Javellana vs.

The Executive Secretary being no sufficient time to inform the people of the contents
The Facts: thereof."
Sequence of events that lead to the filing of the “Plebiscite” then
“Ratification” Cases. On December 17, 1972, the President had issued an order
temporarilysuspending the effects of Proclamation No. 1081, for
The Plebiscite Case the purpose of free andopen debate on the Proposed
Constitution.
On March 16, 1967, Congress of the Philippines passed
On December 23, the President announced the postponement of
Resolution No. 2,which was amended by Resolution No. 4 of said
theplebiscite for the ratification or rejection of the Proposed
body, adopted on June 17,1969, calling a Convention to propose
Constitution. Noformal action to this effect was taken until
amendments to the Constitution of thePhilippines.
January 7, 1973, when GeneralOrder No. 20 was issued,
directing "that the plebiscite scheduled to be heldon January 15,
Said Resolution No. 2, as amended, was implemented by
1978, be postponed until further notice." Said General OrderNo.
Republic Act No.6132, approved on August 24, 1970, pursuant to
20, moreover, "suspended in the meantime" the "order of
the provisions of which theelection of delegates to the said
December 17,1972, temporarily suspending the effects of
Convention was held on November 10, 1970,and the 1971
Proclamation No. 1081 forpurposes of free and open debate on
Constitutional Convention began to perform its functions onJune
the proposed Constitution."
1, 1971.

Because of these events relative to the postponement of the

While the Convention was in session on September 21, 1972, the
aforementionedplebiscite, the Court deemed it fit to refrain, for the
Presidentissued Proclamation No. 1081 placing the entire
time being, from decidingthe aforementioned cases, for neither
Philippines under MartialLaw.
the date nor the conditions underwhich said plebiscite would be
held were known or announced officially.Then, again, Congress
On November 29, 1972, the Convention approved its Proposed
was, pursuant to the 1935 Constitution, scheduled tomeet in
Constitution ofthe Republic of the Philippines. The next day,
regular session on January 22, 1973, and since the main
November 30, 1972, thePresident of the Philippines issued
objection toPresidential Decree No. 73 was that the President
Presidential Decree No. 73, "submitting tothe Filipino people for
does not have thelegislative authority to call a plebiscite and
ratification or rejection the Constitution of the Republicof the
appropriate funds therefor, whichCongress unquestionably could
Philippines proposed by the 1971 Constitutional Convention, and
do, particularly in view of the formalpostponement of the
appropriating funds therefor," as well as setting the plebiscite for
plebiscite by the President reportedly after consultationwith,
saidratification or rejection of the Proposed Constitution on
among others, the leaders of Congress and the Commission on
January 15, 1973.
Electionsthe Court deemed it more imperative to defer its final
action on these cases.
On December 7, 1972, Charito Planas filed a case against the
Commission onElections, the Treasurer of the Philippines and the
"In the afternoon of January 12, 1973, the petitioners in Case
Auditor General, to enjoinsaid "respondents or their agents from
G.R. No."L-35948 filed an "urgent motion," praying that said case
implementing Presidential Decree No.73, in any manner, until
be decided "as soonas possible, preferably not later than January
further orders of the Court," upon the grounds, interalia, that said
15, 1973."
Presidential Decree "has no force and effect as law because the
calling ... of such plebiscite, the setting of guidelines for the
The next day, January 13, 1973, which was a Saturday, the Court
conduct of thesame, the prescription of the ballots to be used and
issued aresolution requiring the respondents in said three (3)
the question to beanswered by the voters, and the appropriation
cases to comment onsaid "urgent motion" and "manifestation,"
of public funds for thepurpose, are, by the Constitution, lodged
"not later than Tuesday noon,January 16, 1973." Prior thereto, or
exclusively in Congress ...," and"there is no proper submission to
on January 15, 1973, shortly before noon,the petitioners in said
the people of said Proposed Constitution setfor January 15, 1973,
Case G.R. No. L-35948 riled a "supplemental motion forissuance
there being no freedom of speech, press and assembly,and there
of restraining order and inclusion of additional respondents,"
praying: "WHEREAS, Citizens Assemblies were created in barrios, in
"... that a restraining order be issued enjoining and restraining municipalities andin districts/wards in chartered cities pursuant to
respondentCommission on Elections, as well as the Department Presidential Decree No. 86,dated December 31, 1972, composed
of Local Governmentsand its head, Secretary Jose Roño; the of all persons who are residents of thebarrio, district or ward for at
Department of Agrarian Reforms andits head, Secretary Conrado least six months, fifteen years of age or over,citizens of the
Estrella; the National Ratification CoordinatingCommittee and its Philippines and who are registered in the list of CitizenAssembly
Chairman, Guillermo de Vega; their deputies, subordinatesand members kept by the barrio, district or ward secretary;
substitutes, and all other officials and persons who may be
assigned suchtask, from collecting, certifying, and announcing "WHEREAS, the said Citizens Assemblies were established
and reporting to thePresident or other officials concerned, the so- precisely tobroaden the base of citizen participation in the
called Citizens' Assembliesreferendum results allegedly obtained democratic process and toafford ample opportunity for the
when they were supposed to have metduring the period citizenry to express their views on importantnational issues;
comprised between January 10 and January 15, 1973, onthe two
questions quoted in paragraph 1 of this Supplemental Urgent "WHEREAS, responding to the clamor of the people and pursuant
Motion." toPresidential Decree No. 86-A, dated January 5, 1973, the
following questionswere posed before the Citizens Assemblies or
On the same date January 15, 1973 the Court passed a Barangays: Do you approve ofthe New Constitution? Do you still
resolution requiringthe respondents in said case G.R. No. L- want a plebiscite to be called to ratify thenew Constitution?
35948 to file "file an answer to thesaid motion not later than 4
P.M., Tuesday, January 16, 1973," and setting themotion for "WHEREAS, fourteen million nine hundred seventy-six thousand
hearing "on January 17, 1973, at 9:30 a.m." While the case was five hundredsixty-one (14,976,561) members of all the Barangays
being heard, on the date last mentioned, at noontime, the (Citizens Assemblies)voted for the adoption of the proposed
Secretary ofJustice called on the writer of this opinion and said Constitution, as against sevenhundred forty-three thousand eight
that, upon instructions of the President, he (the Secretary of hundred sixty-nine (743,869) who votedfor its rejection; while on
Justice) was delivering to him (the writer)a copy of Proclamation the question as to whether or not the people wouldstill like a
No. 1102, which had just been signed by thePresident. plebiscite to be called to ratify the new Constitution, fourteen
Thereupon, the writer returned to the Session Hall and million two hundred ninety-eight thousand eight hundred fourteen
announcedto the Court, the parties in G.R. No. L-35948 inasmuch (14,298,814) answered that there was no need for a plebiscite
as the hearing inconnection therewith was still going on and the and that thevote of the Barangays (Citizens Assemblies) should
public there present that thePresident had, according to be considered as a vote ina plebiscite;
information conveyed by the Secretary of Justice,signed said
Proclamation No. 1102, earlier that morning. "WHEREAS, since the referendum results show that more than
ninety-five(95) per cent of the members of the Barangays
Thereupon, the writer read Proclamation No. 1102 which is of the (Citizens Assemblies) are infavor of the new Constitution, the
following tenor: Katipunan ng Mga Barangay has stronglyrecommended that the
____________________________ new Constitution should already be deemed ratifiedby the Filipino
"BY THE PRESIDENT OF THE PHILIPPINES" people;
PROCLAMATION NO. 1102
"ANNOUNCING THE RATIFICATION BY THE FILIPINO "NOW, THEREFORE, I, FERDINAND E. MARCOS, President of
PEOPLE OF THE CONSTITUTION PROPOSED BY THE 1971 the Philippines, byvirtue of the powers in me vested by the
CONSTITUTIONAL CONVENTION. Constitution, do hereby certify andproclaim that the Constitution
proposed by the nineteen hundred and seventy-one (1971)
"WHEREAS, the Constitution proposed by the nineteen hundred Constitutional Convention has been ratified by anoverwhelming
seventy-one Constitutional Convention is subject to ratification by majority of all of the votes cast by the members of all the
the Filipino people; Barangays (Citizens Assemblies) throughout the Philippines, and
has therebycome into effect.
"IN WITNESS WHEREOF, I have hereunto set my hand and 3. Whether or not the aforementioned proposed Constitution, has
caused the seal of the Republic of the Philippines to be affixed. been acquiesced in (with or without valid ratification) by the
"Done in the City of Manila, this 17th day of January, in the year people? (acquiesced - "permission" given by making objections.)
of Our Lord, nineteen hundred and seventy-three.
(Sgd.) FERDINAND E. MARCOS"President of the Philippines" 4. Whether or not the petitioners entitled to relief?
By the President:
"ALEJANDRO MELCHOR" "Executive Secretary" 5. Whether or not the aforementioned proposed Constitution in
force?
_________________________________
The Resolution:
The Ratification Case
Summary:
On January 20, 1973, Josue Javellana filed Case G.R. No. L- The court was severely divided on the following issues raised in
36142 against theExecutive Secretary and the Secretaries of the petition:but when the crucial question of whether the
National Defense, Justice andFinance, to restrain said petitioners are entitled to relief,six members of the court (Justices
respondents "and their subordinates or agents fromimplementing Makalintal, Castro, Barredo, Makasiar,Antonio and Esguerra)
any of the provisions of the propose Constitution not found inthe voted to dismiss the petition. Concepcion, togetherJustices
present Constitution" referring to that of 1935. The petition Zaldivar, Fernando and Teehankee, voted to grant the relief being
therein, filedby Josue Javellana, as a "Filipino citizen, and a sought, thus upholding the 1973 Constitution.
qualified and registered voter"and as "a class suit, for himself,
and in behalf of all citizens and voterssimilarly situated," was Details:
amended on or about January 24, 1973. After recitingin 1. Is the issue of the validity of Proclamation No. 1102 a
substance the facts set forth in the decision in the plebiscite justiciable, or
cases,Javellana alleged that the President had announced "the political and therefore non-justiciable, question?
immediateimplementation of the New Constitution, thru his On the first issue involving the political-question doctrine Justices
Cabinet, respondentsincluding," and that the latter "are acting Makalintal,Zaldivar, Castro, Fernando, Teehankee and myself, or
without, or in excess of jurisdictionin implementing the said six (6) members of theCourt, hold that the issue of the validity of
proposed Constitution" upon the ground: "that thePresident, as Proclamation No. 1102 presents ajusticiable and non-political
Commander-in-Chief of the Armed Forces of the Philippines, is question. Justices Makalintal and Castro did notvote squarely on
without authority to create the Citizens Assemblies"; that the this question, but, only inferentially, in their discussion ofthe
same "arewithout power to approve the proposed Constitution ..."; second question. Justice Barredo qualified his vote, stating that
"that the President iswithout power to proclaim the ratification by "inasmuch as it is claimed there has been approval by the people,
the Filipino people of theproposed Constitution"; and "that the the Courtmay inquire into the question of whether or not there has
election held to ratify the proposedConstitution was not a free actually been suchan approval, and, in the affirmative, the Court
election, hence null and void." should keep hands-off out ofrespect to the people's will, but, in
negative, the Court may determine fromboth factual and legal
The Issue: angles whether or not Article XV of the 1935Constitution been
1. Whether or not the issue of the validity of Proclamation No. complied with." Justices Makasiar, Antonio, Esguerra, orthree (3)
1102 a justiciable, or political and therefore non-justiciable, members of the Court hold that the issue is political and "beyond
question? the ambit of judicial inquiry."

2. Whether or not the Constitution proposed by the 1971 2. Whether or not the Constitution proposed by the 1971
Constitutional Convention has been ratified validly (with Constitutional Convention has been ratified validly (with
substantial, if not strict, compliance) conformably to the applicable substantial, if not strict, compliance) conformably to the applicable
constitutional and statutory provisions? constitutional and statutory provisions?
 even been no expression, bythe people qualified to vote all over
On the second question of validity of the ratification, Justicesthe Philippines, of their acceptance orrepudiation of the proposed
Makalintal,Zaldivar, Castro, Fernando, Teehankee and myself, orConstitution under Martial Law. Justice Fernandostates that "(I)f it
six (6) members of theCourt also hold that the Constitutionis conceded that the doctrine stated in some Americandecisions
proposed by the 1971 ConstitutionalConvention was not validlyto the effect that independently of the validity of the ratification, a
ratified in accordance with Article XV, section 1 of the 1935new Constitution once accepted acquiesced in by the people
Constitution, which provides only one way for ratification, i.e., "inmust beaccorded recognition by the Court, I am not at this stage
an election or plebiscite held in accordance with law andprepared to statethat such doctrine calls for application in view of
participated in only by qualified and duly registered voters. the shortness of time thathas elapsed and the difficulty of
Justice Barredo qualified his vote, stating that "(A)s to whether or ascertaining what is the mind of the peoplein the absence of the
not the1973 Constitution has been validly ratified pursuant to freedom of debate that is a concomitant feature ofmartial law." 88
Article XV, I stillmaintain that in the light of traditional concepts
regarding the meaning andintent of said Article, the referendum in Three (3) members of the Court express their lack of knowledge
the Citizens' Assemblies, specially inthe manner the votes therein and/orcompetence to rule on the question. Justices Makalintal
were cast, reported and canvassed, falls shortof the requirements and Castro are joinedby Justice Teehankee in their statement that
thereof. In view, however, of the fact that I have nomeans of "Under a regime of martial law,with the free expression of
refusing to recognize as a judge that factually there was voting opinions through the usual media vehiclerestricted, (they) have no
andthat the majority of the votes were for considering as means of knowing, to the point of judicial certainty,whether the
approved the 1973Constitution without the necessity of the usual people have accepted the Constitution."
form of plebiscite followed inpast ratifications, I am constrained to
hold that, in the political sense, if not inthe orthodox legal sense,
the people may be deemed to have cast theirfavorable votes in
4. Whether or not petitioners entitled to relief?
the belief that in doing so they did the part required ofthem by
Article XV, hence, it may be said that in its political aspect, which
On the fourth question of relief, six (6) members of the Court,
iswhat counts most, after all, said Article has been substantially
namely,Justices Makalintal, Castro, Barredo, Makasiar, Antonio
complied with,and, in effect, the 1973 Constitution has been
and Esguerra voted toDISMISS the petition. Justice Makalintal
constitutionally ratified."
and Castro so voted on the strengthof their view that "(T)he
Justices Makasiar, Antonio and Esguerra, or three (3) members
effectivity of the said Constitution, in the finalanalysis, is the basic
of the Court hold that under their view there has been in effect
and ultimate question posed by these cases to resolvewhich
substantial compliance with the constitutional requirements for
considerations other than judicial, and therefore beyond the
valid ratification.
competence of this Court, 90 are relevant and unavoidable." 91

3. Whether or not the aforementioned proposed Constitution has

Four (4) members of the Court, namely, Justices Zaldivar,
been acquiesced in (with or
Fernando,Teehankee and myself voted to deny respondents'
without valid ratification) by the people?
motion to dismiss and togive due course to the petitions.

On the third question of acquiescence by the Filipino people in

5. Is the aforementioned proposed Constitution in force?
theaforementioned proposed Constitution, no majority vote has
been reached bythe Court.
On the fifth question of whether the new Constitution of 1973 is in
force:
Four (4) of its members, namely, Justices Barredo, Makasiar,
Four (4) members of the Court, namely, Justices Barredo,
Antonio and Esguerra hold that "the people have already
Makasiar, Antonioand Esguerra hold that it is in force by virtue of
accepted the 1973 Constitution."
the people's acceptancethereof;

Two (2) members of the Court, namely, Justice Zaldivar and

Four (4) members of the Court, namely, Justices Makalintal,
myself hold thatthere can be no free expression, and there has
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 thatthe Constitution proposed by the 1971
Constitutional Convention is not inforce; with the result that there
are not enough votes to declare that the newConstitution 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.