9, 1967, 21 SCRA 774.
62 The 1935 Constitution provides: “The Philippines is a republican
state. Sovereignty resides in the people and all government authority
emanates from them.” Article II, Section 1.
63 Laski, Grammar of Politics, 4th ed., 34 (1937).
64 McIver, The Web of Government, 84 (1947).

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Javellana vs. The Executive Secretary

did stress, emanate “the highest possible embodiment of


human will,”65 which is supreme and must be obeyed. To
avoid any confusion and in the interest of clarity, it
should be expressed in the manner ordained by law.
Even if such is not the case, however, once it is
manifested, it is to be accepted as final and
authoritative. The government which is merely an
agency to register its commands has no choice but to
submit. Its officials must act accordingly. No agency is
exempt such a duty, not even this Court. In that sense,
the lack of regularity in the method employed to register
its wishes is fatal in its consequences. Once the fact of
acceptance by people of a new fundamental law is made
evident, the judiciary is left with no choice but to accord
it recognition. The obligation to render it obeisance falls
on the courts as well.
There are American State decisions that enunciate
such a doctrine. While certainly not controlling, they are
not entirely bereft of persuasive significance. In Miller v.
Johnson,66 decided in 1892, it was set forth in the
opinion of Chief Justice Holt that on May 3, 1890, an act
was passed in Kentucky, providing for the calling of a
convention for the purpose of framing a new constitution
and the election of delegates. It provided that before any
form of constitution made by them should become
operative, it should be submitted to the vote of the state
and ratified by a majority of those voting. The
constitution then in force authorized the legislature, the
preliminary steps having been taken, to call a
convention “for the purpose of readopting, amending, or
changing” it contained no provision giving the
legislature the power to require a submission of its work
to a vote of the people. The convention met in
September, 1890. By April, 1891, it completed a draft of
a constitution, submitted it to a popular vote, and then
adjourned until September following. When the
convention reassembled, the delegates made numerous
changes in instrument. As thus amended, it was
promulgated by the convention of September 28, 1891,
as the new constitution. An

_______________
65 Corwin, The Higher Law Background of American Constitutional
Law, in 1 Selected Essays on Constitutional Law 3 (1938).
66 92 Ky. 589, 18 SW 522.

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Javellana vs. The Executive Secretary

action was brought to challenge its validity. It failed


in the lower court. In affirming such judgment
dismissing the action, Chief Justice Holt stated: “If a set
of men, not selected by the people according to the forms
of law, were to formulate an instrument and declare it
the constitution, it would undoubtedly be the duty of the
courts to declare its work a nullity. This would be
revolution, and this the courts of the existing
government must resist until they are overturned by
power, and a new government established. The
convention, however, was the offspring of law. The
instrument which we are asked to declare invalid as a
constitution has been made and promulgated according
to the forms of law. It is a matter of current history that
both the executive and legislative branches of the
government have recognized its validity as a
constitution, and are now daily doing so. * * * While the
judiciary should protect the rights of the people with
great care and jealousy, because this is its duty, and also
because; in times of great popular excitement, it is
usually their last resort, yet it should at the same time
be careful not to overstep the proper bounds of its power,
as being perhaps equally dangerous; and especially
where such momentous results might follow as would be
likely in this instance, if the power of the judiciary
permitted, and its duty requires, the overthrow of the
work of the convention.”67 In Taylor v. Commonwealth,68
a 1903 decision, it was contended that the Virginia
Constitution reclaimed in 1902 is invalid as it was
ordained and promulgated by the convention without
being submitted for ratification or rejection by the
people. The Court rejected such a view. As stated in the
opinion of Justice Harrison: “The Constitution of 1902
was ordained and proclaimed by a convention duly called
by direct vote of the people of the state to revise and
amend the Constitution of 1869. The result of the work
of the convention has been recognized, accepted, and
acted upon as the only valid Constitution of the state by
the Governor in swearing fidelity to it and proclaiming
it, as directed thereby; by the Legislature in its formal
official act adopting a joint resolution, July 15, 1902,
recognizing the Constitution ordained by the convention
which assembled in the city of Richmond on the 12th day
of June, 1901, as the

_______________
67 Ibid., 523.
68 101 Va. 829, 44 SE 754.

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330 SUPREME COURT REPORTS ANNOTATED
Javellana vs. The Executive Secretary

Constitution of Virginia; by the individual oaths of


members to support it, and by enforcing its provisions;
and the people in their primary capacity by peacefully
accepting it and acquiescing in it, by registering as
voters under it to the extent of thousands throughout
the state, and by voting, under its provisions, at a
general election for their representatives in the Congress
of the United States. The Constitution having been thus
acknowledged and accepted by the office administering
the government and by the people of the state, and there
being no government in existence under the Constitution
of 1869 opposing or denying its validity, we have no
difficulty in holding that the Constitution in question,
which went into effect at noon on the 10th day of July,
1902, is the only rightful, valid, and existing
Constitution of this state, and that to it all the citizens of
Virginia owe their obedience and loyal allegiance.”69
It cannot be plausibly asserted then that premises
valid in law are lacking for the claim that the revised
Constitution has been accepted by the Filipino people.
What is more, so it has been argued, it is not merely a
case of its being implied. Through the Citizens
Assemblies, there was a plebiscite with the result as
indicated in Proclamation No. 1102. From the
standpoint of respondents then, they could allege that
there was more than just mere acquiescence by the
sovereign people. Its will was thus expressed formally
and unmistakably. It may be added that there was
nothing inherently objectionable in the informal method
followed in ascertaining its preference. Nor is the fact
that Filipinos of both sexes above the age of fifteen were
given the opportunity to vote to be deplored. The greater
the base of mass participation, the more there is fealty
to the democratic concept. It does logically follow
likewise that such circumstances being conceded, then
no justifiable question may be raised. This Court is to
respect what had thus received the people’s sanction.
That is not for me though whole of it. Further scrutiny
even then is not entirely foreclosed. There is still an
aspect that is judicial, an inquiry may be had as to
whether such indeed was the result. This is

_______________
69 Ibid., 755. A similar approach may be noted in Arie v. State, 23
Okl. 166, 100 P. 23 (1909) and Hammond v. Clark, 136 Ga. 313, 71 SE
479 (1911).

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Javellana vs. The Executive Secretary

no more than what the courts do in election cases. There


are other factors to bear in mind. The fact that the
President so certified is well-nigh conclusive. There is in
addition the evidence flowing from the conditions of
peace and stability. There thus appears to be conformity
to the existing order of things. The daily course of events
yields such a conclusion. What is more, the officials
under the 1935 Constitution, including practically all
Representatives and a majority of the Senators, have
signified their assent to it. The thought persists,
however, that as yet sufficient time has not elapsed to be
really certain.
Nor is this all. There is for me an obstacle to the
petitions being dismissed for such ascertainment of
popular will did take place during a period of martial
law. It would have been different had there been that
freedom of debate with the least interference, thus
allowing a free market of ideas. If it were thus, it could
be truly said that there was no barrier to liberty of
choice. It would be a clear-cut decision either way. One
could be certain as to the fact of the acceptance of the
new or of adherence to the old. This is not to deny that
votes are cast by individuals with their personal
concerns uppermost in mind, worried about their
immediate needs and captive to their existing moods.
That is inherent in any human institution, much more
so in a democratic polity. Nor is it open to any valid
objection because in the final analysis the state exists for
the individuals who in their collectivity compose it.
Whatever be their views, they are entitled to respect. It
is difficult for me, however, at this stage to feel secure in
the conviction that they did utilize the occasion afforded
to give expression to what was really in their hearts.
This is not to imply that such doubt could not be
dispelled by evidence to the contrary. If the petitions be
dismissed however, then such opportunity is forever lost.
5. With the foregoing legal principles in mind, I find
myself unable to join the ranks of my esteemed brethren
who vote for the dismissal of these petitions. I cannot
yield an affirmative response to the plea of respondents
to consider the matter closed, the proceedings
terminated once and for all. It is not an easy decision to
reach. It has occasioned deep thought and considerable
soul-searching. For there are countervailing

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332 SUPREME COURT REPORTS ANNOTATED


Javellana vs. The Executive Secretary

considerations that exert a compulsion not easy to resist.


It can be asserted with truth, especially in the field of
social and economic rights, that with the revised
Constitution, there is an auspicious beginning for
further progress. Then too it could resolve what
appeared to be the deepening contradictions of political
life, reducing at times governmental authority to near
impotence and imparting a sense of disillusionment in
democratic processes. It is not too much to say therefore
that there had indeed been the revision of a
fundamental law to vitalize the very values out of which
democracy grows. It is one which has all the earmarks of
being responsive to the dominant needs of the times. It
represents an outlook cognizant of the tensions of a
turbulent era that is the present. That is why for some
what was done represented an act of courage and faith,
coupled with the hope that the solution arrived at is a
harbinger of a bright and rosy future.
It is such a comfort then that even if my appraisal of
the situation had commanded a majority, there is not,
while these lawsuits are being further considered, the
least interference, with the executive department. The
President in the discharge of all his functions is entitled
to obedience. He remains commander-in-chief with all
the constitutional powers it implies. Public officials can
go about their accustomed tasks in accordance with the
revised Constitution. They can pursue even the tenor of
their ways. They are free to act according to its tenets.
That was so these past few weeks, even petitions were
filed. There was not at any time any thought of any
restraining order. So it was before. That is how things
are expected to remain even if the motions to dismiss
were not granted. It might be asked though, suppose the
petitions should prevail? What then? Even so, the
decision of this Court need not be executory right away.
Such a disposition of a case before this Court is not
novel. That was how it was done in the Emergency
Powers Act controversy.70 Once compliance is had with
the requirements of Article XV of the 1935 Constitution,
to assure that the coming force of the revised charter is
free from any taint of infirmity, then all doubts are set
at rest.

_______________
70 Araneta v. Dinglasan, 84 Phil. 368 (1949).

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Javellana vs. The Executive Secretary

 
For some, to so view the question before us is to be
caught in a web of unreality, to cherish illusions that
cannot stand the test of actuality. What is more, it may
give the impression of reliance on what may, for the
practical man of affairs, be no more than gossamer
distinctions and sterile refinements unrelated to events.
That may be so, but I find it impossible to transcend
what for me are the implications of traditional
constitutionalism. This is not to assert that an occupant
of the bench is bound to apply with undeviating rigidity
doctrines which may have served their day. He could at
times even look upon them as mere scribblings in the
sands to be washed away by the advancing tides of the
present. The introduction of novel concepts may be
carried only so far though. As Cardozo put the matter:
“The judge, even when he is free, is still not wholly free.
He is not to innovate at pleasure. He is not a knight-
errant, roaming at will in pursuit of his own ideal of
beauty or of goodness. He is to draw his inspiration from
consecrated principles. He is not to yield to spasmodic
sentiment, to vague and unregulated benevolence. He is
to exercise a discretion informed by tradition,
methodized by analogy, disciplined by system, and
subordinated to “the primordial necessity of order in the
social life.” Wide enough in all conscience is the field of
discretion that remains.”71 Moreover what made it
difficult for this Court to apply settled principles, which
for me have not lost their validity, is traceable to the fact
that the revised Constitution was made to take effect
immediately upon ratification. If a period of time were
allowed to elapse precisely to enable the judicial power
to be exercised, no complication would have arisen.
Likewise, had there been only one or two amendments,
no such problem would be before us. That is why I do not
see sufficient justification for the orthodoxies of
constitutional law not to operate.
Even with full realization then that the approach
pursued is not all that it ought to have been and the
process of reasoning not without its shortcomings, the
basic premises of a constitutional democracy, as I
understand them and as set forth in the preceding
pages, compel me to vote the way I did.

_______________
71 Cardozo, The Nature of the Judicial Process, 141 (1921).

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334 SUPREME COURT REPORTS ANNOTATED


Javellana vs. The Executive Secretary

 
TEEHANKEE, J., dissenting:
The masterly opinion of the Chief Justice wherein he
painstakingly deals with the momentous issues of the
cases at bar in all their complexity commands my
concurrence.
I would herein make an exposition of the fundamental
reasons and considerations for my stand.
The unprecedented and precedent-setting issue
submitted by petitioners for the Court’s resolution is the
validity and constitutionality of Presidential
Proclamation No. 1102 issued on January 17, 1973,
certifying and proclaiming that the Constitution
proposed by the 1971 Constitutional Convention “has
been ratified by an overwhelming majority of all the
votes cast by the members of all the Barangays (Citizens
Assemblies) throughout the Philippines, and has thereby
come into effect.”
More specifically, the issue submitted is whether the
purported ratification of the proposed Constitution by
means of the Citizens Assemblies has substantially
complied with the mandate of Article XV of the existing
Constitution of 1935 that duly proposed amendments
thereto, in toto or parts thereof, “shall be valid as part of
this Constitution when approved by a  majority  of
the  votes cast  at an election at which the amendments
are submitted to the people for their ratification.”1
A necessary corollary issue is whether the purported
ratification of the proposed Constitution as signed on
November 30, 1972 by the 1971 Constitutional
Convention may be said also to have substantially
complied with its own mandate that “(T)his Constitution
shall take immediately upon its  ratification  by
a majority  of the  votes cast  in a plebiscite called for the
purpose  and except as herein provided, shall supersede
the Constitution of Nineteen hundred and thirty-five
and all amendments thereto.”2
Respondents contend that “(A)lthough apparently
what is

_______________
1 Section 1, which is the lone section of Art. XV; italics supplied.
2 Article XVII, section 16, proposed Constitution of Nov. 30, 1972;
italics supplied.

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VOL. 50, MARCH 31, 1973 335


Javellana vs. The Executive Secretary

sought to be annulled is Proclamation No. 1102, what


petitioners really seek to invalidate is the new
Constitution,” and their actions must be
dismissed, because:

— “the Court may  not  inquire into the  validity  of


the procedure for ratification” which is “political in character”
and that “what is sought to be invalidated is not an act of the
President but of the people;
— “(T)he  fact of approval  of the new Constitution by an
overwhelming majority of the votes cast as declared and
certified in Proclamation No. 1102 is conclusive on the courts;
— “Proclamation No. 1102 was issued by the President in
the exercise of legislative power under martial law. x  x  x
Alternatively, or contemporaneously, he did so as “agent” of
the Constitutional Convention”;
— “alleged  defects, such as absence of  secret voting,
enfranchisement of persons less than 21 years,  non
supervision  (by) the  Comelec  are matters  not required  by
Article XV of the 1935 Constitution”; (sic)
— “after ratification, whatever defects there might have
been in the procedure are overcome and mooted (and muted) by
the fact of ratification”; and
— “(A)ssuming finally that Article XV of the 1935
Constitution was not strictly followed, the ratification of the
new Constitution must nonetheless be respected. For the
procedure outlined in Article XV was  not  intended to be
exclusive of other procedures, especially one which
contemplates popular and direct participation of the citizenry
x x x.”3

To test the validity of respondents’ submittal that the


Court, in annulling Proclamation No. 1102 would really
be “invalidating the new Constitution,” the terms and
premises of the issues have to be defined. 

— Respondents themselves assert that “Proclamation No.


1102 ... is plainly merely declaratory of the fact that the 1973

_______________
3 All quotations from respondents’ memo of arguments dated March 2,
1973, pp. 2-5; italics supplied.

336

336 SUPREME COURT REPORTS ANNOTATED


Javellana vs. The Executive Secretary

Constitution has been ratified and has come into force.4


— The measure of the fact of ratification is Article XV of the
1935 Constitution. This has been consistently held by the
Court in the Gonzales5 and Tolentino6 cases.
— In the  Tolentino  case, this Court emphasized “that the
provisions of Section 1 of Article XV of the Constitution,
dealing with the  procedure or manner of amending  the
fundamental law are binding upon the Convention and the
other departments of the government. It must be added that ...
they are no less binding upon the people.”7
— In the same Tolentino case, this Court further proclaimed
that “as long as any amendment is formulated and submitted
under the aegis of the present Charter, any proposal for such
amendment which is not in conformity with the letter, spirit
and intent of the Charter for effecting amendments, cannot
receive the sanction of this Court.”8
— As continues to be held by a majority of this Court,
proposed amendments to the Constitution “should be ratified
in only one way, that is, in an election or plebiscite held in
accordance with law and participated in only by qualified and
duly registered voters”9 and under the supervision of the
Commission on Elections.10
— Hence, if the Court declares Proclamation 1102 null and
void because on its face, the purported ratification of the
proposed Constitution has not faithfully nor substantially
observed nor complied with the mandatory requirements of
Article XV of the (1935) Constitution, it would not be
“invalidating” the proposed new Constitution but would be
simply declaring that the announced fact of ratification thereof
by means of the Citizens Assemblies

_______________
4 Respondents’ memo dated March 2, 1973, p. 8; italics supplied.
5 Gonzales vs. Comelec, 21 SCRA 774 (No. 9, 1967).
6 Tolentino vs. Comelec, 41 SCRA 702 (Oct. 16, 1971).
7 Resolution on motion for reconsideration in Tolentino Comelec, L-34150;
dated Nov. 4, 1971, at page 3, per Barredo, J. with seven Justices concurring;
italics supplied.
8 Idem, at page 4, italics supplied.
9 Joint opinion of JJ. Makalintal and Castro, p. 153.
10 Article X, sec. 1 of the Constitution entrusts “exclusive charge” of the
conduct of elections to the Comelec. See also the Election Code of 1971.

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VOL. 50, MARCH 31, 1973 337


Javellana vs. The Executive Secretary
referendums does not pass the constitutional test and that the
proposed new Constitution has not constitutionally come into
existence.
— Since Proclamation 1102 is acknowledged by respondent
to be “plainly merely declaratory” of the disputed fact of
ratification, they cannot assume the very fact to be established
and beg the issue by citing the self-same declaration as proof of
the purported ratification therein declared. 

What complicates the cases at bar is the fact that the


proposed 1972 Constitution was enforced as having
immediately taken effect upon the issuance on January
17, 1973 of Proclamation 1102 and the question of
whether “confusion and disorder in government affairs
would (not) result” from a judicial declaration of nullity
of the purported ratification is raised by the Solicitor-
General on behalf of respondents.
A comparable precedent of great crisis proportions is
found in the Emergency Powers cases,11 wherein the
Court in its Resolution of September 16, 1949 after
judgment was initially not obtained on August 26, 1949
for lack of the required six (6) votes, finally declared in
effect that the pre-war emergency powers delegated by
Congress to the President, under Commonwealth Act
671 in pursuance of Article VI, section 26 of the
Constitution, had ceased and became inoperative at the
latest in May, 1946 when Congress met in its first
regular session on May 25, 1946.
Then Chief Justice Manuel V. Moran recited the great
interests and important rights that had arisen under
executive orders “issued in good faith and with the best
of intentions by three successive Presidents, and some of
them may have already produced extensive effects on
the life of the nation” — in the same manner as may
have arisen under the bona fide acts of the President
now in the honest belief that the 1972 Constitution had
been validly ratified by means of the Citizens

_______________
11 Araneta vs. Dinglasan (L-2044); Araneta vs. Angeles (L-2756);
Rodriguez vs. Treasurer  (L-3054); Guerrero vs. Commissioner of
Customs; and Barredo vs. Comelec (L-3056), jointly decided and
reported in 84 Phil. 368.

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338 SUPREME COURT REPORTS ANNOTATED


Javellana vs. The Executive Secretary

Assemblies referendums — and indicated the proper


course and solution therefor, which were duly abided by
and confusion and disorder as well as harm to public
interest and innocent parties thereby avoided as follows:
“Upon the other hand, while I believe that the
emergency powers had ceased in June 1945, I am not
prepared to hold that all executive orders issued
thereafter under Commonwealth Act No. 671, are per se
null and void. 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. We have, for instance,
Executive Order No. 73, issued on November 12, 1945,
appropriating the sum of P6,750,000 for public works;
Executive Order No. 86, issued on January 7, 1946,
amending a previous order regarding the organization of
the Supreme Court; Executive Order No. 89, issued on
January 1, 1946, reorganizing Courts of First Instance;
Executive Order No. 184, issued on November 19, 1948,
controlling rice and palay to combat hunger; 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. And I hold that before nullifying them, other
important circumstances should be inquired into, as for
instance, whether or not they have been ratified by
Congress expressly or impliedly, whether their purposes
have already been accomplished entirely or partially,
and in the last instance, to what extent; acquiescence of
litigants; de facto officers; acts and contracts of parties
acting in good faith; etc. It is my opinion that each
executive order must be viewed in the light of its
peculiar circumstances, and, if necessary and possible,
nullifying it, precautionary measures should be taken to
avoid harm to public interest and innocent parties.”12
Initially, 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.
After rehearsing, he further voted to also declare null

_______________
12 Idem, at pp. 384-385; italics supplied.

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Javellana vs. The Executive Secretary

and void the last two executive orders appropriating


funds for the 1949 budget and elections, completing the
“sufficient majority” of six against four dissenting
justices “to pronounce a valid judgment on that
matter.”13
Then Chief Justice Moran, who penned the Court’s
majority resolution, explained his vote for annulment
despite the great difficulties and possible “harmful
consequences” in the following passage, which bears re-
reading:

“However, 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, I
am compelled to, and do hereby, give my unqualified
concurrence in the decision penned by Mr. Justice Tuason
declaring that these two executive orders were issued without
authority of law.
“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, which
is our prime concern in all these cases, would be effected, and
indefinite deferment will produce the opposite result because it
would legitimize a prolonged or permanent evasion of our
organic law. Executive orders which are, in our opinion,
repugnant to the Constitution, would be given permanent life,
opening the way or practices which may undermine our
constitutional structure.
“The harmful consequences which, as I envisioned in my
concurring opinion, would come to pass should the said
executive orders be immediately declared null and void are
still real. They have not disappeared by reason of the fact that
a special session of Congress is not now forthcoming. However,
the remedy now lies in the hands of the Chief Executive and of
Congress, for the Constitution vests in the former the power to
call a special session should the need for one arise, and in the
latter, the power to pass a valid appropriations act.
“That Congress may again fail to pass a valid
appropriations act is a remote possibility, for under the
circumstances it fully realizes its great responsibility of saving
the nation from breaking down; and furthermore, the
President in the exercise of his constitutional powers may, if he
so desires, compel Congress to remain in special

_______________
13 Idem, at p. 437.

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340 SUPREME COURT REPORTS ANNOTATED


Javellana vs. The Executive Secretary

session till it approves the legislative measures most needed by


the country.
“Democracy is on trial in the Philippines, and surely it will
emerge victorious as a permanent way of life in this country, if
each of the great branches of the Government, within its own
allocated sphere, complies with its own constitutional duty,
uncompromisingly and regardless of difficulties.
“Our Republic is still young, and the vital principles
underlying its organic structure should be maintained firm
and strong, hard as the best of steel, so as to insure its growth
and development along solid lines of a stable and vigorous
democracy.”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, executive, legislative, and judicial,’ given the
ability to act, are called upon ‘to perform the duties
discharge the responsibilities committed to respectively.’
”15
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
20,1973, wherein he stated that “(T)he Supreme Court is
the final arbiter of the Constitution. It can and will
probably determine the validity of this Constitution. I
did not want to talk about this because actually there is
a case pending before the Supreme Court. But suffice it
to say that I recognize the power of the Supreme Court.
With respect to appointments,

_______________
14 Idem, at pp. 435-437.
15 Idem, at p. 383. Justice Tuason further duly noted that “These
observations, though beyond the issue as formulated in this decision,
may, we trust, also serve to answer the vehement plea that for good of
the Nation, the President should retain his extraordinary powers as
long as turmoil and other ills directly or indirectly traceable to the late
war harass the Philippines.”

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the matter falls under a general provision which


authorizes the Prime Minister to appoint additional
members to the Supreme Court. Until the matter of the
new Constitution is decided, I have no intention of
utilizing that power.”16
Thus, 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, instead of an appointive,
judiciary and whether the proposition was in fact
adopted, were justifiable and not political questions, 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. We could not, if we would, escape
the exercise of that jurisdiction which the Constitution
has imposed upon us. In the particular instance in which
we are now acting, our duty to know what the
Constitution of the state is, and in accordance with our
oaths to support and maintain it in its integrity, imposed
on us a most difficult and embarrassing duty, one which
we have not sought, but one which, like all others, must
be discharged.”17
In confronting the issues at bar, then, with due
regard for my colleagues’ contrary views, we are faced
with the hard choice of maintaining a firm and strict —
perhaps, even rigid — stand that the Constitution is a
“superior paramount law, unchangeable by ordinary
means” save in the particular mode and manner
prescribed therein by the people, who, in Cooley’s words,
so “tied up (not only) the hands of their official agencies,
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 article on
the amending process as merely directory rather than
mandatory.
The first choice of a strict stand, as applied to the
cases at bar, signifies that the Constitution may be
amended in toto or otherwise exclusively “by approval by
a majority of the votes

_______________
16 Petitioner Monteclaro’s notes of oral argument dated February
23, 1973, p. 2, and Annex A thereof.
17 State vs. Powell, 77 Miss. 543, 27 south 927.
18 Cooley’s Constitutional Limitations, 8th Ed., Vol. I, p. 81.

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Javellana vs. The Executive Secretary

cast an election at which the amendments are submitted


to the people for their ratification,”19 participated in only
by qualified and duly registered voters twenty-one years
of age or over20 and duly supervised by the Commission
on Elections,21 in accordance with the cited mandatory
constitutional requirements.
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,”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, if not
prescribed, by the people (through the Citizens
Assemblies) themselves,”23 and that the Comelec is
constitutionally “mandated to oversee ... elections (of
public officers) andnot plebiscites.”24
To paraphrase U.S. Chief Justice John Marshall who
first declared in the historic 1803 case of Marbury vs.
Madison25 the U.S. Supreme Court’s power of judicial
review and to declare void laws repugnant to the
Constitution, there is no middle ground between these
two alternatives. As Marshall expounded it: “(T)he
Constitution is either a superior paramount law,
unchangeable by ordinary means, or it is on a level with
ordinary legislative acts, and, like other acts, alterable
when the legislature shall please to alter it. If the former
part of the alternative be true, then a legislative act,
contrary to the Constitution, is not law; if the latter part
be true, then written constitutions are absurd attempts
on the part of a people, to limit a power, in its own
nature, illimitable.”

_______________
19 Article XV, sec. 1, Constitution.
20 Article V, sec. 1, Constitution.
21 Article X, sec. 2, Constitution.
22 Respondents’ memo dated March 2, 1973, p. 5.
23 Respondents’ Comment dated Feb. 3, 1973, p. 67.
24 Idem, at p. 46; note in parentheses supplied.
25 1 Cranch 137 (1803).

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As was to be restated by Justice Jose P. Laurel a
century and a third later in the 1936 landmark case of
Angara vs. Electoral Commission,26 “(T)he Constitution
sets forth in no uncertain language the restrictions and
limitations upon governmental powers and agencies. 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, for then
the distribution of powers would be mere verbiage, the
bill of rights mere expressions of sentiment, and the
principles of good government mere political apothegms.
Certainly, the limitations of good government and
restrictions embodied in our Constitution are real as
they should be in any living Constitution.”
Justice Laurel pointed out that in contrast to the
United States Constitution, the Philippine Constitution
as “a definition of the powers of government” placed
upon the judiciary the great burden of “determining the
nature, scope and extent of such powers” and stressed
that “when the judiciary mediates to allocate
constitutional boundaries, it does not assert any
superiority over the other departments ... 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.”
II
Marshall was to utter much later in the equally
historic 1819 case of McCulloch vs. Maryland27 the
“climactic phrase,”28 ”we must never forget that it is a
constitution we are expounding,” — termed by Justice
Frankfurter as “the single most important utterance in
the literature of constitutional law — most important
because most comprehensive and

_______________
26 63 Phil. 134 (1936).
27 4 Wheaton 316 (1819).
28 Dean Pollak’s “The Constitution and the Supreme Court”, Vol. 1,
p. 221.

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Javellana vs. The Executive Secretary

comprehending.”29 This enduring concept to my mind


permeated to this Court’s exposition and rationale in the
hallmark case of Tolentino, wherein we rejected the
contentions on the Convention’s behalf “that the issue ...
is a political question and that the Convention being a
legislative body of the highest order is sovereign, and as
such, its acts impugned by petitioner are beyond the
control of Congress and the Courts.”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.
1. In denying reconsideration of our judgment of
October 16, 1971 prohibiting the submittal in an
advance election of 1971 Constitutional Convention’s
Organic Resolution No. 1 proposing to amend Article V,
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 ... on
other portions of the amended section,” this Court stated
that “the constitutional provision in question (as
proposed) presents no doubt which may be resolved in
favor of respondents and intervenors. We do not believe
such doubt can exist only because it is urged that the
end sought to be achieved is to be desired. Paraphrasing
no less than the President of Constitutional Convention
of 1934, Claro M. Recto, let those who would put aside,
invoking grounds at best controversial, 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

_______________
29 Justice Felix Frankfurter, Of Law and Men (1956), p. 5.
30 Tolentino vs. Comelec, L-34150; decision of October 16, 1971, per
Barredo, J. at p. 8.
30a Con-Con Res. No. 1 proposing the urgent lowering of the voting
age to enfranchise the 18-year olds retained the “permissive” language
of section 1, Art. V. Thus, the proposed amendment read “Section 1.
Suffrage  may  be exercised by (male) citizens of the Philippines not
otherwise disqualified by law, who are (twenty one) EIGHTEEN years
of age or over and are able to read and write ...”

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destruction of the Constitution, making those who laid


down the precedent of justifying deviations from the
requirements of the Constitution the victims of their
own folly.”31
2. This Court held in Tolentino that:

“x x x as to matters not related to its internal operation and


the performance of its assigned mission to propose
amendments to the Constitution, the Convention and its
officers and members are all subject to all the provisions of the
existing Constitution. Now We hold that even as to its latter
task of proposing amendments to the Constitution, it is subject
to the provisions of Section 1 of Article XV. This must be so,
because it is plain to Us that the 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. Constitution making is the most valued
power, second to none, of the people in a constitutional
democracy such as the one our founding fathers have chosen
for this nation, and which we of the succeeding generations
generally cherish. And because the Constitution affects the
lives, fortunes, future and every other conceivable aspect of the
lives of all the people within the country and those subject to
its sovereignty, every degree of care is taken in preparing and
drafting it. A constitution worthy of the people for deliberation
and study. It is obvious that correspondingly, any amendment
of the Constitution is of no less importance than the whole
Constitution itself, and perforce must be conceived and
prepared with as much care and deliberation. From the very
nature of things, the drafters of an original constitution, as
already observed earlier, operate without any limitations,
restraints or inhibitions save those that they may impose upon
themselves. This is not necessarily true of subsequent
conventions called to amend the original constitution.
Generally, the framers of the latter see to it that their
handiwork is not lightly treated and as easily mutilated or
changed, not only for reasons purely personal but more
importantly, because written constitutions are supposed to be
designed so as to last for some time, if not for ages, or for, at
least, as long as they can be adopted to the needs and
exigencies of the people, hence, they must be insulated against
precipitate and hasty actions motivated by more or less
passing political moods or fancies. Thus, as a rule, the original
constitutions carry with them limitations and conditions, more
or less stringent, made so by the people themselves, in regard to
the process of their amendment. And when such limitations or
conditions are so incorporated in the original constitution, it
does not

_______________
31 Resolution of Nov. 4, 1971, per Barredo, J. at p. 15.

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Javellana vs. The Executive Secretary

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.”32

3. This Court in Tolentino likewise formally adopted


the doctrine of proper submission first advanced in
Gonzales vs. Comelec,33 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 must provide the voter not
only sufficient time but ample basis for an intelligent 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. In the context of the present state of things,
where the Convention hardly started considering the merits of
hundreds, if not thousands, proposals to amend the existing
Constitution, to present to people any single proposal or a few
of them cannot comply with this requirement. 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. We reject the rationalization that the
present Constitution is a possible frame of reference, 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. In brief, under
the proposed plebiscite, there can be, in the language of Justice
Sanchez, speaking for the six members of the Court in
Gonzales, supra, ‘no proper submission.’ ”34

4. Four other members of the Court35 in a separate


concurrence in Tolentino, 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:

_______________
32 Decision of Oct. 16, 1971, at p. 21.
33 21 SCRA 774 (Nov. 9, 1967).
34 Decision of Oct. 16, 1971, at p. 24.
35 Reyes, J.B.L. (now retired), Zaldivar, Castro and Makasiar, JJ.

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Javellana vs. The Executive Secretary
 

“x x x amendments must be fairly laid before the people for


their blessing or spurning. The people are not to be mere
rubber stamps. They are not to vote blindly. They must be
afforded ample opportunity to mull over the original
provisions, compare them with the proposed amendments, and
try to reach a conclusion as the dictates of their conscience
suggest, free from the incubus of extraneous or possibly
insidious influences. We believe the word “submitted” can only
mean that the government, within its maximum capabilities,
should strain every effort to inform every citizen of the
provisions to be amended, and the proposed amendments and
the meaning, nature and effects thereof. By this, we are not to
be understood as saying that, if one citizen or 100 citizens or
1,000 citizens cannot be reached, then there is no submission
within the meaning of the word as intended by the framers of
the Constitution. What the Constitution in effect directs is that
the government, in submitting an amendment for ratification,
should put every instrumentality or agency within its
structural framework to enlighten the people, educate them
with respect to their act of ratification or rejection. For as we
have earlier stated, one thing is submission and another is
ratification. There must be fair submission, intelligent consent
or rejection.”36

They stressed further the need for undivided


attention, sufficient information and full debate,
conformably to the intendment of Article XV, section 1 of
the Constitution, in this wise:

“A number of doubts or misgivings could conceivably and


logically assail the average voter. Why should the voting age be
lowered at all, in the first place? Why should the new voting
age be precisely 18 years, 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, so that there is no need of an educational qualification to
entitle him to vote? In this age of permissiveness and dissent,
can the 18-year old be relied upon to vote with judiciousness
when the 21-year old, in the past elections, has not performed
so well? If the proposed amendment is voted down by the
people, 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

_______________
36 Idem at pp. 1-2.

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Javellana vs. The Executive Secretary

amendment? If this amendment is approved, 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, will I not be unfair to my own child
who will be 18 years old, come 1973?
“The above are just samplings from here, there and
everywhere — from a domain (of searching questions) the
bounds of which are not immediately ascertainable. Surely,
many more questions can be added to the already long litany.
And the answers cannot except as the questions are debated
fully, pondered upon purposefully, and accorded undivided
attention.
“Scanning the contemporary scene, we say that the people
are not, and by election time will not be, sufficiently informed
of the meaning, nature and effects of the proposed
constitutional amendment. They have not been afforded ample
time to deliberate thereon conscientiously. They have been and
are effectively distracted from a full and dispassionate
consideration of the merits and demerits of the proposed
amendment by their traditional pervasive involvement in local
elections and politics. They cannot thus weigh in tranquility
the need for and the wisdom proposed amendment.”37

5. 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,” in the
following terms:

“x  x  x The preamble of the Constitution says that the


Constitution has been ordained by the ‘Filipino people,
imploring the aid of Divine Providence.’ Section 1 of Article XV
is nothing than a part of the Constitution thus ordained by the
people. Hence, in construing said section, We must read it as if
the people had said, ‘This Constitution may be amended, but it
is our will that the amendment must be proposed and
submitted to Us for ratification only in the manner herein
provided.’ x  x  x Accordingly, the real issue here cannot be
whether or not the amending process delineated

_______________
37 Idem at p. 3.

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Javellana vs. The Executive Secretary

by the present Constitution may be disregarded in favor of


allowing the sovereign people to express their decision on the
proposed amendments, if only because it is evident that the
very idea of departing from the fundamental law is
anachronistic in the realm of constitutionalism and repugnant
to the essence of the rule of law; rather, it is whether or not the
provisional nature of the proposed amendment and the manner
of its submission to the people for ratification or rejection
conform with the mandate of the people themselves in such
regard, as expressed in, the Constitution itself.”38
6. This Court, in not heeding the popular clamor, 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. Needless to say, in a larger measure than
when it binds other departments of the government or
any other official or entity, the Constitution imposes
upon the Court the sacred duty to give meaning and
vigor to the Constitution, by interpreting and construing
its provisions in appropriate cases with the proper
parties and by striking down any act violative thereof.
Here, as in all other cases, We are resolved to discharge
that duty.”39
7. The Chief Justice, in his separate opinion in
Tolentino concurring with this Court’s denial of the
motion for reconsideration, succinctly restated this
Court’s position on the fundamentals, as follows:

— On the premature submission of a partial amendment


proposal, with a “temporary provisional or tentative
character”: — “x  x  x a partial amendment would deprive the
voters of the context which is usually necessary for them to
make a reasonably intelligent appraisal of the issue submitted
for their ratification or rejection. x  x  x Then, too, the
submission to a plebiscite of a partial amendment, without a
definite frame of reference, is fraught with possibilities which
may jeopardize the social fabric. For one thing, it opens the
door to wild speculations. It offers ample opportunities for
overzealous leaders and members of opposing political camps
to

_______________
38Resolution of Nov. 4, 1971 in Tolentino, per Barredo, J.; pp. 3-4.
39 Decision of Oct. 16, 1971 in Tolentino, per Barredo, J. at p. 19.

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350 SUPREME COURT REPORTS ANNOTATED
Javellana vs. The Executive Secretary

unduly exaggerate the pros and cons of the partial amendment


proposed. In short, it is apt to breed false hopes and create
wrong impressions. As a consequence, it is bound to unduly
strain the people’s faith in the soundness and validity of
democratic processes and institutions.”
— On the plea to allow submission to the sovereign people
of the “fragmentary and incomplete” proposal, although
inconsistent with the letter and spirit of the Constitution: “The
view, has, also, advanced that the foregoing considerations are
not decisive on the issue before Us, inasmuch as the people are
sovereign, and the partial amendment involved in this case is
being submitted to them. 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,” and this particular issue will not be
submitted to the people. What is more, the Constitution does
not permit its submission 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.
— On a “political” rather than “legalistic” approach: “Is this
approach to the problem too “legalistic?” This term has possible
connotations. It may mean strict adherence to the law, which in
the case at bar is the Supreme Law of the land. On point,
suffice it to say that, in compliance with the specific man of
such Supreme Law, the members of the Supreme Court taken
the requisite “oath to support and defend the Constitution.”
x x x Then, again, 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, at
least, overlooked, upon the theory that the partial amendment
on voting age is badly needed and reflects the will of the
people, specially the youth. This course of action favors, in
effect, adoption of apolitical approach, inasmuch as the
advisability of the amendment and an appraisal of the people’s
feeling thereon political matters. In fact, apart from the
obvious message of the mass media, and, at times, of the
pulpit, the Court has been literally bombarded with scores of
handwritten letters, almost all of which bear the penmanship
and the signature of girls, as well as letterhead of some
sectarian educational institutions, generally stating that the
writer is 18 years of age and urging that she or he be allowed
to vote. Thus, the pressure of public opinion has brought to
bear heavily upon the Court for a reconsideration of its
decision in the case at bar.

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“As above stated, however, the wisdom of the amendment
and the popularity thereof are political questions beyond our
province. In fact, respondents and the intervenors originally
maintained that We have no jurisdiction to entertain the
petition herein, upon the ground that the issue therein raised
is a political one. Aside from the absence of authority to pass
upon political question, it is obviously improper and unwise for
the bench to develop into such questions owing to the danger of
getting involved in politics, more likely of a partisan nature,
and, hence, of impairing the image and the usefulness of courts
of justice as objective and impartial arbiters of justiciable
controversies.
“Then, too, the suggested course of action, if adopted, would
constitute a grievous disservice to the people and the very
Convention itself. Indeed, the latter and the Constitution it is
in the process of drafting stand essentially for the Rule of Law.
However, as the Supreme Law of the land, a Constitution
would not be worthy of its name, and the Convention called
upon to draft it would be engaged in a futile undertaking, if we
did not exact faithful adherence to the fundamental tenets set
forth in the Constitution and compliance with its provisions
were not obligatory. If we, in effect, approved, consented to or
even overlooked a circumvention of said tenets and provisions,
because of the good intention with which Resolution No. 1 is
animated, 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.
“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. Indeed, “politics”
is the word commonly used to epitomize compromise, even with
principles, for the sake of political expediency or the
advancement of the bid for power of a given political party.
Upon the other hand, statesmanship is the expression usually
availed of to refer to high politics or politics on the highest
level. In any event, politics, political approach, political
expediency and statesmanship are generally associated, and
often identified, with the dictum that “the end justifies the
means.” I earnestly hope that the administration of justice in
this country and the Supreme Court, in particular, will adhere
to or approve or indorse such dictum.”40

_______________
40 All quotations are from the Chief Justice’s concurring opinion
in Tolentino, pp. 4-7.

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Tolentino, 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, 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, x  x  x 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, not
piece-meal, but by way of complete and final
amendments as an integrated whole (integrated either
with the subsisting Constitution or with the new
proposed Constitution)...”
9. The universal validity of the vital constitutional
precepts and principles above-enunciated can hardly be
gainsaid. 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.
Amendments to an existing Constitution presumably
may be only of certain parts or in toto, and in the latter
case would rise to an entirely new Constitution. Where
this Court held in Tolentino that “any amendment of the
Constitution is of no less importance than the whole
Constitution itself and perforce must be conceived and
prepared with as much care and deliberation,” it would
appeal that the reverse would equally be true; which is
to say, 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.

_______________
41 Separate op. of J. Teehankee concurring in Res. of No. 4, 1971
in Tolentino, pp. 8, 9, 10.

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III
1. To restate the basic premises, 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.”
The people ordained in Article V, section 1 that only
those thereby enfranchised and granted the right of
suffrage may speak the “will of the body politic,” viz,
qualified literate voters twenty one years of age or over
with one year’s residence in the municipality where they
have registered.
The people, not as yet satisfied, further provided by
amendment duly approved in 1940 in accordance with
Article XV, for the creation of an independent
Commission on Elections with “exclusive charge” for the
purpose of “insuring free, orderly and honest elections”
and ascertaining the true will of the electorate — and
more, as ruled by this Court in Tolentino, in the case of
proposed constitutional amendments, insuring proper
submission to the electorate of such proposals.42
2. A Massachussets case43 with a constitutional
system and provisions analogous to ours, 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.”
It was pointed out therein that “(T)he word ‘people’
may have somewhat varying significations dependent
upon the connection in which it is used. In some
connections in the

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42 This Court thus declared in  Tolentino  the Con-Con voting age
reduction resolution as null and void and prohibited its submittal at
the 1971 elections for lack of proper submission since it did not
“provide the voter ... ample basis for an intelligent appraisal of the
amendment. “Dec. of October 16, 1971, per Barredo, J.
43 In re-Opinion of Justices, 115 N.E. Rep. 922-923.

354

354 SUPREME COURT REPORTS ANNOTATED


Javellana vs. The Executive Secretary

Constitution it is confined to citizens and means the


same as citizens. It excludes aliens. It includes men,
women and children. It comprehends not only the sane,
competent, law-abiding and educated, but also those who
are wholly or in part dependents and charges upon
society by reason of immaturity, mental or moral
deficiency or lack of the common essentials of education.
All these persons are secured fundamental guarantees of
the Constitution in life, liberty and property and the
pursuit of happiness, except as these may be limited for
the protection of society.”
In the sense of “body politic (as) formed by voluntary
association of individuals” governed by a constitution
and common laws in a “social compact ... 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, “people” comprises many who,
by reason of want of years, of capacity or of the
educational requirements of Article 20 of the
amendments of the Constitution, can have no voice in
any government and who yet are entitled to all the
immunities and protection established by the
Constitution. ‘People’ in this aspect is coextensive with
the body politic. But it is obvious that ‘people’ cannot be
used with this broad meaning of political signification.
The ‘people’ in this connection means that part of the
entire body of inhabitants who under the Constitution
are entrusted with the exercise of the sovereign power
and the conduct of government. 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, while that instrument
remains in force unchanged, will be the sole organs
through which the will of the body politic can be
expressed. ‘People’ for political purposes must be
considered synonymous with qualified voters.’ ”
As was also ruled by the U.S. Supreme