Republic of the Philippines EDDIE B.
MONTECLARO, [personally and in his capacity as President of the
SUPREME COURT
Manila
EN BANC
G.R. 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.
G.R. 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.
G.R. 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;
TANCIO E. CASTAÑEDA, in his capacity as Secretary General Services; Senator
GIL J. PUYAT, in his capacity as President of the Senate; and Senator JOSE ROY,
his capacity, as President Pro Tempore of the of the Senate, respondents.
G.R. No. L-36236 March 31, 1973
National Press Club of the Philippines], petitioner,
vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF PUBLIC INFORMATION, THE
AUDITOR GENERAL, THE BUDGET COMMISSIONER & THE NATIONAL
TREASURER, respondents.
G.R. 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, THE
HONORABLE AUDITOR GENERAL, respondents.
Ramon A. Gonzales for petitioner Josue Javellana.
Lorenzo M. Tañada and Associates for petitioners Vidal Tan, et al.
Tañada, Salonga, Ordoñez, 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 and Associates for petitioners Napoleon V. Dilag, et al.
Arturo M. Tolentino for respondents Gil J. Puyat and Jose Roy.
Office of the 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:
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 ... 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 ...," 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 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 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.]
"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?
[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.
QUESTION No. 4
We are sick and tired of too frequent elections. We are
fed up with politics, of so many debates and so much
expenses.
QUESTION No. 5
Probably a period of at least seven (7) years moratorium
on elections will be enough for stability to be established
in the country, for reforms to take root and normalcy to
return.
QUESTION No. 6
We want President Marcos to continue with Martial Law.
We want him to exercise his powers with more authority.
We want him to be strong and firm so that he can
accomplish all his reform programs and establish
normalcy in the country. If all other measures fail, we
want President Marcos to declare a revolutionary
government along the lines of the new Constitution
without the ad interim Assembly."
"Attention is respectfully invited to the comments on "Question No. 3,"
which reads: —
QUESTION No. 3
The vote of the Citizens Assemblies should be considered
the plebiscite on the New Constitution.
If the Citizens Assemblies approve of the New
Constitution, then the new Constitution should be deemed
ratified.
This, we are afraid, and therefore allege, is pregnant with ominous
possibilities.
14. That, in the meantime, speaking on television and over the radio, on
January 7, 1973, the President announced that the limited freedom of
debate on the proposed Constitution was being withdrawn and that the
proclamation of martial law and the orders and decrees issued
thereunder would thenceforth strictly be enforced [Daily Express, January
8, 1973];
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
Constitutio
n? —
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' 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 —
"... 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 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]
"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].
"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."
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, "Done in the City of Manila, this 17th day of January, in the year of Our
district or ward secretary; Lord, nineteen hundred and seventy-three.

"WHEREAS, the said Citizens Assemblies were established precisely to (Sg

broaden the base of citizen participation in the democratic process and to d.)
afford ample opportunity for the citizenry to express their views on FE
important national issues; RDI
NA
"WHEREAS, responding to the clamor of the people and pursuant to ND
Presidential Decree No. 86-A, dated January 5, 1973, the following E.
questions were posed before the Citizens Assemblies or Barangays: Do MA
you approve of the New Constitution? Do you still want a plebiscite to be RC
called to ratify the new Constitution? OS
"Pre
"WHEREAS, fourteen million nine hundred seventy-six thousand five side
hundred sixty-one (14,976,561) members of all the Barangays (Citizens nt
Assemblies) voted for the adoption of the proposed Constitution, as of
against seven hundred forty-three thousand eight hundred sixty-nine the
(743,869) who voted for its rejection; while on the question as to whether Phili
or not the people would still like a plebiscite to be called to ratify the new ppin
Constitution, fourteen million two hundred ninety-eight thousand eight es
hundred fourteen (14,298,814) answered that there was no need for a
plebiscite and that the vote of the Barangays (Citizens Assemblies) "By the President:
should be considered as a vote in a plebiscite;
"ALEJANDRO MELCHOR
"WHEREAS, since the referendum results show that more than ninety- "Executive Secretary"
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 Such is the background of the cases submitted determination. After
strongly recommended that the new Constitution should already be admitting some of the allegations made in the petition in L-35948 and
deemed ratified by the Filipino people; denying the other allegations thereof, respondents therein alleged in their
answer thereto, by way affirmative defenses: 1) that the "questions
"NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the raised" in said petition "are political in character"; 2) that "the
Philippines, by virtue of the powers in me vested by the Constitution, do Constitutional Convention acted freely and had plenary authority to
hereby certify and proclaim that the Constitution proposed by the propose not only amendments but a Constitution which would supersede
nineteen hundred and seventy-one (1971) Constitutional Convention has the present Constitution"; 3) that "the President's call for a plebiscite and
been ratified by an overwhelming majority of all of the votes cast by the the appropriation of funds for this purpose are valid"; 4) that "there is not
members of all the Barangays (Citizens Assemblies) throughout the an improper submission" and "there can be a plebiscite under Martial
Philippines, and has thereby come into effect. Law"; and 5) that the "argument that the Proposed Constitution is vague
and incomplete, makes an unconstitutional delegation of power, includes
"IN WITNESS WHEREOF, I have hereunto set my hand and caused the a referendum on the proclamation of Martial Law and purports to exercise
seal of the Republic of the Philippines to be affixed. judicial power" is "not relevant and ... 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 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 ... 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, ...
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 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,  with three (3) members dissenting,  with respect to G.R. No. L-35948, only
1 2
and another member  dissenting, as regards all of the cases dismissed the same, without
3 Roxas, et al. allege, inter alia, that the term of office of three of the aforementioned
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 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  on4
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  and on February 12, 1973, by Napoleon V. Dilag, Alfredo Salapantan, Jr.,
5
Leonardo Asodisen, Jr. and Raul M. Gonzales,  against the Executive Secretary, the
6
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,  Ramon V. Mitra, Jr. and Eva Estrada-Kalaw, the first as "duly
7
elected 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
petitioners  would expire on December 31, 1975, and that of the others  on December 31,
8 9
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 ... are occupied by and are under the physical
control of the elements military organizations under the direction of said respondents";
that, as per "official reports, the Department of General Services ... 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 ... 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 ...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 ... continue such inaction up to this time and ... 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."
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 ... 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 ... 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 submiss of the proposed constitution,"
the "procedure for ratification adopted ... 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 1 Constitution"; 4) "(t)he Constitution was
properly submitted the people in a free, orderly and honest election; 5) "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 ...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-36283   agreed that the same be, likewise, heard, as it was, in fact,
10
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 the understanding that said notes shall include his reply to the notes
already filed by the petitioners in G.R. Nos. L-36164 a 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 ..."; 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 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 ... 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.
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:
... 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.   A treaty is
12
entered into by the President with the concurrence of the Senate,   which is not required
13
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 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.   As consequence, an executive proclamation has no more than "the force of
15
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. 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 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 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,   We rejected the theory of the
18
respondents therein that the question 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,   questioning Our authority to determine the
19
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. Baker   and Montenegro v. Castañeda,   insofar as it
20 21
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,   the political-question theory adopted in Mabanag v. Lopez
22
Vito.   Hence, respondents herein urge Us to reconsider the action thus taken by the
23
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
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 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 ... 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,   this Court quoted with approval from In re
26
McConaughy,   the following:
27
"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.
xxx xxx xxx
"... 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 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." (Emphasis 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 "... 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."
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,   it was held that courts have a "duty, rather than
28
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."   In fact, this very Court —
29
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
The Solicitor General has invoked Luther v. Borden   in support of his stand that the
31
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 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.
"... until the Constitution of 1843" — adopted under the auspices of the charter
government — "went into operation, the charter government continued to assert its
authority and exercise its powers and to enforce obedience throughout the state ... ."
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
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, 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
slightest application 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. ... . 
33
Baker v. Carr,   cited by respondents, involved an action to annul a Tennessee statute
34
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:"... (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 ... ."
Similarly, in Powell v. McCormack,   the same Court, speaking through then Chief
35
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 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. ... .  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
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; 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 2. That such amendments be "submitted to the people for their ratification" at an
the holding of the said plebiscite"; 2) that the proposed new or revised Constitution "is "election"; and
vague and incomplete," as well as "contains provisions which are beyond the powers of
the 1971 Convention to enact," thereby rendering it "unfit for ... submission the people;" 3. That such amendments be "approved by a majority of the votes cast" in said election.
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, Compliance with the first requirement is virtually conceded, although the petitioners in L-
"was too short, worse still, there was practically no time for the Citizens' Assemblies to 36164 question the authority of the 1971 Constitutional Convention to incorporate certain
discuss the merits of the Constitution which the majority of them have not read a which provisions into the draft of the new or revised Constitution. The main issue in these five
they never knew would be submitted to them ratification until they were asked the (5) cases hinges, therefore, on whether or not the last two (2) requirements have been
question — "do you approve of the New Constitution?" during the said days of the complied with.
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
2. Has the contested draft of the new or revised Constitution been submitted to the
submitted to the Citizens' Assemblies for ratification."
people for their ratification conformably to Art. XV of the Constitution?
Petitioner in L-36236 added, as arguments in support of the negative view, that : 1)
In this connection, other provisions of the 1935 Constitution concerning "elections" must,
"(w)ith a government-controlled press, there can never be a fair and proper submission
also, be taken into account, namely, section I of Art. V and Art. X of said Constitution.
of the proposed Constitution to the people"; and 2) Proclamation No. 1102 is null and
The former reads:
void "(i)nasmuch as the ratification process" prescribed "in the 1935 Constitution was not
followed."
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
Besides adopting substantially some of the grounds relied upon by the petitioners in the
over and are able to read and write, and who shall have resided in the
above-mentioned cases, the petitioners in L-36283 argue that "(t)he creation of the
Philippines for one year and in the municipality wherein they propose to
Citizens' Assemblies as the vehicle for the ratification of the Constitution was a deception
vote for at least six months preceding the election. The National
upon the people since the President announced the postponement of the January 15,
Assembly shall extend the right of suffrage to women, if in a plebiscite
1973 plebiscite to either February 19 or March 5, 1973."  38

which shall be held for that purpose within two years after the adoption of
this Constitution, not less than three hundred thousand women
The reasons adduced by the petitioners in L-36165 in favor of the negative view have possessing the necessary qualifications shall vote affirmatively on the
already been set forth earlier in this opinion. Hence, it is unnecessary to reproduce them question.
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 —
Sections 1 and 2 of Art. X of the Constitution ordain in part:
and by the Solicitor General, on behalf of the other respondents in that case and the
respondents in the other cases.
Section 1. There shall be an independent Commission on Elections
composed of a Chairman and two other Members to be appointed by the
1. What is the procedure prescribed by the 1935 Constitution for its amendment?
President with the consent of the Commission on Appointments, who
shall hold office for a term of nine years and may not be reappointed. ...
Under section 1 of Art. XV of said Constitution, three (3) steps are essential, namely:
xxx xxx xxx
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
Sec. 2. The Commission on Elections shall have exclusive charge of the
Senate and the House of Representatives voting separately," but "in joint session
enforcement and administration of all laws relative to the conduct of
assembled";
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 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
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 ... ."   " Said committee
40
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.   This accounts, in my
42
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 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.   In all of these legislative acts, the
44
provisions concerning the qualifications of voters partook of the nature of a grant or
recognition of the right of suffrage, and, hence, of a 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 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,   granting the writs, of prohibition and injunction
45
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,   pursuant to which the "majority vote of all the barrio assembly members" (which
46
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,   "(a)ll duly registered
47
barrio assembly 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 ..." — 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.   Besides, it would be illogical, if not absurd, believe that Republic Act
48
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
a plebiscite, 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 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,   whose average term
49
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,   and of whether or not they are disqualified under the
50
provisions of said Constitution and Code,   or those of Republic Act No. 3590,   have
51 52
participated 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 ...
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, "... 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 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 ... should be exercised ... 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 ... ."  54
In Usman v. Commission on Elections, et al.,   We held:
55
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" ... 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
It seems to us that a vote is cast when a ballot is deposited indicating a
"choice." ... The word "cast" means "deposit (a ballot) formally or officially
... .
... 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 ... ." 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 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 appointed   — the longest
59
under the Constitution, second only to that of the Auditor General  ; by providing that
60
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" only  ; that61
"(n)o pardon, parole, or suspension sentence for the violation of any election law may be
granted without the favorable recommendation of the Commission" ; and, that its
62
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."   Thus, the framers of the
63
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 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.   Moreover, said
64
Act contains, inter alia, detailed provisions regulating contributions and other (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 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,   involving the casting of many votes, openly, without complying with
65
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 ... ."
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 cases   — We need not, in the case of bar,
66
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 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 ... temporarily suspending effects of Proclamation No. 1081 for the
purposes of free open dabate on the proposed Constitution ... ." 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
below   — the Executive declared, inter alia, that the collective views expressed in the
67
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 ... like the
holding of the plebiscite on the new Constitution ... 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 those specified in paragraph 2 hereof, and submit
the results thereof to the Department of Local Governments and Community
Development immediately thereafter, ... ." 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 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. "... (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
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 "substancially" 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 —
... 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. ... .
Accordingly, the issue boils downs to whether or not the Executive acted within the limits
of his authority when he 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. Franciso Cruz, as President or acting 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 provided in the Constitution,   is not conclusive upon the courts. It
69
is no more than prima facie evidence of what is attested to by said resolution.   If
70
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.   If prior to the
71
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 McConaughy   is squarely in point. "As the Constitution stood from the
72
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 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. "... 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,   the Court reviewed the statement of results of the election made by
73
the canvassing board, in order that the true results could be judicially determined. And so
did the court in Rice v. Palmer. 
74
Inasmuch as Art. X of the 1935 Constitution places under the "exclusive" charge of the
Commission on Elections, "the enforcement and administration of all laws relative to the
conduct of elections," independently of the Executive, and there is not even a
certification by the Commission in support of the alleged results of the citizens'
assemblies relied upon in Proclamation No. 1102 — apart from the fact that on January
17, 1973 neither the alleged president of the Federation of Provincial or City Barangays
nor the Department of Local Governments had certified to the President the alleged
result of the citizens' assemblies all over the Philippines — it follows necessarily that,
from a constitutional and legal viewpoint, Proclamation No. 1102 is not even prima
facie evidence of the alleged ratification of the proposed Constitution.
Referring particularly to the cases before Us, it will be noted that, as pointed out in the
discussion of the preceding topic, the new or revised Constitution proposed by the 1971
Constitutional Convention was not ratified in accordance with the provisions of the 1935
Constitution. In fact, it has not even been, ratified in accordance with said proposed
Constitution, the minimum age requirement therein for the exercise of the right of
suffrage being eighteen (18) years, apart from the fact that Art. VI of the proposed
Constitution requires "secret" voting, which was not observed in many, if not most,
Citizens' Assemblies. Besides, both the 1935 Constitution and the proposed Constitution
require a "majority of the votes cast" in an election or plebiscite called for the ratification
of an amendment or revision of the first Constitution or the effectivity of the proposed
Constitution, and the phrase "votes cast" has been construed to mean "votes made in
writing not orally, as it was in many Citizens' Assemblies.  75
Even counsel for Gil J. Puyat and Jose Roy, as respondents in L-36165, asserts openly
that Art. XV of the Constitution has not been complied with, and since the alleged
substantial compliance with the requirements thereof partakes of the 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, 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 cases   — the President
76
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?
[2] Do you like the reforms under martial law?
[3] Do you like Congress again to hold sessions?
[4] Do you like the plebiscite to be held later?
[5] Do you like the way President Marcos is running the affairs of the
government? [Bulletin Today, January 10, 1973; emphasis an additional
question.]
[6] Do you approve of the citizens assemblies as the base of popular
government to decide issues of national interests?
[7] Do you approve of the new Constitution?
[8] Do you want a plebiscite to be called to ratify the new Constitution?
[9] Do you want the elections to be held in November, 1973 in
accordance with the provisions of the 1935 Constitution?
[10] If the elections would not be held, when do you want the next
elections to be called?
[11] Do you want martial law to continue? [Bulletin Today, January 11,
1973]
To begin with, questions nos. 1, 2, 3, 4, 5, 6, 9, 10 and 11 are not proper in a plebiscite
for the ratification of a proposed Constitution or of a proposed amendment thereto.
Secondly, neither is the language of question No. 7 — "Do you approve the new
Constitution?" One approves "of" the act of another which does not need such approval
for the effectivity of said act, which the first person, however, finds to be good, wise
satisfactory. The approval of the majority of the votes cast in plebiscite is,
however, essential for an amendment to the Constitution to be valid as part thereof.
Thirdly, if the proceedings in the Citizens' Assemblies constituted a plebiscite question
No. 8 would have been unnecessary and improper, regardless of whether question No. 7
were answered affirmatively or negatively. If the majority of the answers to question No.
7 were in the affirmative, the proposed Constitution would have become effective and no
other 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:
... 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
... 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, ... 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. ... Aside from the 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. ...
... 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 "... to discuss with
them the new set of guidelines and materials to be used ... ." Then, "on January 11 ...
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. ... 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 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,   attention was called to the "duty cast upon the court of taking judicial
77
cognizance of anything affecting the existence and validity of any law or portion of the
Constitution ... ." In line with its own pronouncement in another case, the Federal
Supreme Court of the United States stressed, in Baker v. Carr,   that "a court is not at
78
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, 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 the 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 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. Commonwealth   — cited by respondents herein
80
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 ...";
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 ...";
4. The "judiciary in taking the oath prescribed thereby to support it and by enforcing its
provisions ..."; 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.
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,   likewise, headlined, on its front page, a
82
"Senatorial Plot Against 'Martial Law Government' Disclosed". 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 ... 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 an 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."   The failure to use the gun against those
83
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
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 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,   the Highest Court of the
84
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 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."   When the petitions at bar
86
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 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 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.
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 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 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,   are relevant and unavoidable." 
90 91
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.
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 been judicially 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. 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
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 people in
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 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 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.
In Livermore 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 material variance 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, 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 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."
"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 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."
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.
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.)
FERDINAN
D E.
MARCOS
By the President:
(SGD.) ALEJANDRO MELCHOR
Executive Secretary
 
 
 
Separate Opinions
MAKALINTAL, J., concurring:
CASTRO, J., concurring:
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.
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 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 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 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 (4) Do you want the elections to be held in November, 1973 accordance
1971 was held for the purpose of such ratification. with the provisions of the 1935 Constitution?

The Citizens Assemblies which purportedly ratified the draft Constitution were created by (5) If the elections would not be held, when do you want the next
Presidential Decree No. 86 dated December 31, 1972, "to broaden the base of citizen elections to be called?
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 (6) Do you want martial law to continue? [Bulletin Today, January 11,
persons who are residents of the barrio, district or ward for at least six 1973; emphasis supplied].
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 Appended to the six additional questions above quoted were the suggested answers,
Presidential Decree No. 86-A, dated January 5, 1973, the Assemblies were convened for thus:
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
COMMENTS ON
continuation of martial rule, the convening of Congress on January 22, 1973, and the
holding of elections in November 1973."
QUESTION No. 1
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 In order to broaden the base of citizens' participation in
you like plebiscite on the new Constitution to be held?" It should be noted in this government.
connection that the President had previously announced that he had ordered the
postponement of plebiscite which he had called for January 15, 1973 (Presidential QUESTION No. 2
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 But we do not want the Ad Interim Assembly to be
registration of voters (pursuant to Decree No. 73) be extended to accommodate new convoked. Or if it is to be convened at all, it should not be
voters; and that copies of the new Constitution would be distributed in eight dialects the done so until after at least seven (7) years from the
people. (Bulletin Today, December 24, 1972.) approval of the New Constitution by the Citizens
Assemblies.
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 QUESTION No. 3
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 If the Citizens Assemblies approve of the New
their views as to the plebiscite should be held, not as to whether or not it should be held Constitution, then the new Constitution should be deemed
at all. ratified.

The next day, January 11, it was reported that six additional questions would be The vote of the Citizens Assemblies should already be
submitted, namely: considered the plebiscite on the New Constitution.

(1) Do you approve of the citizens assemblies as the base of popular QUESTION No. 4
government to decide issues of national interest?
We are sick and tired of too frequent elections. We are
(2) Do you approve of the new Constitution? fed up with politics, of so many debates and so much
expenses.
(3) Do you want a plebiscite to be called to ratify the new Constitution?
 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 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 reporting the figures was prescribed or
followed. The Commission on Elections, which is the constitutional body charged with the enforcement and administration of
all laws relative to the conduct of elections, took no part at all, either by way of supervision or in the assessment of the
results.
It has been suggested that since according to Proclamation No. 1102 the overwhelming
majority of all the members of the Citizens Assemblies had voted for the adoption of the
proposed Constitution there was a substantial compliance with Article XV, Section 1, of
the 1935 Constitution and with the Election Code of 1971. The suggestion misses the
point entirely. It is of the essence of a valid exercise of the right of suffrage that not only
must a majority or plurality of the voters carry the day but that the same must be duly
ascertained in accordance with the procedure prescribed by law. In other words the very
existence of such majority or plurality depends upon the manner of its ascertainment,
and to conclude that it exists even if it has not been ascertained according to law is
simply to beg the issue, or to assume the very fact to be established. Otherwise no
election or plebiscite could be questioned for non-compliance with the provisions of the
Election Law as long as it is certified that a majority of the citizens had voted favorably or
adversely on whatever it was that was submitted to them to vote upon.
However, a finding that the ratification of the draft Constitution by the Citizens
Assemblies, as certified by the President in Proclamation No. 1102, was not in
accordance with the constitutional and statutory procedure laid down for the purpose
does not quite resolve the questions raised in these cases. Such a finding, in our opinion,
is on a matter which is essentially justiciable, that is, within the power of this Court to
inquire into. It imports nothing more than a simple reading and application of the
pertinent provisions of the 1935 Constitution, of the Election Code and of other related
laws and official acts. No question of wisdom or of policy is involved. But from this finding
it does not necessarily follow that this Court may justifiably declare that the Constitution
has not become effective, and for that reason give due course to these petitions or grant
the writs herein prayed for. The effectivity of the said Constitution, in the final analysis, is
the basic and 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, 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.
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 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 a 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 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 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.
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 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).
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?
R. 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 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.
BARREDO, J., concurring:
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 heard by Us, but, in my
estimation, and with due recognition of the sincerety, 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 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 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".
In the meanwhile also, on January 5, 1973, the President issued Presidential Decree,
No. 86-A providing as follows:
PRESIDENTIAL DECREE NO. 86-A
STRENGTHENING AND DEFINING THE ROLE OF
BARANGAYS (CITIZENS ASSEMBLIES)
WHEREAS, on the basis of preliminary and initial reports from the field
as gathered from barangays (citizens assemblies) that have so far been
established, the people would like to decide for themselves questions or
issues, both local and national, affecting their day-to-day lives and their
future;
WHEREAS, the barangays (citizens assemblies) would like themselves
to be the vehicle for expressing the views of the people on important
national issues;
WHEREAS, such barangays (citizens assemblies) desire that they be
given legal status and due recognition as constituting the genuine,
legitimate and valid expression of the popular will; and
WHEREAS, the people would like the citizens assemblies to conduct
immediately a referendum on certain specified questions such as the
ratification of the new Constitution, continuance of martial law, the
convening of Congress on January 22, 1973, and the elections in
November 1973 pursuant to the 1935 Constitution.
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the
Philippines, by virtue of the powers vested in me by the Constitution as
Commander-in-Chief of all Armed Forces of the Philippines, do hereby
declare as part of the law of the land the following:
1. The present barangays (citizens assemblies) are created under
Presidential Decree No. 86 dated December 31, 1972, shall constitute
the base for citizen participation in governmental affairs and their
collective views shall be considered in the formulation of national policies
or programs and, wherever practicable, shall be translated into concrete
and specific decision;
2. Such barangays (citizens assemblies) shall consider vital national
issues now confronting the country, like the holding of the plebiscite on
the new Constitution, the continuation of martial rule, the convening of
Congress on January 22, 1973, and the holding of elections in November
1973, and others in the future, which shall 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. 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
Done in the City of Manila, this 5th day of January, in the year of Our questions were submitted to them:
Lord, nineteen hundred and seventy three.
(1) Do you like the New Society?
And on January 7, 1973, this was followed by Presidential Decree No. 86-B reading thus:
(2) Do you like the reforms under martial law?
PRESIDENTIAL DECREE NO. 86-B
(3) Do you like Congress again to hold sessions?
DEFINING FURTHER THE ROLE OF BARANGAYS (CITIZENS
ASSEMBLIES) (4) Do you like the plebiscite to be held later?

WHEREAS, since their creation pursuant to Presidential Decree No. 86 (5) Do you like the way President Marcos is running the affairs of the
dated December 31, 1972, the Barangays (Citizens Assemblies) have government?.
petitioned the Office of the President to submit them for resolution
important national issues; but on January 11, 1973, six questions were added as follows:

WHEREAS, one of the questions persistently mentioned refers to the (1) Do you approve of the citizens assemblies as the base of popular
ratification of the Constitution proposed by the 1971 Constitutional government to decide issues of national interests?
Convention;
(2) Do you approve of the New Constitution?
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 (3) Do you want a plebiscite to be called to ratify the new Constitution?
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
(4) Do you want the elections to be held in November, 1973 in
leadership in political, economic and social fields, and that it is now
accordance with the provisions of the 1935 Constitution?
necessary to bring this down to the level of the people themselves
through the Barangays or Citizens Assemblies;
(5) If the elections would not be held, when do you want it to be called?
NOW THEREFORE, I, FERDINAND E. MARCOS, President of the
Philippines, by virtue of the powers in me vested by the Constitution, do (6) Do you want martial law to continue?
hereby order that important national issues shall from time to time be
referred to the Barangays (Citizens Assemblies) for resolution in It is not seriously denied that together with the question the voters were furnished
accordance with Presidential Decree No. 86-A dated January 5, 1973 "comments" on the said questions more or less suggestive of the answer desired. It may
and that the initial referendum shall include the matter of ratification of the assumed that the said "comments" came from official sources, albeit specifically
Constitution proposed by the 1971 Constitutional Convention. unidentified. As petitioners point out, the most relevant of these "comments" were the
following:
The Secretary of the Department of Local Governments and Community
Development shall insure the implementation of this Order. COMMENTS ON

Done in the City of Manila, this 7th day of January in the year of Our xxx xxx xxx
Lord, nineteen hundred and seventy-three.
QUESTION No. 2
 But we do not want the Ad Interim Assembly to be
convoke. Or if it is to be convened at all, it should not be
done so until after at least seven (7) years from the
approval of the New Constitution by the Citizens
Assemblies.
QUESTION No. 3
The vote of the Citizens Assemblies should already be
considered the plebiscite on the New Constitution.
If the Citizens Assemblies approve of the new
Constitution then the new Constitution should be deemed
ratified.
The Solicitor General claims, and there seems to be 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 persons who are
residents of the barrio, district or ward for at least six months, fifteen
years of age or over, citizens of the Philippines and who are registered in
the list of Citizen Assembly members kept by the barrio, district or ward
secretary;
WHEREAS, the said Citizens Assemblies were establish precisely to
broaden the base of citizen participation in the democratic process and to
afford ample opportunity for the citizen to express their views on
important national issues;
WHEREAS, responding to the clamor of the people an pursuant to
Presidential Decree No. 86-A, dated January 5, 1973, the following
questions were posed before Citizens' Assemblies or Barangays: Do you
approve of the New Constitution? Do you still want a plebiscite to be
called to ratify the new Constitution?
WHEREAS, fourteen million nine hundred seventy-six thousand five
hundred sixty one (14,976,561) members of all the Barangays (Citizens
Assemblies) voted for the adoption of the proposed Constitution, as
against seven hundred forty-three thousand eight hundred sixty nine
(743,869) who voted for its rejection; while on the question as to whether
or not the people would still like a plebiscite to be called to ratify the new
Constitution fourteen million two hundred ninety-eight thousand eight
hundred fourteen (14,298,814) answered that there was no need for
plebiscite and that the vote of the Barangays (Citizens Assemblies)
should be considered as a vote in a plebiscite;
WHEREAS, since the referendum results show that more than ninety-five
(95) percent of the members of the Barangays (Citizen Assemblies) are
in favor of the New Constitution, the Katipunan ng Mga Barangay has
strongly recommended that the new Constitution should already be
deemed ratified by the Filipino people;
 NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the
Philippines, by virtue of the powers in me vested by the Constitution, do
hereby certify and proclaim that the Constitution proposed by the
nineteen hundred and seventy-one (1971) Constitutional Convention has
been ratified by an overwhelmingly majority of all of the votes cast by the
members of all the Barangays (Citizens Assemblies) throughout the
Philippines, and has thereby come into effect.
IN WITNESS WHEREOF, I have hereunto set my hand and caused the
seal of the Republic of the Philippines to be affixed.
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.  Their common target then was Presidential Decree No.
1 makes of these cases which were filed after January 17, 1973 the date when
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 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,
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 from six to
eight in ordinary cases and from eight to ten for the declaration of unconstitutionality of a
treaty, executive agreement  or law, the Court would have to resolve first as a prejudicial
2
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 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
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 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
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 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 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 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 yo 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 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, 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 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 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.
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 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.
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 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 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, 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
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 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 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.
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).
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 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:
... 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 ... . 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, 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:
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 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 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 ... ." (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
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 ... . (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 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 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."
xxx xxx xxx
... 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.
xxx xxx xxx
... 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; ... ." (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 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, ... ." (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 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 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.
xxx xxx xxx
... 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."
xxx xxx xxx
"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
placed there and not in the courts."
xxx xxx xxx
... 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."
xxx xxx xxx
"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."
xxx xxx xxx
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 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. ... 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:
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 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 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 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 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 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. (emphasis 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 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." * (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 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 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 Annex 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. 112-11 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 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. "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
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 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. [1949] 83 Phil. 17), 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 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., concurring:
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
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 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
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, ...," 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 ... ."
(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' 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 ... ." The use of the term
"decree" is significant for the basic orders regulating the conduct of all inhabitants are
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:
... 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 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 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.
xxx xxx xxx
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 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:
... 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 ...; 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: "... it seems to me a
sufficient answer that once convened, the area open for deliberation to a constitutional
convention ..., is practically limitless" (citing 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?
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 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 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 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 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 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 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.
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.
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 ... 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, ... 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)1; 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
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 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.
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
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.
xxx xxx xxx
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 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 ... 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 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 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 249,882
Yes votes against 12,269 No votes as disclosed in Annex 1-A of respondents'
Compliance (the certification by the Department of Local Government and Community
Development), while the alleged certification of Governor Lino Bocalan of Cavite shows
only 126,163 Yes votes and 5,577 No votes. If such a ratio is extended by way of
extrapolation to the other provinces, cities and towns of the country, the result would still
be an overwhelming vote in favor of the 1973 Constitution.
The alleged certification by Governor Lino Bocalan of Cavite, is not true; because in his
duly acknowledged certification dated March 16, 1973, he states that since the
declaration of martial law and up to the present time, he has been under house arrest in
his residence in Urdaneta Village, Makati, Rizal; that he never participated in the conduct
of the Citizens' Assemblies on January 10 15, 1973 in the province of Cavite; that the
acting chairman and coordinator of the Citizens' Assemblies at that time was Vice-
Governor Dominador Camerino; and that he was shown a letter for his signature during
the conduct of the Citizens' Assemblies, which he did not sign but which he referred to
Vice-Governor Camerino (Annex 1-Rejoinder of the Sol. Gen. dated March 20, 1973).
Mayor Pablo Cuneta likewise executed an affidavit dated March 16, 1973 stating that on
January 15, 1973, he caused the preparation of a letter addressed to Secretary Jose
Roño of the Department of Local Government and Community Development showing the
results of the referendum in Pasay City; that on the same day, there were still in any
Citizens' Assemblies holding referendum in Pasay City, for which reason he did not send
the aforesaid letter pending submittal of the other results from the said Citizens'
Assemblies; and that in the afternoon of January 15, 1973, he indorsed the complete
certificate of results on the referendum in Pasay City to the Office of the President
(Annex 5-Rejoinder of Sol. Gen. dated March 20, 1973).
Pablo F. Samonte, Assistant City Treasurer and Officer in Charge of Pasay City also
issued an affidavit dated March 15, 1973 stating that a certain Atty. Delia Sutton of the
Salonga Law Office asked him for the results of the referendum; that he 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 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.; emphasis
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 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 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 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) 1 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.
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 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 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 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 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 ... . (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 undermartial 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.
... 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; emphasis supplied).
Chief Justice Stone of the United States Supreme Court likewise appears to subscribe to
this view, when, in his 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." (Emphasis 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 ... 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 arbitrarily and even dictatorially in the
swift adaption 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; emphasis 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 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, emphasis
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 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; emphasis supplied). Justice
Brandeis 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;
emphasis 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
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. ... 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 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 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 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.
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.
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 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 vert 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 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., concurring:
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 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, 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 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 ... 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 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:
... 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 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 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)
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 , I held the view that this
1
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 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.  The 2
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.  It is a settled doctrine that every officer under a constitutional
3
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 judiciary is the department which is
charged with the special duty of determining the limitations which the law places upon all
official actions  . In the case of Gonzales v. Commission on Elections , this Court ruled
4 5
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 , this Court held that the exception to the
6
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 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.
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 ... ."
xxx xxx xxx
"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 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.
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 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." (Emphasis 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 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."
(BIack'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 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 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 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, 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."  Thus,
8
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 , this Court, speaking through Mr. Justice Johnson,
9
said, "In democracies, the people, combined, 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,   this Court, speaking through Mr. Justice Laurel, said, "As long as popular
10
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 receptacular 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,   this Court said: "In the scheme of our
11
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 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.
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 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 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 the proposed Constitution, as proclaimed in
Proclamation No. 1102, is not in accordance with the provisions of Section 1 of Article
XV, of the 1935 Constitution, I hold that Proclamation No. 1102 is invalid and should not
be given force and effect. Their proposed Constitution, therefore, should be considered
as not yet validly ratified, and so it is not in force. The proposed Constitution may still be
submitted to a plebiscite in conformity with Section 1 of Article XV of the 1935
Constitution. Incidentally, I must state that the Constitution is still in force, and this Court
is still functioning under the 1935 Constitution.
I sincerely believe that the proposed Constitution may still be submitted to the people in
an election or plebiscite held in accordance with the provisions of Section 1 of Article XV
of the 1935 Constitution. In fact, as we have adverted to in this opinion, this was the
mandate of Congress when, on March 16, 1967, it passed Resolution No. 2 calling a
convention to propose amendments to the 1935 Constitution. The Court may take judicial
notice of the fact that the President of the Philippines has reassured the nation that the
government of our Republic since the declaration of martial law is not a revolutionary
government, and that he has been acting all the way in consonance with his powers
under the Constitution. The people of this Republic has reason to be happy because,
according to the President, we still have a constitutional government. It being my view
that the 1935 Constitution is still in force, I believe Congress may still convene and pass
a law calling for an election at which the Constitution proposed by the 1971
Constitutional Convention will be submitted to the people their ratification or rejection. A
plebiscite called pursuant to Section 1 of Article XV of the 1935 Constitution is an
assurance to our people that we still have in our country the Rule of Law and that the
democratic system of government that has been implanted in our country by the
Americans, and which has become part of our social and political fabric, is still a reality.
The views that I have expressed in this opinion are inspired by a desire on my part to
bring about stability in democratic and constitutional system in our country. I feel that if
this Court would give its imprimatur to the ratification of the proposed Constitution, as
announced in Proclamation 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.
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."  Strict accuracy would of course qualify such
1
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,  it seems to me that the more
2
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 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."  That is why there is this caveat.
3
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."  Nonetheless, as was stressed by
4
Professors Black  and Murphy,  a Supreme Court by the conclusion it reaches and the
5 6
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 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 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.  Since the Constitution pre-eminently
7
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,  Tolentino  and
8 9
Planas   cases speak unequivocally to that effect. Nor is it a valid objection to this
10
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,   "cannot be treated as
11
unrelated acts, but as succeeding steps in a single endeavor."   Once an aspect thereof
12
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.   Thus: "The term has been made applicable to controversies
13
clearly non-judicial and therefore beyond its jurisdiction or to an issue involved in a case
appropriately subject to its cognizance, as to 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."   The view entertained by Professor
14
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."   After a
15
thorough study of American judicial decisions, both federal and state, he could conclude:
"The field of judicial nonenforceability 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."   Nor was Professor
16
Weston's formulation any 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."   What appears undeniable then both from
17
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 Bickel   of Yale and Professor
18
Freund   of Harvard, both of whom in turn are unabashed admirers of Justice Brandeis.
19
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 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,   decided
21
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."   The hope of course was that such assertion of independence
22
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 Angara v. Electoral
Commission   to Planas v. Commission on Elections.   It should continue to exercise its
23 24
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."   He
25
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."   His view was precisely the opposite. Thus: "The power of constitutional
26
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."   More than that, he took
27
pains to emphasize: "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.' "   Nor is it only Dean Rostow who
28
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 York Frankfurter remarked,
somewhat self-consciously perhaps, that the 'duty of deference cannot be allowed
imperceptibly to slide into abdication.' "   Professor Konefsky, like Dean Rostow, could
29
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 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."   This is not to deny that there are those who would place the blame or the
31
credit, depending upon one's predilection, on Marshall's epochal opinion in Marbury v.
Madison.   Curtis belonged to that persuasion. As he put it: "The problem was given no
32
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."   At any rate there
33
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 ... ."   The above
34
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 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?"   It is no 35
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."   Let me not be misunderstood. There is here no attempt to close one's eyes to
36
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,   decided in 1962
37
and Powell v. MacCormack,   in 1969, both noted in the opinion of the Chief Justice. The
38
former disregarded the warning of Justice Frankfurter in Colegrove v. Green 39 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."   For him, the judiciary "ought
40
not to enter this political thicket." Baker has since then been followed; it has spawned a
host of cases.   Powell, on the question of the power of a legislative body to exclude
41
from its ranks a person whose qualifications 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,   It does look then that even in the United States, the plea for
42
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."   As for Professor Bickel, it has been said that as counsel for the New York
43
Times in the famous Vietnam papers case,   he was less than insistent on the American
44
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.   It has brought forth a plethora of law review articles, the reaction
45
ranging from guarded conformity to caustic criticism.   There was, to be sure, no clear
46
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 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,   if my reading of the events and the process that led to such proclamation, so
48
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,   and they are not few in number, which require that there
49
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
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
51
disapproval certain amendments to the original 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."   Then came the statute,   calling for the plebiscite on the three 1940
52 53
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,   reducing the term of the President to four years but
54
allowing his re-election with the limitation that he cannot serve more than eight
consecutive years,   and creating an independent Commission on Elections.   Again, it
55
was expressly provided that the election "shall be conducted in conformity with the
There are American State decisions that enunciate such a doctrine. While certainly not
56
controlling, they are not entirely bereft of persuasive significance. In Miller v.
Johnson,   decided in 1892, it was set forth in the opinion of Chief Justice Holt that on
66

provisions of the Election Code in so far as the same may be applicable."   The approval
57
of the present parity amendment was by virtue of a Republic Act   which specifically
58
made applicable the then Election Code.   There is a similar provision in the
59
legislation,   which in cotemplation of the 1971 Constitutional Convention, saw to it that
60
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.   That is the consistent course of
61
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,   then this Court cannot refuse to yield assent to such a political
62
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."   If the origins of the democratic polity
63
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
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 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."   In Taylor v. Commonwealth,   a 1903 decision, it was contended that the
67 68

source of political authority."   From them, as Corwin did stress, emanate "the highest
64
possible embodiment of human will,"   which is supreme and must be obeyed. To avoid
65
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.
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
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 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
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.   Once compliance is had with the requirements of
70
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.
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."   Moreover what made it difficult for this Court to apply settled
71
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.
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 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. ... 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 ... ."
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 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 Gonzales:  and Tolentino  cases.
5 6
— 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 been validly ratified by means of the Citizens Assemblies referendums — and indicated
— 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"  and under the
9 Upon the other hand, while I believe that the emergency powers had
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 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,   wherein the Court in its Resolution of September 16, 1949 after judgment was
11
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
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:
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 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 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, 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"   in the exercise of their sovereign will or a liberal and flexible stand that
18
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 cast an election at which the amendments are submitted to the people for
their ratification",   participated in only by qualified and duly registered voters twenty-one
19
years of age or over   and duly supervised by the Commission on Elections,   in
20 21
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",   that the constitutional age and literacy
22
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",   and that the Comelec is constitutionally
23
"mandated to oversee ... elections (of public officers) and not plebiscites."  24
To paraphrase U.S. Chief Justice John Marshall who first declared in the historic 1803
case of Marbury vs. Madison   the U.S. Supreme Court's power of judicial review and to
25
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."
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
26
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.
Maryland   the "climactic phrase,"   "we must never forget that it is a constitution we are
27 28
expounding," — termed by Justice Frankfurter as "the single most important utterance in
the literature of constitutional law — most important because most comprehensive and
comprehending."   This enduring concept to my mind permeated to this Court's
29
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 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:
... 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 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 , thus:
33
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 Court   in a separate concurrence in Tolentino, expressed
35
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:
... 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
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:
... 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.' ... Accordingly, the
real issue here cannot be whether or not the amending process
delineated 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": — "... 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. ... 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 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." ... 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 a political 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.
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
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, ... 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"   — so that there may be "submitted, not piece-meal, but by
41
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.
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 case   with a constitutional system and provisions analogous to
43
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 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 intrusted 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 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 level 45 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 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
officials   comply with the suffrage qualifications of Article V, section 1 of the Constitution
49
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 itself   has been called or held, there cannot be said to
51
have been a 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 provinces   between the reports as certified by the Department of
52
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;   whether the reported votes of approval of the proposed
53
Constitution conditioned upon the non-convening of the interim National Assembly
provided in Article XVII, section 1 thereof,   may be considered as valid; the allegedly
54
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 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"   under Resolution No. 5844 approved on
55
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:
"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.
xxx xxx xxx
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.
xxx xxx xxx
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.
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
I, therefore, vote to deny respondents' motion to dismiss and to give due course to the
petitions.
Pro
mul
gat
ed:
Jun
e 4,
197
3 *
ANTONIO, J., concurring:
In conformity with my reservation, I shall discuss the grounds for my concurrence.
I his powers under the "commander-in-chief" clause with his duty "to take care that the
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 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
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 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 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 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 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 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.  The 1973
1
Constitution is not a mere amendment to the 1935 Constitution. It is a completely new
fundamental charter embodying new political, 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 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.  This is not true
2
with our Constitution. In the case of revision there are no "standards meet for judicial
judgment." 3
The 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 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. 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 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 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."  Such change in the organic law relates
5
to the 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 horizontal distribution of powers."  It involves in
6
essence a matter 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."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.)
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, including, but not limited to,
number of members, districts, election and certification of delegates, and submission and
ratification of revisions and ordinances. ... .
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 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 such revisions, 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 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 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 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 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.
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 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. ... 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.
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 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 holden 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 Hamspire (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 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 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 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 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.
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.
Separate Opinions
MAKALINTAL, J., concurring:
CASTRO, J., concurring:
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.
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 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 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 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 Appended to the six additional questions above quoted were the suggested answers,
confronting the country, like the holding of the plebiscite on the new Constitution, the thus:
continuation of martial rule, the convening of Congress on January 22, 1973, and the
holding of elections in November 1973." COMMENTS ON

On January 5, 1973 the newspapers came out with a list of four questions to be QUESTION No. 1
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 In order to broaden the base of citizens' participation in
connection that the President had previously announced that he had ordered the government.
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
QUESTION No. 2
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 But we do not want the Ad Interim Assembly to be
people. (Bulletin Today, December 24, 1972.) 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
On January 10, 1973 it was reported that one more question would be added to the
Assemblies.
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 QUESTION No. 3
their views as to the plebiscite should be held, not as to whether or not it should be held
at all. If the Citizens Assemblies approve of the New
Constitution, then the new Constitution should be deemed
The next day, January 11, it was reported that six additional questions would be ratified.
submitted, namely:
The vote of the Citizens Assemblies should already be
(1) Do you approve of the citizens assemblies as the base of popular considered the plebiscite on the New Constitution.
government to decide issues of national interest?
QUESTION No. 4
(2) Do you approve of the new Constitution?
We are sick and tired of too frequent elections. We are
(3) Do you want a plebiscite to be called to ratify the new Constitution? fed up with politics, of so many debates and so much
expenses.
(4) Do you want the elections to be held in November, 1973 accordance
with the provisions of the 1935 Constitution? QUESTION No. 5

(5) If the elections would not be held, when do you want the next Probably a period of at least seven (7) years moratorium
elections to be called? on elections will be enough for stability to be established
in the country, for reforms to take root and normalcy to
return.
(6) Do you want martial law to continue? [Bulletin Today, January 11,
1973; emphasis supplied].
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 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 reporting the figures was prescribed or
followed. The Commission on Elections, which is the constitutional body charged with the enforcement and administration of
all laws relative to the conduct of elections, took no part at all, either by way of supervision or in the assessment of the
results.
It has been suggested that since according to Proclamation No. 1102 the overwhelming
majority of all the members of the Citizens Assemblies had voted for the adoption of the
proposed Constitution there was a substantial compliance with Article XV, Section 1, of
the 1935 Constitution and with the Election Code of 1971. The suggestion misses the
point entirely. It is of the essence of a valid exercise of the right of suffrage that not only
must a majority or plurality of the voters carry the day but that the same must be duly
ascertained in accordance with the procedure prescribed by law. In other words the very
existence of such majority or plurality depends upon the manner of its ascertainment,
and to conclude that it exists even if it has not been ascertained according to law is
simply to beg the issue, or to assume the very fact to be established. Otherwise no
election or plebiscite could be questioned for non-compliance with the provisions of the
Election Law as long as it is certified that a majority of the citizens had voted favorably or
adversely on whatever it was that was submitted to them to vote upon.
However, a finding that the ratification of the draft Constitution by the Citizens
Assemblies, as certified by the President in Proclamation No. 1102, was not in
accordance with the constitutional and statutory procedure laid down for the purpose
does not quite resolve the questions raised in these cases. Such a finding, in our opinion,
is on a matter which is essentially justiciable, that is, within the power of this Court to
inquire into. It imports nothing more than a simple reading and application of the
pertinent provisions of the 1935 Constitution, of the Election Code and of other related
laws and official acts. No question of wisdom or of policy is involved. But from this finding
it does not necessarily follow that this Court may justifiably declare that the Constitution
has not become effective, and for that reason give due course to these petitions or grant
the writs herein prayed for. The effectivity of the said Constitution, in the final analysis, is
the basic and 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, 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.
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 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 a 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 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 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.
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 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).
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:
x x x           x x x          x x x
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?
R. 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.
x x x           x x x          x x x
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 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.
BARREDO, J., concurring:
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 heard by Us, but, in my
estimation, and with due recognition of the sincerety, 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 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 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".
In the meanwhile also, on January 5, 1973, the President issued Presidential Decree,
No. 86-A providing as follows:
PRESIDENTIAL DECREE NO. 86-A
STRENGTHENING AND DEFINING THE ROLE OF
BARANGAYS (CITIZENS ASSEMBLIES)
WHEREAS, on the basis of preliminary and initial reports from the field
as gathered from barangays (citizens assemblies) that have so far been
established, the people would like to decide for themselves questions or
issues, both local and national, affecting their day-to-day lives and their
future;
WHEREAS, the barangays (citizens assemblies) would like themselves
to be the vehicle for expressing the views of the people on important
national issues;
WHEREAS, such barangays (citizens assemblies) desire that they be
given legal status and due recognition as constituting the genuine,
legitimate and valid expression of the popular will; and
WHEREAS, the people would like the citizens assemblies to conduct
immediately a referendum on certain specified questions such as the
ratification of the new Constitution, continuance of martial law, the
convening of Congress on January 22, 1973, and the elections in
November 1973 pursuant to the 1935 Constitution.
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the
Philippines, by virtue of the powers vested in me by the Constitution as
Commander-in-Chief of all Armed Forces of the Philippines, do hereby
declare as part of the law of the land the following:
1. The present barangays (citizens assemblies) are created under
Presidential Decree No. 86 dated December 31, 1972, shall constitute
the base for citizen participation in governmental affairs and their
collective views shall be considered in the formulation of national policies
or programs and, wherever practicable, shall be translated into concrete
and specific decision;
2. Such barangays (citizens assemblies) shall consider vital national
issues now confronting the country, like the holding of the plebiscite on
the new Constitution, the continuation of martial rule, the convening of
Congress on January 22, 1973, and the holding of elections in November
1973, and others in the future, which shall serve as guide or basis for
action or decision by the national government;
3. The barangays (citizens assemblies) shall conduct between January
10 and 15, 1973, a referendum on important national issues, including
those specified in paragraph 2 hereof, and submit results thereof to the
Department of Local Governments Community Development immediately
thereafter, pursuant to express will of the people as reflected in the
reports gathered from the many thousands of barangays (citizens
assemblies) throughout the country.
 4. This Decree shall take effect immediately.
Done in the City of Manila, this 5th day of January, in the year of Our
Lord, nineteen hundred and seventy three.
And on January 7, 1973, this was followed by Presidential Decree No. 86-B reading thus:
PRESIDENTIAL DECREE NO. 86-B
DEFINING FURTHER THE ROLE OF BARANGAYS (CITIZENS
ASSEMBLIES)
WHEREAS, since their creation pursuant to Presidential Decree No. 86
dated December 31, 1972, the Barangays (Citizens Assemblies) have
petitioned the Office of the President to submit them for resolution
important national issues;
WHEREAS, one of the questions persistently mentioned refers to the
ratification of the Constitution proposed by the 1971 Constitutional
Convention;
WHEREAS, on the basis of the said petitions, it is evident that the people
believe that the submission of the proposed Constitution to the Citizens
Assemblies or Barangays should be taken as a plebiscite in itself in view
of the fact that freedom of debate has always been limited to the
leadership in political, economic and social fields, and that it is now
necessary to bring this down to the level of the people themselves
through the Barangays or Citizens Assemblies;
NOW THEREFORE, I, FERDINAND E. MARCOS, President of the
Philippines, by virtue of the powers in me vested by the Constitution, do
hereby order that important national issues shall from time to time be
referred to the Barangays (Citizens Assemblies) for resolution in
accordance with Presidential Decree No. 86-A dated January 5, 1973
and that the initial referendum shall include the matter of ratification of the
Constitution proposed by the 1971 Constitutional Convention.
The Secretary of the Department of Local Governments and Community
Development shall insure the implementation of this Order.
Done in the City of Manila, this 7th day of January in the year of Our
Lord, nineteen hundred and seventy-three.
And so it was that by January 10, 1973, when the Citizens Assemblies thus created
started the referendum which was held from said date to January 15, 1973, the following
questions were submitted to them:
(1) Do you like the New Society?
(2) Do you like the reforms under martial law?
(3) Do you like Congress again to hold sessions?
(4) Do you like the plebiscite to be held later?
(5) Do you like the way President Marcos is running the affairs of the
government?.
but on January 11, 1973, six questions were added as follows:
(1) Do you approve of the citizens assemblies as the base of popular
government to decide issues of national interests?
(2) Do you approve of the New Constitution?
(3) Do you want a plebiscite to be called to ratify the new Constitution?
(4) Do you want the elections to be held in November, 1973 in
accordance with the provisions of the 1935 Constitution?
(5) If the elections would not be held, when do you want it to be called?
(6) Do you want martial law to continue?
It is not seriously denied that together with the question the voters were furnished
"comments" on the said questions more or less suggestive of the answer desired. It may
assumed that the said "comments" came from official sources, albeit specifically
unidentified. As petitioners point out, the most relevant of these "comments" were the
following:
COMMENTS ON
x x x           x x x          x x x
QUESTION No. 2
 But we do not want the Ad Interim Assembly to be
convoke. Or if it is to be convened at all, it should not be
done so until after at least seven (7) years from the
approval of the New Constitution by the Citizens
Assemblies.
QUESTION No. 3
The vote of the Citizens Assemblies should already be
considered the plebiscite on the New Constitution.
If the Citizens Assemblies approve of the new
Constitution then the new Constitution should be deemed
ratified.
The Solicitor General claims, and there seems to be 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 persons who are
residents of the barrio, district or ward for at least six months, fifteen
years of age or over, citizens of the Philippines and who are registered in
the list of Citizen Assembly members kept by the barrio, district or ward
secretary;
WHEREAS, the said Citizens Assemblies were establish precisely to
broaden the base of citizen participation in the democratic process and to
afford ample opportunity for the citizen to express their views on
important national issues;
WHEREAS, responding to the clamor of the people an pursuant to
Presidential Decree No. 86-A, dated January 5, 1973, the following
questions were posed before Citizens' Assemblies or Barangays: Do you
approve of the New Constitution? Do you still want a plebiscite to be
called to ratify the new Constitution?
WHEREAS, fourteen million nine hundred seventy-six thousand five
hundred sixty one (14,976,561) members of all the Barangays (Citizens
Assemblies) voted for the adoption of the proposed Constitution, as
against seven hundred forty-three thousand eight hundred sixty nine
(743,869) who voted for its rejection; while on the question as to whether
or not the people would still like a plebiscite to be called to ratify the new
Constitution fourteen million two hundred ninety-eight thousand eight
hundred fourteen (14,298,814) answered that there was no need for
plebiscite and that the vote of the Barangays (Citizens Assemblies)
should be considered as a vote in a plebiscite;
WHEREAS, since the referendum results show that more than ninety-five
(95) percent of the members of the Barangays (Citizen Assemblies) are
in favor of the New Constitution, the Katipunan ng Mga Barangay has
strongly recommended that the new Constitution should already be
deemed ratified by the Filipino people;
 NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the
Philippines, by virtue of the powers in me vested by the Constitution, do
hereby certify and proclaim that the Constitution proposed by the
nineteen hundred and seventy-one (1971) Constitutional Convention has
been ratified by an overwhelmingly majority of all of the votes cast by the
members of all the Barangays (Citizens Assemblies) throughout the
Philippines, and has thereby come into effect.
IN WITNESS WHEREOF, I have hereunto set my hand and caused the
seal of the Republic of the Philippines to be affixed.
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.  Their common target then was Presidential Decree No.
1 makes of these cases which were filed after January 17, 1973 the date when
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 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,
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 from six to
eight in ordinary cases and from eight to ten for the declaration of unconstitutionality of a
treaty, executive agreement  or law, the Court would have to resolve first as a prejudicial
2
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 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
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 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
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 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 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 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 yo 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 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, 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 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 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.
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 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.
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 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 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, 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
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 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 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.
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).
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 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:
... 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 ... . 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, 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:
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 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 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 ... ." (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
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 ... . (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 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 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."
xxx xxx xxx
... 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.
xxx xxx xxx
... 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; ... ." (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 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, ... ." (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 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 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.
xxx xxx xxx
... 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."
xxx xxx xxx
"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
placed there and not in the courts."
xxx xxx xxx
... 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."
xxx xxx xxx
"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."
xxx xxx xxx
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 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. ... 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:
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 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 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 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 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 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. (emphasis 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 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." * (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 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 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 Annex 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. 112-11 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 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. "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
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 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. [1949] 83 Phil. 17), 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 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., concurring:
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
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 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
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, ...," 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 ... ."
(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' 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 ... ." The use of the term
"decree" is significant for the basic orders regulating the conduct of all inhabitants are
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:
... 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 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 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.
xxx xxx xxx
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 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:
... 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 ...; 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: "... it seems to me a
sufficient answer that once convened, the area open for deliberation to a constitutional
convention ..., is practically limitless" (citing 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?
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 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 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 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 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 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 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.
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.
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 ... 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, ... 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)1; 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
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 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.
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
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.
xxx xxx xxx
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 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 ... 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 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 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 249,882
Yes votes against 12,269 No votes as disclosed in Annex 1-A of respondents'
Compliance (the certification by the Department of Local Government and Community
Development), while the alleged certification of Governor Lino Bocalan of Cavite shows
only 126,163 Yes votes and 5,577 No votes. If such a ratio is extended by way of
extrapolation to the other provinces, cities and towns of the country, the result would still
be an overwhelming vote in favor of the 1973 Constitution.
The alleged certification by Governor Lino Bocalan of Cavite, is not true; because in his
duly acknowledged certification dated March 16, 1973, he states that since the
declaration of martial law and up to the present time, he has been under house arrest in
his residence in Urdaneta Village, Makati, Rizal; that he never participated in the conduct
of the Citizens' Assemblies on January 10 15, 1973 in the province of Cavite; that the
acting chairman and coordinator of the Citizens' Assemblies at that time was Vice-
Governor Dominador Camerino; and that he was shown a letter for his signature during
the conduct of the Citizens' Assemblies, which he did not sign but which he referred to
Vice-Governor Camerino (Annex 1-Rejoinder of the Sol. Gen. dated March 20, 1973).
Mayor Pablo Cuneta likewise executed an affidavit dated March 16, 1973 stating that on
January 15, 1973, he caused the preparation of a letter addressed to Secretary Jose
Roño of the Department of Local Government and Community Development showing the
results of the referendum in Pasay City; that on the same day, there were still in any
Citizens' Assemblies holding referendum in Pasay City, for which reason he did not send
the aforesaid letter pending submittal of the other results from the said Citizens'
Assemblies; and that in the afternoon of January 15, 1973, he indorsed the complete
certificate of results on the referendum in Pasay City to the Office of the President
(Annex 5-Rejoinder of Sol. Gen. dated March 20, 1973).
Pablo F. Samonte, Assistant City Treasurer and Officer in Charge of Pasay City also
issued an affidavit dated March 15, 1973 stating that a certain Atty. Delia Sutton of the
Salonga Law Office asked him for the results of the referendum; that he 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 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.; emphasis
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 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 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 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) 1 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.
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 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 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 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 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 ... . (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 undermartial 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.
... 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; emphasis supplied).
Chief Justice Stone of the United States Supreme Court likewise appears to subscribe to
this view, when, in his 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." (Emphasis 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 ... 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 arbitrarily and even dictatorially in the
swift adaption 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; emphasis 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 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, emphasis
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 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; emphasis supplied). Justice
Brandeis 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;
emphasis 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
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. ... 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 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 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 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.
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.
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 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 vert 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 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., concurring:
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 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, 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 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 ... 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 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:
... 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 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 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)
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 , I held the view that this
1
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 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.  The 2
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.  It is a settled doctrine that every officer under a constitutional
3
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 judiciary is the department which is
charged with the special duty of determining the limitations which the law places upon all
official actions  . In the case of Gonzales v. Commission on Elections , this Court ruled
4 5
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 , this Court held that the exception to the
6
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 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.
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          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 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.
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 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." (Emphasis 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 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."
(BIack'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 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 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 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, 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."  Thus,
8
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 , this Court, speaking through Mr. Justice Johnson,
9
said, "In democracies, the people, combined, 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,   this Court, speaking through Mr. Justice Laurel, said, "As long as popular
10
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 receptacular 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,   this Court said: "In the scheme of our
11
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 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.
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 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 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 the proposed Constitution, as proclaimed in
Proclamation No. 1102, is not in accordance with the provisions of Section 1 of Article
XV, of the 1935 Constitution, I hold that Proclamation No. 1102 is invalid and should not
be given force and effect. Their proposed Constitution, therefore, should be considered
as not yet validly ratified, and so it is not in force. The proposed Constitution may still be
submitted to a plebiscite in conformity with Section 1 of Article XV of the 1935
Constitution. Incidentally, I must state that the Constitution is still in force, and this Court
is still functioning under the 1935 Constitution.
I sincerely believe that the proposed Constitution may still be submitted to the people in
an election or plebiscite held in accordance with the provisions of Section 1 of Article XV
of the 1935 Constitution. In fact, as we have adverted to in this opinion, this was the
mandate of Congress when, on March 16, 1967, it passed Resolution No. 2 calling a
convention to propose amendments to the 1935 Constitution. The Court may take judicial
notice of the fact that the President of the Philippines has reassured the nation that the
government of our Republic since the declaration of martial law is not a revolutionary
government, and that he has been acting all the way in consonance with his powers
under the Constitution. The people of this Republic has reason to be happy because,
according to the President, we still have a constitutional government. It being my view
that the 1935 Constitution is still in force, I believe Congress may still convene and pass
a law calling for an election at which the Constitution proposed by the 1971
Constitutional Convention will be submitted to the people their ratification or rejection. A
plebiscite called pursuant to Section 1 of Article XV of the 1935 Constitution is an
assurance to our people that we still have in our country the Rule of Law and that the
democratic system of government that has been implanted in our country by the
Americans, and which has become part of our social and political fabric, is still a reality.
The views that I have expressed in this opinion are inspired by a desire on my part to
bring about stability in democratic and constitutional system in our country. I feel that if
this Court would give its imprimatur to the ratification of the proposed Constitution, as
announced in Proclamation 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.
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."  Strict accuracy would of course qualify such
1
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,  it seems to me that the more
2
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 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."  That is why there is this caveat.
3
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."  Nonetheless, as was stressed by
4
Professors Black  and Murphy,  a Supreme Court by the conclusion it reaches and the
5 6
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 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 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.  Since the Constitution pre-eminently
7
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,  Tolentino  and
8 9
Planas   cases speak unequivocally to that effect. Nor is it a valid objection to this
10
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,   "cannot be treated as
11
unrelated acts, but as succeeding steps in a single endeavor."   Once an aspect thereof
12
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.   Thus: "The term has been made applicable to controversies
13
clearly non-judicial and therefore beyond its jurisdiction or to an issue involved in a case
appropriately subject to its cognizance, as to 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."   The view entertained by Professor
14
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."   After a
15
thorough study of American judicial decisions, both federal and state, he could conclude:
"The field of judicial nonenforceability 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."   Nor was Professor
16
Weston's formulation any 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."   What appears undeniable then both from
17
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 Bickel   of Yale and Professor
18
Freund   of Harvard, both of whom in turn are unabashed admirers of Justice Brandeis.
19
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 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,   decided
21
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."   The hope of course was that such assertion of independence
22
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 Angara v. Electoral
Commission   to Planas v. Commission on Elections.   It should continue to exercise its
23 24
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."   He
25
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."   His view was precisely the opposite. Thus: "The power of constitutional
26
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."   More than that, he took
27
pains to emphasize: "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.' "   Nor is it only Dean Rostow who
28
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 York Frankfurter remarked,
somewhat self-consciously perhaps, that the 'duty of deference cannot be allowed
imperceptibly to slide into abdication.' "   Professor Konefsky, like Dean Rostow, could
29
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 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."   This is not to deny that there are those who would place the blame or the
31
credit, depending upon one's predilection, on Marshall's epochal opinion in Marbury v.
Madison.   Curtis belonged to that persuasion. As he put it: "The problem was given no
32
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."   At any rate there
33
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 ... ."   The above
34
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 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?"   It is no 35
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."   Let me not be misunderstood. There is here no attempt to close one's eyes to
36
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,   decided in 1962
37
and Powell v. MacCormack,   in 1969, both noted in the opinion of the Chief Justice. The
38
former disregarded the warning of Justice Frankfurter in Colegrove v. Green 39 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."   For him, the judiciary "ought
40
not to enter this political thicket." Baker has since then been followed; it has spawned a
host of cases.   Powell, on the question of the power of a legislative body to exclude
41
from its ranks a person whose qualifications 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,   It does look then that even in the United States, the plea for
42
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."   As for Professor Bickel, it has been said that as counsel for the New York
43
Times in the famous Vietnam papers case,   he was less than insistent on the American
44
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.   It has brought forth a plethora of law review articles, the reaction
45
ranging from guarded conformity to caustic criticism.   There was, to be sure, no clear
46
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 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,   if my reading of the events and the process that led to such proclamation, so
48
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,   and they are not few in number, which require that there
49
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
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
51
disapproval certain amendments to the original 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."   Then came the statute,   calling for the plebiscite on the three 1940
52 53
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,   reducing the term of the President to four years but
54
allowing his re-election with the limitation that he cannot serve more than eight
consecutive years,   and creating an independent Commission on Elections.   Again, it
55
was expressly provided that the election "shall be conducted in conformity with the
There are American State decisions that enunciate such a doctrine. While certainly not
56
controlling, they are not entirely bereft of persuasive significance. In Miller v.
Johnson,   decided in 1892, it was set forth in the opinion of Chief Justice Holt that on
66

provisions of the Election Code in so far as the same may be applicable."   The approval
57
of the present parity amendment was by virtue of a Republic Act   which specifically
58
made applicable the then Election Code.   There is a similar provision in the
59
legislation,   which in cotemplation of the 1971 Constitutional Convention, saw to it that
60
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.   That is the consistent course of
61
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,   then this Court cannot refuse to yield assent to such a political
62
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."   If the origins of the democratic polity
63
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
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 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."   In Taylor v. Commonwealth,   a 1903 decision, it was contended that the
67 68

source of political authority."   From them, as Corwin did stress, emanate "the highest
64
possible embodiment of human will,"   which is supreme and must be obeyed. To avoid
65
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.
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
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 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
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.   Once compliance is had with the requirements of
70
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.
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."   Moreover what made it difficult for this Court to apply settled
71
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.
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 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. ... 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 ... ."
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 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 Gonzales:  and Tolentino  cases.
5 6
— 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 been validly ratified by means of the Citizens Assemblies referendums — and indicated
— 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"  and under the
9 Upon the other hand, while I believe that the emergency powers had
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 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,   wherein the Court in its Resolution of September 16, 1949 after judgment was
11
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
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:
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 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 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, 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"   in the exercise of their sovereign will or a liberal and flexible stand that
18
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 cast an election at which the amendments are submitted to the people for
their ratification",   participated in only by qualified and duly registered voters twenty-one
19
years of age or over   and duly supervised by the Commission on Elections,   in
20 21
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",   that the constitutional age and literacy
22
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",   and that the Comelec is constitutionally
23
"mandated to oversee ... elections (of public officers) and not plebiscites."  24
To paraphrase U.S. Chief Justice John Marshall who first declared in the historic 1803
case of Marbury vs. Madison   the U.S. Supreme Court's power of judicial review and to
25
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."
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
26
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.
Maryland   the "climactic phrase,"   "we must never forget that it is a constitution we are
27 28
expounding," — termed by Justice Frankfurter as "the single most important utterance in
the literature of constitutional law — most important because most comprehensive and
comprehending."   This enduring concept to my mind permeated to this Court's
29
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 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:
... 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 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 , thus:
33
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 Court   in a separate concurrence in Tolentino, expressed
35
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:
... 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
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:
... 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.' ... Accordingly, the
real issue here cannot be whether or not the amending process
delineated 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": — "... 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. ... 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 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." ... 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 a political 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.
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
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, ... 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"   — so that there may be "submitted, not piece-meal, but by
41
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.
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 case   with a constitutional system and provisions analogous to
43
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 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 intrusted 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 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 level 45 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 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
officials   comply with the suffrage qualifications of Article V, section 1 of the Constitution
49
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 itself   has been called or held, there cannot be said to
51
have been a 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 provinces   between the reports as certified by the Department of
52
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;   whether the reported votes of approval of the proposed
53
Constitution conditioned upon the non-convening of the interim National Assembly
provided in Article XVII, section 1 thereof,   may be considered as valid; the allegedly
54
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 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"   under Resolution No. 5844 approved on
55
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:
"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.
xxx xxx xxx
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.
xxx xxx xxx
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.
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
I, therefore, vote to deny respondents' motion to dismiss and to give due course to the
petitions.
Pro
mul
gat
ed:
Jun
e 4,
197
3 *
ANTONIO, J., concurring:
In conformity with my reservation, I shall discuss the grounds for my concurrence.
I his powers under the "commander-in-chief" clause with his duty "to take care that the
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 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
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 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 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 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 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 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.  The 1973
1
Constitution is not a mere amendment to the 1935 Constitution. It is a completely new
fundamental charter embodying new political, 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 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.  This is not true
2
with our Constitution. In the case of revision there are no "standards meet for judicial
judgment." 3
The 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 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. 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 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 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."  Such change in the organic law relates
5
to the 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 horizontal distribution of powers."  It involves in
6
essence a matter 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."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.)
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, including, but not limited to,
number of members, districts, election and certification of delegates, and submission and
ratification of revisions and ordinances. ... .
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 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 such revisions, 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 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 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 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 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.
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 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. ... 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.
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 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 holden 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 Hamspire (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 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 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 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 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.
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.
Footnotes
1 Justices Makalintal, Castro, Barredo, Makasiar, Antonio and Esguerra.
2 Chief Justice Concepcion and Justices Fernando and Teehankee.
3 Justice Zaldivar.
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.
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.
10 Napoleon V. Dilag, et al. v. Executive Secretary, et al.
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.
14 Emphasis ours.
15 See page 4, last paragraph, of his Comment dated Feb. 6, 1973.
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.
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, 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, 22 G.R. Nos. L-28196 and L-28224, Nov. 9, 1967.
Dec. 24, 1965; Philippine Constitution Association v. Gimenez, L-23326,
Dec. 18, 1965; Mun. of La Carlota v. NAWASA, L-20232, Sept. 30, 1964; 23 78 Phil. 1.
Guevara v. Inocentes, L-25577, Mar. 15, 1966; Gillera v. Fernandez, L-
20741, Jan. 31, 1964; Siguiente v. Secretary of Justice, L-20370, Nov. 24 Supra.
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,
25 In re McConaughy, 119 N.W. 408, 417.
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 26 103 Phil. 1051, 1067.
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- 27 119 N.W. 408, 411, 417.
14212, July 31, 1961; Pampanga Sugar Development Co., Inc. v.
Fuentes, et al., L-14738, July 31, 1961; Earnshaw Docks & Honolulu Iron 28 92 Ky. 589,18 S.W. 522, 523.
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 29 Citing Koehler v. Hill, 60 Iowa 543, 14 N.W. Rep. 738, and 15 N.W.
No. 3, etc., L-15582, July 31, 1961; Pitogo v. Sen Bee Trading Co., et al., Rep. 609; State v. Tufly, 19 Nev. 391, 12 Pac. Rep. 835.
L-15693, July 31, 1961; Pascual v. Sec. of Public Works and
Communications, L-10405, Dec. 29, 1960; Corominas, Jr. v. Labor 30 Angara v. Electoral Commission, 63 Phil. 139, 157. Emphasis ours.
Standards Commission, L-14837, June 30, 1961; City of Baguio v.
NAWASA, L-12032, Aug. 31, 1959; City of Cebu v. NAWASA, L-12892, 31 12 L. ed. 581 (1849).
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. 32 Luther v. Borden, supra, p. 598. Emphasis ours.

18 G.R. Nos. L-35925, L-35929, L-35940, L-35941, L-35942, L-35948, L- 33 In re McConaughy, supra, p. 416. Emphasis ours.
35953, L-35961,
L-35965 and L-35979, decided on January 22, 1973.. 34 369 U.S. 186, 7 L. ed. 2d. 663, 82 S. Ct. 691 (March 26, 1962).

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.
35 395 U.S. 486, 23 L. ed. 2d. 491, 89 S. Ct. 1944 (1969).
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.
38 See p. 5 of the Petition.

20 5 Phil. 87. 39 Emphasis ours.

21 91 Phil. 882. 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.
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 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."
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."
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.
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 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. ...
"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."
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. Emphasis ours.
55 L-33325 and L-34043, December 29, 1971.
56 Hopkins v. City of Duluth, 83 N.W. 536, 538. Emphasis ours.
57 Maddox v. Board of State Canvassers, 149 P. 2d. 112, 115. Emphasis
ours.
58 Port of Palm Beach District v. State, 22 So. 2d. 581, 582-583.
Emphasis ours.
59 Art. X, section 1 of the 1935 Constitution.
60 Ten (10) years.
61 Art. X, section 2 of the 1935 Constitution.
62 Ibid.
63 Art. X, section 3 of the 1935 Constitution.
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 controversy submitted to the Commission shall
after complaince 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."
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.
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 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." (Emphasis ours.).
68 McKinney v. Baker, 180 Ky. 526 203 S.W. 303, 304. Emphasis ours.
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.
73 63 N.J. Law, 289, cited in In re McConaughy, supra.
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.
76 On December 19, 1972.
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.
79 Art. VII, section 10, paragraph (1).
80 101 Va. 529, 44 S.E. 754.
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.
83 Daily Express, November 29, 1972, p. 4. Emphasis ours.
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.
86 Justice Barredo's opinion in the plebiscite cases.
87 Joint Opinion of Justices Makalintal and Castro, p. 153.
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.
ANNEX B
* 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.
* 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.
* According to the Solicitor General 92 Congressmen and 15 Senators
(both numbers constituting majorities) have expressed their option.
* Luther v. Borden, 48 U.S. (7 Haw.) 1, 12 L. Ed. 581 (1849).
BARREDO, J., CONCURRING:
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.
2 Executive Agreements are not included in the corresponding provision
of the 1935 Constitution.
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.
* 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.
ESGUERRA, J., CONCURRING:
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.
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.
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.
8 Cooley, Constitutional Limitation, 8th Ed., Vol. I, p. 82.
9 39 Phil. 258, 268.
10 69 Phil. 199, 204.
11 70 Phil. 28, 31.
FERNANDO, J., dissenting:
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. 16 Ibid, 395.
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 I7 Weston, Political Questions, I Selected Essays an Constitutional Law
amendments are submitted to the people for their ratification." Art. XV, 418, 422 (1938)..
Section 1.
18 Cf. Bickel, The Least Dangerous Branch (1962).
3 Lerner, Ideas are Weapons, 426 (1939). Earlier, in this collection of
essays, Lerner made this not-entirely-inaccurate observation: "No 19 Cf. Freund, On Understanding the Supreme Court (1950). Also his
governmental institution that consists of a group of legal technicians The Supreme Court of the United States (1962).
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
20 Laurel, S., VII Proceedings of the Philippine Constitutional Convention
the Supreme Court of the United States.
(1934-1935), Appendix L, 800.
4 Frankfurter, Mr. Justice Holmes and the Supreme Court, 25-26 (1938).
21 65 Phil. 56 (1937).
5 Black, The People and the Court (1960).
22 Ibid, 96.
6 Murphy, Elements of Judicial Strategy (1964).
23 63 Phil. 139 (1936).
7 Cf. Angara v. Electoral Commission, 63 Phil. 139 (1936); Tañada v.
24 L-35925, January 22, 1973.
Cuenco, 103 Phil. 1051 (1957); Vera v. Arca, L-25721, May 26, 1969, 28
SCRA 351.
25 Rostow, The Democratic Character of Judicial Review in Selected
Essays on Constitutional Law 1938 1962, 1, 2 (1963).
8 Gonzales v. Commission on Elections, L-28196, Nov. 9, 1967, 21
SCRA 774.
26 Ibid.
9 Tolentino v. Commission on Elections, L-24150, Oct. 16, 1971, 41
SCRA 702. 27 Ibid, 3.

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.
14 Ibid, 504-505.
15 Dodd, Judicially Nonenforceable Provisions of Constitutions, in I
Selected Essays on Constitutional Law 355, 387 (1938).
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).
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).
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 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.
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).
46 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 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, 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).
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
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 Mclver, The Web of Government, 84 (1947).
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.
67 Ibid, 523.
68 101 Va. 829, 44 SE 754.
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).
70 Araneta v. Dinglasan. 84 Phil. 368 (1949).
71 Cardozo, The Nature of the Judicial Process, 141 (1921).
TEEHANKEE, J., dissenting:
1 Section 1, which is the lone section of Art. XV; emphasis supplied.
2 Article XVII, section 16, proposed Constitution of Nov. 30,1972;
emphasis supplied.
3 All quotations from respondents' memo of arguments dated March 2,
1973, pp. 2-5; emphasis supplied.
4 Respondents' memo dated March 2, 1973, p. 8; emphasis 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; emphasis supplied.
8 Idem, at page 4, emphasis 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.
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.
12 Idem, at pp. 384-385; emphasis supplied.
13 Idem, at p. 437.
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."
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.
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).
26 63 Phil. 134 (1936).
27 4 Wheaton 316 (1819).
28 Dean Pollak's "The Constitution and the Supreme Court", Vol. 1, p.
221.
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 ..."
31 Resolution of Nov. 4, 1971, per Barredo, J. at p. 15.
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.
36 Idem at pp. 1-2.
37 Idem at p. 3.
38 Resolution 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.
40 All quotations are from the Chief Justice's concurring opinion
in Tolentino, pp. 4-7.
41 Separate op. of J. Teehankee concurring in Res. of No. 4, 1971
in Tolentino, pp. 8, 9, 10.
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.
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 ... ." Rep. Act 3590, sec. 2.
46 Rep. Act 3590, sec. 6, par. 1.
47 Idem, par. 2.
48 Idem, par. 3 and 4, emphasis supplied.
49 One barrio lieutenant and six barrio councilmen; "Voting shall be by
secret ballot. ... ." 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.
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."
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."
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.
ANTONIO, J., CONCURRING:
* First decision promulgated by First Division of the Supreme Court.
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).
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.
* Leon O. Ty, Seven Months of Martial Law, Daily Express.
* Panorama, May 6, 1973.
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 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's case. 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 affect the tenure of many offices of any branch of the government. The
made by them as a matter of practical politics. Two commissions are popular inertia is likely to allow the court successfully to assume the
being held out to them, and if they will act as a court they must assess question to be one of law. The path of fallacy is not too strikingly
under which commission they are acting. To put the matter another way, fallacious to the uncritical observer. It may lead to just results. The
it must be true that in the first case above — of two constitutions judges' personal inclinations will be to show deference to the expression
purporting to establish two different courts, — the men who were judges of popular sentiment which has been given. And yet, if they declare the
under the old regime and the men who are called to be judges under the change in force, they are truly making a personal declaration that they
new have each to decide as individuals what they are to do; and it may believe the change to be the directly expressed will of the sovereign,
be that they choose at grave peril with the factional outcome still which will they assert to be law, but the fact of existence of which
uncertain. And, although it is equally obvious, the situation is logically will — and this is the real decision — is not ascertainable in the given
identical where the same men are nominated to constitute the court case by any legal means. It is submitted that this is true, and that the
under both the old and new constitution, at a time when the alleged conclusions offered in the discussion of revolutionary change are true,
change is occurring — if it is — peaceably and against a placid popular also, whether the quantum of change involved be vast or almost
background. Men under such circumstances may write most negligible.
praiseworthily principles of statesmanship, upon sovereignty and, its
nature modes of action, and upon the bases of government, to justify the "The net result of the preceding discussion is this: that in almost the
choice between the two commissions. They can assert their choice in the whole field of problems which the Duke of York's case and the American
course of purported judicial action. But they cannot decide as a court, for constitutional amendment cases present, the court as a court is
the decision, once made, by a retroactive hypothesis excludes any precluded from passing upon the fact of change by a logical difficulty
assumption of controversiality in the premises.. which is not to be surmounted. It follows that there is no room for
considering whether the court ought graciously and deferentially to look
"Where the alleged change occurs not through revolutionary measures to the executive or legislative for a decision that a change has or has not
but through what has been called revision, these logical difficulties taken place.
disappear in one aspect, but become far more embarrassing in another.
Where the alteration purports to be made along the lines of a procedural 6 & 7 Ibid. pp. 301, 305.
method laid down in the constitution, there is a standard which the court
can apply and, by so doing, it can perceive judicially whether or not the APPENDIX TO OPINION.
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
@ The inclusion in the Appendix of provisions for Amendment and
is possible, namely, the ease where the alteration purports at once to
Revision in State Constitutions, adopted after 1935, is only to stress the
abolish the court or to depose its personnel. Then, although there would
fact that the distinction between Amendment and Revision of
be a question of law to be decided, it may be wondered who there is to
Constitution, which existed at the time of the adoption of the 1935
decide it. Suppose, however, the mode of change has failed in some way
Constitution, has continued up to the present.
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