Summary of Points

C.J. Roberto Concepcion’s Dissent

Javellana v. Executive Secretary

I. Alleged Academic Futility of Further Proceedings in GR-L36135 (case filed by Jose Puyat and Jose Roy) (NO)
A. RESPONDENT (Solicitor General Estelito Mendoza): The requisite 8 votes out of the 10 present justices en banc will not
be reached
o Due to the intended dissents of 3 justices – no point to talk about this
o Justice Barredo: The 1935 Constitution “has passed pro tanto into history”
o Justice Antonio: Court is not competent to act (perhaps invoking the political question doctrine, or the concept of in
vacuo, therefore a lack of controversy due to an allegedly, already in power, newly ratified, Constitution); there is
no judicial standard available.
o Justice Esguerra: There is a lack of evidence to say that the citizens’ assembly was unlawfully held; a fait accompli
Constitution is now present and in force
B. COUNTER - ARGUMENT OF CJ CONCEPCION
o Justice Barredo, in the oral arguments, was willing to change his mind, depending on the convincing power of the
petitioners, therefore the majority 8 was still possible
o 2/3 is needed, yes, for laws and treaties but there is precedent in the unanimous resolution of the court, penned
by former C.J. Moran, dated September 16, 1949:
 The 2/3rds rule does not apply to an executive order; the majority 6 votes “is enough to nullify them”
 Revised Administrative Code 63: Executive Proclamation has the same force of an Executive Order

II. Does the issue on the validity of Proclamation 1102 partake the nature of a political, non-justiciable question? (JUSTICIABLE)
A. RESPONDENT (Sol. Gen):
o The Court derives its authority now from the 1973 Constitution
o To deny the mandate (in the form of the 1973 Constitution) of ~15M Filipinos is an overreaching of judicial review.
o The “government” has been re-arranged according to it
o Foreign governments recognize it
o Plebiscite cases are not precedents
o It is a political question
B. COUNTER - ARGUMENT OF C.J. C
o Court is not asked to invalidate the 1973 Constitution; the petition is CHALLENGING THE RATIFICATION PROCESS
o Court derives its authority to analyze amendment proceedings not from the AMENDED constitution, but from the
PREVIOUS CONSTITUTION that PRESCRIBES the process of amendment
o Therefore, it must follow Article XV of the 1935 Constitution on Transitory Provisions
o Under this reasoning, CJ Concepcion dissects Proclamation 1102, Political versus Justiciable Questions, and the
inapplicability of Luther v. Borden & Baker v. Carr as precedents
1. Proclamation 1102
 Dispositive of the proclamation was not a logical conclusion from the premises (provided by the
“Whereas”) because the Presidential ratification of 1973 Constitution (dispositive part) is founded on
premises that do not enable ratification of a Constitution under the 1935 Constitution
 Lack of elections that should be theoretically supervised solely by the COMELEC
 Lack of records, as no ballots were used
 No vote of secrecy, as it is was only a raise of hands
 Records show that the substitute assemblies could not have all been convened bet. Jan. 10 - Jan. 15
 Therefore a Justiciable Question, because the President has NO POWER to RATIFY a
CONSTITUTION under his own rules not pursuant to the 1935 Constitution, therefore an abuse
of discretion.
2. Separation of Powers
 3 branches have separation of power
 Actions of branches within OWN sphere = POLITICAL
 Unlimited power within their sphere, and what applies within their sphere, without implications
outside their sphere, or to human rights, etc.
 BUT this comes hand in hand with checks and balances, thus once the power of one branch
encroaches the other, it becomes JUSTICIABLE
 The coverage of Justiciability:
 If limits, conditions and qualifications of power were met/not met
 Legality, not the wisdom, of certain acts
 Therefore, it is the duty of the courts to determine whether another branch has kept within its
Constitutional Limits
  Justice Laurel - “In cases of conflict, the judicial department is the only Constitutional organ
which can be called upon to determine the allocation of powers between several departments of
the government.”
 Explicit in the 1935 Constitution for amendments – “unless the manner is followed, the judiciary
as the interpreters of that Constitution will declare an amendment invalid.”

3. Luther v. Borden and Baker v. Carr as Precedents

A. RESPONDENT (Sol. Gen):
o In Luther v. Borden
 Charter Government opposed the Constitution
 Martial Law was declared
 Call for a new Constitution; qualification of voters in the election was approved by government
 This internal change was not interfered upon by the Federal Supreme Court (Dorr Trial)
 New Constitution was in effect
B. COUNTER ARGUMENT OF C.J. C.
o Luther v. Borden is MUNICIPAL in nature; not NATIONAL
o US States have a concept of internal sovereignty, which does not apply to us, as we are a UNITARY
government where local governments derive their power from the National Government
o Supreme Court of Minnesota – “it is absolutely the role of the court to determine if an amendment
properly follows the previous constitution”
o Therefore, whether or not ’73 was ratified under the stipulations of ’35 is a justiciable question
o US SC - bona fide cases cannot be all dismissed by just being political, esp. when it EXCEEDS
constitutional limits

III. Has the Proposed New or Revised Constitution been ratified conformably to said Art. XV of the 1935 Constitution? (N0)
A. RESPONDENT (Sol. Gen):
Election Code for the minimum age of voters only guarantees right to suffrage for 21 and above?
B. COUNTER – ARGUMENT OF C.J. C
o Analysis of the Rules of Amendment
1. To start the process of changing the Constitution
 Convention – 3/4s of Houses of Congress voting separately
 Ratification of people at an election
2. Voters must be above 21, and the process must be handled exclusively by the COMELEC (not present in the
case at bar)
o On Suffrage and Elections
1. Article XV declares WHO can vote; it is not a right otherwise
2. Constitution specifies WHO has right to suffrage; it does not also imply that suffrage is only for elections
only, because it also covers plebiscites
3. Aside from the age barrier for Citizens’ Assembly, the lack of ballots proves no prima facie evidence to
confirm the age of voters; no means to knowing who voted
4. Barrio assemblies are managed by the Executive
o Differentiation of the processes
1. IDEAL PROCESS
 COMELEC is the sole arbiter
 Shift power from the executive, who could influence of the results
2. WHAT HAPPENED
 Citizens Assembly set the guidelines, gave the referendum, submitted to the local
governments, then to the Department of Interior Government and Community
Development – this is not pursuant to the process where COMELEC handles it.

IV. Has the proposed Constitution aforementioned been approved by a majority of the in the Citizens’ Assemblies allegedly held
throughout the Philippines? (NO)
A. RESPONDENT (Sol. Gen):
o Proclamation is conclusive in itself
o Overwhelming majority proves its “efficiency” as the new law of the land
o The process of showing the votes to the President was clear and orderly
1. Municipalities reported to Provincial Associations
2. Provincial Associations reported to Department of Local Government and Community Development
3. Francisco Cruz, President of the National Association of Barangays, brings this report to Marcos
4. Marcos declares Proclamation 1102 with the evidence at hand
 B. COUNTER – ARGUMENT OF C.J. C:
o On Proclamation 1102 and the Certification of the President of the Results
1. It is a fallacy to “assume as a fact the very premise on which it is predicated”
2. Proclamation 1102, in itself, is definitely not prima facie in itself
3. Proclamations of this nature require prima facie evidence – to make confirming or challenging possible
4. It also requires the COMELEC to TABULATE & CERTIFY the results of the election
5. Article X bestows the power of the declaring electoral results to the COMELEC, NOT to the President
o On the Process utilized during the citizens’ assemblies
1. Francisco Cruz was not registered in any barrio council
2. There is no physical evidence of his report
3. There is reason to believe that the citizens DID NOT now that this was a plebiscite
4. If the assembly was the plebiscite, what was the plebiscite postponed by General Order 20?
o On the Questions Used
1. “Do you approve of the new Constitution?”
 Approval, by the majority, is necessary, but is not sufficient to imply effectivity of a new
Constitution
 Effectivity as the law of the land has conforming to Art. XV on Transitory Provisions as a
necessary pre-requisite; this is absence
2. “Do you want a plebiscite to be called?”
 This is an unnecessary question, if the assembly was already that aforementioned
plebiscite
o It is hard to accept that this was done nationwide; some barangays in Manila did not have one, and many
citizens were not informed
o Resolutions and Implementing Regulations were not set in stone even DURING the duration of the assembly
(Bataan example)

V. Have the people acquiesced in the proposed Constitution? (NO)

A. RESPONDENT (Sol. Gen):
o 1973 Constitution is now recognized
o Political organ = executive department
o Majority of Congressmen & Senators Acquiesced
o The people support it
B. COUNTER – ARGUMENT OF C.J. C.:
o On the recognition of the 1973 Constitution & the Executive as a political organ
1. Only the Executive has acquiesced (discussed further in Zaldivar’s dissent) – order from the top
2. This is not like Taylor v. Commonwealth, where the New Constitution was recognized via a joint
resolution; in the case at bar there was NO joint resolution of Congress and Senate and that there
was no Martial Law
3. Proclamation 1102 therefore does not have a power of a enrolled bill, unlike the case of Taylor v,.
Commonwealth, or the usual process of passing a law
o Congressmen and Senators cannot acquiesce if they cannot hold session (legislative doors were locked);
failure to meet does not mean acquiesce
o People’s inaction does not mean acceptance of Proclamation 1102
1. Conduct is different under Martial Law = power of the gun
2. Intimidation
3. Many are unfamiliar with the system
o Self – certification, again, is not a valid basis
1. No records of certification
2. Certified by the DLUCD, but this should have been the job of the COMELEC

VI. Are the parties entitled to any relief? (YES)

o Opinion of CJ Concepcion
1. Judicial statesmanship should not prevail over the Rule of Law
 Judges should decide on what the law is
 Not surrender to the political atmosphere
2. Statesmanship should not come over Rule of Law
 Law should come first
 It must be adhered to before political considerations that claim to subvert it
VII. SUMMARY OF VOTES
o Is the issue of the validity of Proclamation 1102 a justiciable, or political and therefore, non – justiciable,
question
(6) – Makalintal, Zaldivar, Castro, Fernando, Teehankee Conception (YES)
(4) – Barredo (qualified), Makasiar, Antonio, Esguerra (NO)

o 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
(6) – Makalintal,, Zaldivar, Castro, Fernando, Teehankee Conception (NOT RATIFIED)
(4) – Barredo, Makasiar, Antonio, Esguerra (RATIFIED)

o Has the aforementioned proposed Constitution been acquiesced in (with or without valid ratification) by
the people
(4) – Barredo, Makasiar, Antonio, Esguerra (PEOPLE HAVE ACQUIESCED)
(2) – Zaldivar, Concepcion (NO – no free expression under Martial Law)
(1) – Fernando (qualified NO – hard to determine under Martial Law)
(3) – Makalintal, Castro, Teehankee (No knowledge to say so)

o Are petitioners entitled to relief?

(6) – Makasiar, Macalintal, Castro, Barredo, Antonio & Esguerra (NO)
(4) – Zaldivar, Teehankee, Fernando, Concepcion

o Is the aforementioned proposed Constitution in force ?

(4) – Barredo, Makasiar, Antionio, Esguerra (YES)
(4) – Teehankee, Makalintal, Castro, Fernando, (NO VOTE)
(2) – Concepcion, Zaldivar (NO)

DECISION:
On the basis of question # 4, majority decides to reject petitions, 6 – 4

“There is no further judicial obstacle to the new Constitution being considered in force and in effect.”