PLANAS VS.

COMMISSION ON ELECTIONS
G.R. No. L-35925
January 22, 1973
Concepcion, C.J.

SUBJECT MATTER:
Interpreting the Constitution – Adoption and Amendment of the Constitution.

LEGAL BASIS
Presidential Decree No. 73 – announced a plebiscite to be held on January 15, 1973, for the purpose of ratifying the proposed
Constitution
Presidential Decree No. 86 – organized the so-called Citizens’ Assemblies, to be consulted on certain public questions, which
included whether or not they approve of the new Constitution and whether or not they would still want a plebiscite to be called in
order to ratify the Constitution
Proclamation No. 1102 – announced the ratification of the proposed Constitution by virtue of an overwhelming majority vote from
the Citizens’ Assemblies
Subdivision (I), Section 2, Article VIII, 1935 Constitution – grants the Supreme Court jurisdiction over cases in which the
constitutionality of any treaty, law, ordinance, or executive order or regulation is in question

ACTION BEFORE THE SUPREME COURT:

Petition to enjoin respondents or their agents from implementing Presidential Decree No. 73, in any manner, until further orders of
the Court / Petitions for prohibition with preliminary injunction, seeking to prevent the holding of the plebiscite on January 15, 1973.
* Note: Planas vs. Comelec was decided jointly with 9 other separate cases that were substantially the same

Petitioner(s): 1. Charito Planas

Parties 2. Pablo C. Sanidad
3. Gerardo Roxas, etc., et al.
4. Eddie B. Monteclaro
5. Sedfrey A. Ordonez, et al.
6. Vidal Tan, et al.
7. Jose W. Diokno, et al.
8. Jacinto Jimenez
9. Raul M. Gonzales
10. Ernesto Hidalgo

Respondent(s): 1. Commission on Elections, et al.

2. Commission on Elections, et al.
3. Commission on Elections, et al.
4. Commission on Elections, et al.
5. The National Treasurer of the Philippines, et al.
6. Commission on Elections, et al.
7. Commission on Elections
8. Commission on Elections, et al.
9. The Honorable Commission on Elections, et al.
10. Commission on Elections

SUMMARY:
On December 7, 1972, seven days after the issuance of Presidential Decree No. 73, which called for a plebiscite to be held on January
15, 1973 submitting to the Filipino people for ratification the proposed Constitution by the 1971 Constitutional Convention, and
appropriating funds therefor, petitioners filed against the Commission on Elections, the Treasurer of the Philippines, and the Auditor
General to enjoin the respondents from implementing Presidential Decree No. 73. Substantially identical actions were filed in the

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following days which, along with the petition of Planas, were jointly decided by the Supreme Court. Petitioners claim that the
President does not have the legislative authority to call a plebiscite and appropriate funds for such, which only Congress can do.

Respondents were required to file their answers by December 16, 1972 and the cases were set for hearing on December 18,1972.
On January 7, 1973, General Order No. 20 which announced the postponement of the plebiscite until further notice, was issued. The
Court then deemed it fit to refrain from deciding the aforementioned cases since the facts regarding the plebiscite are yet to be
announced officially, and because Congress, which unquestionably had the power to call for a plebiscite, was scheduled to meet in
regular session on January 22, 1973.

On January 12, 1973, petitioners in Vidal Tan vs. Comelec (one of the cases in the joint decision), filed an urgent motion praying that
the said case be decided as soon as possible, given the issuance of Presidential Decree No. 86, which organized the Citizens’
Assemblies which were to be consulted in order to “ratify” the Constitution, and therefore bypass and short-circuit the Supreme
Court, that is yet to decide on the validity of the plebiscite on the proposed Constitution called for by the President. Petitioners fear
that the nation will be confronted with a fait accompli which would be been attained in a highly unconstitutional and undemocratic
manner, since the Citizens’ Assemblies do not adhere to Article XV of the 1935 Constitution and the Election Code.

While the case was being heard on January 17, 1973, the Secretary of Justice, upon instructions of the President, delivered a copy of
Proclamation No. 1102 to the Chief Justice; Proclamation No. 1102 announced the ratification of the new Constitution by virtue of
the overwhelming votes of the Citizens’ Assemblies. Given these events, the Court has ruled that the main issues at hand have
become moot and academic and the petitions dismissed, since the ratification of the new Constitution, which petitioners seek to
prevent, has already taken place.

ANTECEDENT FACTS:
● March 16 1967 – Congress passed Resolution No. 2, which was amended by Resolution No. 4, adopted on June 7, 1969,
calling for a Convention to propose amendments to the Constitution.
● August 24, 1970 – Said Resolution No. 2, as amended, was implemented by Republic Act No. 6132.
● November 10, 1970 – The election of delegates to the Convention was held.
● June 1, 1971 – The 1971 Constitutional Convention began to perform its functions.
● September 21, 1972 – The President issued Proclamation No. 1081 which placed the Philippines under Martial Law.
● November 29, 1972 – The Convention approved its Proposed Constitution.
● November 30, 1972 – The President 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 on January 15, 1973.
● December 7, 1972 – Charito Planas filed against respondents to enjoin them or their agents from implementing Presidential
Decree No. 73, in any manner, until further orders from the Court, on the grounds that PD 73 has no force and effect
because the calling of a plebiscite and the appropriation of funds for this purpose are-- according to the Constitution--
powers lodged exclusively in Congress, and that there is no proper submission to the people of the Proposed Constitution
since there was no freedom of speech, press, and assembly under Martial Law, and there was insufficient time to inform
the people of the Constitution’s contents.
● December 8 – December 16, 1972 – Substantially identical actions were filed by various parties, and in all but the last case,
the respondents were required to file their answers by noon of December 16, 1972.
● December 17, 1972 – The President issued an order temporarily suspending the effects of Proclamation No. 1081 for the
purpose of free and open debate on the Proposed Constitution.
● December 18-19, 1972 – The cases were heard jointly, and at the conclusion of the hearing, the parties were given a period
of time within which to submit their notes on the points they desire to stress.
● December 23, 1972 – The President informally announced the postponement of the plebiscite.
● January 7, 1973 – General Order No. 20 was issued, which directed that the plebiscite be postponed until further notice and
that the suspension of the effects of Proclamation No. 1081 for purposes of free and open debate be revoked.
● The court deemed it fit to refrain, for the time being, from deciding the aforementioned cases, since neither the date nor
the conditions under which the plebiscite would be held were announced officially.

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 ● January 12, 1973 – Petitioners in Vidal Tan vs. Comelec filed an urgent motion praying that the said case be decided as soon
as possible. The motion included an allegation against the issuance of Presidential Decree No. 86 which organized the
Citizens’ Assemblies to be consulted on certain public questions, including whether or not they approve of the new
Constitution and whether or not they would still want a plebiscite to ratify the Constitution.
● January 13, 1973 – The Court issued a resolution requiring the respondents to comment on the urgent motion not later
than January 16, 1973.
● January 15, 1973 – Petitioners in Tan filed a supplemental motion for issuance of restraining order and inclusion of
additional respondents, for the purpose of preventing the collection, certification, and announcement and reporting to the
President the results of the Citizens’ Assemblies.
● January 17, 1973 – While the case was being heard, Proclamation No. 1102 was delivered to the Court and read by the
Chief Justice.
ISSUE(S) AND HOLDING(S):
1. WON the SC has the authority to pass upon the validity of Presidential Decree No. 73 -- YES
2. WON the President has the authority to issue Presidential Decree No. 73 – The court finds it unnecessary for the time being
to rule upon this issue
3. WON the 1971 Constitutional Convention has exceeded its authority in approving Sections 2, 3 (par 2.) and 12 of Article XVII
of the proposed Constitution – NO
4. WON Martial Law per se affects the validity of the submission to the people for ratification of specific proposals for
amendment of the Constitution – The question has not been explicitly raised in any of the cases under consideration

RATIO:
1. Presidential Decree No. 73 purports to have the force and effect of a legislation, so the issue on its validity is a justiciable
one.
○ On the authority not just of a long list of cases in which the SC passed upon the constitutionality of statutes and/or
acts of the Executive, but also, of no less than that of Subdivision (I) of Section 2, Article VIII of the 1935
Constitution, which expressly provides for the authority of the SC to review cases involving said issue.
2. It is unnecessary for the time being to pass upon such question because the plebiscite has been postponed. The proper
parties may file such action assailing PD 73’s validity when the plebiscite has been scheduled to be held at any time later.
○ Justices Makalintal, Castro, Fernando, Teehankee, Esguerra, and CJ Concepcion are of the opinion has become
moot and academic, while Justices Barredo, Makasiar, and Antonio voted to uphold the validity of the Decree, on
the grounds that the President’s issuance of PD 73 is done in his capacity as a member of the Constitutional
Convention.
3. The Convention was legally free to postulate any amendment it may deem fit to propose, except what is or may be
inconsistent with what is known in international law as Jus Cogens.
o Jus Cogens – compelling law/peremptory norm: refers to certain fundamental, overriding principles of
international law
o The Convention exercised sovereign powers delegated by the people, and the Convention’s proposals cannot be
valid as part of the Fundamental Law unless and until “approved by the majority of the votes cast at an election at
which” said proposals “are submitted to the people for their ratification,” as provided in Section 1 of Article XV of
the 1935 Constitution.
4. This issue is intimately and necessarily related to the validity of Proclamation No. 1102 of the President of the Philippines,
which has not been duly questioned and explicitly raised in any of the cases under consideration, given that said cases have
been filed before the issuance of the Proclamation.
o Despite the issue on the referral of the Proposed Constitution to the Citizens’ Assemblies being raised in the
Supplemental Motion of January 15,1973 in the Vidal Tan case, the issue at hand has not been adequately argued
by the parties in any of these cases, and it would not be proper to resolve such a transcendental question without
the most thorough discussion possible under the circumstances.
o Justices Barredo, Antonio, and Esguerra are of the opinion that the issue involves a question of fact which cannot
be predetermined

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DISPOSITIVE:
WHEREFORE, all of the aforementioned cases are hereby dismissed, without special pronouncement as to costs.
It is so ordered.

MAIN DISSENTING OPINION:

● Justice Zaldivar
○ A case does not become moot where there remain substantial rights or issues that are controverted and which are
not settled.
○ The Court has decided cases even if no positive relief could be granted, or even if a party has withdrawn its appeal,
if the case presented a clear violation of the Constitution or of fundamental personal rights of liberty and property.
○ It is in the public interest that the Court, as the guardian of the Constitution, render a ruling on the transcendent
issues brought about by the petition.
○ The crucial question before the Court is whether or not Proclamation No. 1102 is in accordance with the 1935
Constitution and has the effect of making the proposed Constitution effective and in force as of the Proclamation’s
issuance.
○ The case has not become moot and academic because Proclamation No. 1102 has the effect of consummating the
ratification of the proposed Constitution – the very event which the petitioners seek to prevent from happening
when they filed their petitions
○ The SC should not indulge in the niceties of prodecural technicalities and evade the task of declaring WON the
proposed Constitution has been validly ratified as announced in Proclamation No. 1102.
○ The Court should not evade its duty of defining for the benefit of the people of the Philippines the legal and
constitutional nature and effects of Proclamation No. 1102, as not doing so may result in confusion, if not chaos,
among the Filipino people not truly knowing which Constitution is in effect.
○ 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, which states that amendments in the
Constitution shall be made valid 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 very plain from the wordings of Proclamation No. 1102 that the aforementioned provisions were not complied
with.
⮚ No elections were held in accordance with the provisions of the Election Code
⮚ The election contemplated in the involved constitutional provision is an election held in accordance with
the provisions of election law, where only qualified and registered voters of the country would cast their
votes using official ballots that were to be filled out in secret inside the voting booths in the different
election precincts throughout the country.
⮚ The Citizens’ Assemblies included voters 15 years old and above, inconsonant with the age requirement of
21 in order to be a registered voter; furthermore, voting was performed simply through the raising of
hands.
⮚ The legislative power to determine whether a plebiscite be ordained was unconstitutionally assumed by
the barangays.
○ Voting by demonstration would disregard the rule of law for the rule of the crowd, which is only one degree higher
than the rule of the mob.
○ Although the will of the people in democracy is the supreme law, the will of the people must be expressed in a
manner as the law and the demands of a well-ordered society require.
○ Monsale v. Nico: the Court did not allow the rule of the majority to prevail; shows that the will of the majority of
the votes would not be given effect if certain legal requirement have not been complied with in order to render
the votes valid and effective.
○ Voting in the barangays was not free, due to Martial Law constraining the people from exercising their right of
choice.
○ Proclamation No. 1102 is repugnant to the 1935 Constitution, and is therefore invalid.

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