I.7 Javellana v. Executive Secretary PDF

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 Defense; 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 Philippines], 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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32 SUPREME COURT REPORTS ANNOTATED
Javellana vs. The Executive Secretary
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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VOL. 50, MARCH 31, 1973 33
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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VOL. 50, MARCH 31, 1973 35
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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VOL. 50, MARCH 31, 1973 37
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 noncompliance 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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VOL. 50, MARCH 31, 1973 39
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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VOL. 50, MARCH 31, 1973 41
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
43
VOL. 50, MARCH 31, 1973 43
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
44
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
45
VOL. 50, MARCH 31, 1973 45
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
46
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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VOL. 50, MARCH 31, 1973 47
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
48
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
49
VOL. 50, MARCH 31, 1973 49
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
50
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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VOL. 50, MARCH 31, 1973 51
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
52
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
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
54
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. Mandamus 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:
55
VOL. 50, MARCH 31, 1973 55

“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
56

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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VOL. 50, MARCH 31, 1973 57

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.]
58

‘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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VOL. 50, MARCH 31, 1973 59

“[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.
60

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
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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VOL. 50, MARCH 31, 1973 61

‘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’
62

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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VOL. 50, MARCH 31, 1973 63

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]
64

‘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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VOL. 50, MARCH 31, 1973 65

“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.’
66

“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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VOL. 50, MARCH 31, 1973 67

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’
68

“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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VOL. 50, MARCH 31, 1973 69

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
70

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
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.
72

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.
73
VOL. 50, MARCH 31, 1973 73

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.”
74

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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VOL. 50, MARCH 31, 1973 75

“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.
76

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
77
VOL. 50, MARCH 31, 1973 77

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.”
78

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.
79
VOL. 50, MARCH 31, 1973 79

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.
80

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.
81
VOL. 50, MARCH 31, 1973 81

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,
82

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.
83
VOL. 50, MARCH 31, 1973 83

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.
84

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
_______________
25 In re McConaughy, 119 N.W. 408, 417.
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VOL. 50, MARCH 31, 1973 85

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.
86

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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VOL. 50, MARCH 31, 1973 87

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.
88

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
_______________
31 12 L. ed. 581 (1849).
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VOL. 50, MARCH 31, 1973 89

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
90

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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VOL. 50, MARCH 31, 1973 91

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
92

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).
93
VOL. 50, MARCH 31, 1973 93

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.
94

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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VOL. 50, MARCH 31, 1973 95

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,
_______________
38 See p. 5 of the Petition.
96

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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VOL. 50, MARCH 31, 1973 97
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
_______________
39 Italics ours.
98

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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VOL. 50, MARCH 31, 1973 99

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
100

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.”
101
VOL. 50, MARCH 31, 1973 101

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.”
102

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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VOL. 50, MARCH 31, 1973 103

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
104

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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VOL. 50, MARCH 31, 1973 105

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.
106

“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.
107
VOL. 50, MARCH 31, 1973 107

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.
108

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
_______________
62 Ibid.
109
VOL. 50, MARCH 31, 1973 109

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
110

(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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VOL. 50, MARCH 31, 1973 111

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.
112
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
113
VOL. 50, MARCH 31, 1973 113

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.)
114

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
115
VOL. 50, MARCH 31, 1973 115

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.
116

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
117
VOL. 50, MARCH 31, 1973 117

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
118

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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VOL. 50, MARCH 31, 1973 119

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.
120

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.
121
VOL. 50, MARCH 31, 1973 121
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
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.
122

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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VOL. 50, MARCH 31, 1973 123

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.
124

“[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
“[10] If the elections would not be held, when do you want the next
“[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
125
VOL. 50, MARCH 31, 1973 125

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
126

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
127
VOL. 50, MARCH 31, 1973 127

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.
128

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).
129
VOL. 50, MARCH 31, 1973 129

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.
130

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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VOL. 50, MARCH 31, 1973 131

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.
132

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,
and compulsion and intimidation.”83 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
_______________
83 Daily Express, November 29, 1972, p. 4. Italics ours.
133
VOL. 50, MARCH 31, 1973 133

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
134

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.
135
VOL. 50, MARCH 31, 1973 135

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.
136

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
137
VOL. 50, MARCH 31, 1973 137

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.
138

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
139
VOL. 50, MARCH 31, 1973 139

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.
140

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.
141
VOL. 50, MARCH 31, 1973 141

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
142

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.
143
VOL. 50, MARCH 31, 1973 143

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.
144
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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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
146

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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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,
148

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.’
150

“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.”
152

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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VOL. 50, MARCH 31, 1973 153

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.
154

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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VOL. 50, MARCH 31, 1973 155

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
156

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.
158

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
“(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
QUESTION No. 3
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
160

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
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
162

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.
164

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
166

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.”
168

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).
170

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
172

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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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
174

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
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
176

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
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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VOL. 50, MARCH 31, 1973 177

NOW THEREFORE, I, FERDINAND E. MARCOS, President of the

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?
178

“(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
“(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
“QUESTION No. 3
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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VOL. 50, MARCH 31, 1973 179

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
180

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
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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VOL. 50, MARCH 31, 1973 181
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.
182

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.
184

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
186

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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VOL. 50, MARCH 31, 1973 187

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
188

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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VOL. 50, MARCH 31, 1973 189

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
190

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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VOL. 50, MARCH 31, 1973 191

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,
192

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
194

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
196

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
198

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,
200

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
202

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.
204

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
206

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:
208

“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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VOL. 50, MARCH 31, 1973 209

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
210

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
211
VOL. 50, MARCH 31, 1973 211

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
212

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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VOL. 50, MARCH 31, 1973 213

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
214

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
215
VOL. 50, MARCH 31, 1973 215

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
216

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
217
VOL. 50, MARCH 31, 1973 217

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
218

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:
219
VOL. 50, MARCH 31, 1973 219

“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
220
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
221
VOL. 50, MARCH 31, 1973 221

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
222

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
223
VOL. 50, MARCH 31, 1973 223

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
224

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
225
VOL. 50, MARCH 31, 1973 225

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.
226

(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
227
VOL. 50, MARCH 31, 1973 227

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
228

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
229
VOL. 50, MARCH 31, 1973 229

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.
230

“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
231
VOL. 50, MARCH 31, 1973 231

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
232

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
233
VOL. 50, MARCH 31, 1973 233

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
234

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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VOL. 50, MARCH 31, 1973 235

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
236

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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VOL. 50, MARCH 31, 1973 237

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
238

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
239
VOL. 50, MARCH 31, 1973 239
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
240

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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VOL. 50, MARCH 31, 1973 241

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
242

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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VOL. 50, MARCH 31, 1973 243

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
244

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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VOL. 50, MARCH 31, 1973 245

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
246

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
248

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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VOL. 50, MARCH 31, 1973 249

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.
250

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
252

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.
254

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
256

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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VOL. 50, MARCH 31, 1973 257

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
258

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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VOL. 50, MARCH 31, 1973 259

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 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
260

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
262

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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VOL. 50, MARCH 31, 1973 263

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
264

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
266

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
268

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
270

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
272

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
274

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
276

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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VOL. 50, MARCH 31, 1973 277

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
278

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
279
VOL. 50, MARCH 31, 1973 279

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.
280

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
282

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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VOL. 50, MARCH 31, 1973 283

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
284

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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VOL. 50, MARCH 31, 1973 285

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
286

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
287
VOL. 50, MARCH 31, 1973 287

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
288

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
289
VOL. 50, MARCH 31, 1973 289

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)
290

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.
291
VOL. 50, MARCH 31, 1973 291
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.
292

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.
293
VOL. 50, MARCH 31, 1973 293

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.’
294

“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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VOL. 50, MARCH 31, 1973 295

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.
296

“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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VOL. 50, MARCH 31, 1973 297

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
298

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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VOL. 50, MARCH 31, 1973 299

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
300

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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VOL. 50, MARCH 31, 1973 301

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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VOL. 50, MARCH 31, 1973 303

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.
304

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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VOL. 50, MARCH 31, 1973 305

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
306

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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VOL. 50, MARCH 31, 1973 307

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
308

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
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
309
VOL. 50, MARCH 31, 1973 309

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.”
310

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.
311
VOL. 50, MARCH 31, 1973 311

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).
312

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
313
VOL. 50, MARCH 31, 1973 313

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.
314

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.
315
VOL. 50, MARCH 31, 1973 315

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.
316

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.
317
VOL. 50, MARCH 31, 1973 317

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.
318

“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).
319
VOL. 50, MARCH 31, 1973 319

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).
320

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
VOL. 50, MARCH 31, 1973 321

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

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).
323
VOL. 50, MARCH 31, 1973 323

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

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
VOL. 50, MARCH 31, 1973 325

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

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
327
VOL. 50, MARCH 31, 1973 327

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 Constitution,62
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).
328

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.
329
VOL. 50, MARCH 31, 1973 329

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.
330

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).
331
VOL. 50, MARCH 31, 1973 331

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
332

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).
333
VOL. 50, MARCH 31, 1973 333

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).
334

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.
335
VOL. 50, MARCH 31, 1973 335

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

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.
337
VOL. 50, MARCH 31, 1973 337

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.
338

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.
339
VOL. 50, MARCH 31, 1973 339

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.
340

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.”
341
VOL. 50, MARCH 31, 1973 341

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.
342

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).
343
VOL. 50, MARCH 31, 1973 343

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.
344

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 ...”
345
VOL. 50, MARCH 31, 1973 345

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.
346

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.
347
VOL. 50, MARCH 31, 1973 347

“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.
348

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.
349
VOL. 50, MARCH 31, 1973 349

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.
350

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.
351
VOL. 50, MARCH 31, 1973 351

“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.
352

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.
353
VOL. 50, MARCH 31, 1973 353

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
_______________
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

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 Court, “... While the
people are thus the source of political power, their governments,
national and state, have been limited by constitutions, and they have
themselves thereby set bounds to their own power, as against the
sudden impulse of mere
355
VOL. 50, MARCH 31, 1973 355

majorities.”44
From the text of Article XV of our Constitution, requiring
approval of amendment proposals “by a majority of the votes cast at
an election at which the amendments are submitted to the people for
their ratification,” it seems obvious as above-stated that “people” as
therein used must be considered synonymous with “qualified voters”
as enfranchised under Article V, section 1 of the Constitution —
since only “people” who are qualified voters can exercise the right
of suffrage and cast their votes.
3. 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 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.
Even at barrio level45 the Revised Barrio Charter fixes certain
safeguards for the holding of barrio plebiscites thus: “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.”46
As to voting at such barrio plebiscites, the Charter further
requires that “(A)ll duly registered barrio assembly members
qualified to vote may vote in the plebiscite. Voting procedures
_______________
44 Duncan vs. McCall, 139 U.S. 449, 35 L. Ed. 219.
45 “Barrios are units of municipalities or municipal districts in which they are
situated x x.” Rep. Act 3590, sec. 2.
46 Rep. Act 3590, sec. 6, par. 1.
356

may be made either in writing as in regular elections, and/or

declaration by the voters to the board of election tellers.”47
The subjects of the barrio plebiscites are likewise delimited thus:
“A plebiscite may be called to decide on the recall of any member of
the barrio council. A plebiscite shall be called to approve any
budgetary, supplemental appropriations or special tax ordinances”
and the required majority vote is specified: “(F)or 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.”48
The qualifications for voters in such barrio plebiscites and
elections of barrio officials49 comply with the suffrage qualifications
of Article V, section 1 of the Constitution and provide that “(S)EC.
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 by the barrio secretary, who is not otherwise disqualified,
may vote or be a candidate in the barrio elections.”50
IV
1. Since it appears on the face of Proclamation 1102 that the
mandatory requirements under the above-cited constitutional articles
have not been complied with and that no election or plebiscite for
ratification as therein provided as well as in section 16 of Article
XVII of the proposed Constitution itself51 has been called or held,
there cannot be said to have been a
_______________
47 Idem, par. 2.
48 Idem, par. 3 and 4, italics supplied.
49 One barrio lieutenant and six barrio councilmen; “Voting shall be by secret
ballot. x x.” Idem, sec. 8.
50 Idem, sec. 10, italics supplied. The same section further disqualifies persons
convicted by final judgment to suffer one year or more of imprisonment “within two
years after service” or who have violated their allegiance to the Republic and insane
or feeble-minded persons.
51 Supra, p. 2.
357
VOL. 50, MARCH 31, 1973 357

valid ratification.
2. Petitioners raised serious questions as to the veracity and
genuineness of the reports or certificates of results purportedly
showing unaccountable discrepancies in seven figures in just five
provinces52 between the reports as certified by the Department of
Local Governments and the reports as directly submitted by the
provincial and city executives, which latter reports respondents
disclaimed inter alia as not final and complete or as not signed;53
whether the reported votes of approval of the proposed Constitution
conditioned upon the non-convening of the interim National
Assembly provided in Article XVII, section 1 thereof,54 may be
considered as valid; the allegedly huge and uniform votes reported;
and many others.
3. These questions only serve to justify and show the basic
validity of the universal principle governing written constitutions
that proposed amendments thereto or in replacement thereof may be
ratified only in the particular mode or manner prescribed therein by
the people. Under Article XV, section 1 of our Constitution,
amendments thereto may be ratified only in the one way therein
provided, i.e. in an election or plebiscite held in accordance with law
and duly supervised by the Commission on Elections, and which is
participated in only by qualified and duly registered voters. In this
manner, the safeguards provided by the election code generally
assure the true ascertainment of the results of the
_______________
52 Rizal, Cavite, Bataan, Camarines Sur and Negros Occidental, petitioners’
manifestation and supplemental rejoinder dated March 21, 1973 in L-36165.
53 Respondents’ rejoinder dated March 20, 1973 and sur-rejoinder dated March
29, 1973.
54 Under Proclamation No. 1103 dated Jan. 17, 1973, it is recited that “fourteen
million nine hundred seventy six thousand five hundred sixty one (14,976,561)
members of all the Barangays 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; but a majority of those who approved the new Constitution
conditioned their votes on the demand that the interim National Assembly provided in
its Transitory Provisions should not be convened.”
358

vote and interested parties would have an opportunity to thresh out

properly before the Comelec all such questions in pre-proclamation
proceedings.
4. At any rate, unless respondents seriously intend to question the
very statements and pronouncements in Proclamation 1102 itself
which shows on its face, as already stated, that the mandatory
amending process required by the (1935) Constitution was not
observed, the cases at bar need not reach the stage of answering the
host of questions, raised by petitioners against the procedure
observed by the Citizens Assemblies and the reported referendum
results — since the purported ratification is rendered nugatory by
virtue of such non-observance.
5. Finally, as to respondents’ argument that the President issued
Proclamation 1102 “as “agent” of the Constitutional Convention”55
under Resolution No. 5844 approved on November 22, 1973, and
“as agent of the Convention the President could devise other forms
of plebiscite to determine the will of the majority vis-a-vis the
ratification of the proposed Constitution.”56
The minutes of November 22, 1972, of the Convention, however,
do not at all support this contention. On the contrary, the said
minutes fully show that the Convention’s proposal and “agency”
was that the President issue a decree precisely calling a plebiscite for
the ratification of the proposed new Constitution on an appropriate
date, under the charge of the Comelec, and with a reasonable period
for an information campaign, as follows:
“12. Upon recognition by the Chair, Delegate Duavit moved for the
approval of the resolution, the resolution portion of which read as follows:
_______________
55 Respondents’ memo dated March 2, 1973, supra, p. 2.
56 As restated by Barredo, J. in his separate op. in the plebiscite cases, who, however, did
not look on the same with favor, since the constitutional point (that the Comelec has exclusive
charge of the conduct of elections and plebiscites) seems to have been overlooked in the
Assemblies.”
359
VOL. 50, MARCH 31, 1973 359
‘RESOLVED, AS IT IS HEREBY RESOLVED, that the 1971

Constitutional Convention propose 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, and that
copies of this resolution as approved in plenary session be
transmitted to the President of the Philippines and the Commission
on Elections for implementation.’
“He suggested that in view of the expected approval of the final draft of the
new Constitution by the end of November 1972 according to the
Convention’s timetable, it would be necessary to lay the groundwork for the
appropriate agencies of the government to undertake the necessary
preparation for the plebiscite.
“x x x x x
12.2 Interpellating, Delegate Pimentel (V.) contended that the resolution was
unnecessary because section 15, Article XVII on the Transitory Provision,
which had already been approved on second and third readings, provided
that the new constitution should be ratified in a plebiscite called for the
purpose by the incumbent President. Delegate Duavit replied that the
provision referred to did not include the appropriation of funds for the
plebiscite and that, moreover, the resolution was intended to serve formal
notice to the President and the Commission on Elections to initiate the
necessary preparations.
“x x x x x
“12.4 Interpellating, Delegate Madarang suggested that a reasonable period
for an information campaign was necessary in order to properly apprise the
people of the implications and significance of the new charter. Delegate
Duavit agreed, adding that this was precisely why the resolution was
modified to give the President the discretion to choose the most appropriate
date for the plebiscite.
“12.5 Delegate Laggui asked whether a formal communication to the
President informing him of the adoption of the new Constitution would not
suffice considering that under Section 15 of the Transitory Provisions, the
President would be duty-bound to call a plebiscite for its ratification.
Delegate Duavit replied in the negative, adding that the resolution was
necessary to serve notice to the proper authorities to prepare everything
necessary for the plebiscite.
360

“12.6 In reply to Delegate Britanico, Delegate Duavit stated that the
mechanics for the holding of the plebiscite would be laid down by the
Commission on Elections in coordination with the President.
“12.7 Delegate Catan inquired if such mechanics for the plebiscite could
include a partial lifting of martial law in order to allow the people to
assemble peaceably to discuss the new Constitution. Delegate Duavit
suggested that the Committee on Plebiscite and Ratification could
coordinate with the COMELEC on the matter.
“12.8 Delegate Guzman moved for the previous question. The Chair
declared that there was one more interpellant and that a prior reservation
had been made for the presentation of such a motion.
1.8a Delegate Guzman withdrew his motion.
“12.9 Delegate Astilla suggested in his interpellation that there was actually
no need for such a resolution in view of the provision of section 15, Article
XVII on the Transitory Provisions. Delegate Duavit disagreed, pointing out
that the said provision did not provide for the funds necessary for the
purpose.
“13. Delegate Ozamiz then moved to close the debate and proceed to the
period of amendment.
“13.1 Floor Leader Montejo stated that there were no reservations to amend
the resolution.
“13.2 Delegate Ozamiz then moved for the previous question. Submitted to
a vote, the motion was approved.
“Upon request of the Chair, Delegate Duavit restated the resolution for
voting.
“14.1. Delegate Ordoñez moved for nominal voting. Submitted to a vote, the
motion was lost.
“14.2. Thereupon, the Chair submitted the resolution to a vote. It was
approved by a show of hands.”57
_______________
57 Convention Minutes of Nov. 22, 1972 submitted as Annex A of petitioner-
delegate Sedfrey A. Ordoñez, et al. in the plebiscite case L-359042, par. 12 of petition
and admitted in par. 4 of answer of therein respondents dated Dec. 15, 1972.
361
VOL. 50, MARCH 31, 1973 361

I, therefore, vote to deny respondents’ motion to dismiss and to

give due course to the petitions.
Promulgated: June 4, 1973*
ANTONIO, J.:
In conformity with my reservation, I shall discuss the grounds for
my concurrence.
I
It is my view that to preserve the independence of the State, the
maintenance of the existing constitutional order and the defense of
the political and social liberties of the people, in times of a grave
emergency, when the legislative branch of the government is unable
to function or its functioning would itself threaten the public safety,
the Chief Executive may promulgate measures legislative in
character, for the successful prosecution of such objectives. For the
“President’s power as Commander- in-chief has been transformed
from a simple power of military command to a vast reservoir of
indeterminate powers in time of emergency. * * * In other words,
the principal canons of constitutional interpretation are * * * set
aside so far as concerns both the scope of the national power and the
capacity of the President to gather unto himself all constitutionally
available powers in order the more effectively to focus them upon
the task of the hour.” (Corwin, The President: Office & Powers, pp.
317, 318, [1948]).
1. The proclamation of martial rule, ushered the commencement
of a crisis government in this country. In terms of power, crisis
government in a constitutional democracy entails the concentration
of governmental power. “The more complete the separation of
powers in a constitutional system, the more difficult, and yet the
more necessary” according to Rossiter, “will be their fusion in time
of crisis... The power of the state in crisis must not only be
_______________
* First decision promulgated by First Division of the Supreme Court.
362

concentrated and expanded, it must be freed from the normal system

of constitutional and legal limitations. One of the basic features of
emergency powers is the release of the government from the
paralysis of constitutional restraints” (Rossiter, Constitutional
Dictatorship, p. 290).
It is clearly recognized that in moments of peril the effective
action of the government is channeled through the person of the
Chief Executive. “Energy in the executive,” according to Hamilton,
“is essential to the protection of the community against foreign
attacks ... to the protection of property against those irregular and
high-handed combinations which sometimes interrupt the ordinary
course of justice; to the security of liberty against the enterprises and
assaults of ambition, of faction, and of anarchy.” (The Federalist,
Number 70). “The entire strength of the nation,” said Justice Brewer
in the Debs case (158 U.S. 564; 39 L. ed. 1092), “may be used to
enforce in any part of the land the full and free exercise of all
national powers and the security of all rights entrusted by the
constitution to its care.” The marshalling and employment of the
“strength of the nation” are matters for the discretion of the Chief
Executive. The President’s powers in time of emergency defy
precise definition since their extent and limitations are largely
dependent upon conditions and circumstances.
2. The power of the President to act decisively in a crisis has
been grounded on the broad conferment upon the Presidency of the
Executive power, with the added specific grant of power under the
“Commander-in-Chief” clause of the constitution. The contours of
such powers have been shaped more by a long line of historical
precedents of Presidential action in times of crisis, rather than
judicial interpretation. Lincoln wedded his powers under the
“commander-in-chief” clause with his duty “to take care that the
laws be faithfully executed,” to justify the series of extraordinary
measures which he took — the calling of volunteers for military
service, the augmentation of the regular army and navy, the payment
of two million dollars from unappropriated funds in the Treasury to
persons unauthorized to receive it, the closing of the Post Office to
“treasonable correspondence,” the blockade of southern ports, the
suspension of the writ of habeas corpus, the arrest and
363
VOL. 50, MARCH 31, 1973 363

detention of persons “who were represented to him” as being

engaged in or contemplating “treasonable practices” — all this for
the most part without the least statutory authorization. Those actions
were justified by the imperatives of his logic, that the President may,
in an emergency thought by him to require it, partially suspend the
constitution. Thus his famous question: “Are all laws but one to be
unexecuted, and the Government itself go to pieces lest that one be
violated?” The actions of Lincoln “assert for the President,”
according to Corwin, “an initiative of indefinite scope and
legislative in effect in meeting the domestic aspects of a war
emergency.” (Corwin, The President: Office & Powers, p. 280
[1948]). The facts of the civil war have shown conclusively that in
meeting the domestic problems as a consequence of a great war, an
indefinite power must be attributed to the President to take
emergency measures. The concept of “emergency” under which the
Chief Executive exercised extraordinary powers underwent
correlative enlargement during the first and second World Wars.
From its narrow concept as an “emergency” in time of war during
the Civil War and World War I, the concept has been expanded in
World War II to include the “emergency” preceding the war and
even after it. “The Second World War” observed Corwin and
Koenig, was the First World War writ large, and the quasi-legislative
powers of Franklin Roosevelt as “Commander-in-Chief in
wartime.”.. burgeoned correspondingly. The precedents were there
to be sure, most of them from the First World War, but they
proliferated amazingly. What is more, Roosevelt took his first step
toward war some fifteen months before our entrance into shooting
war. This step occurred in September, 1940, when he handed over
fifty so-called overage destroyers to Great Britain. The truth is, they
were not overage, but had been recently reconditioned and
recommissioned. ... Actually, what President Roosevelt did was to
take over for the nonce Congress’s power to dispose of property of
the United States (Article IV, Section 3) and to repeal at least two
statutes.” (Corwin & Koenig, The Presidency Today, New York
University Press, 1956; sf Corwin, The President: Office and
Powers, 1948.)
The creation of public offices is a power confided by the
constitution to Congress. And yet President Wilson, during
364

World War I on the basis of his powers under the “Commander-in-

Chief” clause created “offices” which were copied in lavish scale by
President Roosevelt in World War II. In April 1942, thirty-five
“executive agencies” were purely of Presidential creation. On June
7, 1941 on the basis of his powers as “Commander-in-Chief,” he
issued an executive order seizing the North American Aviation plant
of Inglewood, California, where production stopped as a
consequence of a strike. This was justified by the government as the
exercise of presidential power growing out of the “duty
constitutionally and inherently resting upon the President to exert his
civil and military as well as his moral authority to keep the defense
efforts of the United States a going concern” as well as “to obtain
supplies for which Congress has appropriated money, and which it
has directed the President to obtain.” On a similar justification, other
plants and industries were taken over by the government. It is true
that in Youngstown Sheet & Tube vs. Sawyer (343 U.S. 579; 72 S.
Ct. 863; 96 L. Ed. 1153, [1952]), the Supreme Court of the United
States did not sustain the claims that the President could, as the
Nation’s Chief Executive and Commander-in-Chief of the armed
forces, validly order the seizure of most of the country’s steel mills.
The Court however did not face the naked question of the
President’s power to seize steel plants in the absence of any
congressional enactment or expressions of policy. The majority of
the Court found that this legislative occupation of the field made
untenable the President’s claim of authority to seize the plants as an
exercise of inherent executive power or as Commander-in-Chief.
Justice Clark, in his concurrence to the main opinion of the Court,
explicitly asserted that the President does possess, in the absence of
restrictive legislation, a residual or resultant power above or in
consequence of his granted powers, to deal with emergencies that he
regards as threatening the national security. The same view was
shared with vague qualification by Justices Frankfurter and Jackson,
two of the concurring Justices. The three dissenting Justices,
speaking through Chief Justice Vinson, apparently went further by
quoting with approval a passage extracted from the brief of the
government in the case of United States vs. Midwest Oil Co., (236
U.S. 459 59 L. Ed. 673, 35 S. Ct. 309) where the court sustained the
power of the President to order withdrawals from the public domain
not only without Congressional sanction but even
365
VOL. 50, MARCH 31, 1973 365

contrary to Congressional statutes.

It is evident therefore that the Steel Seizure Case, cannot be
invoked as an authority to support the view that the President in
times of a grave crisis does not possess a residual power above or in
consequence of his granted powers, to deal with emergencies that he
regards as threatening the national security. The lesson of the Steel
Seizure case, according to Corwin and Koenig, “Unquestionably ...
tends to supplement presidential emergency power to adopt
temporary remedial legislation when Congress has been, in the
judgment of the President, unduly remiss in taking cognizance of
and acting on a given situation.” (Corwin and Koenig, The
Presidency Today, New York University Press, 1956).
The accumulation of precedents has thus built up the presidential
power under emergency conditions to “dimensions of executive
prerogative as described by John Locke, of a power to wit, to fill
needed gaps in the law, or even to supersede it so far as may be
requisite to realize the fundamental law of nature and government,
namely, that as much as may be all the members of society are to be
preserved.” (Corwin and Koenig, The Presidency Today).
In the light of the accumulated precedents, how could it be
reasonably argued therefore, that the President had no power to issue
Presidential Decree Nos. 86 and 86-A as well as Proclamation No.
1102, since these measures were considered indispensable to effect
the desired reforms at the shortest time possible and hasten the
restoration of normalcy? It is unavailing for petitioners to contend
that we are not faced by an actual “shooting war” for today’s
concept of the emergency which justified the exercise of those
powers has of necessity been expanded to meet the exigencies of
new dangers and crisis that directly threaten the nation’s continued
and constitutional existence. For as Corwin observed: “... today the
concept of ‘war’ as a special type of emergency warranting the
realization of constitutional limitations tends to spread, as it were, in
both directions, so that there is not only “the war before the war,”
but the ‘war after the war.’ Indeed, in the economic crisis from
which the New Deal may be said to have
366

issued, the nation was confronted in the opinion of the late President
with an ‘emergency greater than war’; and in sustaining certain of
the New Deal measures the Court invoked the justification of
‘emergency.’ In the final result constitutional practices of wartime
have moulded the Constitution to greater or less extent for peacetime
as well, seem likely to do so still more pronouncedly under fresh
conditions of crisis.” (Corwin, Ibid. p. 318.)
The same view was expressed by Rossiter thus:
“The second crisis is rebellion, when the authority of a constitutional

government is resisted openly by large numbers of citizens who are engaged
in violent insurrection against enforcement of its laws or are bent on
capturing it illegally or destroying it altogether. The third crisis, one
recognized particularly in modern times as sanctioning emergency action by
constitutional governments, is economic depression. The economic troubles
which plagued all the countries of the world in the early thirties involved
governmental methods of an unquestionably dictatorial character in many
democracies. It was thereby acknowledged that an economic existence as a
war or a rebellion. And these are not the only cases which have justified
extraordinary governmental action in nations like the United States. Fire,
flood, drought, earthquake, riots, great strikes have all been dealt with by
unusual and of dictatorial methods. Wars are not won by debating societies,
rebellions are not suppressed by judicial injunctions, reemployment of
twelve million jobless citizens will not be effected through a scrupulous
regard for the tenets of free enterprise, hardships caused by the eruptions of
nature cannot be mitigated letting nature take its course. The Civil War, the
depression of 1933 and the recent global conflict were not and could not
have been successfully resolved by governments similar to those of James
Buchanan, William Howard Taft, or Calvin Coolidge.” (Rossiter,
Constitutional Dictatorship — Crisis of Government in the Modern
Democracies, p. 6 [1948).
II
We are next confronted with the insistence of Petitioners that the
referendum in question not having been done inaccordance with the
provisions of existing election laws, which only qualified voters who
are allowed to participate, under the
367
VOL. 50, MARCH 31, 1973 367

supervision of the Commission on Elections, the new Constitution,

should therefore be a nullity. Such an argument is predicated upon
an assumption, that Article XV of the 1935 Constitution provides
the method for the revision of the constitution, and automatically
apply in the final approval of such proposed new Constitution the
provisions of the election law and those of Article V and X of the
old Constitution. We search in vain for any provision in the old
charter specifically providing for such procedure in the case of a
total revision or a rewriting of the whole constitution.
1. There is clearly a distinction between revision and amendment
of an existing constitution. Revision may involve a rewriting of the
whole constitution. The act of amending a constitution, on the other
hand, envisages a change of only specific provisions. The intention
of an act to amend is not the change of the entire constitution but
only the improvement of specific parts of the existing constitution of
the addition of provisions deemed essential as a consequence of new
constitutions or the elimination of parts already considered obsolete
or unresponsive to the needs of the times.1 The 1973 Constitution is
not a mere amendment to the 1935 Constitution. It is a completely
new fundamental charter embodying new political,
_______________
1 “When a house is completely demolished and another is erected on the same
location, do you have a changed, repaired and altered house, or do you have a new
house? Some of the material contained in the old house may be used again, some of
the rooms may be constructed the same, but this does not alter the fact that you have
altogether another or a new house. We conclude that the instrument as contained in
Ga. L. 1945, pp. 8 to 89, inclusive, is not an amendment to the constitution of 1877;
but on the contrary it is a completely revised or new Constitution.” (Wheeler v. Board
of Trustees, 37 S.E. 2d 322, 327).
“Every proposal which affects a change in a Constitution or adds or takes away
from it is an “amendment’, while a “revision” implies a re-examination and statement
of the Constitution, or some part of it, in a corrected or improved form.” (Const. Secs.
196, 197, Staples v. Gilmer, 33 S.E. 2d 49, 53 183 Va. 613).
“Amendment” and “revision” of constitution are separate procedures each having
a substantial field of application not mere alternative procedures in the same field.”
(McFadden v. Jordan, 196 P. 2d 787, 797 32 Cal. 2d 330).
368

social and economic concepts.

According to an eminent authority on Political Law, “The
Constitution of the Philippines and that of the United States
expressly provide merely for methods of amendment. They are silent
on the subject of revision. But this is not a fatal omission. There is
nothing that can legally prevent a convention from actually revising
the Constitution of the Philippines or of the United States even were
such conventions called merely for the purpose of proposing and
submitting amendments to the people. For in the final analysis, it is
the approval of the people that gives validity to any proposal of
amendment or revision.” (Sinco, Philippine Political Law, p. 49).
Since the 1935 Constitution does not specifically provide for the
method or procedure for the revision or for the approval of a new
constitution, should it now be held, that the people have placed such
restrictions on themselves that they are not disabled from exercising
their right as the ultimate source of political power from changing
the old constitution which, in their view, was not responsive to their
needs and in adopting a new charter of government to enable them
to rid themselves from the shackles of traditional norms and to
pursue with new dynamism the realization of their true longings and
aspirations, except in the manner and form provided by Congress for
previous plebiscites? Was not the expansion of the base of political
participation, by the inclusion of the youth in the process of
ratification who after all constitute the preponderant majority more
in accord with the spirit and philosophy of the constitution that
political power is inherent in the people collectively? As clearly
expounded by Justice Makasiar, in his opinion, in all the cases cited
where the Courts held that the submission of the proposed
amendment was illegal due to the absence of substantial compliance
with the procedure prescribed by the constitution, the procedure
prescribed by the state Constitution, is so detailed, that specified the
manner in which such submission shall be made, the persons
qualified to vote for the same, the date of election and other definite
standards, from which the court could safely ascertain whether or
not the submission was in accordance with the Constitution. Thus
the case of In re McConaughy (119
369
VOL. 50, MARCH 31, 1973 369

N.E. 408) relied upon in one of the dissenting opinions involved
in the application of the provisions of the state Constitution of
Minnesota which clearly prescribed in detail the procedure under
which the Constitution may be amended or revised.2 This is not true
with our Constitution. In the case of revision there are no “standards
meet for judicial judgment.”3The framers of our Constitution were
free to provide in the Constitution the method or procedure for the
revision or rewriting of the entire constitution, and if such was their
intention, they could and should have so provided. Precedents were
not wanting. The constitutions of the various states of the American
Union did provide for procedures for their amendment and methods
for their revision.4
Certainly We cannot, under the guise of interpretation, modify,
revise, amend, remodel or rewrite the 1935 Charter. To declare what
the law is, or has been, is a judicial power, but to declare what the
law shall be is not within Our judicial competence and authority.
Upon the other hand, since our fundamental charter has not
provided the method or procedure for the revision or complete
change of the Constitution, it is evident that the people have
reserved such power in themselves. They decided to exercise it not
through their legislature, but through a Convention expressly chosen
for that purpose. The Convention as an independent and sovereign
body has drafted not an amendment but a completely new
Constitution, which decided to submit to the people for approval, not
through an act of Congress, but by means of decrees to be
promulgated by the President. In view of the inability of Congress to
act, it was within the constitutional powers of the President, either as
agent of the Constitutional Convention, or under his authority under
martial law, to promulgate the necessary measures for the
_______________
2 Cf. Sections 1 and 2 of Article XIV, Constitution of Minnesota in Appendix.
3 Baker v. Carr, 369 U.S. 186; 7 L. ed. 663.
4 Cf. State Constitutions of Alaska, California, Delaware, Florida, Michigan,
Minnesota, Nevada, New Hampshire, Oklahoma, Oregon, Utah and Wyoming in
Appendix to this opinion.
370

ratification of the proposed new Constitution. The adoption the new

Charter was considered as a necessary basis for all the reforms set in
motion under the new society, to root out the causes of unrest. The
imperatives of the emergency underscored the urgency of its
adoption. The people in accepting such procedure and in voting
overwhelmingly for the approval of the new Constitution have, in
effect, ratified the method and procedure taken. “When the people
adopt completely revised or new constitution,” said the Court in
Wheeler v. Board of Trustees (37 SE 2nd 322, 326-330), “the
framing or submission of the instrument is not what gives it binding
force and effect. The fiat of the people, and only the fiat of the
people, can breathe life into a constitution.”
This has to be so because, in our political system, all political
power is inherent in the people and free governments are founded on
their authority and instituted for their benefit. Thus Section 1 of
Article II of the 1935 Constitution declares that: “Sovereignty
resides in the people and all government authority emanate from
them.” Evidently the term people refers to the entire citizenry and
not merely to the electorate, for the latter is only a fraction of the
people and is only an organ of government for the election of
government officials.
III
The more compelling question, however is: Has this Court the
authority to nullify an entire Constitution that is already effective as
it has been accepted and acquiesced in by the people as shown by
their compliance with the decree promulgated thereunder, their
cooperation in its implementation, and is now maintained by the
Government that is in undisputed authority and dominance?
Of course it is argued that acquiescence by the people can be
deduced from their acts of conformity, because under a regime of
martial law the people are bound to obey and act in conformity with
the orders of the President, and has absolutely no other choice. The
flaw of this argument lies in its application of a mere theoretical
assumption based on the experiences of other nations on an entirely
different factual setting. Such an assumption flounders on the rock
of reality.
371
VOL. 50, MARCH 31, 1973 371

It is true that as a general rule martial law is the use of military

forces to perform the functions of civil government. Some courts
have viewed it as a military regime which can be imposed in
emergency situations. In other words, martial rule exists when the
military rises superior to the civil power in the exercise of some or
all the functions of government. Such is not the case in this country.
The government functions thru its civilian officials. The supremacy
of the civil over the military authority is manifest. Except for the
imposition of curfew hours and other restrictions required for the
security of the State, the people are free to pursue their ordinary
concerns.
In short, the existing regime in this Country, does not contain the
oppressive features, generally associated with a regime of Martial
law in other countries. “Upon the other hand the masses of our
people have accepted it, because of its manifold blessings. The once
downtrodden rice tenant has at long last been emancipated — a
consummation devoutly wished by every Philippine President since
the 1930’s. The laborer now holds his head high because his rights
are amply protected and respected.”* A new sense of discipline has
swiftly spread beyond the corridors of government into the social
order. Responding to the challenges of the New Society, the people
have turned in half a million loose firearms, paid their taxes on
undeclared goods and income in unprecedented numbers and
amount, lent their labors in massive cooperation — in land reform,
in the repair of dikes, irrigation ditches, roads and bridges, in
reforestation, in the physical transformation of the environment to
make ours a cleaner and greener land. “The entire country is turning
into one vast garden growing food for the body, for thought and for
the soul.”* More important the common man has at long last been
freed from the incubus of fear.
“Martial law has paved the way for a re-ordering of the basic social
structure of the Philippines” reported Frank Valeo to the United States
Senate. “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
_______________
* Leon O. Ty, Seven Months of Martial Law, Daily Express.
* Panorama, May 6, 1973.
372

have been widely recognized as prime sources of the nation’s difficulties —

land tenancy, official corruption, tax evasion and abuse of oligarchic
economic power. Clearly he knows his targets ... there is marked public
support for his leadership...” (Bulletin Today, March 3 and 4, 1973).
In a similar vein, C.L. Sulzberger, a foreign affairs columnist

wrote, in the April 11 issue of The New York Times:
During his first Presidential term (1965-1969), Mr. Marcos was

discouraged by the failure of legislators to approve urgently needed reforms.
He found his second term further frustrated by spread riots, a Maoist
uprising in Luzon and a much more serious Moslem insurrection in the
southern islands from Mindanao across the Sulu archipelago to the frontier
regions of Malaysia and Indonesia. Manila claims this war is Maoist-
coordinated.
Mr. Marcos has now in effect taken all the reins of power and makes no
promise as to when he will relinquish them. But, while fettering a free press,
terminating Congress and locking up some opponents (many of whom were
later amnestied), he has hauled the Philippines out of stagnation.
Sharecropping is being ended as more than three million acres of arable
land are redistributed with state funds. New roads have been started. The
educational system is undergoing revision, a corruption is diminished. In
non-communist Asia it is virtually impossible to wholly end it and this
disagreeable phenomenon still reaches very high.
Mr. Marcos, an imaginative, gifted man, hopes to reshape society by
creating an agrarian middle-class to replace the archaic sharecropper-
absentee landlord relationship. He is even pushing for a birth control
program with the tacit acceptance of the Catholic Church. He has started
labor reforms and increased wages. (Daily Express, April 15, 1973)
As explained in this writer’s opinion of April 24, 1973 on the

“Constancia” and “Manifestation” of counsel for petitioners:
The new Constitution is considered effective “if the norms
created in conformity with it are by and large applied and obeyed.
As soon as the old Constitution loses its effectiveness
373
VOL. 50, MARCH 31, 1973 373

and the new Constitution has become effective, the acts that appear
with the subjective meaning of creating or applying legal norms are
no longer interpreted by presupposing the old basic norm, but by
presupposing the new one. The statutes issued under the old
Constitution and not taken over are no longer regarded as valid, and
the organs authorized by the old Constitution no longer competent.”
(Kelsen, Pure Theory of Law, [1967].)
The essentially political nature of the question is at once made
manifest by understanding that in the final analysis, what is assailed
is not merely the validity of Proclamation No. 1102 of the President,
which is merely declaratory of the fact of approval or ratification,
but the legitimacy of the government. It is addressed more to the
framework and political character of this Government which now
functions under the new Charter. It seeks to nullify a Constitution
that is already effective.
In such a situation, We do not see how the question posed by
petitioners could be judicially decided. “Judicial power presupposes
an established government capable of enacting laws and enforcing
their execution, and of appointing judges to expound and administer
them. 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.” (Luther v. Borden, 48 U.S. [7 How.] 1,
12 L. Ed. 598.)
In other words, where a complete change in the fundamental law
has been effected through political action, the Court whose existence
is affected by such change is, in the words of Mr. Melville Fuller
Weston, “precluded from passing upon the fact of change by a
logical difficulty which is not to be surmounted.”5 Such change in
the organic law relates to the
_______________
5 “A written constitution is susceptible of change in two ways: by revolution,
which implies action not pursuant to any provision of the constitution itself; and by
revision, which implies action pursuant to some procedural provision in the
constitution. This distinction is concerned with the quare and not with the quantum of
change. It may be significant, however, that the alleged alteration does or does not
purport to affect the existence of the court itself. In
374

existence of a prior point in the Court’s “chain of title” to its

authority and “does not relate merely to a question of the
_______________
the nature of things, a revolutionary charge does not admit judicial power as such to
determine the fact of its occurrence. If revolutionary constitution sets up a court
differently constituted from the pre-revolutionary court, neither tribunal is confronted
with a substantial problem, for neither can deny the act by which it was created
without denying the fact of its creation. Thus the Supreme Court in Luther v.
Borden (supra) uses language substantially parallel with what has been indicated
above as logical explanation of the Duke of York’scase. For the court to give serious
judicial consideration to such a question would present “the singular spectacle of a
court sitting as a court to declare that we are not a court.” (Brittle v. People, 2 Neb.
198, 214 [1873].) And even the alleged new constitution purports to leave intact the
former court and to permit its work to go on without hiatus, the decision which the
judges must make is still an individual choice to be made by them as a matter of
practical politics. Two commissions are being held out to them, and if they will act as
a court they must assess under which commission they are acting. To put the matter
another way, it must be true that in the first case above — of two constitutions
purporting to establish two different courts, — the men who were judges under the
old regime and the men who are called to be judges under the new have each to
decide as individuals what they are to do; and it may be that they choose at grave peril
with the factional outcome still uncertain. And, although it is equally obvious, the
situation is logically identical where the same men are nominated to constitute the
court under both the old and new constitution, at a time when the alleged change is
occurring — if it is — peaceably and against a placid popular background. Men under
such circumstances may write most praiseworthily principles of statesmanship, upon
sovereignty and, its nature modes of action, and upon the bases of government, to
justify the choice between the two commissions. They can assert their choice in the
course of purported judicial action. But they cannot decide as a court, for the decision,
once made, by a retroactive hypothesis excludes any assumption of controversiality in
the premises.
“Where the alleged change occurs not through revolutionary measures but through
what has been called revision, these logical difficulties disappear in one aspect, but
become far more embarrassing in another. Where the alteration purports to be made
along the lines of a procedural method laid down in the constitution, there is a
standard which the court can apply and, by so
375
VOL. 50, MARCH 31, 1973 375

horizontal distribution of powers.”6 It involves in essence a

matter which “the sovereign has entrusted to the so-called
_______________
doing, it can perceive judicially whether or not the change has followed the
prescribed lines. If it has, there is no difficulty in pronouncing as a matter of law its
accomplishment. Only one exception is possible, namely, the ease where the
alteration purports at once to abolish the court or to depose its personnel. Then,
although there would be a question of law to be decided, it may be wondered who
there is to decide it. Suppose, however, the mode of change has failed in some way to
conform to a directory provision of the amending clause of the constitution; is the
court to declare the attempt at alteration unsuccessful? It would seem as a matter of
law that it must do so; and yet what is the situation if the proponents of the change
say, “It is true that this measure failed under the amending clause, but as a
revolutionary measure it was a success and we insist upon its recognition.” Clearly
the members of the court are now more badly than ever entangled in the logical
difficulties which attend a purported judicial pronouncement upon the achievement or
non-achievement of revolutionary change. For the temptation will be great to treat the
matter as a legal question. The times are peaceful. The changes probably do no affect
the tenure of many offices of any branch of the government. The popular inertia is
likely to allow the court successfully to assume the question to be one of law. The
path of fallacy is not too strikingly fallacious to the uncritical observer. It may lead to
just results. The judges’ personal inclinations will be to show deference to the
expression of popular sentiment which has been given. And yet, if they declare the
change in force, they are truly making a personal declaration that they believe the
change to be the directly expressed will of the sovereign, which will they assert to be
law, but the fact of existence of which will — and this is the real decision — is not
ascertainable in the given case by any legal means. It is submitted that this is true, and
that the conclusions offered in the discussion of revolutionary change are true, also,
whether the quantum of change involved be vast or almost negligible.
“The net result of the preceding discussion is this: that in almost the whole field of
problems which the Duke of York’s case and the American constitutional amendment
cases present, the court as a court is precluded from passing upon the fact of change
by a logical difficulty which is not to be surmounted. It follows that there is no room
for considering whether the court ought graciously and deferentially to look to the
executive or legislative for a decision that a change has or has not taken place.
376

political departments of government or has reserved to be settled by

its own extra governmental action.”7
The non-judicial character of such a question has been
recognized in American law. “From its earliest opinions this Court
has consistently recognized,” said Justice Frankfurter, in his
illuminating dissent in Baker v. Carr, 369 U.S. 186, 7 L. Ed. 2d. 633,
722, 726, 727), “a class of controversies which do not lend
themselves to judicial standards and judicial remedies. To classify
the various instances as “political questions” is rather a form of
stating this conclusion than revealing of analysis ... The crux of the
matter is that courts are not fit instruments of decision where what is
essentially at stake is the composition of those large contests of
policy traditionally fought out in non-judicial forums, by which
governments and the actions of governments are made and unmade.”
The diversity of views contained in the opinions of the members
of this Court, in the cases at bar, cannot be a case on “right” or
“wrong” views of the Constitution. It is one of attitudes and values.
For there is scarcely any principle, authority or interpretation which
has not been countered by the opposite. At bottom, it is the degree of
one’s faith — in the nation’s leadership and in the maturity of
judgment of our people.
IN VIEW OF THE FOREGOING, the dismissal of these five
cases, and the conclusion of this Court in its judgment of March
question becomes wholly moot except for this consideration, that,
when the judges as individuals or as a body of individuals come to
decide which king or which constitution they will support and assert
to represent, it may often be good judgment for them to follow the
lead of the men who as a practical matter are likely to be looked to
by the people as more representative of themselves and conversely
are likely to be more directly in touch with popular sentiment. If,
however, the judges hold too strong views of their own to be able to
take this course, they may follow their own leads at their own
hazard. No question of law is involved. (Political Questions, 38
Harvard Law Review [1924-25], pp. 305-309.)
_______________
6 & 7 Ibid., pp. 301, 305.
377
VOL. 50, MARCH 31, 1973 377

31, 1973 are fully justified.
Barredo, Makasiar and Esguerra, JJ., concur.
APPENDIX TO OPINION
(G.R. Nos. L-36142, 36164, 36165, 36236 & 36283)
PROVISIONS OF STATE CONSTITUTIONS SPECIFICALLY
PROVIDING FOR AMENDMENT AND REVISION @
1. Alaska (1959) — Art. XIII. Amendment and Revision.

Sec. 1. Amendments. Amendments to this constitution may be
proposed by a two-thirds vote of each house of the legislature. The
secretary of state shall prepare a ballot title and proposition
summarizing each proposed amendment, and shall place them on the
ballot for the next statewide election. If a majority of the votes cast
on the proposition favor the amendment, it becomes effective thirty
days after the certification of the election returns by the secretary of
state.
Sec. 2. Convention. The legislature may call constitutional
conventions at any time.
Sec. 3. Call by referendum. If during any ten-year period a
constitutional convention has not been held, the secretary of state
shall place on the ballot for the next general election the question:
“Shall there be a Constitutional Convention?” If a majority of the
votes cast on the question are in the negative, the question need not
be placed on the ballot until the end of the next ten-year period. If a
majority of the votes cast on the question are in the affirmative,
delegates to the convention shall be chosen at the next regular
statewide election, unless the legislature provides for the election of
the election delegates at a special election. The secretary of state
shall issue the call for the convention. Unless other provisions have
been made by law, the call shall conform as nearly as possible to the
act calling the Alaska Constitutional Convention of 1955,
378

including, but not limited to, number of members, districts, election
and certification of delegates, and submission and ratification of
revisions and ordinances. x x x.
Sec. 4. Powers. Constitutional conventions shall have plenary
power to amend or revise the constitution, subject only to
ratification by the people. No call for a constitutional convention
shall limit these powers of the convention.
2. California (1879) — Art. XVIII. Amending and Revising the
Constitution.
Sec. 1. Constitutional amendments. Any amendment or
amendments to this Constitution may be proposed in the Senate or
Assembly, and if two-thirds of all the members elected to each of the
houses shall vote in favor thereof, such proposed amendment or
amendments shall be entered in their Journals, with the yeas and
nays taken thereon; and it shall be the duty of the Legislature to
submit such proposed amendment or amendments to the people in
such manner, and at such time, and after such publication as may be
deemed expedient. Should more amendments than one be submitted
at the same election they shall be so prepared and distinguished, by
numbers or otherwise, that each can be voted on separately. If the
people shall approve and ratify such amendment or amendments, or
any of them, by a majority of the qualified electors voting thereon
such amendment or amendments shall become a part of this
constitution.
Sec. 2. Constitutional convention. Whenever two-thirds of the
members elected to each branch of the Legislature shall deem it
necessary to revise this Constitution, they shall recommend to the
electors to vote at the next general for or against a Convention for
that purpose, and if a majority of the electors voting at such election
on the proposition for a Convention shall vote in favor thereof, the
Legislature shall, at its next session, provide by law for calling the
same. The Convention shall consist of a number of delegates not to
exceed that of both branches of the Legislature, who shall be chosen
in the same manner, and have the same qualifications, as Members
of the Legislature. The delegates so elected shall meet within three
months after their election at such place as
379
VOL. 50, MARCH 31, 1973 379

the Legislature may direct. At a special election to be provided for

by law, the Constitution that may be agreed upon by such
Convention shall be submitted to the people for their ratification or
rejection, in such manner as the Convention may determine. The
returns of such election shall, in such manner as the Convention
shall direct, be certified to the Executive of the State, who shall call
to his assistance the Controller, Treasurer, and Secretary of State,
and compare the returns so certified to him; and it shall be the duty
of the Executive to declare, by his proclamation, such Constitution,
as may have been ratified by a majority of all the votes cast at such
special election, to be the Constitution of the State of California.
3. Colorado (1876) — Art. XIX. Amendments.
Sec. 1. Constitutional convention; how called. The general
assembly may at any time be a vote of two-thirds of the members
elected to each house, recommend to the electors of the state, to vote
at the next general election for or against a convention to revise,
alter and amend this constitution; and if a majority of those voting
on the question shall declare in favor of such convention, the general
assembly shall, at the next session, provide for the calling thereof.
The number of members of the convention shall be twice that of the
senate and they shall be elected in the same manner, at the same
places, and in the same districts. The general assembly shall, in the
act calling the convention, designate the day, hour and place of its
meeting; fix the pay of its members and officers, and provide for the
payment of the same, together with the necessary expenses of the
convention. Before proceeding, the members shall take an oath to
support the constitution of the United States, and of the state of
Colorado, and to faithfully discharge their duties as members of the
convention. The qualifications of members shall be the same as of
members of the senate; and vacancies occurring shall be filled in the
manner provided for filling vacancies in the general assembly. Said
convention shall meet within three months after such election and
prepare suchrevisions, alterations or amendments to the constitution
as may be deemed necessary; which shall be submitted to the
electors for their ratification or rejection at an election appointed by
the convention for that purpose, not less
380

than two nor more than six months after adjournment thereof; and
unless so submitted and approved by a majority of the electors
voting at the election, no such revision, alteration or amendment
shall take effect.
Sec. 2. Amendments to constitution; how adopted. Any
amendment or amendments to this constitution may be proposed in
either house of the general assembly, and if the same shall be voted
for by two-thirds of all the members elected to each house, such
proposed amendment or amendments, together with the ayes and
noes of each house hereon, shall be entered in full on their
respective journals; the proposed amendment or amendments shall
be published with the laws of that session of the general assembly,
and the secretary of state shall also cause the said amendment or
amendments to be published in full in not more than one newspaper
of general circulation in each county, for four successive weeks
previous to the next general election for members of the general
assembly; and at said election the said amendment or amendments
shall be submitted to the qualified electors of the state for their
approval or rejection, and such as are approved by a majority of
those voting thereon shall become part of this constitution.
Provided, that if more than one amendment be submitted at any
general election, each of said amendments shall be voted upon
separately and votes thereon cast shall be separately counted the
same as though but one amendment was submitted. But the general
assembly shall have no power to propose amendments to more than
six articles of this constitution at the same session.
4. Delaware (1897) — Art. XVI. Amendments and Conventions.
Sec. 1. Proposal of constitutional amendments in general
assembly; procedure. Any amendment or amendments to this
Constitution may be proposed in the Senate or House of
Representatives; and if the same shall be agreed to by two-thirds of
all the members elected to each House, such proposed amendment
or amendments shall be entered on their journals, with the yeas and
nays taken thereon, and the
381
VOL. 50, MARCH 31, 1973 381

Secretary of State shall cause such proposed amendment or

amendments to be published three months before the next general
election in at least three newspapers in each County in which such
newspaper shall be published; and if in the General Assembly next
after the said election such proposed amendment or amendments
shall upon yea and nay vote be agreed to by two-thirds of all the
members elected to each House, the same shall thereupon become
part of the Constitution.
Sec. 2. Constitutional conventions; procedure; compensation of
delegates; quorum; powers and duties; vacancies. The General
Assembly by a two-thirds vote of all the members elected to each
House may from time to time provide for the submission to the
qualified electors of the State at the general election next thereafter
the question, “Shall there be a Convention to revise the Constitution
and amend the same?”; and upon such submission, if a majority of
those voting on said question shall decide in favor of a Convention
for such purpose, the General Assembly at its next session shall
provide for the election of delegates to such convention at the next
general election. Such Convention shall be composed of forty-one
delegates, one of whom shall be chosen from each Representative
District by the qualified electors thereof, and two of whom shall be
chosen from New Castle County, two from Kent County and two
from Sussex County by the qualified electors thereof respectively.
The delegates so chosen shall convene at the Capital of the State on
the first Tuesday in September next after their election. Every
delegate shall receive for his services such compensation as shall be
provided by law. A majority of the Convention shall constitute a
quorum for the transaction of business. The Convention shall have
the power to appoint such officers, employees and assistants as it
may be deem necessary, and fix their compensation, and provide for
the printing of its documents, journals, debates and proceedings. The
Convention shall determine the rules of its proceedings, and be the
judge of the elections, returns and qualifications of its members.
Whenever there shall be a vacancy in the office of delegate from any
district or county by reason of failure to elect, ineligibility, death,
resignation or otherwise, a writ of election to fill such vacancy shall
be issued by the Governor, and such vacancy shall be filled by the
382

qualified electors of such district or county.

5. Florida (1887) — Art. XVII. Amendments.
Sec. 1. Method of amending constitution. Either branch of the
Legislature, at any regular session, or at any special or extra-
ordinary session thereof called for such purpose either in the
governor’s original call or any amendment thereof, may propose the
revision or amendment of any portion or portions of this
Constitution. Any such revision or amendment may relate to one
subject or any number of subjects, but no amendment shall consist
of more than one revised article of the Constitution.
If the proposed revision or amendment is agreed to by three-fifths
of the members elected to each house, it shall be entered upon their
respective journals with the yeas and nays and published in one
newspaper in each county where a newspaper is published for two
times, one publication to be made not earlier than ten weeks and the
other not later than six weeks, immediately preceding the election at
which the same is to be voted upon, and thereupon submitted to the
electors of the State for approval or rejection at the next general
election, provided, however, that such revision or amendment may
be submitted for approval or rejection in a special election under the
conditions described in and in the manner provided by Section 3 of
Article XVII of the Constitution. If a majority of the electors voting
upon the amendment adopt such amendment the same shall become
a part of this Constitution.
Sec. 2. Method of revising constitution. If at any time the
Legislature, by a vote of two-thirds of all the members of both
Houses, shall determine that a revision of this Constitution is
necessary, such determination shall be entered upon their respective
Journals, with yea’s and nay’s thereon. Notice of said action shall be
published weekly in one newspaper in every county in which a
newspaper is published, for three months preceding the next general
election of Representatives, and in those countries where no
newspaper is published, notice shall be given by posting at the
several polling precincts in such
383
VOL. 50, MARCH 31, 1973 383

counties for six weeks next preceding said election. The electors at
said election may vote for or against the revision in question. If a
majority of the electors so voting be in favor of revision, the
Legislature chosen at such election shall provide by law for a
Convention to revise the Constitution, said Convention to be held
within six months after the passage of such law. The Convention
shall consist of a number equal to the membership of the House of
Representatives, and shall be apportioned among the several
counties in the same manner as members of said House.
6. Idaho (1890) — Art. XIX. Amendments.
Sec. 1. How amendments may be proposed. Any amendment or
amendments to this Constitution may be proposed in either branch
of the legislature, and if the same shall be agreed to by two-thirds of
all the members of each of the two houses, voting separately, such
proposed amendment or amendments shall, with the yeas and nays
thereon, be entered on their journals, and it shall be the duty of the
legislature to submit such amendment or amendments to the electors
of the state at the next general election, and cause the same to be
published without delay for at least six consecutive weeks, prior to
said election, in not less than one newspaper of the general
circulation published in each county; and if a majority of the electors
shall ratify the same, such amendment or amendments shall become
a part of this Constitution.
Sec. 3. Revision or amendments by convention. Whenever two-
thirds of the members elected to each branch of the legislature shall
deem it necessary to call a convention to revise or amend this
Constitution, they shall recommend to the electors to vote at the next
general election, for or against a convention, and if a majority of all
the electors voting at said election shall have voted for a convention,
the legislature shall at the next session provide by law for calling the
same; and such convention shall consist of a number of members,
not less than double the number of the most numerous branch of the
legislature.
7. Iowa (1857) — Art. X. Amendments to the Constitution.
384

Sec. 3. Convention. At the general election to be held in the year

one thousand eight hundred and seventy, and in each tenth year
thereafter, and also at such times as the General Assembly may, by
law, provide, the question, “Shall there be a Convention to revise the
Constitution, and amend the same?” shall be decided by the electors
qualified to vote for members of the General Assembly; and in case
a majority of the electors so qualified, voting at such election, for
and against such proposition, shall decide in favor of a Convention
for such purpose, the General Assembly, at its next session, shall
provide by law for the election of delegates to such Convention.
8. Michigan (1909) — Art. XVII. Amendments and Revision.
Sec. 1. Amendments to constitution; proposal by legislature;
submission to electors. Any amendment or amendments to this
constitution may be proposed in the senate or house of
representatives. If the same shall be agreed to by 2/3 of the members
elected to each house, such amendment or amendments shall be
entered on the journals, respectively, with the yeas and nays taken
thereon; and the same shall be submitted to the electors at the next
spring or autumn election thereafter, as the legislature shall direct;
and, if a majority of the electors qualified to vote for members of the
legislature voting thereon shall ratify and approve such amendment
or amendments, the same shall become part of the constitution.
Sec. 4. General revision; convention; procedure. At the Biennial
Spring Election to be held in the year 1961, in each sixteenth year
thereafter and at such times as may be provided by law, the question
of a General Revision of the Constitution shall be submitted to the
Electors qualified to vote for members of the Legislature. In case a
majority of the Electors voting on the question shall decide in favor
of a Convention for such purpose, at an Election to be held not later
than four months after the Proposal shall have been certified as
approved, the Electors of each House of Representatives District as
then organized shall Elect One Delegate for each Electors of each
Senatorial District as then organized shall Elect One Delegate for
each State Senator to which the District
385
VOL. 50, MARCH 31, 1973 385

is entitled. The Delegates so elected shall convene at the Capital

City on the First Tuesday in October next succeeding such election,
and shall continue their sessions until the business of the convention
shall be completed. A majority of the delegates elected shall
constitute a quorum for the transaction of business. x x x No
proposed constitution or amendment adopted by such convention
shall be submitted to the electors for approval as hereinafter
provided unless by the assent of a majority of all the delegates
elected to the convention, the yeas and nays being entered on the
journal. Any proposed constitution or amendments adopted by such
convention shall be submitted to the qualified electors in the manner
provided by such convention on the first Monday in April following
the final adjournment of the convention; but, in case an interval of at
least 90 days shall not intervene between such final adjournment and
the date of such election. Upon the approval of such constitution or
amendments by a majority of the qualified electors voting thereon
such constitution or amendments shall take effect on the first day of
January following the approval thereof.
9. Minnesota (1857) — Art. XIV. Amendments to the Constitution.
Sec. 1. Amendments to constitution; majority vote of electors
voting makes amendment valid. Whenever a majority of both houses
of the legislature shall deem it necessary to alter or amend this
Constitution, they may proposed such alterations or amendments,
which proposed amendments shall be published with the laws which
have been passed at the same session, and said amendments shall be
submitted to the people for their approval or rejection at any general
election, and if it shall appear, in a manner to be provided by law,
that a majority of all the electors voting at said election shall have
voted for and ratified such alterations or amendments, the same shall
be valid to all intents and purposes as a part of this Constitution. If
two or more alterations or amendments shall be submitted at the
same time, it shall be so regulated that the voters shall vote for or
against each separately.
386

Sec. 2. Revision of constitution. Whenever two-thirds of the

members elected to each branch of the legislature shall think it
necessary to call a convention to revise this Constitution, they shall
recommend to the electors to vote at the next general election for
members of the legislature, for or against a convention; and if a
majority of all the electors voting at said election shall have voted
for a convention, the legislature shall, at their next session, provide
by law for calling the same. The convention shall consist of as many
members as the House of Representatives, who shall be chosen in
the same manner, and shall meet within three months after their
election for the purpose aforesaid.
Sec. 3. Submission to people of revised constitution drafted at
convention. Any convention called to revise this constitution shall
submit any revision thereof by said convention to the people of the
State of Minnesota for their approval or rejection at the next general
election held not less than 90 days after the adoption of such
revision, and, if it shall appear in the manner provided by law that
three-fifths of all the electors voting on the question shall have voted
for and ratified such revision, the same shall constitute a new
constitution of the State of Minnesota. Without such submission and
ratification, said revision shall be of no force or effect. Section 9 of
Article IV of the Constitution shall not apply to election to the
convention.
10. Nevada (1864) — Art. 16. Amendments.
Sec. 1. Constitutional amendments; procedure. Any amendment
or amendments to this Constitution may be proposed in the Senate
or Assembly; and if the same shall be agreed to by a Majority of all
the members elected to each of the two houses, such proposed
amendment or amendments shall be entered on their respective
journals, with the Yeas and Nays taken thereon, and referred to the
Legislature then next to be chosen, and shall be published for three
months next preceding the time of making such choice. And if in the
Legislature next chosen as aforesaid, such proposed amendment or
amendments shall be agreed to by a majority of all the members
elected to each house, then it shall be the duty of the Legislature to
submit such proposed amendment
387
VOL. 50, MARCH 31, 1973 387

or amendments to the people, in such manner and at such time as the

Legislature shall prescribe; and if the people shall approve and ratify
such amendment or amendments by a majority of the electors
qualified to vote for members of the Legislature voting thereon, such
amendment or amendments shall become a part of the Constitution.
Sec. 2. Convention for revision of constitution; procedure. If at
any time the Legislature by a vote of two-thirds of the Members
elected to each house, shall determine that it is necessary to cause a
revision of this entire Constitution they shall recommend to the
electors at the next election for Members of the Legislature, to vote
for or against a convention, and if it shall appear that a majority of
the electors voting at such election, shall have voted in favor of
calling a Convention, the Legislature shall, at its next session
provide by law for calling a Convention to be held within six months
after the passage of such law, and such Convention shall consist of a
number of Members not less that of both branches of the legislature.
In determining what is a majority of the electors voting such
election, reference shall be had to the highest number of vote cast at
such election for the candidates of any office or on any question.
11. New Hampshire (1784) —
Art. 99. Revision of constitution provided for. It shall be the duty
of the selectmen, and assessors, of the several towns and places in
this state, in warning the first annual meetings for the choice of
senators, after the expiration of seven years from the adoption of this
constitution, as amended, to insert expressly in the warrant this
purpose, among the others for the meeting, to wit, to take the sense
of the qualified voters on the subject of a revision of the constitution;
and, the meeting being warned accordingly, and not otherwise, the
moderator shall take the sense of the
388

qualified voters present as to the necessity of a revision; and a return

of the number of votes for and against such necessity, shall be made
by the clerk sealed up, and directed to the general court at their then
next session; and if, it shall appear to the general court by such
return, that the sense of the people of the state has taken, and that, in
the opinion of the majority of the qualified voters in the state,
present and voting at said meetings, there is a necessity for a
revision of the constitution, it shall be the duty of the general court
to call a convention for that purpose, otherwise the general court
shall direct the sense of the people to be taken, and then proceed in
the manner before mentioned. The delegates to be chosen in the
same manner, and proportioned, as the representatives to the general
court; provided that no alterations shall be made in this constitution,
before the same shall be laid before the towns and unincorporated
places, and approved by two thirds of the qualified voters present
and voting on the subject.
12. Oklahoma (1907) — Art. XXIV. Constitutional Amendments.
Sec. 1. Amendments proposed by legislature; a submission to
vote. Any amendment or amendments to this Constitution may be
proposed in either branch of the Legislature, and if the same shall be
agreed to by a majority of all the members elected to each of the two
houses, such proposed amendment or amendments shall, with yeas
and nays thereon, be entered in their journals and referred by the
Secretary of State to the people for their approval or rejection, at the
next regular general election, except when the Legislature, by a two-
thirds vote of each house, shall order a special election for that
purpose. If a majority of all the electors voting at such election shall
vote in favor of any amendment thereto, it shall thereby become a
part of this Constitution.
If two or more amendments are proposed they shall be submitted
in such manner that electors may vote for or against them separately.
No proposal for the amendment or alteration of this Constitution
which is submitted to the voters shall embrace more than one
general subject and the voters shall vote separately for or against
each proposal submitted; provided, however, that in the submission
of proposals for the amendment of this Constitution by articles,
which embrace one general subject, each proposed article shall be
deemed a single
389
VOL. 50, MARCH 31, 1973 389

proposals or proposition
Sec. 2. Constitutional convention to propose amendments or new
constitution. No convention shall be called by the Legislature to
propose alterations, revisions, or amendments to this Constitution,
or to propose a new Constitution, unless the law providing for such
convention shall first be approved by the people on a referendum
vote at a regular or special election, and any amendments,
alterations, revisions, or new Constitution, proposed by such
convention, shall be submitted to the electors of the State at a
general or special election and be approved by a majority of the
electors voting thereon, before the same shall become effective
Provided, That the question of such proposed convention shall be
submitted to the people at least once in every twenty years.
13. Oregon (1859) — Art. XVII. Amendments and Revisions.
Sec. 1. Method of amending constitution. Any amendment or
amendments to this Constitution may be proposed in either branch
of the legislative assembly, and if the same shall be agreed to by a
majority of all the members elected to each of the two houses, such
proposed amendment or amendments shall, with the yeas and nays
thereon, be entered in their journals and referred by the secretary of
state to the people for their approval or rejection, at the next regular
election, except when the legislative assembly shall order a special
election for that purpose. If a majority of the electors voting on any
such amendment shall vote in favor thereof, it shall thereby become
a part of this Constitution. The votes for and against such
amendment, or amendments, severally, whether proposed by the
legislative assembly or by initiative petition, shall be canvassed by
the secretary of state in the presence of the governor, and if it shall
appear to the governor that the majority of the votes cast at said
election on said amendment, or amendments, severally, are cast in
favor thereof, it shall be his duty forthwith after such canvass, by his
proclamation, to declare the said amendment, or amendments,
severally, having received said majority of votes to have been
adopted by the people of Oregon as part of the Constitution thereof,
and the same shall be in effect as a part of the Constitution from the
date of such proclamation. When two or more amendments
390

shall be submitted in the manner aforesaid to the voters of this state

at the same election, they shall be so submitted that each amendment
shall be voted on separately. No convention shall be called to amend
or propose amendments to this Constitution, or to propose a new
Constitution, unless the law providing for such convention shall first
be approved by the people on a referendum vote at a regular general
election. This article shall not be construed to impair the right of the
people to amend this Constitution by vote upon an initiative petition
therefor.
Sec. 2. Method of revising constitution. (1) In addition to the
power to amend this Constitution granted by section 1, Article IV,
and section 1 of this Article, a revision of all or part of this
Constitution may be proposed in either house of the Legislative
Assembly and, if the proposed revision is agreed to by at least two-
thirds of all the members of each house, the proposed revision shall,
with the yeas and nays thereon, be entered in their journals and
referred by the Secretary of State to the people for their approval or
rejection, notwithstanding section 1, Article IV of this Constitution,
at the next regular state-wide primary election, except when the
Legislative Assembly orders a special election for that purpose. A
proposed revision may deal with more than one subject and shall be
voted upon as one question. The votes for and against the proposed
revision shall be canvassed by the Secretary of State in the presence
of the Governor and, if it appears to the Governor that the majority
of the votes cast in the election on the proposed revision are in favor
of the proposed revision, he shall, promptly following the canvass,
declare, by his proclamation, that the proposed revision has received
a majority of votes and has been adopted by the people as the
Constitution of the State of Oregon, as the case may be. The revision
shall be in effect as the Constitution or as a part of this Constitution
from the date of such proclamation.
14. Utah (1896) — Art. 23. Amendments.
Sec. 1. Amendments; method of proposal and approval. Any
amendments to his Constitution may be proposed in either house of
the Legislature, and if two-thirds of all the members elected of the
two houses, shall vote
391
VOL. 50, MARCH 31, 1973 391

in favor thereof, such proposed amendment or amendments shall be

entered on their respective journals with the yeas and nays taken
thereon; and the Legislature shall cause the same to be published in
at least one newspaper in every county of the State, where a
newspaper is published, for two months immediately preceding the
next general election, at which time the said amendment or
amendments shall be submitted to the electors of the State, for their
approval or rejection, and if a majority of the electors voting thereon
shall approve the same, such amendment or amendments shall
become part of this Constitution. If two or more amendments are
proposed, they shall be so submitted as to enable the electors to vote
on each of them separately.
Sec. 2. Revision of the Constitution by convention. Whenever
two-thirds of the members, elected to each branch of the Legislature,
shall deem it necessary to call a convention to revise or amend this
Constitution, they shall recommend to the electors to vote at the next
general election, for or against a convention, and, if a majority of all
the electors, voting at such election, shall vote for a convention. The
Legislature, at its next session, shall provide by law for calling the
same. The convention shall consist of not less than the number of
members in both branches of the Legislature.
15. Wyoming (1890) — Art. XX. Amendments.
Sec. 1. Procedure for amendments. Any amendment or
amendments to this Constitution may be proposed in either branch of
the legislature, and, if the same shall be agreed to by two-thirds of
all the members of the two houses, voting separately, such proposed
amendment or amendments shall, with the yeas and nays thereon, be
entered on their journals, and it shall be the duty of the legislature to
submit such amendment or amendments to the electors of the state at
the next general election, in at least one newspaper of general
circulation, published in each county, and if a majority of the
electors shall ratify the same, such amendment or amendments shall
become a part of this constitution.
392

Sec. 2. How voted for. If two or more amendments are proposed,
they shall be submitted in such manner that the electors shall vote
for or against each of them separately.
Sec. 3. Constitutional convention; provision for. Whenever two-
thirds of the members elected to each branch of the legislature shall
deem it necessary to call a convention to revise or amend this
constitution, they shall recommend to the electors to vote at the next
general election for or against a convention, and if a majority of all
the electors voting at such election shall have voted for a
convention, the legislature shall at the next session provide by a law
for calling the same; and such convention shall consist of a number
of members, not less than double that of the most numerous branch
of the legislature.
Sec. 4. New constitution. Any constitution adopted by such
convention shall have no validity until it has been submitted to and
adopted by the people.
——o0o——
_______________
@ The inclusion in the Appendix of provisions for Amendment and Revision in
State Constitutions, adopted after 1935, is only to stress the fact that the distinction
between Amendment and Revision of Constitution, which existed at the time of the
adoption of the 1935 Constitution, has continued up to the present.
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No. L-36142. March 31, 1973.

JOSUE JAVELLANA, petitioner, vs. THE EXECUTIVE SECRETARY, THE

No. L-36164. March 31, 1973.

VIDAL TAN, J. ANTONIO ARANETA, ALEJANDRO ROCES, MANUEL CRUDO,

No. L-36165. March 31, 1973.

No. L-36236. March 31, 1973.

No. L-36283. March 31, 1973.

Constitutional law; Doctrine of Separation of powers; Six Justices

32 SUPREME COURT REPORTS ANNOTATED

Javellana vs. The Executive Secretary

VOL. 50, MARCH 31, 1973 33

Javellana vs. The Executive Secretary

Constitution is not in force.—On the fifth question of whether the new

Concepcion, C.J., dissenting:

Constitutional law; Courts; Only a majority of all the members of the

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and cannot accordingly, be dispensed with, except by constitutional

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acquiescence thereto. Whether they recognized the proposed Constitution or

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Javellana vs. The Executive Secretary

Makalintal and Castro, JJ.:

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

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Constitutional law; Validity of a law presumed until otherwise declared

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albeit I held that nonetheless, the Constitution of 1973 is already in force.

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requirements of Article XV thereof. What is more, that decision asserted

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Constitutional law; Issue as to the validity of Proclamation No. 1102

Constitutional law; Issue as to whether or not Constitution of

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political and not justiciable.—Certainly, the invalidation of Proclamation

Zaldivar, J., dissenting and concurring:

Constitutional law; Meaning of political question.—A political

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has reason to be happy because, according to the President, we still have a

Fernando, J., dissenting:

Constitutional law; When power of judicial review should be exercised.

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