Republic of the Philippines

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 A
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
PERALTA AND LORENZO M. TAÑADA, petitioners,
vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF FINANCE , THE SECRETARY OF JUSTICE, THE SECRE
LAND REFORM, THE SECRETARY OF NATIONAL DEFENSE, THE AUDITOR GENERAL, THE BUDGET COMM
THE CHAIRMAN OF PRESIDENTIAL COMMISSION ON REORGANIZATION, THE TREASURER OF THE PHILIP
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,
EVA ESTRADA-KALAW, petitioners,
vs.
ALEJANDRO MELCHOR, in his capacity as Executive Secretary; JUAN PONCE ENRILE, in his capacity as Se
National Defense; General ROMEO ESPINO, in his capacity as Chief of Staff of the Armed Forces of the Philip
TANCIO E. CASTAÑEDA, in his capacity as Secretary General Services; Senator GIL J. PUYAT, in his capacit
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

EDDIE B. MONTECLARO, [personally and in his capacity as President of the National Press Club of the
Philippines], petitioner,
vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF PUBLIC INFORMATION, THE AUDITOR GENERAL, THE
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,
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 o
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 amende
Resolution No. 4 of said body, adopted on June 17, 1969, calling a Convention to propose am
to the Constitution of the Philippines. Said Resolution No. 2, as amended, was implemented b
Act No. 6132, approved on August 24, 1970, pursuant to the provisions of which the election o
to said Convention was held on November 10, 1970, and the 1971 Constitutional Convention
perform its functions on June 1, 1971. While the Convention was in session on September 21
President issued Proclamation No. 1081 placing the entire Philippines under Martial Law. On
29, 1972, the Convention approved its Proposed Constitution of the Republic of the Philippine
day, November 30, 1972, the President of the Philippines issued Presidential Decree No. 73,
to the Filipino people for ratification or rejection the Constitution of the Republic of the Philippi
proposed by the 1971 Constitutional Convention, and appropriating funds therefor," as well as
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-35
against the Commission on Elections, the Treasurer of the Philippines and the Auditor Genera
said "respondents or their agents from implementing Presidential Decree No. 73, in any mann
further orders of the Court," upon the grounds, inter alia, that said Presidential Decree "has no
effect as law because the calling ... of such plebiscite, the setting of guidelines for the conduct
same, the prescription of the ballots to be used and the question to be answered by the voters
appropriation of public funds for the purpose, are, by the Constitution, lodged exclusively in Co
and "there is no proper submission to the people of said Proposed Constitution set for Januar
there being no freedom of speech, press and assembly, and there being no sufficient time to i
people of the contents thereof."

Substantially identical actions were filed, on December 8, 1972, by Pablo C. Sanidad against
Commission on Elections (Case G.R. No. L- 35929) on December 11, 1972, by Gerardo Roxa
against the Commission on Elections, the Director of Printing, the National Treasurer and the
General (Case G.R. L-35940), by Eddie B. Monteclaro against the Commission on Elections a
Treasurer of the Philippines (Case G.R. No. L-35941), and by Sedfrey Ordoñez, et al. against
National Treasurer and the Commission on Elections (Case G.R. No. L-35942); on December
by Vidal Tan, et al., against the Commission on Elections, the Treasurer of the Philippines, the
General and the Director of Printing (Case G.R. No. L-35948) and by Jose W. Diokno and Ben
Aquino against the Commission on Elections (Case G.R. No. L-35953); on December 14, 197
Jacinto Jimenez against the Commission on Elections, the Auditor General, the Treasurer of t
Philippines and the Director of the Bureau of Printing (Case G.R. No. L-35961), and by Raul M
against the Commission on Elections, the Budget Commissioner, the National Treasurer and
General (Case G.R. No. L-35965); and on December 16, 1972, by Ernesto C. Hidalgo against
Commission on Elections, the Secretary of Education, the National Treasurer and the Auditor
(Case G.R. No. L-35979).

In all these cases, except the last (G.R. No. L-35979), the respondents were required to file th
"not later than 12:00 (o'clock) noon of Saturday, December 16, 1972." Said cases were, also,
hearing and partly heard on Monday, December 18, 1972, at 9:30 a.m. The hearing was conti
December 19, 1972. By agreement of the parties, the aforementioned last case — G.R. No. L
was, also, heard, jointly with the others, on December 19, 1972. At the conclusion of the heari
date, the parties in all of the aforementioned cases were given a short period of time within wh
submit their notes on the points they desire to stress." Said notes were filed on different dates
December 21, 1972, and January 4, 1973.

Meanwhile, or on December 17, 1972, the President had issued an order temporarily suspend
effects of Proclamation No. 1081, for the purpose of free and open debate on the Proposed C
On December 23, the President announced the postponement of the plebiscite for the ratificat
rejection of the Proposed Constitution. No formal action to this effect was taken until January
when General Order No. 20 was issued, directing "that the plebiscite scheduled to be held on
1978, be postponed until further notice." Said General Order No. 20, moreover, "suspended in
meantime" the "order of December 17, 1972, temporarily suspending the effects of Proclamat
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 Cou
it fit to refrain, for the time being, from deciding the aforementioned cases, for neither the date
conditions under which said plebiscite would be held were known or announced officially. The
Congress was, pursuant to the 1935 Constitution, scheduled to meet in regular session on Ja
1973, and since the main objection to Presidential Decree No. 73 was that the President does
the legislative authority to call a plebiscite and appropriate funds therefor, which Congress unq
could do, particularly in view of the formal postponement of the plebiscite by the President —
after consultation with, among others, the leaders of Congress and the Commission on Electio
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, pref
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 or
so-called Citizens Assemblies, to be consulted on certain public questions [Bulletin Today, Ja
1973];

"7. That thereafter it was later announced that "the Assemblies will be asked if they favor or op

[1] The New Society;

[2] Reforms instituted under Martial Law;

[3] The holding of a plebiscite on the proposed new Constitution and when (the
new dates given following the postponement of the plebiscite from the original
January 15 are February 19 and March 5);

[4] The opening of the regular session slated on January 22 in accordance wit
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 aske
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?
Today, January 5, 1973].

"9. That the voting by the so-called Citizens Assemblies was announced to take place during t
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 fo
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 governmen
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
called Citizens Assemblies: —
 [1] Do you approve of the citizens assemblies as the base of popular governm
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
provisions of the 1935 Constitution?

[5] If the elections would not be held, when do you want the next elections to b

[6] Do you want martial law to continue? [Bulletin Today, January 11, 1973; em
supplied]

"12. That according to reports, the returns with respect to the six (6) additional questions quot
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",
reads: —

COMMENTS ON

QUESTION No. 1

In order to broaden the base of citizens' participation in govern

QUESTION No. 2

But we do not want the Ad Interim Assembly to be convoked. Or if it is to be co

all, it should not be done so until after at least seven (7) years from the approv
New Constitution by the Citizens Assemblies.

QUESTION No. 3

The vote of the Citizens Assemblies should already be considered the plebisci
New Constitution.

If the Citizens Assemblies approve of the New Constitution, then the new Con
should be deemed ratified.

QUESTION No. 4

We are sick and tired of too frequent elections. We are fed up with politics, of s
debates and so much expenses.

QUESTION No. 5

Probably a period of at least seven (7) years moratorium on elections will be e

 stability to be established in the country, for reforms to take root and normalcy

QUESTION No. 6

We want President Marcos to continue with Martial Law. We want him to exerc
powers with more authority. We want him to be strong and firm so that he can
all his reform programs and establish normalcy in the country. If all other meas
we want President Marcos to declare a revolutionary government along the lin
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
Constitution.

If the Citizens Assemblies approve of the New Constitution, then the new Con
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
announced that the limited freedom of debate on the proposed Constitution was being withdra
the proclamation of martial law and the orders and decrees issued thereunder would thencefo
be enforced [Daily Express, January 8, 1973];

15. That petitioners have reason to fear, and therefore state, that the question added in the la
questions to be asked to the Citizens Assemblies, namely: —

Do you approve of the New Con

—

in relation to the question following it: —

Do you still want a plebiscite to be called to rati

Constitution?" —

would be an attempt to by-pass and short-circuit this Honorable Court before which the questi
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
questions just referred to will be reported then this Honorable Court and the entire nation will b
confronted with a fait accompli which has been attained in a highly unconstitutional and undem
manner;

"17. That the fait accompli would consist in the supposed expression of the people approving
proposed Constitution;
"18. That, if such event would happen, then the case before this Honorable Court could, to all
purposes, become moot because, petitioners fear, and they therefore allege, that on the basis
supposed expression of the will of the people through the Citizens Assemblies, it would be an
that the proposed Constitution, with all its defects, both congenital and otherwise, has been ra

"19. That, in such a situation the Philippines will be facing a real crisis and there is likelihood o
if not chaos, because then, the people and their officials will not know which Constitution is in

"20. That the crisis mentioned above can only be avoided if this Honorable Court will immedia
and announce its decision on the present petition;

"21. That with the withdrawal by the President of the limited freedom of discussion on the prop
Constitution which was given to the people pursuant to Sec. 3 of Presidential Decree No. 73,
opposition of respondents to petitioners' prayer at the plebiscite be prohibited has now collaps
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
"Gerardo Roxas, et al. v. Commission on Elections, et al.," and L-35942, "Sedfrey A. Ordoñez
The National Treasurer, et al."

The next day, January 13, 1973, which was a Saturday, the Court issued a resolution requirin
respondents in said three (3) cases to comment on said "urgent motion" and "manifestation," "
than Tuesday noon, January 16, 1973." Prior thereto, or on January 15, 1973, shortly before n
petitioners in said Case G.R. No. L-35948 riled a "supplemental motion for issuance of restrai
and inclusion of additional respondents," praying —

"... that a restraining order be issued enjoining and restraining respondent Com
Elections, as well as the Department of Local Governments and its head, Secr
Roño; the Department of Agrarian Reforms and its head, Secretary Conrado E
National Ratification Coordinating Committee and its Chairman, Guillermo de V
deputies, subordinates and substitutes, and all other officials and persons who
assigned such task, from collecting, certifying, and announcing and reporting t
President or other officials concerned, the so-called Citizens' Assemblies refer
results allegedly obtained when they were supposed to have met during the pe
comprised between January 10 and January 15, 1973, on the two questions q
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 Honor
issue a restraining order enjoining herein respondents, particularly respondent Commission on
as well as the Department of Local Governments and its head, Secretary Jose Roño; the Dep
Agrarian Reforms and its head, Secretary Conrado Estrella; the National Ratification Coordina
Committee and its Chairman, Guillermo de Vega; and their deputies, subordinates and/or sub
from collecting, certifying, announcing and reporting to the President the supposed Citizens' A
referendum results allegedly obtained when they were supposed to have met during the perio
January 10 and January 15, 1973, particularly on the two questions quoted in paragraph 1 of
Supplemental Urgent Motion;

"4. That the proceedings of the so-called Citizens' Assemblies are illegal, null and void particu
as such proceedings are being made the basis of a supposed consensus for the ratification of
proposed Constitution because: —

[a] The elections contemplated in the Constitution, Article XV, at which the pro
constitutional amendments are to be submitted for ratification, are elections at
qualified and duly registered voters are permitted to vote, whereas, the so call
Assemblies were participated in by persons 15 years of age and older, regardl
qualifications or lack thereof, as prescribed in the Election Code;

[b] Elections or plebiscites for the ratification of constitutional amendments con

in Article XV of the Constitution have provisions for the secrecy of choice and
which is one of the safeguards of freedom of action, but votes in the Citizens' A
were open and were cast by raising hands;

[c] The Election Code makes ample provisions for free, orderly and honest ele
such provisions are a minimum requirement for elections or plebiscites for the
of constitutional amendments, but there were no similar provisions to guide an
proceedings of the so called Citizens' Assemblies;

[d] It is seriously to be doubted that, for lack of material time, more than a hand
called Citizens' Assemblies have been actually formed, because the mechanic
organization were still being discussed a day or so before the day they were s
begin functioning: —

"Provincial governors and city and municipal mayors had been

with barrio captains and community leaders since last Monday
1973) to thresh out the mechanics in the formation of the Citize
Assemblies and the topics for discussion." [Bulletin Today, Jan
1973]

"It should be recalled that the Citizens' Assemblies were ordered formed only at the beginning
[Daily Express, January 1, 1973], and considering the lack of experience of the local organize
assemblies, as well as the absence of sufficient guidelines for organization, it is too much to b
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 of
government agencies mentioned in paragraph 3 of this Supplemental Urgent Motion could no
completed because, as noted in the Urgent Motion of January 12, 1973, the submission of the
Constitution to the Citizens' Assemblies was not made known to the public until January 11, 1
that as it may, the said additional officials and agencies may be properly included in the petitio
because: —

[a] The herein petitioners have prayed in their petition for the annulment not on
Presidential Decree No. 73, but also of "any similar decree, proclamation, orde
instruction.

so that Presidential Decree No. 86, insofar at least as it attempts to submit the proposed Cons
plebiscite by the so-called Citizens' Assemblies, is properly in issue in this case, and those wh
implement, or carry out the said Presidential Decree No. 86. and the instructions incidental the
fall within the scope of this petition;

[b] In their petition, petitioners sought the issuance of a writ of preliminary injun
restraining not only the respondents named in the petition but also their "agen
implementing not only Presidential Decree No. 73, but also "any other similar d
order, instruction, or proclamation in relation to the holding of a plebiscite on J
1973 for the purpose of submitting to the Filipino people for their ratification or
the 1972 Draft or proposed Constitution approved by the Constitutional Conve
November 30, 1972"; and finally,

[c] Petitioners prayed for such other relief which may be just and equitable. [p.
Petition].

"Therefore, viewing the case from all angles, the officials and government agencies mentioned
paragraph 3 of this Supplemental Urgent Motion, can lawfully be reached by the processes of
Honorable Court by reason of this petition, considering, furthermore, that the Commission on
has under our laws the power, among others, of: —

(a) Direct and immediate supervision and control over national, provincial, city
and municipal district officials required by law to perform duties relative to the
elections on matters pertaining to the enforcement of the provisions of this Cod
[Election Code of 1971, Sec. 3].

"6. That unless the petition at bar is decided immediately and the Commission on Elections, to
the officials and government agencies mentioned in paragraph 3 of this Supplemental Urgent
restrained or enjoined from collecting, certifying, reporting or announcing to the President the
the alleged voting of the so-called Citizens' Assemblies, irreparable damage will be caused to
Republic of the Philippines, the Filipino people, the cause of freedom an democracy, and the p
herein because:

[a] After the result of the supposed voting on the questions mentioned in parag
hereof shall have been announced, a conflict will arise between those who ma
the 1935 Constitution is still in force, on the one hand, and those who will main
has been superseded by the proposed Constitution, on the other, thereby crea
confusion, if not chaos;

[b] Even the jurisdiction of this Court will be subject to serious attack because
advocates of the theory that the proposed Constitution has been ratified by rea
announcement of the results of the proceedings of the so-called Citizens' Asse
argue that, General Order No. 3, which shall also be deemed ratified pursuant
Transitory Provisions of the proposed Constitution, has placed Presidential De
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 respond
case G.R. No. L-35948 to file "file an answer to the said motion not later than 4 P.M., Tuesday
16, 1973," and setting the motion for hearing "on January 17, 1973, at 9:30 a.m." While the ca
being heard, on the date last mentioned, at noontime, the Secretary of Justice called on the w
opinion and said that, upon instructions of the President, he (the Secretary of Justice) was del
him (the writer) a copy of Proclamation No. 1102, which had just been signed by the Presiden
Thereupon, the writer returned to the Session Hall and announced to the Court, the parties in
35948 — inasmuch as the hearing in connection therewith was still going on — and the public
 present that the President had, according to information conveyed by the Secretary of Justice
said Proclamation No. 1102, earlier that morning. Thereupon, the writer read Proclamation No
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 C

subject to ratification by the Filipino people;

"WHEREAS, Citizens Assemblies were created in barrios, in municipalities and in districts/wa

chartered cities pursuant to Presidential Decree No. 86, dated December 31, 1972, composed
persons who are residents of the barrio, district or ward for at least six months, fifteen years o
over, citizens of the Philippines and who are registered in the list of Citizen Assembly member
the barrio, district or ward secretary;

"WHEREAS, the said Citizens Assemblies were established precisely to broaden the base of
participation in the democratic process and to afford ample opportunity for the citizenry to exp
views on important national issues;

"WHEREAS, responding to the clamor of the people and pursuant to Presidential Decree No.
January 5, 1973, the following questions were posed before the Citizens Assemblies or Baran
you approve of the New Constitution? Do you still want a plebiscite to be called to ratify the ne
Constitution?

"WHEREAS, fourteen million nine hundred seventy-six thousand five hundred sixty-one (14,97
members of all the Barangays (Citizens Assemblies) voted for the adoption of the proposed C
as against seven hundred forty-three thousand eight hundred sixty-nine (743,869) who voted
rejection; while on the question as to whether or not the people would still like a plebiscite to b
ratify the new Constitution, fourteen million two hundred ninety-eight thousand eight hundred f
(14,298,814) answered that there was no need for a plebiscite and that the vote of the Barang
(Citizens Assemblies) should be considered as a vote in a plebiscite;

"WHEREAS, since the referendum results show that more than ninety-five (95) per cent of the
of the Barangays (Citizens Assemblies) are in favor of the new Constitution, the Katipunan ng
Barangay has strongly recommended that the new Constitution should already be deemed rat
Filipino people;

"NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of t

in me vested by the Constitution, do hereby certify and proclaim that the Constitution propose
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 A
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
 Philippines to be affixed.

"Done in the City of Manila, this 17th day of January, in the year of Our Lord, nineteen hundre
seventy-three.

(Sgd.) FERDINA
MARCOS
"President of the

"By the President:

"ALEJANDRO MELCHOR
"Executive Secretary"

Such is the background of the cases submitted determination. After admitting some of the alle
made in the petition in L-35948 and denying the other allegations thereof, respondents therein
their answer thereto, by way affirmative defenses: 1) that the "questions raised" in said petitio
political in character"; 2) that "the Constitutional Convention acted freely and had plenary auth
propose not only amendments but a Constitution which would supersede the present Constitu
"the President's call for a plebiscite and the appropriation of funds for this purpose are valid"; 4
"there is not an improper submission" and "there can be a plebiscite under Martial Law"; and 5
"argument that the Proposed Constitution is vague and incomplete, makes an unconstitutiona
of power, includes a referendum on the proclamation of Martial Law and purports to exercise j
power" is "not relevant and ... without merit." Identical defenses were set up in the other cases
consideration.

Immediately after the hearing held on January 17, 1973, or since the afternoon of that date, th
of the Court have been deliberating on the aforementioned cases and, after extensive discuss
merits thereof, have deemed it best that each Member write his own views thereon and that th
Chief Justice should state the result or the votes thus cast on the points in issue. Hence, the in
views of my brethren in the Court are set forth in the opinions attached hereto, except that, ins
writing their separate opinions, some Members have preferred to merely concur in the opinion
our colleagues.

Then the writer of said decision expressed his own opinion on the issues involved therein, after which he recapitulate
of the Members of the Court, as follows:

1. There is unanimity on the justiciable nature of the issue on the legality of Presidential Decre

2. On the validity of the decree itself, Justices Makalintal, Castro, Fernando, Teehankee, Esgu
myself, or six (6) Members of the Court, are of the opinion that the issue has become moot an
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 o
incorporate therein the provisions contested by the petitioners in L-35948, Justices Makalintal
Teehankee and Esguerra opine that the issue has become moot and academic. Justices Fern
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
to continue in the performance of its functions despite the proclamation of Martial Law. In effe
 Barredo, Makasiar and Antonio hold the same view.

5. On the question whether the proclamation of Martial Law affected the proper submission of
proposed Constitution to a plebiscite, insofar as the freedom essential therefor is concerned, J
Fernando is of the opinion that there is a repugnancy between the election contemplated unde
the 1935 Constitution and the existence of Martial Law, and would, therefore, grant the petitio
they not moot and academic. Justices Barredo, Antonio and Esguerra are of the opinion that i
involves questions of fact which cannot be predetermined, and that Martial Law per se does n
necessarily preclude the factual possibility of adequate freedom, for the purposes contemplate

6. On Presidential Proclamation No. 1102, the following views were expressed:

a. Justices Makalintal, Castro, Fernando, Teehankee, Makasiar, Esguerra and

of the opinion that the question of validity of said Proclamation has not been p
raised before the Court, which, accordingly, should not pass upon such questi

b. Justice Barredo holds that the issue on the constitutionality of Proclamation

has been submitted to and should be determined by the Court, and that the "p
ratification of the Proposed Constitution ... based on the referendum among C
Assemblies falls short of being in strict conformity with the requirements of Art
the 1935 Constitution," but that such unfortunate drawback notwithstanding, "c
all other related relevant circumstances, ... the new Constitution is legally reco
and should be recognized as legitimately in force."

c. Justice Zaldivar maintains unqualifiedly that the Proposed Constitution has n

ratified in accordance with Article XV of the 1935 Constitution, and that, accord
no force and effect whatsoever.

d. Justice Antonio feels "that the Court is not competent to act" on the issue w
Proposed Constitution has been ratified by the people or not, "in the absence
judicially discoverable and manageable standards," since the issue "poses a q
fact.

7. On the question whether or not these cases should be dismissed, Justices Makalintal, Cast
Makasiar, Antonio and Esguerra voted in the affirmative, for the reasons set forth in their resp
opinions. Justices Fernando, Teehankee, and the writer similarly voted, except as regards Ca
35948 as to which they voted to grant to the petitioners therein a reasonable period of time wi
file appropriate pleadings should they wish to contest the legality of Presidential Proclamation
Justice Zaldivar favors the granting of said period to the petitioners in said Case No. L-35948
aforementioned purpose, but he believes, in effect, that the Court should go farther and decid
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) membe
1

dissenting,  with respect to G.R. No. L-35948, only and another member  dissenting, as regards all of the cases dismi
2 3

same, without special pronouncement as to costs.

The Present Cases

Prior thereto, or on January 20, 1973, Josue Javellana filed Case G.R. No. L-36142 against the Executive Secretary
Secretaries of National Defense, Justice and Finance, to restrain said respondents "and their subordinates or agents
implementing any of the provisions of the propose Constitution not found in the present Constitution" — referring to th
The petition therein, filed by Josue Javellana, as a "Filipino citizen, and a qualified and registered voter" and as "a cla
himself, and in behalf of all citizens and voters similarly situated," was amended on or about January 24, 1973. After
substance the facts set forth in the decision in the plebiscite cases, Javellana alleged that the President had announc
immediate implementation of the New Constitution, thru his Cabinet, respondents including," and that the latter "are a
without, or in excess of jurisdiction in implementing the said proposed Constitution" upon the ground: "that the Presid
Commander-in-Chief of the Armed Forces of the Philippines, is without authority to create the Citizens Assemblies"; t
same "are without power to approve the proposed Constitution ..."; "that the President is without power to proclaim th
by the Filipino people of the proposed Constitution"; and "that the election held to ratify the proposed Constitution wa
election, hence null and void."

Similar actions were filed, on January 23, 1973, by Vidal Tan, J. Antonio Araneta, Alejandro Roces, Manuel Crudo, A
Miranda, Emilio de Peralta and Lorenzo M. Tañada, against the Executive Secretary, the Secretaries of Finance, Jus
Reform, and National Defense, the Auditor General, the Budget Commissioner, the Chairman of the Presidential Com
Reorganization, the Treasurer of the Philippines, the Commission on Elections and the Commissioner of Civil Service
February 3, 1973, by Eddie Monteclaro, personally and as President of the National Press Club of the Philippines, ag
Executive Secretary, the Secretary of Public Information, the Auditor General, the Budget Commissioner and the Nat
Treasurer  and on February 12, 1973, by Napoleon V. Dilag, Alfredo Salapantan, Jr., Leonardo Asodisen, Jr. and Rau
5

Gonzales,  against the Executive Secretary, the Secretary of National Defense, the Budget Commissioner and the Au
6

General.

Likewise, on January 23, 1973, Gerardo Roxas, Ambrosio Padilla, Jovito R. Salonga, Salvador H. Laurel,  Ramon V.
7

and Eva Estrada-Kalaw, the first as "duly elected Senator and Minority Floor Leader of the Senate," and others as "du
members" thereof, filed Case G.R. No. L-36165, against the Executive Secretary, the Secretary National Defense, th
Staff of the Armed Forces of the Philippines, the Secretary of General Services, the President and the President Pro
the Senate. In their petition — as amended on January 26, 1973 — petitioners Gerardo Roxas, et al. allege, inter alia
term of office of three of the aforementioned petitioners  would expire on December 31, 1975, and that of the others  o
8 9

December 31, 1977; that pursuant to our 1935 Constitution, "which is still in force Congress of the Philippines "must c
its 8th Session on Monday, January 22, 1973, at 10:00 A.M., which is regular customary hour of its opening session";
said day, from 10:00 A.M. up to the afternoon," said petitioner "along with their other colleagues, were unlawfully prev
using the Senate Session Hall, the same having been closed by the authorities in physical possession and control the
Building"; that "(a)t about 5:00 to 6:00 P.M. the said day, the premises of the entire Legislative Building were ordered
the same authorities, and no one was allowed to enter and have access to said premises"; that "(r)espondent Senate
Gil J. Puyat and, in his absence, respondent President Pro Tempore Jose Roy we asked by petitioning Senators to p
duties under the law and the Rules of the Senate, but unlawfully refrained and continue to refrain from doing so"; that
petitioners ready and willing to perform their duties as duly elected members of the Senate of the Philippines," but res
Secretary of National Defense, Executive Secretary and Chief of Staff, "through their agents and representatives, are
petitioners from performing their duties as duly elected Senators of the Philippines"; that "the Senate premise in the C
the Philippines Building ... are occupied by and are under the physical control of the elements military organizations u
direction of said respondents"; that, as per "official reports, the Department of General Services ... is now the civilian
custody of the premises of the Legislative Building"; that respondents "have unlawfully excluded and prevented, and
so exclude and prevent" the petitioners "from the performance of their sworn duties, invoking the alleged approval of
(1973) Constitution of the Philippines by action of the so-called Citizens' Assemblies on January 10, 1973 to January
as stated in and by virtue of Proclamation No. 1102 signed and issued by the President of the Philippines"; that "the a
creation of the Citizens' Assemblies as instrumentalities for the ratification of the Constitution of the Republic of the P
inherently illegal and palpably unconstitutional; that respondents Senate President and Senate President Pro Tempor
unlawfully refrained and continue to refrain from and/or unlawfully neglected and continue to neglect the performance
duties and functions as such officers under the law and the Rules of the Senate" quoted in the petition; that because
supervening the institution of the plebiscite cases, to which reference has been made in the preceding pages, the Su
dismissed said cases on January 22, 1973, by a majority vote, upon the ground that the petitions therein had become
academic; that the alleged ratification of the 1972 (1973) Constitution "is illegal, unconstitutional and void and ... can
superseded and revoked the 1935 Constitution," for the reasons specified in the petition as amended; that, by acting
the respondents and their "agents, representatives and subordinates ...have excluded the petitioners from an office to
they "are lawfully entitled"; that "respondents Gil J. Puyat and Jose Roy have unlawfully refrained from convening the
its 8th session, assuming general jurisdiction over the Session Hall and the premises of the Senate and ... continue s
up to this time and ... a writ of mandamus is warranted in order to compel them to comply with the duties and function
specifically enjoined by law"; and that "against the above mentioned unlawful acts of the respondents, the petitioners
appeal nor other speedy and adequate remedy in the ordinary course of law except by invoking the equitable remedie
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 prelim
mandatory injunction be issued ordering respondents Executive Secretary, the Secretary of National Defense, the Ch
of the Armed Forces of the Philippines, and the ... Secretary of General Service, as well as all their agents, represent
subordinates to vacate the premises of the Senate of the Philippines and to deliver physical possession of the same t
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
and mandamus, as prayed for against above-mentioned respondents, and making the writ injunction permanent; and
of mandamus be issued against the respondents Gil J. Puyat and Jose Roy directing them to comply with their duties
functions as President and President Pro Tempore, respectively, of the Senate of Philippines, as provided by law and
of the Senate."

Required to comment on the above-mentioned petitions and/or amended petitions, respondents filed, with the leave C
had and obtained, a consolidated comment on said petitions and/or amended petitions, alleging that the same ought
been dismissed outright; controverting petitioners' allegations concerning the alleged lack impairment of the freedom
Constitution Convention to approve the proposed Constitution, its alleged lack of authority to incorporate certain cont
provisions thereof, the alleged lack of authority of the President to create and establish Citizens' Assemblies "for the p
submitting to them the matter of ratification of the new Constitution," the alleged "improper or inadequate submiss of
proposed constitution," the "procedure for ratification adopted ... through the Citizens Assemblies"; a maintaining that
Court is without jurisdiction to act on these petitions"; 2) the questions raised therein are "political in character and the
nonjusticiable"; 3) "there substantial compliance with Article XV of the 1 Constitution"; 4) "(t)he Constitution was prope
submitted the people in a free, orderly and honest election; 5) "Proclamation No. 1102, certifying the results of the ele
conclusive upon the courts"; and 6) "(t)he amending process outlined in Article XV of the 1935 Constitution is not exc
other modes of amendment."

Respondents Puyat and Roy, in said Case G.R. No. L-36165, filed their separate comment therein, alleging that "(t)h
matter" of said case "is a highly political question which, under the circumstances, this ...Court would not be in a posit
upon judicially," and that, in view of the opinions expressed by three members of this Court in its decision in the plebi
in effect upholding the validity of Proclamation No. 1102, "further proceedings in this case may only be an academic e
futility."

On February 5, 1973, the Court issued a resolution requiring respondents in L-36236 to comment on the petition ther
than Saturday, February 10, 1973, and setting the case for hearing on February 12, 1973, at 9:30 a.m. By resolution
February 7, 1973, this Court resolved to consider the comments of the respondents in cases G.R. Nos. L-36142, L-36
36165, as motions to dismiss the petitions therein, and to set said cases for hearing on the same date and time as L-
that date, the parties in G.R. No. L-36283   agreed that the same be, likewise, heard, as it was, in fact, heard jointly w
10

aforementioned cases G.R. Nos. L-36142, L-36164, L-36165 and L-36236. The hearing, which began on February 12
shortly after 9:30 a.m., was continued not only that afternoon, but, also, on February 13, 14, 15 and 16, morning and
after which the parties were granted up to February 24, 1973, noon, within which to submit their notes of oral argume
additional arguments, as well as the documents required of them or whose presentation was reserved by them. The s
resolution granted the parties until March 1, 1973, to reply to the notes filed by their respective opponents. Counsel fo
petitioners in G.R. Nos. L-36164 and L-36165 filed their aforementioned notes on February 24, 1973, on which date t
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
Counsel for the petitioners, likewise, moved and were granted an extension of time, to expire on March 10, 1973, with
file, as they did, their notes in reply to those submitted by the Solicitor General on March 3, 1973. On March 21, 1973
in L-36165 filed a "Manifestation a Supplemental Rejoinder," whereas the Office of the Solicitor General submitted in
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
thereof on his colleagues, and this they did. Subsequently, the Court discussed said opinions and votes were cast the
individual opinions are appended hereto.

Accordingly, the writer will first express his person opinion on the issues before the Court. After the exposition his afo
opinion, the writer will make, concurrently with his colleagues in the Court, a resume of summary of the votes cast by
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,
Solicitor General, is predicated upon the fact that, in Our decision in the plebiscite cases, Mr. Justice Barredo had exp
view that the 1935 Constitution had "pro tanto passed into history" and "been legitimately supplanted by the Constitut
force by virtue of Proclamation No. 1102 ..."; that Mr. Justice Antonio did not feel "that this Court competent to act" in
"in the absence of any judicially discoverable and manageable standards" and because "the access to relevant inform
insufficient to assure the correct determination of the issue," apart from the circumstance that "the new constitution ha
promulgated and great interests have already arisen under it" and that the political organ of the Government has reco
provisions; whereas, Mr. Justice Esguerra had postulated that "(w)ithout any competent evidence ... about the circum
attending the holding" of the "referendum or plebiscite" thru the Citizens' Assemblies, he "cannot say that it was not la
and that, accordingly, he assumed "that what the proclamation (No. 1102) says on its face is true and until overcome
satisfactory evidence" he could not "subscribe to the claim that such plebiscite was not held accordingly"; and that he
"as a fait accompli that the Constitution adopted (by the 1971 Constitutional Convention) on November 30, 1972, has
ratified.

Counsel for respondents Gil J. Puyat and Jose Roy goes on to say that, under these circumstances, "it seems remote
improbable that the necessary eight (8) votes under the 1935 Constitution, and much less the ten (10) votes required
(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 heari
cases, that he was and is willing to be convinced that his aforementioned opinion in the plebiscite cases should be re
and changed. In effect, he thus declared that he had an open mind in connection with the cases at bar, and that in de
same he would not necessarily adhere to said opinion if the petitioners herein succeeded in convincing him that their
be sustained.

Secondly, counsel for the aforesaid respondents had apparently assumed that, under the 1935 Constitution, eight (8)
necessary to declare invalid the contested Proclamation No. 1102. I do not believe that this assumption is borne out b
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 Su
Court in banc, and no treaty or law may be declared unconstitutional without the concurrence
 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 de
or law" unconstitutional. Construing said provision, in a resolution dated September 16, 1949, then Chief Justice Mora
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 J
nullify a rule or regulation or an executive order issued by the President. It is very significant th
previous drafts of section 10, Article VIII of the Constitution, "executive order" and "regulation"
included among those that required for their nullification the vote of two-thirds of all the memb
Court. But "executive order" and "regulation" were later deleted from the final draft (Aruego, T
of the Philippine Constitution, Vol. I, pp. 495, 496), and thus a mere majority of six members o
is enough to nullify them.  11

The distinction is not without reasonable foundation. The two thirds vote (eight [8] votes) requirement, indeed, was m
only to treaty and law, because, in these cases, the participation of the two other departments of the government — t
Executive and the Legislative — is present, which circumstance is absent in the case of rules, regulations and execut
Indeed, a law (statute) passed by Congress is subject to the approval or veto of the President, whose disapproval can
overridden except by the vote of two-thirds (2/3) of all members of each House of Congress.   A treaty is entered into
12

President with the concurrence of the Senate,   which is not required in the case of rules, regulations or executive ord
13

are exclusive acts of the President. Hence, to nullify the same, a lesser number of votes is necessary in the Supreme
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 w
force to executive proclamation, like said Proclamation No. 1102, inasmuch as the authority to issue the same is gove
section 63 of the Revised Administrative Code, which provides:

Administrative acts and commands of the (Governor-General) President of the Philippines tou
organization or mode of operation of the Government or rearranging or readjusting any of the
divisions, parts or ports of the (Philippine Islands) Philippines and all acts and commands gov
general performance of duties by public employees or disposing of issues of general concern
made effective in executive orders.

Executive orders fixing the dates when specific laws, resolutions, or orders are to have or cea
effect and any information concerning matters of public moment determined by law, resolution
executive orders, may be promulgated in an executive proclamation, with all the force of an ex
order. 14

In fact, while executive order embody administrative acts or commands of the President, executive proclamations are
informative and declaratory in character, and so does counsel for respondents Gil J. Puyat and Jose Roy maintain in
L-36165.   As consequence, an executive proclamation has no more than "the force of an executive order," so that, f
15

Supreme Court to declare such proclamation unconstitutional, under the 1935 Constitution, the same number of vote
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 C
in the determination of the question whether or not it is now in force, it is obvious that such question depends upon w
not the said new Constitution has been ratified in accordance with the requirements of the 1935 Constitution, upon th
of which said Constitutional Convention was called and approved the proposed Constitution. It is well settled that the
ratification of an amendment to the Constitution should be settled by applying the provisions of the Constitution in forc
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-justiciabl

The Solicitor General maintains in his comment the affirmative view and this is his main defense. In support thereof, h
that "petitioners would have this Court declare as invalid the New Constitution of the Republic" from which — he claim
Court now derives its authority"; that "nearly 15 million of our body politic from the age of 15 years have mandated thi
Constitution to be the New Constitution and the prospect of unsettling acts done in reliance on it caution against inter
the power of judicial review"; that "in the case of the New Constitution, the government has been recognized in accor
the New Constitution"; that "the country's foreign relations are now being conducted in accordance with the new char
"foreign governments have taken note of it"; that the "plebiscite cases" are "not precedents for holding questions rega
proposal and ratification justiciable"; and that "to abstain from judgment on the ultimate issue of constitutionality is no
duty."

At the outset, it is obvious to me that We are not being asked to "declare" the new Constitution invalid. What petitione
is the theory that it has been validly ratified by the people, especially that they have done so in accordance with Artic
1935 Constitution. The petitioners maintain that the conclusion reached by the Chief Executive in the dispositive porti
Proclamation No. 1102 is not borne out by the whereases preceding the same, as the predicates from which said con
drawn; that the plebiscite or "election" required in said Article XV has not been held; that the Chief Executive has no a
under the 1935 Constitution, to dispense with said election or plebiscite; that the proceedings before the Citizens' Ass
not constitute and may not be considered as such plebiscite; that the facts of record abundantly show that the aforem
Assemblies could not have been held throughout the Philippines from January 10 to January 15, 1973; and that, in an
proceedings in said Assemblies are null and void as an alleged ratification of the new Constitution proposed by the 19
Constitutional Convention, not only because of the circumstances under which said Assemblies had been created an
also, because persons disqualified to vote under Article V of the Constitution were allowed to participate therein, beca
provisions of our Election Code were not observed in said Assemblies, because the same were not held under the su
the Commission on Elections, in violation of section 2 of Article X of the 1935 Constitution, and because the existence
Law and General Order No. 20, withdrawing or suspending the limited freedom to discuss the merits and demerits of
proposed Constitution, impaired the people's freedom in voting thereon, particularly a viva voce, as it was done in ma
instances, as well as their ability to have a reasonable knowledge of the contents of the document on which they wer
called upon to express their views.

Referring now more specifically to the issue on whether the new Constitution proposed by the 1971 Constitutional Co
has been ratified in accordance with the provisions of Article XV of the 1935 Constitution is a political question or not,
hesitate to state that the answer must be in the negative. Indeed, such is the position taken by this Court, 17 in an en
decisions, too long to leave any room for possible doubt that said issue is inherently and essentially justiciable. Such,
been the consistent position of the courts of the United States of America, whose decisions have a persuasive effect
jurisdiction, our constitutional system in the 1935 Constitution being patterned after that of the United States. Besides
plausible reason has, to my mind, been advanced to warrant a departure from said position, consistently with the form
government established under said Constitution..

Thus, in the aforementioned plebiscite cases,   We rejected the theory of the respondents therein that the question w
18

Presidential Decree No. 73 calling a plebiscite to be held on January 15, 1973, for the ratification or rejection of the p
new Constitution, was valid or not, was not a proper subject of judicial inquiry because, they claimed, it partook of a p
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 constitutional
19

of the factual bases of the Presidential proclamation suspending the privilege of the writ of habeas corpus on August
despite the opposite view taken by this Court in Barcelona v. Baker   and Montenegro v. Castañeda,   insofar as it ad
20 21

the former case, which view We, accordingly, abandoned and refused to apply. For the same reason, We did not app
expressly modified, in Gonzales v. Commission on Elections,   the political-question theory adopted in Mabanag v. Lo
22

Vito.   Hence, respondents herein urge Us to reconsider the action thus taken by the Court and to revert to and follow
23

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 politica
theory advanced in said habeas corpus and plebiscite cases, which were carefully considered by this Court and foun
legally unsound and constitutionally untenable. As a consequence, Our decision in the aforementioned habeas corpu
partakes of the nature and effect of a stare decisis, which gained added weight by its virtual reiteration in the plebiscit

The reason why the issue under consideration and other issues of similar character are justiciable, not political, is pla
simple. One of the principal bases of the non-justiciability of so-called political questions is the principle of separation
— characteristic of the Presidential system of government — the functions of which are classified or divided, by reaso
nature, into three (3) categories, namely: 1) those involving the making of laws, which are allocated to the legislative
2) those concerned mainly with the enforcement of such laws and of judicial decisions applying and/or interpreting the
which belong to the executive department; and 3) those dealing with the settlement of disputes, controversies or conf
involving rights, duties or prerogatives that are legally demandable and enforceable, which are apportioned to courts
Within its own sphere — but only within such sphere — each department is supreme and independent of the others,
devoid of authority, not only to encroach upon the powers or field of action assigned to any of the other departments,
inquire into or pass upon the advisability or wisdom of the acts performed, measures taken or decisions made by the
departments — provided that such acts, measures or decisions are within the area allocated thereto by the Constituti

This principle of separation of powers under the presidential system goes hand in hand with the system of checks an
under which each department is vested by the Fundamental Law with some powers to forestall, restrain or arrest a po
actual misuse or abuse of powers by the other departments. Hence, the appointing power of the Executive, his pardo
his veto power, his authority to call the Legislature or Congress to special sessions and even to prescribe or limit the
objects of legislation that may be taken up in such sessions, etc. Conversely, Congress or an agency or arm thereof —
the commission on Appointments — may approve or disapprove some appointments made by the President. It, also,
power of appropriation, to "define, prescribe, and apportion the jurisdiction of the various courts," as well as that of im
Upon the other hand, under the judicial power vested by the Constitution, the "Supreme Court and ... such inferior co
be established by law," may settle or decide with finality, not only justiciable controversies between private individuals
but, also, disputes or conflicts between a private individual or entity, on the one hand, and an officer or branch of the
on the other, or between two (2) officers or branches of service, when the latter officer or branch is charged with actin
jurisdiction or in excess thereof or in violation of law. And so, when a power vested in said officer or branch of the gov
is absolute or unqualified, the acts in the exercise of such power are said to be political in nature, and, consequently,
justiciable or beyond judicial review. Otherwise, courts of justice would be arrogating upon themselves a power confe
Constitution upon another branch of the service to the exclusion of the others. Hence, in Tañada v. Cuenco,   this Co26

with approval from In re McConaughy,   the following:

27

"At the threshold of the case we are met with the assertion that the questions involved are pol
not judicial. If this is correct, the court has no jurisdiction as the certificate of the state canvass
would then be final, regardless of the actual vote upon the amendment. The question thus rais
fundamental one; but it has been so often decided contrary to the view contended for by the A
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 
which is to be exercised by the people in their primary political capacity, or that it has been sp
delegated to some other department or particular officer of the government, with discretionary
act. See State vs. Cunningham, 81 Wis. 497, N.W. 724, 15 L.R.A. 561; In re Gunn, 50 Kan. 15
470, 948, 19 L.R.A. 519; Green vs. Mills, 69 Fed. 852, 16 C.C.A. 516, 30 L.R.A. 90; Fletcher v
 Tuttle 151 Ill. 41, 37 N.E. 683, 25 L.R.A. 143, 42 Am. St. Rep. 220. Thus the Legislature may
discretion determine whether it will pass law or submit a proposed constitutional amendment t
people. The courts have no judicial control over such matters, not merely because they involv
questions, but because they are matters which the people have by the Constitution delegated
Legislature. The Governor may exercise the powers delegated him, free from judicial control, 
he observes the laws act within the limits of the power conferred. His discretionary acts canno
controllable, not primarily because they are of a politics nature, but because the Constitution a
have placed the particular matter under his control. But every officer under constitutional gove
must act accordingly to law and subject its restrictions, and every departure therefrom or disre
thereof must subject him to that restraining and controlling power of the people, acting through
agency of the judiciary; for it must be remembered that the people act through courts, as well
the executive or the Legislature. One department is just as representative as the other, and th
is the department which is charged with the special duty of determining the limitations which th
places upon all official action. The recognition of this principle, unknown except in Great Britai
America, is necessary, to "the end that the government may be one of laws and not of men" —
which Webster said were the greatest contained in any written constitutional document." (Emp
supplied.)

and, in an attempt to describe the nature of a political question in terms, it was hoped, understandable to the laymen,
that "... the term "political question" connotes, in legal parlance, what it means in ordinary parlance, namely, a questio
in matters concerning the government of a State, as a body politic. "In other words, in the language of Corpus Juris S
(supra), it refers to "those questions which, under the Constitution, are to be decided by the people in their sovereign
in regard to which full discretionary authority has been delegated to the Legislature or executive branch of the govern
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
qualifications or conditions have been met, or the limitations respected, is justiciable or non-political, the crux of the p
being one of legality or validity of the contested act, not its wisdom. Otherwise, said qualifications, conditions or limita
particularly those prescribed or imposed by the Constitution — would be set at naught. What is more, the judicial inqu
such issue and the settlement thereof are the main functions of courts of justice under the Presidential form of govern
adopted in our 1935 Constitution, and the system of checks and balances, one of its basic predicates. As a conseque
have neither the authority nor the discretion to decline passing upon said issue, but are under the ineluctable obligatio
particularly more exacting and peremptory by our oath, as members of the highest Court of the land, to support and d
Constitution — to settle it. This explains why, in Miller v. Johnson,   it was held that courts have a "duty, rather than a
28

determine whether another branch of the government has "kept within constitutional limits." Not satisfied with this pos
court went farther and stressed that, if the Constitution provides how it may be amended — as it is in our 1935 Const
"then, unless the manner is followed, the judiciary as the interpreter of that constitution, will declare the amendment in
fact, this very Court — speaking through Justice Laurel, an outstanding authority on Philippine Constitutional Law, as
of the highly respected and foremost leaders of the Convention that drafted the 1935 Constitution — declared, as ear
15, 1936, that "(i)n times of social disquietude or political excitement, the great landmarks of the Constitution are apt
forgotten or marred, if not entirely obliterated. In cases of conflict, the judicial department is the only constitutional org
can be called upon to determine the proper allocation of powers between the several departments" of the governmen

The Solicitor General has invoked Luther v. Borden   in support of his stand that the issue under consideration is non
31

in nature. Neither the factual background of that case nor the action taken therein by the Federal Supreme Court has
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
for having forcibly entered into Luther's house, in Rhode Island, sometime in 1842. The defendants who were in the m
service of said former colony of England, alleged in their defense that they had acted in obedience to the commands
superior officer, because Luther and others were engaged in a conspiracy to overthrow the government by force and
had been placed by competent authority under Martial Law. Such authority was the charter government of Rhode Isla
time of the Declaration of Independence, for — unlike other states which adopted a new Constitution upon secession
England — Rhode Island retained its form of government under a British Charter, making only such alterations, by ac
Legislature, as were necessary to adapt it to its subsequent condition as an independent state. It was under this form
government when Rhode Island joined other American states in the Declaration of Independence and, by subsequen
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
Legislature having failed to bring about the desired effect, meetings were held and associations formed — by those w
belonged to this segment of the population — which eventually resulted in a convention called for the drafting of a ne
Constitution to be submitted to the people for their adoption or rejection. The convention was not authorized by any la
existing government. The delegates to such convention framed a new Constitution which was submitted to the people
return of the votes cast by them, the convention declared that said Constitution had been adopted and ratified by a m
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 val
proceedings. This notwithstanding, one Thomas W. Dorr, who had been elected governor under the new Constitution
rebels, prepared to assert authority by force of arms, and many citizens assembled to support him. Thereupon, the ch
government passed an Act declaring the state under Martial Law and adopted measures to repel the threatened attac
subdue the rebels. This was the state of affairs when the defendants, who were in the military service of the charter g
and were to arrest Luther, for engaging in the support of the rebel government — which was never able to exercise a
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 gove
Eventually, a new constitution was drafted by a convention held under the authority of the charter government, and th
was adopted and ratified by the people. "(T)he times and places at which the votes were to be given, the persons wh
receive and return them, and the qualifications of the voters having all been previously authorized and provided for by
passed by the charter government," the latter formally surrendered all of its powers to the new government, establish
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
of the state arsenal in Providence, but he was repulsed, and, after an "assemblage of some hundreds of armed men
command at Chepatchet in the June following, which dispersed upon approach of the troops of the old government, n
effort was made to establish" his government. "... until the Constitution of 1843" — adopted under the auspices of the
government — "went into operation, the charter government continued to assert its authority and exercise its powers
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 th
which the Circuit Court rejected, apart from rendering judgment for the defendants, the plaintiff took the case for revie
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
Thomas W. Dorr took place after the constitution of 1843 went into operation. The judges who
that case held their authority under that constitution and it is admitted on all hands that it was
the people of the State, and is the lawful and established government. It is the decision, there
State court, whose judicial authority to decide upon the constitution and laws of Rhode Island
questioned by either party to this controversy, although the government under which it acted w
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 que
relates, altogether, to the constitution and laws of that State, and the well settled rule in this co
 the courts of the United States adopt and follow the decisions of the State courts in questions
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 depa
this rule, and disregarded and overruled the decisions of the courts of Rhode Island? Undoub
courts of the United States have certain powers under the Constitution and laws of the United
which do not belong to the State courts. But the power of determining that a State governmen
lawfully established, which the courts of the State disown and repudiate, is not one of them. U
question the courts of the United States are bound to follow the decisions of the State tribunal
therefore regard the charter government as the lawful and established government during the
contest. 32

It is thus apparent that the context within which the case of Luther v. Borden was decided is basically and fundament
from that of the cases at bar. To begin with, the case did not involve a federal question, but one purely municipal in n
Hence, the Federal Supreme Court was "bound to follow the decisions of the State tribunals" of Rhode Island upholdi
constitution adopted under the authority of the charter government. Whatever else was said in that case constitutes, t
an obiter dictum. Besides, no decision analogous to that rendered by the State Court of Rhode Island exists in the ca
Secondly, the states of the Union have a measure of internal sovereignty upon which the Federal Government may n
encroach, whereas ours is a unitary form of government, under which our local governments derive their authority fro
national government. Again, unlike our 1935 Constitution, the charter or organic law of Rhode Island contained no pr
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 recognitio
of constitution, and there is a fundamental difference between these two (2) types of recognition, the first being gener
conceded to be a political question, whereas the nature of the latter depends upon a number of factors, one of them b
whether the new Constitution has been adopted in the manner prescribed in the Constitution in force at the time of th
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 Gover
established under the 1935 Constitution is the very same government whose Executive Department has urged the ad
the new or revised Constitution proposed by the 1971 Constitutional Convention and now alleges that it has been rati
people.

In short, the views expressed by the Federal Supreme Court in Luther v. Borden, decided in 1849, on matters other t
referring to its power to review decisions of a state court concerning the constitution and government of that state, no
Federal Constitution or Government, are manifestly neither, controlling, nor even persuasive in the present cases, ha
the Federal Supreme Court admitted — no authority whatsoever to pass upon such matters or to review decisions of
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
power to determine questions of a political character. It is interesting historically, but it has not
slightest application to the case at bar. When carefully analyzed, it appears that it merely dete
the federal courts will accept as final and controlling a decision of the highest court of a state
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 apportioning the seats in the G
34

Assembly among the counties of the State, upon the theory that the legislation violated the equal protection clause. A
court dismissed the case upon the ground, among others, that the issue was a political one, but, after a painstaking r
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
to another branch of government, or whether the action of that branch exceeds whatever authority has been committ
delicate exercise in constitutional interpretation, and is a responsibility of this Court as ultimate interpreter of the Cons
Similarly, in Powell v. McCormack,   the same Court, speaking through then Chief Justice Warren, reversed a decisio
35

Court of Appeals of New York affirming that of a Federal District Court, dismissing Powell's action for a declaratory ju
declaring thereunder that he — whose qualifications were uncontested — had been unlawfully excluded from the 90t
of the U.S. Said dismissal was predicated upon the ground, inter alia, that the issue was political, but the Federal Sup
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
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 amendmen
properly adopted according to the requirements of an existing Constitution is a judicial questio
can be little doubt that the consensus of judicial opinion is to the effect that it is the absolute d
judiciary to determine whether the Constitution has been amended in the manner required by
Constitution, unless a special tribunal has been created to determine the question; and even t
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
amendment, it is clear to my mind that the question whether or not the revised Constitution drafted by the 1971 Cons
Convention has been ratified in accordance with said Art. XV is a justiciable one and non-political in nature, and that
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' " —
allegedly involves a political question — "a bona fide controversy as to whether some action denominated "political" e
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 th
Assemblies" through which, respondents maintain, the proposed new Constitution has been ratified; that said Assem
without power to approve the proposed Constitution"; 3) that the President "is without power to proclaim the ratificatio
Filipino people of the proposed Constitution"; and 4) that "the election held (in the Citizens' Assemblies) to ratify the p
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
President "has no power to call a plebiscite for the ratification or rejection" of the proposed new Constitution or "to ap
funds for the holding of the said plebiscite"; 2) that the proposed new or revised Constitution "is vague and incomplete
as "contains provisions which are beyond the powers of the 1971 Convention to enact," thereby rendering it "unfit for
submission the people;" 3) that "(t)he period of time between November 1972 when the 1972 draft was approved and
11-15, 1973," when the Citizens' Assemblies supposedly ratified said draft, "was too short, worse still, there was prac
time for the Citizens' Assemblies to discuss the merits of the Constitution which the majority of them have not read a
never knew would be submitted to them ratification until they were asked the question — "do you approve of the New
Constitution?" during the said days of the voting"; and that "(t)here was altogether no freedom discussion and no opp
concentrate on the matter submitted to them when the 1972 draft was supposedly submitted to the Citizens' Assembl
ratification."

Petitioner in L-36236 added, as arguments in support of the negative view, that : 1) "(w)ith a government-controlled p
can never be a fair and proper submission of the proposed Constitution to the people"; and 2) Proclamation No. 1102
void "(i)nasmuch as the ratification process" prescribed "in the 1935 Constitution was not followed."

Besides adopting substantially some of the grounds relied upon by the petitioners in the above-mentioned cases, the
in L-36283 argue that "(t)he creation of the Citizens' Assemblies as the vehicle for the ratification of the Constitution w
deception upon the people since the President announced the postponement of the January 15, 1973 plebiscite to ei
February 19 or March 5, 1973."  38

The reasons adduced by the petitioners in L-36165 in favor of the negative view have already been set forth earlier in
opinion. Hence, it is unnecessary to reproduce them here. So it is, with respect to the positions taken in L-36165 by c
therein respondents Gil J. Puyat and Jose Roy — although more will be said later about them — and by the Solicitor
behalf of the other respondents in that case and the respondents in the other cases.

1. What is the procedure prescribed by the 1935 Constitution for its amendment?

Under section 1 of Art. XV of said Constitution, three (3) steps are essential, namely:

1. That the amendments to the Constitution be proposed either by Congress or by a convention called for that purpos
vote of three-fourths of all the Members of the Senate and the House of Representatives voting separately," but "in jo
assembled";

2. That such amendments be "submitted to the people for their ratification" at an "election"; and

3. That such amendments be "approved by a majority of the votes cast" in said election.

Compliance with the first requirement is virtually conceded, although the petitioners in L-36164 question the authority
Constitutional Convention to incorporate certain provisions into the draft of the new or revised Constitution. The main
these five (5) cases hinges, therefore, on whether or not the last two (2) requirements have been complied with.

2. Has the contested draft of the new or revised Constitution been submitted to the people for their ratification conform
XV of the Constitution?

In this connection, other provisions of the 1935 Constitution concerning "elections" must, also, be taken into account,
section I of Art. V and Art. X of said Constitution. The former reads:

Section 1. Suffrage may be exercised by male citizens of the Philippines not otherwise disqua
who are twenty-one years of age or over and are able to read and write, and who shall have r
the Philippines for one year and in the municipality wherein they propose to vote for at least si
preceding the election. The National Assembly shall extend the right of suffrage to women, if i
plebiscite which shall be held for that purpose within two years after the adoption of this Cons
less than three hundred thousand women possessing the necessary qualifications shall vote a
on the question.

Sections 1 and 2 of Art. X of the Constitution ordain in part:

Section 1. There shall be an independent Commission on Elections composed of a Chairman

other Members to be appointed by the President with the consent of the Commission on Appo
who shall hold office for a term of nine years and may not be reappointed. ...
 xxx xxx xxx

Sec. 2. The Commission on Elections shall have exclusive charge of the enforcement and adm
of all laws relative to the conduct of elections and shall exercise all other functions which may
conferred upon it by law. It shall decide, save those involving the right to vote, all administrativ
questions, affecting elections, including the determination of the number and location of pollin
and the appointment of election inspectors and of other election officials. All law enforcement
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,
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
that no other persons than "citizens of the Philippines not otherwise disqualified by law, who are twenty-one years of
and are able to read and write, and who shall have resided in the Philippines for one year and in the municipality whe
propose to vote for at least six months preceding the election," may exercise the right of suffrage in the Philippines. U
other hand, the Solicitor General contends that said provision merely guarantees the right of suffrage to persons pos
aforementioned qualifications and none of the disqualifications, prescribed by law, and that said right may be vested
competent authorities in persons lacking some or all of the aforementioned qualifications, and possessing some of th
disqualifications. In support of this view, he invokes the permissive nature of the language — "(s)uffrage may be exer
used in section 1 of Art. V of the Constitution, and the provisions of the Revised Barrio Charter, Republic Act No. 359
particularly sections 4 and 6 thereof, providing that citizens of the Philippines "eighteen years of age or over," who are
in the list of barrio assembly members, shall be members thereof and may participate as such in the plebiscites presc
said Act.

I cannot accept the Solicitor General's theory. Art. V of the Constitution declares who may exercise the right of suffra
those lacking the qualifications therein prescribed may not exercise such right. This view is borne out by the records
Constitutional Convention that drafted the 1935 Constitution. Indeed, section 1 of Art. V of the 1935 Constitution was
based on the report of the committee on suffrage of the Convention that drafted said Constitution which report was, in
"strongly influenced by the election laws then in force in the Philippines ... ."   " Said committee had recommended: 1
40

right of suffrage should exercised only by male citizens of the Philippines." 2) "That should be limited to those who co
and write." 3) "That the duty to vote should be made obligatory." It appears that the first recommendation was discuss
extensively in the Convention, and that, by way of compromise, it was eventually agreed to include, in section 1 of Ar
Constitution, the second sentence thereof imposing upon the National Assembly established by the original Constitut
instead of the bicameral Congress subsequently created by amendment said Constitution — the duty to "extend the r
suffrage women, if in a plebiscite to, be held for that purpose within two years after the adoption of this Constitution, n
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 rejec
Convention.   This accounts, in my opinion, for the permissive language used in the first sentence of said Art. V. Des
42

debates on the age qualification — amendment having been proposed to reduce the same to 18 or 20, which were re
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
one of the Delegates to said Convention — "readily approved in the Convention without any dissenting vote," althoug
some debate on whether the Fundamental Law should specify the language or dialect that the voter could read and w
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 b
a grant or conferment of a right to persons possessing the qualifications and none of the disqualifications therein men
which in turn, constitute a limitation of or restriction to said right, and cannot, accordingly, be dispensed with, except b
constitutional amendment. Obviously, every such constitutional grant or conferment of a right is necessarily a negatio
authority of Congress or of any other branch of the Government to deny said right to the subject of the grant — and, i
only, may the same partake of the nature of a guarantee. But, this does not imply not even remotely, that the Fundam
allows Congress or anybody else to vest in those lacking the qualifications and having the disqualifications mentioned
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 th
Constitution was "strongly influenced by the election laws then in force in the Philippines." Our first Election Law was
passed on January 9, 1907, which was partly amended by Acts 1669, 1709, 1726 and 1768, and incorporated into th
Administrative Code of 1916 — Act 2657 — as chapter 20 thereof, and then in the Administrative Code of 1917 — Ac
as chapter 18 thereof, which, in turn, was amended by Act 3387, approved on December 3, 1927. Sections 431 and 4
Code of 1917, prescribing, respectively, the qualifications for and disqualifications from voting, are quoted below.   In
44

legislative acts, the provisions concerning the qualifications of voters partook of the nature of a grant or recognition o
suffrage, and, hence, of a denial thereof to those who lacked the requisite qualification and possessed any of the stat
disqualifications. In short, the history of section 1, Art. V of the Constitution, shows beyond doubt than the same confe
guaranteed — the authority to persons having the qualifications prescribed therein and none of disqualifications to be
ordinary laws and, necessary implication, denied such right to those lacking any said qualifications, or having any of t
aforementioned disqualifications.

This view is further bolstered by the fact that the 1971 Constitutional Convention sought the submission to a plebiscit
"partial amendment" to said section 1 of Art. V of the 1935 Constitution, by reducing the voting age from twenty-one (
eighteen (18) years, which, however, did not materialize on account of the decision of this Court in Tolentino v. Comm
Elections,   granting the writs, of prohibition and injunction therein applied for, upon the ground that, under the Consti
45

the amendments adopted by the Convention should be submitted in "an election" or a single election, not separately
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 ratificati
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 contem
construction that, under the 1935 Constitution, persons below twenty-one (21) years of age could not exercise the rig
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 p
is, to say the least, a debatable one. Indeed, there seems to be a conflict between the last paragraph of said section
Act No. 3590,   pursuant to which the "majority vote of all the barrio assembly members" (which include all barrio res
46

years of age or over, duly registered in the list of barrio assembly members) is necessary for the approval, in an asse
plebiscite, of "any budgetary, supplemental appropriations or special tax ordinances," whereas, according to the para
preceding the penultimate one of said section,   "(a)ll duly registered barrio assembly members qualified to vote" — w
47

pursuant to section 10 of the same Act, must be citizens "of the Philippines, twenty-one years of age or over, able to
write," and residents the barrio "during the six months immediately preceding election, duly registered in the list of vo
otherwise disqualified ..." — just like the provisions of present and past election codes of the Philippines and Art. V of
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, no
because this interpretation is in accord with Art. V the Constitution, but, also, because provisions of a Constitution —
of a written and rigid one, like ours generally accorded a mandatory status — unless the intention to the contrary is m
which is not so as regards said Art. V — for otherwise they would not have been considered sufficiently important to b
in the Fundamental Law of the land.   Besides, it would be illogical, if not absurd, believe that Republic Act No. 3590
48

the most important measures for which it demands — in addition to favorable action of the barrio council — the appro
of barrio assembly through a plebiscite, lesser qualifications than those prescribed in dealing with ordinary measures
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 
elections of public officers, not to plebiscites for the ratification of amendments to the Fundamental Law or revision th
an entirely new Constitution, and permit the legislature to require lesser qualifications for such ratification, notwithstan
fact that the object thereof much more important — if not fundamental, such as the basic changes introduced in the d
revised Constitution adopted by the 1971 Constitutional Convention, which a intended to be in force permanently, or,
many decades, and to affect the way of life of the nation — and, accordingly, demands greater experience and matur
part of the electorate than that required for the election of public officers,   whose average term ranges from 2 to 6 ye
49

It is admitted that persons 15 years of age or over, but below 21 years, regardless of whether or not they possessed
qualifications laid down in both the Constitution and the present Election Code,   and of whether or not they are disqu
50

under the provisions of said Constitution and Code,   or those of Republic Act No. 3590,   have participated and vote
51 52

Citizens' Assemblies that have allegedly ratified the new or revised Constitution drafted by the 1971 Constitutional Co

In fact, according to the latest official data, the total number of registered voters 21 years of age or over in the entire P
available in January 1973, was less than 12 million. Yet, Proclamation No. 1102 states that 14,976,56 "members of a
Barangays (Citizens Assemblies) voted for the adoption of the proposed Constitution, as against ... 743,869 who vote
rejection," whereas, on the question whether or not the people still wanted a plebiscite to be called to ratify the new C
"... 14,298,814 answered that there was no need for a plebiscite and that the vote of the Barangays (Citizens Assemb
be considered as a vote in a plebiscite." In other words, it is conceded that the number of people who allegedly voted
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 su
pages — were fundamentally irregular, in that persons lacking the qualifications prescribed in section 1 of Art. V of th
Constitution were allowed to vote in said Assemblies. And, since there is no means by which the invalid votes of thos
21 years of age can be separated or segregated from those of the qualified voters, the proceedings in the Citizens' A
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
with reasonable certainty the true vote," as where "it is impossible to separate the legal votes from the illegal or spurio

In Usman v. Commission on Elections, et al.,   We held:

55

Several circumstances, defying exact description and dependent mainly on the factual milieu
particular controversy, have the effect of destroying the integrity and authenticity of disputed e
returns and of avoiding their prima facie value and character. If satisfactorily proven, although
summary proceeding, such circumstances as alleged by the affected or interested parties, sta
election returns with the indelible mark of falsity and irregularity, and, consequently, of unrelia
justify their exclusion from the canvass.

Then, too, the 1935 Constitution requires "a majority of the votes cast" for a proposed amendment to the Fundamenta
"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, 6
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
 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 th
the measure proposed.  58

In short, said Art. XV envisages — with the term "votes cast" — choices made on ballots — not orally or by raising —
persons taking part in plebiscites. This is but natural and logical, for, since the early years of the American regime, we
adopted the Australian Ballot System, with its major characteristics, namely, uniform official ballots prepared and furn
Government and secrecy in the voting, with the advantage of keeping records that permit judicial inquiry, when neces
the accuracy of the election returns. And the 1935 Constitution has been consistently interpreted in all plebiscites for
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
Indeed, section 1 provides that "(t)here shall be an independent Commission on Elections ... ." The point to be stress
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 depend
either Congress or the Judiciary? The answer must be the negative, because the functions of the Commission — "en
and administration" of election laws — are neither legislative nor judicial in nature, and, hence, beyond the field alloca
either Congress or courts of justice. Said functions are by their nature essentially executive, for which reason, the Co
would be under the "control" of the President, pursuant to section 10, paragraph (1) of Art. VII of the Constitution, if A
did not explicitly declare that it (the Commission) is an "independent" body. In other words, in amending the original 1
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 org
laws in the Philippines were enforced by the then Department of the Interior, through its Executive Bureau, one of the
under the supervision and control of said Department. The same — like other departments of the Executive Branch o
Government — was, in turn, under the control of the Chief Executive, before the adoption of the 1935 Constitution, an
— until the abolition of said Department, sometime ago — under the control of the President of the Philippines, since
effectivity of said Fundamental Law. Under the provisions thereof, the Executive could so use his power of control ov
Department of the Interior and its Executive Bureau as to place the minority party at such a great, if not decisive, disa
as to deprive it, in effect, of the opportunity to defeat the political party in power, and, hence, to enable the same to pe
itself therein. To forestall this possibility, the original 1935 Constitution was amended by the establishment of the Com
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 — nin
except those first appointed   — the longest under the Constitution, second only to that of the Auditor General  ; by p
59 60

they may not be removed from office except by impeachment, placing them, in this respect, on the same plane as the
the Vice-President, the Justices of the Supreme Court and the Auditor General; that they may not be reappointed; tha
salaries, "shall be neither increased nor diminished during their term of office"; that the decisions the Commission "sh
subject to review by the Supreme Court" only  ; that "(n)o pardon, parole, or suspension sentence for the violation of
61

law may be granted without the favorable recommendation of the Commission" ; and, that its chairman and members
62

during the continuance in office, engage in the practice of any profession or intervene, directly or indirectly, in the ma
control of any private enterprise which in anyway may affected by the functions of their office; nor shall they, directly o
be financially interested in any contract with the Government or any subdivision or instrumentality thereof."   Thus, th
63

the amendment to the original Constitution of 1935 endeavored to do everything possible protect and insure the indep
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 s
have exclusive charge of the enforcement and administration all laws relative to the conduct of elections," apart from
"functions which may be conferred upon it by law." It further provides that the Commission "shall decide, save those i
right to vote, all administrative question affecting elections, including the determination of the number and location of
places, and the appointment of election inspectors and of other election officials." And, to forests possible conflicts or
between the Commission, on one hand, and the other offices or agencies of the executive department, on the other,
2 postulates that "(a)ll law enforcement agencies and instrumentalities of the Government, when so required by the C
shall act as its deputies for the purpose of insuring free, orderly, and honest elections." Not satisfied with this, it decla
effect, that "(t)he decisions, orders, and ruling of the Commission" shall not be subject to review, except by the Supre

In accordance with the letter and spirit of said Art. X of the Constitution, Rep. Act No. 6388, otherwise known as the E
Code of 1971, implements the constitutional powers of the Commission on Elections and grants additional powers the
of which are enumerated in sections 5 and 6 of said Act, quoted below.   Moreover, said Act contains, inter alia, deta
64

provisions regulating contributions and other (corrupt) practices; the establishment of election precincts; the designat
arrangement of polling places, including voting booths, to protect the secrecy of the ballot; formation of lists of voters,
identification and registration of voters, the proceedings therefor, as well as for the inclusion in, or exclusion or cance
said list and the publication thereof; the establishment of municipal, provincial and files of registered voters; the comp
appointment of board of election inspectors; the particulars of the official ballots to be used and the precautions to be
insure authenticity thereof; the procedure for the casting of votes; the counting of votes by boards of inspectors; the r
appreciation of ballots and the preparation and disposition of election returns; the constitution and operation of munic
provincials and national boards of canvassers; the presentation of the political parties and/or their candidates in each
precinct; the proclamation of the results, including, in the case of election of public officers, election contests; and the
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 hon
election," as envisaged in section 2 of Art. X of the Constitution. Yet, none of the foregoing constitutional and statutor
was followed by the so-called Barangays or Citizens' Assemblies. And no reasons have been given, or even sought t
therefor. In many, if not most, instances, the election were held a viva voce, thus depriving the electorate of the right
secretly — one of the most, fundamental and critical features of our election laws from time immemorial — particularl
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 the requirements of the law pe
65

thereto, it was held that the "election officers" involved "cannot be too strongly condemned" therefor and that if they "c
dispense with such requirement ... they could with equal propriety dispense with all of them, including the one that the
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 Constitutio
Convention, or on December 1, 1972, Presidential Decree No. 73 (on the validity of which — which was contested in
plebiscite cases, as well as in the 1972 habeas corpus cases   — We need not, in the case of bar, express any opini
66

issued, calling a plebiscite, to be held on January 15, 1973, at which the proposed Constitution would be submitted to
for ratification or rejection; directing the publication of said proposed Constitution; and declaring, inter alia, that "(t)he
the Election Code of 1971, insofar as they are not inconsistent" with said decree — excepting those "regarding right a
obligations of political parties and candidates" — "shall apply to the conduct of the plebiscite." Indeed, section 2 of sa
Code of 1971 provides that "(a)ll elections of public officers except barrio officials and plebiscites shall be conducted
manner provided by this Code." General Order No. 20, dated January 7, 1973, postponing until further notice, "the ple
scheduled to be held on January 15, 1973," said nothing about the procedure to be followed in plebiscite to take plac
notice, and no other order or decree has been brought to Our attention, expressly or impliedly repealing the provision
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 De
insofar as they allow free public discussion of proposed Constitution ... temporarily suspending effects of Proclamatio
for the purposes of free open dabate on the proposed Constitution ... ." This specific mention of the portions of the de
orders or instructions suspended by General Order No. 20 necessarily implies that all other portions of said decrees,
instructions — and, hence, the provisions of Presidential Decree No. 73 outlining the procedure to be followed in the
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 dec
67

alia, that the collective views expressed in the Citizens' Assemblies "shall be considered in the formulation of nationa
programs and, wherever practicable, shall be translated into concrete and specific decision"; that such Citizens' Asse
"shall consider vital national issues ... like the holding of the plebiscite on the new Constitution ... and others in the fut
shall serve as guide or basis for action or decision by the national government"; and that the Citizens' Assemblies "sh
between January 10 and 15, 1973, a referendum on important national issues, including those specified in paragraph
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 t
constitutional supervisory power of the Commission on Elections or its participation in the proceedings in said Assem
same had been intended to constitute the "election" or Plebiscite required Art. V of the 1935 Constitution. The provisi
Decree No. 86-A directing the immediate submission of the result thereof to the Department of Local Governments C
Development is not necessarily inconsistent with, and must be subordinate to the constitutional power of the Commis
Elections to exercise its "exclusive authority over the enforcement and administration of all laws to the conduct of elec
proceedings in the Assemblies would partake of the nature of an "election" or plebiscite for the ratification or rejection
proposed Constitution.

We are told that Presidential Decree No. 86 was further amended by Presidential Decree No. 86-B, dated 1973, orde
important national issues shall from time to time; be referred to the Barangays (Citizens Assemblies) for resolution in
with Presidential Decree No. 86-A dated January 5, 1973 and that the initial referendum include the matter of ratificat
Constitution by the 1971 Constitutional Convention" and that "(t)he Secretary of the Department of Local Governmen
Community Development shall insure the implementation of this order." As in the case of Presidential Decrees Nos. 8
the foregoing directives do not necessarily exclude exercise of the powers vested by the 1935 Constitution in the Com
Elections, even if the Executive had the authority to repeal Art. X of our Fundamental Law — which he does not poss
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 o
and without complying with the provisions of the Election Code of 1971 or even of those of Presidential Decree No. 7
more, they were held under the supervision of the very officers and agencies of the Executive Department sought to b
excluded therefrom by Art. X of the 1935 Constitution. Worse still, said officers and agencies of the 1935 Constitution
favored thereby, owing to the practical indefinite extension of their respective terms of office in consequence of sectio
Transitory Provisions, found in Art. XVII of the proposed Constitution, without any elections therefor. And the procedu
mostly followed is such that there is no reasonable means of checking the accuracy of the returns files by the officers
conducted said plebiscites. This is another patent violation of Art. of the Constitution which can hardly be sanctioned.
the provisions of this article form part of the fundamental scheme set forth in the 1935 Constitution, as amended, to in
"free, orderly, and honest" expression of the people's will, the aforementioned violation thereof renders null and void t
contested proceedings or alleged plebiscite in the Citizens' Assemblies, insofar as the same are claimed to have ratif
revised Constitution proposed by the 1971 Constitutional Convention. "... (a)ll the authorities agree that the legal defin
election, as well as that which is usually and ordinarily understood by the term, is a choosing or as election by those h
right to participate (in the selection) of those who shall fill the offices, or of the adoption or rejection of any public mea
affecting the territory involved. 15 Cyc. 279; Lewis v. Boynton, 25 Colo. 486, 55 Pac. 732; Saunders v. Haynes, 13 C
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
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 co
petitioners herein. Respondents claim that said proclamation is "conclusive" upon this Court, or is, at least, entitled to
and credence, as an enrolled bill; that the proposed Constitution has been, in fact, ratified, approved or adopted by th
"overwhelming" majority of the people; that Art. XV of the 1935 Constitution has thus been "substancially" complied w
the Court refrain from passing upon the validity of Proclamation No. 1102, not only because such question is political
but, also, because should the Court invalidate the proclamation, the former would, in effect, veto the action of the peo
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
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
and every departure therefrom or disregard thereof must subject him to the restraining and co
the people, acting through the agency of the judiciary; for it must be remembered that the peo
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 spec
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 cer
Proclamation No. 1102 "that the Constitution proposed by the nineteen hundred and seventy-one (1971) Constitution
Convention has been ratified by an overwhelming majority of all of the votes cast by the members of all the Barangay
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 pr
Moreover, Art. X of the 1935 Constitution was precisely inserted to place beyond the Executive the power to supervis
exercise any authority whatsoever over "all laws relative to the conduct of elections," and, hence, whether the electio
the choice or selection of public officers or for the ratification or rejection of any proposed amendment, or revision of t
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 mun
municipal association of presidents of the citizens' assemblies for each barrio of the municipality; that the president o
municipal association formed part of a provincial or city association of presidents of such municipal associations; that
president of each one of these provincial or city associations in turn formed part of a National Association or Federati
Presidents of such Provincial or City Associations; and that one Francisco Cruz from Pasig, Rizal, as President of sai
Association or Federation, reported to the President of the Philippines, in the morning of January 17, 1973, the total r
voting in the citizens' assemblies all over the country from January 10 to January 15, 1973. The Solicitor General furt
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
Department of Local Governments and Community Development, which tabulated the results of the voting in the citiz
assemblies throughout the Philippines and then turned them over to Mr. Franciso Cruz, as President or acting Presid
National Association or Federation, whereupon Mr. Cruz, acting in a ceremonial capacity, reported said results (tabul
Department of Governments and Community Development) to the Chief Executive, who, accordingly, issued Proclam
1102.

The record shows, however, that Mr. Cruz was not even a member of any barrio council since 1972, so that he could
have been a member on January 17, 1973, of a municipal association of presidents of barrio or ward citizens' assem
less of a Provincial, City or National Association or Federation of Presidents of any such provincial or city association

Secondly, at the conclusion of the hearing of these cases February 16, 1973, and in the resolution of this Court of sam
Solicitor General was asked to submit, together with his notes on his oral argument, a true copy of aforementioned re
Cruz to the President and of "(p)roclamation, decree, instruction, order, regulation or circular, if any, creating or direct
authorizing creation, establishment or organization" of said municipal, provincial and national associations, but neithe
alleged report to the President, nor a copy of any "(p)roclamation, decree, instruction, order, regulation or circular," ha
submitted to this Court. In the absence of said report, "(p)roclamation, decree, instruction," etc., Proclamation No. 110
of any factual and legal foundation. Hence, the conclusion set forth in the dispositive portion of said Proclamation No
the effect that the proposed new or revised Constitution had been ratified by majority of the votes cast by the people,
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
Congress could not possibly be annulled or invalidated by courts of justice. Yet, such is not the case. In fact, even a r
Congress declaring that a given person has been elected President or Vice-President of the Philippines as provided i
Constitution,   is not conclusive upon the courts. It is no more than prima facie evidence of what is attested to by said
69

resolution.   If assailed directly in appropriate proceedings, such as an election protest, if and when authorized by law
70

the Philippines, the Court may receive evidence and declare, in accordance therewith, who was duly elected to the of
involved.   If prior to the creation of the Presidential Electoral Tribunal, no such protest could be filed, it was not beca
71

resolution of Congress declaring who had been elected President or Vice-President was conclusive upon courts of ju
because there was no law permitting the filing of such protest and declaring what court or body would hear and decid
So, too, a declaration to the effect that a given amendment to the Constitution or revised or new Constitution has bee
a majority of the votes cast therefor, may be duly assailed in court and be the object of judicial inquiry, in direct proce
therefor — such as the cases at bar — and the issue raised therein may and should be decided in accordance with th
presented.

The case of In re McConaughy   is squarely in point. "As the Constitution stood from the organization of the state" —
72

Minnessota — "all taxes were required to be raised under the system known as the 'general property tax.' Dissatisfac
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 unifo
same class of subjects. This proposed amendment was submitted at the general election held in November, 1906, an
time it was certified by the state canvassing board and proclaimed by the Governor as having been legally adopted. A
the assumption that the amendment had become a part of the Constitution, the Legislature enacted statutes providing
Tax Commission and a mortgage registry tax, and the latter statute, upon the same theory, was held constitutional" b
Court. "The district court found that the amendment had no in fact been adopted, and on this appeal" the Supreme C
"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
tabulate the reports received from the various county board and add up and certify the results. State v. Mason, 45 Wa
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 boar
final" — and there is no such law in the cases at bar. "... The correctness of the conclusion of the state board rests up
correctness of the returns made by the county boards and it is inconceivable that it was intended that this statement
should be final and conclusive regardless of the actual facts. The proclamation of the Governor adds nothing in the w
conclusiveness to the legal effect of the action of the canvassing board. Its purpose is to formally notify the people 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 the canvassing board, in order
73

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 t
even a certification by the Commission in support of the alleged results of the citizens' assemblies relied upon in Proc
No. 1102 — apart from the fact that on January 17, 1973 neither the alleged president of the Federation of Provincia
Barangays nor the Department of Local Governments had certified to the President the alleged result of the citizens'
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 top
or revised Constitution proposed by the 1971 Constitutional Convention was not ratified in accordance with the provis
1935 Constitution. In fact, it has not even been, ratified in accordance with said proposed Constitution, the minimum
requirement therein for the exercise of the right of suffrage being eighteen (18) years, apart from the fact that Art. VI o
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
plebiscite called for the ratification of an amendment or revision of the first Constitution or the effectivity of the propos
Constitution, and the phrase "votes cast" has been construed to mean "votes made in writing not orally, as it was in m
Citizens' Assemblies.  75

Even counsel for Gil J. Puyat and Jose Roy, as respondents in L-36165, asserts openly that Art. XV of the Constitutio
been complied with, and since the alleged substantial compliance with the requirements thereof partakes of the natur
defense set up by the other respondents in these cases, the burden of proving such defense — which, if true, should
their peculiar knowledge — is clearly on such respondents. Accordingly, if despite the extensive notes and document
by the parties herein, the members of the Court do not know or are not prepared to say whether or not the majority of
or of those who took part in the Citizens' Assemblies have assented to the proposed Constitution, the logical step wo
give due course to these cases, require the respondents to file their answers, and the plaintiffs their reply, and, therea
receive the pertinent evidence and then proceed to the determination of the issues raised thereby. Otherwise, we wo
placing upon the petitioners the burden of disproving a defense set up by the respondents, who have not so far estab
truth of such defense.

Even more important, and decisive, than the foregoing is the circumstance that there is ample reason to believe that
most, of the people did not know that the Citizens' Assemblies were, at the time they were held, plebiscites for the rat
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 suspend
effects of Proclamation No. 1081, for the purpose of free and open debate on the Proposed C
On December 23, the President announced the postponement of the plebiscite for the ratificat
rejection of the Proposed Constitution. No formal action to this effect was taken until January
when General Order No. 20 was issued, directing "that the plebiscite scheduled to be held on
1973, be postponed until further notice." Said General Order No. 20, moreover, "suspended in
meantime" the "order of December 17, 1972, temporarily suspending the effects of Proclamat
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 Cou
it fit to refrain, for the time being, from deciding the aforementioned cases, for neither the date
conditions under which said plebiscite would be held were known or announced officially. The
Congress was, pursuant to the 1935 Constitution, scheduled to meet in regular session on Ja
1973, and since the main objection to Presidential Decree No. 73 was that the President does
the legislative authority to call a plebiscite and appropriate funds therefor, which Congress unq
could do, particularly in view of the formal postponement of the plebiscite by the President —
after consultation with, among others, the leaders of Congress and the Commission on Electio
 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 aft
hearing of said cases   — the President announced the postponement of the plebiscite scheduled by Presidential De
76

to be held on January 15, 1973, after consultation with the Commission on Elections and the leaders of Congress, ow
doubts on the sufficiency of the time available to translate the proposed Constitution into some local dialects and to c
some pre-electoral requirements, as well as to afford the people a reasonable opportunity to be posted on the conten
implications of said transcendental document. On January 7, 1973, General Order No. 20 was issued formally, postp
plebiscite "until further notice." How can said postponement be reconciled with the theory that the proceedings in the
Assemblies scheduled to be held from January 10 to January 15, 1973, were "plebiscites," in effect, accelerated, acc
theory of the Solicitor General, for the ratification of the proposed Constitution? If said Assemblies were meant to be t
plebiscites or elections envisaged in Art. XV of the Constitution, what, then, was the "plebiscite" postponed by Genera
20? Under these circumstances, it was only reasonable for the people who attended such assemblies to believe that
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 To
January 10, 1973; emphasis an additional question.]

[6] Do you approve of the citizens assemblies as the base of popular government to decide is
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
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 propos
Constitution or of a proposed amendment thereto. Secondly, neither is the language of question No. 7 — "Do you app
new Constitution?" One approves "of" the act of another which does not need such approval for the effectivity of said
the first person, however, finds to be good, wise satisfactory. The approval of the majority of the votes cast in plebisc
however, essential for an amendment to the Constitution to be valid as part thereof. Thirdly, if the proceedings in the
Assemblies constituted a plebiscite question No. 8 would have been unnecessary and improper, regardless of wheth
No. 7 were answered affirmatively or negatively. If the majority of the answers to question No. 7 were in the affirmativ
proposed Constitution would have become effective and no other plebiscite could be held thereafter in connection the
even if the majority of the answers to question No. 8 were, also, in the affirmative. If the majority of the answers to qu
were in the negative, neither may another plebiscite be held, even if the majority of the answers to question No. 8 we
affirmative. In either case, not more than one plebiscite could be held for the ratification or rejection of the proposed C
In short, the insertion of said two (2) questions — apart from the other questions adverted to above — indicates stron
proceedings therein did not partake of the nature of a plebiscite or election for the ratification or rejection of the propo
Constitution.

Indeed, I can not, in good conscience, declare that the proposed Constitution has been approved or adopted by the p
citizens' assemblies all over the Philippines, when it is, to my mind, a matter of judicial knowledge that there have bee
citizens' assemblies in many parts of Manila and suburbs, not to say, also, in other parts of the Philippines. In a letter
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 referendu
eleven questions you wanted our people consulted on and the Summary of Results thereof fo
municipality and for the whole province.

xxx xxx xxx

... Our initial plans and preparations, however, dealt only on the original five questions. Conse
when we received an instruction on January 10 to change the questions, we urgently suspend
scheduled Citizens Assembly meetings on that day and called all Mayors, Chiefs of Offices an
government officials to another conference to discuss with them the new set of guidelines and
to be used.

On January 11, ... another instruction from the top was received to include the original five que
among those to be discussed and asked in the Citizens' Assembly meetings. With this latest o
again had to make modifications in our instructions to all those managing and supervising the
the Citizens' Assembly meetings throughout the province. ... Aside from the coordinators we h
Office of the Governor, the splendid cooperation and support extended by almost all governm
and employees in the province, particularly of the Department of Education, PC and PACD pe
provided us with enough hands to trouble shoot and implement sudden changes in the instruc
anytime and anywhere needed. ...

... As to our people, in general, their enthusiastic participation showed their preference and re
accept this new method of government to people consultation in shaping up government polic

Thus, as late as January 10, 1973, the Bataan officials had to suspend "all scheduled Citizens' Assembly meetings ..
all available officials "... to discuss with them the new set of guidelines and materials to be used ... ." Then, "on Janua
another instruction from the top was received to include the original five questions among those be discussed and as
Citizens' Assembly meetings. With this latest order, we again had to make modifications in our instructions to all thos
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 
in shaping up government policies."

This communication manifestly shows: 1) that, as late a January 11, 1973, the Bataan officials had still to discuss —
operation — means and ways to carry out the changing instructions from the top on how to organize the citizens' ass
what to do therein and even what questions or topics to propound or touch in said assemblies; 2) that the assemblies
involve no more than consultations or dialogues between people and government — not decisions be made by the p
3) that said consultations were aimed only at "shaping up government policies" and, hence could not, and did not, pa
nature of a plebiscite for the ratification or rejection of a proposed amendment of a new or revised Constitution for the
not entail the formulation of a policy of the Government, but the making of decision by the people on the new way of
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 e
imagine the predicament of the local officials and people in the remote barrios in northern and southern Luzon, in the
region, in the Visayan Islands and Mindanao. In fact, several members of the Court, including those of their immediat
and their household, although duly registered voters in the area of Greater Manila, were not even notified that citizen
assemblies would be held in the places where their respective residences were located. In the Prohibition and Amend
case,   attention was called to the "duty cast upon the court of taking judicial cognizance of anything affecting the exi
77

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
in Baker v. Carr,   that "a court is not at liberty to shut its eyes to an obvious mistake, when the validity of the law dep
78

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 otherwis
the negative.

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 th
Constitution drafted by the 1971 Constitutional Convention; that the political department of the Government has recog
revised Constitution; that our foreign relations are being conducted under such new or revised Constitution; that the L
Department has recognized the same; and that the people, in general, have, by their acts or omissions, indicated the
thereto.

As regards the so-called political organs of the Government, gather that respondents refer mainly to the offices under
Executive Department. In a sense, the latter performs some functions which, from a constitutional viewpoint, are polit
nature, such as in recognizing a new state or government, in accepting diplomatic representatives accredited to our G
and even in devising administrative means and ways to better carry into effect. Acts of Congress which define the go
objectives thereof, but are either imprecise or silent on the particular measures to be resorted to in order to achieve th
goals or delegate the power to do so, expressly or impliedly, to the Executive. This, notwithstanding, the political orga
government that purports to be republican is essentially the Congress or Legislative Department. Whatever may be th
allocated to the Executive Department — specially under a written, rigid Constitution with a republican system of Gov
ours — the role of that Department is inherently, basically and fundamentally executive in nature — to "take care that
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
Proclamation No. 1102, connote a recognition thereof o an acquiescence thereto. Whether they recognized the propo
Constitution or acquiesce thereto or not is something that cannot legally, much less necessarily or even normally, be
from their acts in accordance therewith, because the are bound to obey and act in conformity with the orders of the P
under whose "control" they are, pursuant to the 1935 Constitution. They have absolutely no other choice, specially in
Proclamation No. 1081 placing the Philippines under Martial Law. Besides, by virtue of the very decrees, orders and
issued by the President thereafter, he had assumed all powers of Government — although some question his authori
— and, consequently, there is hardly anything he has done since the issuance of Proclamation No. 1102, on January
declaring that the Constitution proposed by the 1971 Constitutional Convention has been ratified by the overwhelming
the people — that he could not do under the authority he claimed to have under Martial Law, since September 21, 19
the power of supervision over inferior courts and its personnel, which said proposed Constitution would place under t
Court, and which the President has not ostensibly exercised, except as to some minor routine matters, which the Dep
Justice has continued to handle, this Court having preferred to maintain the status quo in connection therewith pendi
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. Rec
normally connotes the acknowledgment by a party of the acts of another. Accordingly, when a subordinate officer or o
Government complies with the commands of a superior officer or office, under whose supervision and control he or it
former merely obeys the latter. Strictly speaking, and from a legal and constitutional viewpoint, there is no act of reco
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 in support of the theory of t
80

acquiescence — involved a constitution ordained in 1902 and "proclaimed by a convention duly called by a direct vot
people of the state to revise and amend the Constitution of 1869. The result of the work of that Convention has been
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 ord
Convention ...";

3. The "individual oaths of its members to support it, and by its having been engaged for nearly a year, in legislating u
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 unde
extent of thousands throughout the State, and by voting, under its provisions, at a general election for their represent
Congress of the United States."

Note that the New Constitution of Virginia, drafted by a convention whose members were elected directly by the peop
was not submitted to the people for ratification or rejection thereof. But, it was recognized, not by the convention itsel
by other sectors of the Government, namely, the Governor; the Legislature — not merely by individual acts of its mem
by formal joint resolution of its two (2) chambers; by the judiciary; and by the people, in the various ways specified ab
is more, there was no martial law. In the present cases, none of the foregoing acts of acquiescence was present. Wo
there is martial law, the strict enforcement of which was announced shortly before the alleged citizens' assemblies. T
in the Taylor case, the effectivity of the contested amendment was not contested judicially until about one (1) year aft
amendment had been put into operation in all branches of the Government, and complied with by the people who pa
the elections held pursuant to the provisions of the new Constitution. In the cases under consideration, the legality of
Decree No. 73 calling a plebiscite to be held on January 15, 1973, was impugned as early as December 7, 1972, or f
weeks before the scheduled plebiscite, whereas the validity of Proclamation No. 1102 declaring on January 17, 1973
proposed Constitution had been ratified — despite General Order No. 20, issued on January 7, 1972, formally and of
suspending the plebiscite until further notice — was impugned as early as January 20, 1973, when L-36142 was filed
(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 th
revised Constitution, by filing written statements opting to serve in the Ad Interim Assembly established in the Transit
Provisions of said Constitution. Individual acts of recognition by members of our legislature, as well as of other colleg
under the government, are invalid as acts of said legislature or bodies, unless its members have performed said acts
duly assembled, or unless the law provides otherwise, and there is no such law in the Philippines. This is a well-estab
principle of Administrative Law and of the Law of Public Officers, and no plausible reason has been adduced to warra
departure therefrom.  81

Indeed, if the members of Congress were generally agreeable to the proposed Constitution, why did it become neces
padlock its premises to prevent its meeting in session on January 22, 1973, and thereafter as provided in the 1935 C
It is true that, theoretically, the members of Congress, if bent on discharging their functions under said Constitution, c
met in any other place, the building in which they perform their duties being immaterial to the legality of their official a
force of this argument is, however, offset or dissipated by the fact that, on or about December 27, 1972, immediately
conference between the Executive, on the one hand, and members of Congress, on the other, some of whom expres
wish to meet in session on January 22, 1973, as provided in the 1935 Constitution, a Daily Express columnist (Primiti
attributed to Presidential Assistant Guillermo de Vega a statement to the effect that "'certain members of the Senate a
missing the point in issue' when they reportedly insisted on taking up first the question of convening Congress." The D
Express of that date,   likewise, headlined, on its front page, a "Senatorial Plot Against 'Martial Law Government' Disc
82

Then, in its issue of December 29, 1972, the same paper imputed to the Executive an appeal "to diverse groups invo
a conspiracy to undermine" his powers" under martial law to desist from provoking a constitutional crisis ... which ma
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 o
any member of Congress who thought of organizing, holding or taking part in a session of Congress, not to get the im
that he could hardly do so without inviting or risking the application of Martial Law to him. Under these conditions, I do
justified in holding that the failure of the members of Congress to meet since January 22, 1973, was due to their reco
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
I prepared to declare that the people's inaction as regards Proclamation No. 1102, and their compliance with a numbe
Presidential orders, decrees and/or instructions — some or many of which have admittedly had salutary effects — iss
subsequently thereto amounts, constitutes or attests to a ratification, adoption or approval of said Proclamation No. 1
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 who comply with the orders of the party
83

weapon does not detract from the intimidation that Martial Law necessarily connotes. It may reflect the good, reasona
wholesome attitude of the person who has the gun, either pointed at others, without pulling the trigger, or merely kept
holster, but not without warning that he may or would use it if he deemed it necessary. Still, the intimidation is there, a
or obedience of the people, under these conditions, is not necessarily an act of conformity or acquiescence. This is s
when we consider that the masses are, by and large, unfamiliar with the parliamentary system, the new form of gover
introduced in the proposed Constitution, with the particularity that it is not even identical to that existing in England an
parts of the world, and that even experienced lawyers and social scientists find it difficult to grasp the full implications
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 do
certified to the President — for his action under the Constitution — by the Senate President and the Speaker of the H
Representatives, and attested to by the Secretary of the Senate and the Secretary of the House of Representatives,
legislative measures approved by the two Houses of Congress. The argument of the Solicitor General is, roughly, this
enrolled bill is entitled to full faith and credence and, to this extent, it is conclusive upon the President and the judicial
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 o
Congress, the so-called enrolled bill were certified by, say, the President of the Association of Sugar Planters and/or
the Philippines, and the measure in question were a proposed legislation concerning Sugar Plantations and Mills spo
said Association, which even prepared the draft of said legislation, as well as lobbied actually for its approval, for whic
the officers of the Association, particularly, its aforementioned president — whose honesty and integrity are unquestio
were present at the deliberations in Congress when the same approved the proposed legislation, would the enrolled b
apply thereto? Surely, the answer would have to be in the negative. Why? Simply, because said Association Presiden
absolutely no official authority to perform in connection therewith, and, hence, his certification is legally, as good as n

Similarly, a certification, if any, of the Secretary of the Department of Local Governments and Community Developme
tabulated results of the voting in the Citizens Assemblies allegedly held all over the Philippines — and the records do
that any such certification, to the President of the Philippines or to the President Federation or National Association o
of Provincial Associations of presidents of municipal association presidents of barrio or ward assemblies of citizens —
legally and constitutionally, be worth the paper on which it is written. Why? Because said Department Secretary is no
designated by law to superintend plebiscites or elections held for the ratification or rejection of a proposed amendmen
revision of the Constitution and, hence, to tabulate the results thereof. Worse still, it is the department which, accordin
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 United States that courts "wi
84

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 Con

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.
connection, it should be noted that the Court has not decided whether or not to give due course to the petitions herein
require the respondents to answer thereto. Instead, it has required the respondents to comment on the respective pe
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
issue raised, the necessity of deciding the same with utmost dispatch, and the main defense set up by respondents h
namely, the alleged political nature of said issue, placing the same, according to respondents, beyond the ambit of ju
and determination. If this defense was sustained, the cases could readily be dismissed; but, owing to the importance
questions involved, a reasoned resolution was demanded by public interest. At the same time, respondents had caut
against a judicial inquiry into the merits of the issues posed on account of the magnitude of the evil consequences, it
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
owing to the issuance of Proclamation No. 1102 subsequently to the filing of said cases, although before the rendition
judgment therein. Still one of the members of the Court (Justice Zaldivar) was of the opinion that the aforementioned
should be settled in said cases, and he, accordingly, filed an opinion passing upon the merits thereof. On the other ha
(3) members of the Court — Justices Barredo, Antonio and Esguerra — filed separate opinions favorable to the respo
the plebiscite cases, Justice Barredo holding "that the 1935 Constitution has pro tanto passed into history and has be
legitimately supplanted by the Constitution in force by virtue of Proclamation 1102."   When the petitions at bar were
86

same three (3) members of the Court, consequently, voted for the dismissal of said petitions. The majority of the mem
Court did not share, however, either view, believing that the main question that arose before the rendition of said judg
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 dis
question. Thus, apart from hearing the parties in oral argument for five (5) consecutive days — morning and afternoo
of exactly 26 hours and 31 minutes — the respective counsel filed extensive notes on their or arguments, as well as o
additional arguments as they wished to submit, and reply notes or memoranda, in addition to rejoinders thereto, aside
sizeable number of document in support of their respective contentions, or as required by the Court. The arguments,
written, submitted have been so extensive and exhaustive, and the documents filed in support thereof so numerous a
that, for all intents and purposes, the situation is as if — disregarding forms — the petitions had been given due cours
cases had been submitted for decision.

Accordingly, the majority of the members of the Court believe that they should express their views on the aforementio
as if the same were being decided on the merits, and they have done so in their individual opinion attached hereto. H
resume of the votes cast and the tenor of the resolution, in the last pages hereof, despite the fact that technically the
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, Pr
President Pro Tempore respectively of the Senate, it being settled in our jurisdiction, based upon the theory of separa
powers, that the judiciary will not issue such writ to the head of a co-equal department, like the aforementioned office
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-36
36283, my vote is that the petitions therein should be given due course, there being more than prima facie showing th
proposed Constitution has not been ratified in accordance with Article XV of the 1935 Constitution, either strictly, sub
has been acquiesced in by the people or majority thereof; that said proposed Constitution is not in force and effect; a
1935 Constitution is still the Fundamental Law of the Land, without prejudice to the submission of said proposed Con
the people at a plebiscite for its ratification or rejection in accordance with Articles V, X and XV of the 1935 Constitutio
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 "
statesmanship," whatever may be the meaning of such phrase. I am aware of this possibility, if not probability; but "ju
statesmanship," though consistent with Rule of Law, cannot prevail over the latter. Among consistent ends or consist
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
accomplish under the old dispensation. But, in and for the judiciary, statesmanship should not prevail over the Rule o
Indeed, the primacy of the law or of the Rule of Law and faithful adherence thereto are basic, fundamental and essen
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
hereto, the writer will now make, with the concurrence of his colleagues, a resume or summary of the votes cast by e

It should be stated that by virtue of the various approaches and views expressed during the deliberations, it was agre
synthesize the basic issues at bar in broad general terms in five questions for purposes of taking the votes. It was fur
of course that each member of the Court would expound in his individual opinion and/or concurrence his own approa
stated issues and deal with them and state (or not) his opinion thereon singly or jointly and with such priority, qualifica
modifications as he may deem proper, as well as discuss thereon other related issues which he may consider vital an
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 s
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 op
and/or concurrences, are as follows:

1. On the first issue involving the political-question doctrine Justices Makalintal, Zaldivar, Castro, Fernando, Teehank
myself, or six (6) members of the Court, hold that the issue of the validity of Proclamation No. 1102 presents a justicia
non-political question. Justices Makalintal and Castro did not vote squarely on this question, but, only inferentially, in
discussion of the second question. Justice Barredo qualified his vote, stating that "inasmuch as it is claimed there has
approval by the people, the Court may inquire into the question of whether or not there has actually been such an app
in the affirmative, the Court should keep hands-off out of respect to the people's will, but, in negative, the Court may d
from both factual and legal angles whether or not Article XV of the 1935 Constitution been complied with." Justices M
Antonio, Esguerra, or three (3) members of the Court hold that the issue is political and "beyond the ambit of judicial i

2. On the second question of validity of the ratification, Justices Makalintal, Zaldivar, Castro, Fernando, Teehankee a
or six (6) members of the Court also hold that the Constitution proposed by the 1971 Constitutional Convention was n
ratified in accordance with Article XV, section 1 of the 1935 Constitution, which provides only one way for ratification,
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 p
Article XV, I still maintain that in the light of traditional concepts regarding the meaning and intent of said Article, the r
in the Citizens' Assemblies, specially in the manner the votes therein were cast, reported and canvassed, falls short o
requirements thereof. In view, however, of the fact that I have no means of refusing to recognize as a judge that factu
was voting and that the majority of the votes were for considering as approved the 1973 Constitution without the nece
usual form of plebiscite followed in past ratifications, I am constrained to hold that, in the political sense, if not in the o
legal sense, the people may be deemed to have cast their favorable votes in the belief that in doing so they did the pa
of them by Article XV, hence, it may be said that in its political aspect, which is what counts most, after all, said Article
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 bee
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 majo
been reached by the Court.

Four (4) of its members, namely, Justices Barredo, Makasiar, Antonio and Esguerra hold that "the people have alread
the 1973 Constitution."

Two (2) members of the Court, namely, Justice Zaldivar and myself hold that there can be no free expression, and th
even been no expression, by the people qualified to vote all over the Philippines, of their acceptance or repudiation o
proposed Constitution under Martial Law. Justice Fernando states that "(I)f it is conceded that the doctrine stated in s
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 s
doctrine calls for application in view of the shortness of time that has elapsed and the difficulty of ascertaining what is
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
and Castro are joined by Justice Teehankee in their statement that "Under a regime of martial law, with the free expre
opinions through the usual media vehicle restricted, (they) have no means of knowing, to the point of judicial certainty
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, Makas
and Esguerra voted to DISMISS the petition. Justice Makalintal and Castro so voted on the strength of their view that
effectivity of the said Constitution, in the final analysis, is the basic and ultimate question posed by these cases to res
considerations other than judicial, an therefore beyond the competence of this Court,   are relevant and unavoidable.
90

Four (4) members of the Court, namely, Justices Zaldivar, Fernando, Teehankee and myself voted to deny responde
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 ho
in force by virtue of the people's acceptance thereof;

Four (4) members of the Court, namely, Justices Makalintal, Castro, Fernando and Teehanke
vote thereon on the premise stated in their votes on the third question that they could not state
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
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 a
Esguerra with the four (4) dissenting votes of the Chief Justice and Justices Zaldivar, Fernando and Teehankee, all th
aforementioned cases are hereby dismissed. This being the vote of the majority, there is no further judicial obstacle t
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
of the proposal, submission, or ratification of constitutional amendments. It has been judicially determined whether a
amendment received the constitutional majority of votes (Dayton v. St. Paul, 22 Minn. 400; Rice v. Palmer, 78 Ark. 43
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;
422; Tecumseh National Bank V. Saunders, 51 Neb. 801, 71 N.W. 779; Green v. State Board, 5 Idaho, 130, 47 Pac.
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
amendment is a single amendment, within the constitutional requirement that every amendment must be separately s
(State v. Powell, 77 Miss. 543, 27 South. 927; Gabbert v. Chicago, etc., R. Co., 171 Mo. 84, 70 S.W. 891; State v. Tim
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
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
[Neb.] 110 N.W. 1113, 10 L.R.A. [N.S.] 149); whether the failure to enter the resolution of submission upon the legisla
journals invalidates the amendment (Koehler v. Hill, 60 Iowa, 543,14 N.W. 738,15 N.W. 609; Oakland Paving Co. v. H
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. T
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
v. Attorney General [Mich.] 112 N.W. 127); whether the method of submission sufficient (Lovett v. Ferguson,, 10 S.D.
N.W. 765; Russell v. Croy, 164 Mo. 69, 63 S.W. 849); whether the publication of the amendment or of a notice relativ
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); whethe
submission may be well by resolution as by a legislative act approved by the executive (Com. v. Griest, 196 Pa. 396,
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. 8
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 amendmen
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 o
question whether an amendment to the Constitution has been carried involves the exercise of political, and not judicia
this be so, it follows that the promulgation of any purported amendment by the executive or any executive departmen
and that the action cannot be questioned by the judiciary; but, with reference to the conditions precedent to submittin
proposed amendment to a vote of the people, it has been repeatedly held, by courts of the highest respectability, that
the power of the judiciary to inquire into the question, even in a collateral proceeding. ... It is to be noted that under se
article 20 of the Constitution of the state no amendment can become a part of the Constitution until ratified by a vote
people. One prerequisite is equally as essential as the other. The amendment must first receive the requisite majority
Legislature, and afterwards be adopted by the requisite vote. ... It is the fact of a majority vote which makes the amen
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 impo
Constitution or statutes. In re State v. McBride, 4 Mo. 303, 29 Am. Dec. 636, it was held that the General Assembly, u
power granted by the Constitution, could change the Constitution only in the manner prescribed by it, and that it was
the court to determine whether all prerequisites had been complied with. In Collier v. Frierson, 24 Ala. 100, it was hel
Constitution can be changes only by the people in convention or in a mode described by the Constitution itself, and th
latter mode is adopted every requisite of the Constitution must be observed. 'It has been said," says the court, "that c
are to be done, certain requisitions are to be observed, before a change can be effected; but to what purpose are the
required, or these requisitions enjoined, if the Legislature or any other department of the government can dispense w
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 mad
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 a
and form a new one, at any time, without any political restriction, except the Constitution of the United States, but if th
undertake to add an amendment, by the authority of legislation to a Constitution already in existence, they can do it o
method pointed out by the Constitution to which the amendment is added. The power to amend a Constitution by legi
action does not confer the power to break it, any more than it confers the power to legislate on any other subject cont
prohibitions.' So, in State v. Timme, 54 Wis. 318, 11 N.W. 785, it was held that no amendments can be made to the C
of the state without a compliance with the provisions thereof, both in the passage of such amendment by the Legislat
manner of submitting it to the people. The courts have not all agreed as to the strictness of compliance which should

"In the Prohibition and Amendment Case, 24 Kan. 700, the court determined judicially whether an amendment to the
had been legally adopted. After approving the statement quoted from Collier v. Frierson, supra, that 'we entertain no
to change the Constitution in an other mode than by a convention, every requisite which is demanded by the instrume
must be observed, and the omission of any one is fatal to the amendment,' the court held that, 'as substance of right
and more potent than methods of form,' there had been substantial compliance with the constitutional requirement tha
proposed amendment to the Constitution must be entered at length on the legislative journal. It appears that the joint
making submission simply provided that a proposition should be submitted to the electors at the general election of 1
not declare that the machinery of the general election law should control, or that any particular officers or board would
count, or canvass the votes cast. But the existing election machinery was adequate, and the votes were received, co
canvassed, and the result declared as fully as though it had been in terms so ordered. These methods had been follo
adoption of previous amendments, and was held that, conceding the irregularity of the proceedings the Legislature an
doubtful scope of the provisions for the election, yet in view of the very uncertainty of such provision the past legislati
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
view of the duty cast upon the court taking judicial knowledge of anything affecting the existence and validity of any la
of the Constitution, it must be adjudged that the proposed amendment became part of the Constitution. The effect wa
that a provision of the Constitution requiring the proposed amendment to be entered in full on the journals was directo
mandatory. This liberal view was approved in State v. Winnett (Neb.) 110 N. 1113, 10 L.R.A. (N.S.) 149, and People
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 r
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 b
premises which are without any sound foundation, and rests merely on assumption.' See, also, the well-considered c
of Kadderly v. Portland, 44 Or. 118, 74 Pac. 710, 75 Pac. 222. All these cases concede the jurisdiction of the court to
whether, in submitting a proposed amendment to the people, the Legislature legally observed the constitutional provi
the manner of procedure. In Livermore v. Waite, 102 Cal. 113, 36 Pac. 424, 25 L.R.A. 312, the court, at the instance
and a taxpayer, restrained the Secretary of State from taking steps to submit to the people a proposed amendment to
Constitution agreed to by the Legislature on the ground that the Legislature had not acted in conformity with the Cons
that the proposed amendment was of such a character that it could not properly become a part of the Constitution. Th
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
legislative journals, as required by the Constitution, and it was held that this was a material variance in both form and
from the constitutional requirements, and that the amendment did not, therefore, become a part of the Constitution. A
claim that the question was political, and not judicial, it was said that, while it is not competent for courts to inquire int
of the Constitution and the form of government under which they themselves exist, and from which they derive their p
yet, where the existing Constitution prescribes a method for its own amendment, an amendment thereto, to be valid,
adopted in strict conformity to that method; and it is the duty of the courts in a proper case, when an amendment doe
to their own power or functions, to inquire whether, in the adoption of the amendment, the provisions of the existing C
have been observed, and, if not, to declare the amendment invalid and of no force. This case was followed in State v
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 legall
was treated as a judicial question. By the Constitution a proposed amendment was required to be approved by Legis
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 peop
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 Le
adopted separately 8 out of 17 amendments adopted by the first Legislature, it would have adopted the 17, or any of
they had been voted upon the second in the form adopted by the first body. The substance of the contention was tha
not been a concurrence of the two Legislatures on the same amendments, according to the letter and spirit of the Co
The court held that the power of the Legislature in submitting amendments could not be distinguished from the power
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 Con
could not be submitted to the people at any other than a general election; but, as the amendment under consideration
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 le
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 content
amendments had been improperly submitted and adopted by a majority of the qualified voters voting at election, as r
the Constitution. The law did direct how the result of the election should be determined. The Legislature by joint resol
that the election had been duly held throughout the state, and, as it appeared from the returns made to the Secretary
that 21,169 votes were cast in favor of, and 8,643 votes against, the amendment, it resolved 'that said amendment be
hereby is, inserted into the Constitution of the state of Mississippi as a part of the Constitution.' In fact, the amendme
was not submitted in the manner prescribed by the Constitution, and it did not receive a majority of all the qualified vo
at the election. It was argued that the rules prescribed by the Constitution "are all for the guidance of the Legislature,
the very nature of the thing the Legislature must be the exclusive judge of all questions to be measured or determined
rules. Whether the question be political, and certainly a legislative one, or judicial, to be determined by the courts, this
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
the qualified electors. The qualified electors answer back to the Legislature. "If it shall appear" to the Legislature that
has been answered in the affirmative, the amendment is inserted and made a part of the Constitution. The Governor
courts have no authority to speak at any stage of the proceedings between the sovereign and the Legislature, and wh
matter is thus concluded it is closed, and the judiciary is as powerless to interfere as the executive.' But it was held th
question whether the proposition submitted to the voters constituted one, or more than one, amendment, whether the
was according to the requirements of the Constitution, and whether the proposition was in fact adopted, were all judic
political, questions. 'We do not,' said Chief Justice Whitfield, 'seek a jurisdiction not imposed upon us by the Constitut
could not, if we would, escape the exercise of that jurisdiction which the Constitution has imposed upon us. In the par
instance in which we are now acting, our duty to know what the Constitution of the state is, and in accordance with ou
support and maintain it in its integrity, imposed on us a most difficult and embarrassing duty, one which we have not s
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 dep
the government to determine whether the legislative department or its officers had observed the constitutional injunct
attempting to amend the Constitution, and to annul their acts if they had not done so. The case is an interesting and w
considered one. The Constitution provided the manner in which proposed amendments should be submitted to the pe
did not provide a method for canvassing the votes. The Legislature having agreed to certain proposed amendments,
act for submitting the same to the people. This statute provided for the transmission to the Secretary of State of certif
showing the result of the voting throughout the state, and made it the duty of the Governor at the designated time sum
or more Senators, who, with the Governor, should constitute a board of state canvassers to canvass and estimate the
and against each amendment. This board was to determine and declare which of the proposed amendments had bee
and to deliver a statement of the results to the Secretary of State, and "any proposed amendment, which by said cert
determination of the board of canvassers shall appear to have received in its favor the majority of all the votes cast in
for and against said proposed amendment, shall from the time of filing such certificate be and become an amendmen
part of the Constitution of the state; and it shall be the duty of the Governor of the state forthwith, after such a determ
issue a proclamation declaring which of the said proposed amendments have been adopted by the people." This boa
required to file a statement of the result of the election, and the Governor to issue his proclamation declaring that the
had been adopted and become a part of the Constitution. At the instance of a taxpayer the Supreme Court allowed a
of certiorari to remove into the court for review the statement of the results of the election made by the canvassing bo
order that it might be judicially determined whether on the facts shown in that statement the board had legally determ
the proposed amendment had been adopted. The Supreme Court decided that the concurrence of the board of state
and the executive department of the government in their respective official functions placed the subject-matter beyon
cognizance of the judicial department of the state. The Court of Appeals, after a full review of the authorities, reverse
decision, and held that the questions were of a judicial nature, and properly determinable by the court on their merits.
Dixon, after stating the facts, said: 'It thus becomes manifest that there was present in the Supreme Court, and is now
this court, every element tending to maintain jurisdiction over the subject-matter, unless it be true, as insisted, that the
department of the government has not the right to consider whether the legislative department and its agencies have
constitutional injunctions in attempting to amend the Constitution, and to annul their acts in case that they have not do
such a proposition is not true seems to be indicated by the whole history of jurisprudence in this country.' The court, a
considering the case on the merits, held that the proper conclusion had been drawn therefrom, and that the amendm
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 o
Representatives the power to determine whether an amendment had been adopted, and that the question was politic
judicial, the court observed: "The argument has often been made in similar cases to the courts, and it is found in man
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 publicat
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 (C
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 197
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 freed
debate has always been limited to the leadership in political, economic and social fields, and that it is now necessary
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
Constitution, do hereby order that important national issues shall from time to time be referred to the Barangays (Citiz
Assemblies) for resolution in accordance with Presidential Decree No. 86-A dated January 5, 1973 an that the initial r
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
Order.

Done in the City of Manila, this 7th day of January in the year of Our Lord, nineteen hundred and seventy-three.

(SGD.) FERDINAND E. MARCO

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 ca
petitions to justify their being given due course. Considering on the one hand the urgency of the matter and on the oth
transcendental importance, which suggested the need for hearing the side of the respondents before that preliminary
was resolved, We required them to submit their comments on the petitions. After the comments were filed We consid
as motions to dismiss so that they could be orally argued. As it turned out, the hearing lasted five days, morning and
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 Presiden
January 17, 1973 (Proclamation No. 1102) was not an act of ratification, let alone a valid one, of the proposed Consti
because it was not in accordance with the existing Constitution (of 1935) and the Election Code of 1971. Other groun
relied upon by the petitioners in support of their basic proposition, but to our mind they are merely subordinate and pe

Article XV, Section 1, of the 1935 Constitution provides that amendments (proposed either by Congress in joint sessi
Convention called by it for the purpose) "shall be valid part of this Constitution when approved by a majority of votes c
an election at which the amendments submitted to the people for their ratification." At the time Constitution was appro
Constitutional Convention on February 8, 1935, and ratified in a plebiscite held on following May 14, the word "electio
already a definite meaning in our law and jurisprudence. It was not a vague and amorphous concept, but a procedure
by statute ascertaining the people's choices among candidates for public offices, or their will on important matters sub
the pursuant to law, for approval. It was in this sense that word was used by the framers in Article XV (also in Articles
and in accordance with such procedure that plebiscites were held to ratify the very same Constitution in 1935 as well
subsequent amendments thereto, thus: in 1939 (Ordinance appended to the Constitution); 1940 (establishment of a b
legislature; eligibility of the President and the Vice President for re election; creation of the Commission of Elections);
(Parity Amendment); and 1967 (increase in membership of the House of Representatives and eligibility of members o
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 plebi
be conducted in the manner provided by this Code." This is a statutory requirement designed, as were the other elect
previously in force, to carry out the constitutional mandate relative to the exercise of the right suffrage, and with speci
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. Sec
requires that qualified voters be registered in a permanent list, the qualifications being those set forth in Article V, Sec
the 1935 Constitution on the basis of age (21), literacy and residence. These qualifications are reiterated in Section 1
Election Code. Section 102 enumerates the classes of persons disqualified to vote. Succeeding sections prescribe th
paraphernalia to be used, the procedure for registering voters, the records, of registration and the custody thereof, th
description and printing of official ballots, the actual casting of votes and their subsequent counting by the boards of i
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 co

(1) This draft was prepared and approved by a Convention which had been convened pursuant to Resolution No. 2 p
Congress on March 16, 1967, which provides:

Sec. 7. The amendments proposed by the Convention shall be valid and considered part of th
Constitution when approved by a majority of the votes cast in an election at which they are su
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
in a plebiscite called for the purpose and, except as herein provided, shall supersede the Con
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
Constitution.

(3) After the draft Constitution was approved by the Constitutional Convention on November 30, 1972 the said body a
Resolution No. 5843, proposing "to President Ferdinand E. Marcos that a decree be issued calling a plebiscite for the
of the proposed New Constitution on such appropriate date as he shall determine and providing for the necessary fun
therefor." Pursuant to said Resolution the President issued Decree No. 73 on the same day, calling a plebiscite to be
January 15, 1973, at which the proposed Constitution "shall be submitted to the people for ratification or rejection." Th
had eighteen (18) sections in all, prescribing in detail the different steps to be taken to carry out the process of ratifica
as: (a) publication of the proposed Constitution in English and Pilipino; (b) freedom of information and discussion; (c)
of voters: (d) appointment of boards of election inspectors and designation of watchers in each precinct; (e) printing o
ballots; (f) manner of voting to insure freedom and secrecy thereof; (g) canvass of plebiscite returns; and (h) in gener
compliance with the provisions of the Election Code of 1971, with the Commission on Elections exercising its constitu
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 C
since then to the 1971 Constitutional Convention — amendments to the Constitution should be ratified in only one wa
an election or plebiscite held in accordance with law and participated in only by qualified and duly registered voters. I
concerned was this Court with the importance and indispensability of complying with the mandate of the (1935) Cons
this respect that in the recent case of Tolentino vs. Commission on Elections, No. L-34150, October 16, 1971 (41 SC
resolution of the (1971) Constitutional Convention submitting a proposed amendment for ratification to a plebiscite to
November 1971 was declared null and void. The amendment sought to reduce the voting age from twenty-one to eig
and was approved by the Convention for submission to a plebiscite ahead of and separately from other amendments
or to be considered by it, so as to enable the youth to be thus enfranchised to participate in the plebiscite for the ratifi
such other amendments later. This Court held that such separate submission was violative of Article XV, Section 1, o
Constitution, which contemplated that "all the amendments to be proposed by the same Convention must be submitte
people in a single "election" or plebiscite." * Thus a grammatical construction based on a singular, instead of plural, rendition of the word "election"
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 p
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. C
but the ratification of an entire charter setting up a new form of government; and the issue has arisen not because of
construction of one word or one provision in the 1935 Constitution but because no election or plebiscite in accordanc
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
December 31, 1972, "to broaden the base of citizen participation in the democratic process and to afford ample oppo
the citizenry to express their views on important national issues." The Assemblies "shall consist of all persons who ar
of the barrio, district or ward for at least six months, fifteen years of age or over, citizens of the Philippines and who a
registered in the lists of Citizen Assembly members kept by the barrio, district or ward secretary." By Presidential Dec
A, dated January 5, 1973, the Assemblies were convened for a referendum between January 10 and 15, to "consider
national issues now confronting the country, like the holding of the plebiscite on the new Constitution, the continuation
rule, the convening of Congress on January 22, 1973, and the holding of elections in November 1973."

On January 5, 1973 the newspapers came out with a list of four questions to be submitted to the Citizens Assemblies
one being as follows: "How soon would you like plebiscite on the new Constitution to be held?" It should be noted in t
connection that the President had previously announced that he had ordered the postponement of plebiscite which he
for January 15, 1973 (Presidential Decree No. 73) for the ratification of the Constitution, and that he was considering
dates for the purpose — February 19 or March 5; that he had ordered that the registration of voters (pursuant to Decr
be extended to accommodate new voters; and that copies of the new Constitution would be distributed in eight dialec
people. (Bulletin Today, December 24, 1972.)

On January 10, 1973 it was reported that one more question would be added to the original four which were to be sub
the Citizens Assemblies. The question concerning plebiscite was reworded as follows: "Do you like the plebiscite to b
later?" The implication, it may likewise be noted, was that the Assemblies should express their views as to the plebisc
be held, not as to whether or not it should be held at all.

The next day, January 11, it was reported that six additional questions would be submitted, namely:

(1) Do you approve of the citizens assemblies as the base of popular government to decide is
national interest?

(2) Do you approve of the new Constitution?

(3) Do you want a plebiscite to be called to ratify the new Constitution?

 (4) Do you want the elections to be held in November, 1973 accordance with the provisions of
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 supplie

Appended to the six additional questions above quoted were the suggested answers, thus:

COMMENTS ON

QUESTION No. 1

In order to broaden the base of citizens' participation in government.

QUESTION No. 2

But we do not want the Ad Interim Assembly to be convoked. Or if it is to be co

all, it should not be done so until after at least seven (7) years from the approv
New Constitution by the Citizens Assemblies.

QUESTION No. 3

If the Citizens Assemblies approve of the New Constitution, then the new Con
should be deemed ratified.

The vote of the Citizens Assemblies should already be considered the plebisci
New Constitution.

QUESTION No. 4

We are sick and tired of too frequent elections. We are fed up with politics, of s
debates and so much expenses.

QUESTION No. 5

Probably a period of at least seven (7) years moratorium on elections will be e

stability to be established in the country, for reforms to take root and normalcy

QUESTION No. 6

We want President Marcos to continue with Martial Law. We want him to exerc
powers with more authority. We want him to be strong and firm so that he can
all his reform program and establish normalcy in the country. If all other measu
want President Marcos to declare a revolutionary government along the lines o
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 th
that the plebiscite should be done away with and a favorable vote by the Assemblies deemed equivalent ratification. T
done, not in the questionnaire itself, but in the suggested answer to question No. 3. Strangely, however, it was not sim
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 As
assuming that such voting was held, was not within the intendment of Article XV, Section 1, of the 1935 Constitution n
accordance with the Election Code of 1971. The referendum can by no means be considered as the plebiscite contem
Section 2 of said Code and in Article XVII, Section 16, of the draft Constitution itself, or as the election intended by Co
when it passed Resolution No. 2 on March 16, 1967 calling a Convention for the revision of the 1935 Constitution. Th
Assemblies were not limited to qualified, let alone registered voters, but included all citizens from the age of fifteen, a
regardless of whether or not they were illiterates, feeble-minded, or ex convicts  * — these being the classes of persons expressly dis
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
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, w
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 th
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 assess
results.

It has been suggested that since according to Proclamation No. 1102 the overwhelming majority of all the members o
Citizens Assemblies had voted for the adoption of the proposed Constitution there was a substantial compliance with
Section 1, of the 1935 Constitution and with the Election Code of 1971. The suggestion misses the point entirely. It is
essence of a valid exercise of the right of suffrage that not only must a majority or plurality of the voters carry the day
same must be duly ascertained in accordance with the procedure prescribed by law. In other words the very existenc
majority or plurality depends upon the manner of its ascertainment, and to conclude that it exists even if it has not bee
ascertained according to law is simply to beg the issue, or to assume the very fact to be established. Otherwise no el
plebiscite could be questioned for non-compliance with the provisions of the Election Law as long as it is certified tha
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 Preside
Proclamation No. 1102, was not in accordance with the constitutional and statutory procedure laid down for the purpo
quite resolve the questions raised in these cases. Such a finding, in our opinion, is on a matter which is essentially ju
that is, within the power of this Court to inquire into. It imports nothing more than a simple reading and application of t
provisions of the 1935 Constitution, of the Election Code and of other related laws and official acts. No question of wi
policy is involved. But from this finding it does not necessarily follow that this Court may justifiably declare that the Co
has not become effective, and for that reason give due course to these petitions or grant the writs herein prayed for. T
effectivity of the said Constitution, in the final analysis, is the basic and ultimate question posed by these cases, to re
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 rat
process adopted by the Citizens Assemblies and on that premise would have this Court grant the reliefs they seek. T
respondents represented by the Solicitor General, whose theory may be taken as the official position of the Governm
challenge the jurisdiction of this Court on the ground that the questions raised in the petitions are political and therefo
justiciable, and that in any case popular acquiescence in the new Constitution and the prospect of unsettling acts don
reliance thereon should caution against interposition of the power of judicial review. Respondents Gil J. Puyat and Jo
L-36165), in their respective capacities as President and President Pro Tempore of the Senate of the Philippines, and
their counsel, Senator Arturo Tolentino, likewise invoke the political question doctrine, but on a ground not concurred
Solicitor General, namely, that approval of the 1973 Constitution by the people was made under a revolutionary gove
the course of a successful political revolution, which was converted by act of the people to the present de jure govern
the 1973 Constitution."

Heretofore, constitutional disputes which have come before this Court for adjudication proceeded on the assumption,
by all, that the Constitution was in full force and effect, with the power and authority of the entire Government behind
task of this Court was simply to determine whether or not the particular act or statute that was being challenged contr
some rule or mandate of that Constitution. The process employed was one of interpretation and synthesis. In the cas
there is no such assumption: the Constitution (1935) has been derogated and its continued existence as well as the v
act of derogation is issue. The legal problem posed by the situation is aggravated by the fact that the political arms of
Government — the Executive Departments and the two Houses of Congress — have accepted the new Constitution
the former by organizing themselves and discharging their functions under it, and the latter by not convening on Janu
1973 or at any time thereafter, as ordained by the 1935 Constitution, and in the case of a majority of the members by
their option to serve in the Interim National Assembly in accordance with Article XVIII, Section 2, of the 1973 Constitu

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 const
sustained, the most convenient ground for the invocation of the political-question doctrine. In support of his theory, Senator Tolentino contends that after President M
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
"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 al
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 Co
Chief of the Armed Forces assumed all the powers of government — executive, legislative, and judicial; and thereafter proceeded to exercise such powers by a seri
Decrees which amounted to legislative enactments not justified under martial law and, in some instances, trenched upon the domain of the judiciary, by removing fro
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, promulgat
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 ra
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 Constitut

If indeed it be accepted that the Citizens Assemblies had ratified the 1973 Constitution and that such ratification as w
establishment of the government thereunder formed part of a revolution, albeit peaceful, then the issue of whether or
Constitution has become effective and, as necessary corollary, whether or not the government legitimately functions
instead of under the 1935 Constitution, is political and therefore non-judicial in nature. Under such a postulate what th
did in the Citizen Assemblies should be taken as an exercise of the ultimate sovereign power. If they had risen up in a
force deposed the then existing government and set up a new government in its place, there could not be the least do
their act would be political and not subject to judicial review but only to the judgment of the same body politic act, in th
just set forth, is based on realities. If a new government gains authority and dominance through force, it can be effect
challenged only by a stronger force; judicial dictum can prevail against it. We do not see that situation would be any d
far as the doctrine of judicial review is concerned, if no force had been resorted to and the people, in defiance of the e
Constitution but peacefully because of the absence of any appreciable opposition, ordained a new Constitution and s
having the government operate under it. Against such a reality there can be no adequate judicial relief; and so courts
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, cur
by the Solicitor General, who disagrees with the revolutionary government theory of Senator Tolentino. The case involved the issue of which of two opposing govern
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 unifor
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 en
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 gover
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 exis
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 orde
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 th
that the ratification of the Constitution was a revolutionary act and that the government now functioning it is the produ
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 note
Citizens Assemblies were created, according to Presidential Decree No. 86, "to broaden the base of citizen participat
democratic process and to afford ample opportunities for the citizenry to express their views on important national iss
The President announced, according to the Daily Express of January 2, 1973, that "the referendum will be in the natu
a loose consultation with the people." (3) The question, as submitted to them on the particular point at issue here, wa
a approve of the Constitution?" (4) President Marcos, in proclaiming that the Constitution had been ratified, stated as
"(S)ince the referendum results show that more than ninety-five (95) per cent of the members of the Barangays (Citiz
Assemblies) are in favor of the new Constitution, the Katipunan ng mga Barangay has strongly recommended that th
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 s
them. In fact the plebiscite planned for January 15, 1973 under Presidential Decree No. 73 had been postponed to an
date, the reasons for the postponement being, as attributed to the President in the newspapers, that "there was little t
campaign for or against ratification" (Daily Express, Dec. 22, 1972); that he would base his decision (as to the date, o
plebiscite) on the compliance by the Commission (on Elections) on the publication requirement of the new Charter an
position taken by national leaders" (Daily Express, Dec. 23, 1972); and that "the postponement would give us more ti
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 underst
referendum to be for the ratification of the Constitution, but only for the expression of their views on a consultative ba
if the expression of those views had been intended as an act of ratification (or of rejection as a logical corollary) — th
have been no need for the Katipunan ng mga Barangay to recommend that the Constitution should already be deeme
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 ha
effect. The more relevant consideration, therefore, as far as we can see, should be as to what the President had in m
convening the Citizens Assemblies, submitting the Constitution to them and proclaiming that the favorable expression
views was an act of ratification. In this respect subjective factors, which defy judicial analysis and adjudication, are ne
involved.

In positing the problem within an identifiable frame of reference we find no need to consider whether or not the regim
established by President Marcos since he declared martial law and under which the new Constitution was submitted
Citizens Assemblies was a revolutionary one. The pivotal question is rather whether or not the effectivity of the said C
by virtue of Presidential Proclamation No. 1102, upon the recommendation of the Katipunan ng mga Barangay, was i
be definite and irrevocable, regardless of non-compliance with the pertinent constitutional and statutory provisions pre
procedure for ratification. We must confess that after considering all the available evidence and all the relevant circum
have found no reasonably reliable answer to the question. On one hand we read, for instance, the following public sta
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 destiny. We have burned our bridges behind us. Let no man misunderstand the strength o
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, amon
things:

... We can, perhaps delimit the power of the people to speak on legal matters, on justiciable m
matters that may come before the experts and interpreters of the law. But we cannot disqualif
from speaking on what we and the people consider purely political matters especially those th
fundamental law of the land.

... The political questions that were presented to the people are exactly those that refer to the
government which the people want ... The implications of disregarding the people's will are too
to be even considered. For if any power in government should even dare to disregard the peo
there would be valid ground for revolt.

... Let it be known to everybody that the people have spoken and they will no longer tolerate a
to undermine the stability of their Republic; they will rise up in arms not in revolt against the R
in protection of the Republic which they have installed. It is quite clear when the people say, w
 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 fo
portion is quoted:

... the times are too grave and the stakes too high for us permit the customary concessions to
democratic process to hold back our people's clear and unequivocal resolve and mandate to m
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
our citizens ... that when all other measures should fail, that the President be directed to organize and establish a Re
Government," but in the next breath added: "... if we do ratify the Constitution, how can we speak of Revolutionary Go
They cannot be compatible ..." "(I)t is my feeling," he said, "that the Citizens' Assemblies which submitted this recomm
merely sought articulate their impatience with the status quo that has brought about anarchy, confusion and misery to
masses ..." The only alternatives which the President clearly implied by the foregoing statements were the ratification
Constitution and the establishment of a revolutionary government, the latter being unnecessary, in his opinion, becau
the Constitution had been ratified. The third obvious alternative was entirely ruled out, namely, a return to the 1935 C
for it was the status quo under that Constitution that had caused "anarchy, confusion and misery." The message seem
rather than return to such status quo, he would heed the recommendation of the Citizens' Assemblies to establish a r
government, because that would be the only other way to carry out the reforms he had envisioned and initiated — ref
in all fairness and honesty, must be given credit for the improved quality of life in its many aspects, except only in the
liberties.

If there is any significance, both explicit and implicit, and certainly unmistakable, in the foregoing pronouncements, it
step taken in connection with the ratification of the Constitution was meant to be irreversible, and that nothing anyone
would make the least difference. And if this is a correct and accurate assessment of the situation, then we would say
has been brought about by political action and is now maintained by the government that is in undisputed authority an
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
Constitution. In "Today's Revolution: Democracy" he says:

I believe, therefore, in the necessity of Revolution as an instrument of individual and social ch

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 Co
of the Philippines.

xxx xxx xxx

I repeat, this is not a military takeover of civil government functions. The Government of the R
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 Republ
reform our society...
 I have had to use this constitutional power in order that we may not completely lose the civil ri
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 2
the following appears:

xxx xxx xxx

Q. Now that you have gotten off the constitutional track, won't you be in seriou
you run into critical problems with your programs?

R. I have never gotten off the constitutional track. Everything I am doing is in a

with the 1935 Constitution. The only thing is that instead of 18-year-olds voting
allowed 15-year-olds the right to vote. But the 15-year-olds of today are high-s
students, if not graduates, and they are better informed than my contemporarie
age. On the matter of whether it is constitutional to proclaim martial law, it is co
because the Constitution provides for it in the event of invasion, insurrection, r
immediate danger thereof. We may quarrel about whether what we have gone
sufficient cause to proclaim martial law but at the very least there is a danger o
because so many of our soldiers have been killed. You must remember this (m
provision) was lifted from the American legislation that was the fundamental la
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 h
made reference to subjective factors on which this Court, to our mind, is in no position to pass judgment. Among them
President's own assessment of the will of the people as expressed through the Citizens Assemblies and of the import
1973 Constitution to the successful implementation of the social and economic reforms he has started or envisioned.
decide that there is no turning back, that what the people recommended through the Citizens Assemblies, as they we
to him, demand that the action he took pursuant thereto be final and irrevocable, then judicial review is out of the que

In articulating our view that the procedure of ratification that was followed was not in accordance with the 1935 Const
related statutes, we have discharged our sworn duty as we conceive it to be. The President should now perhaps deci
not already decided, whether adherence to such procedure is weighty enough a consideration, if only to dispel any cl
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, sin
submission to the Citizens Assemblies, has found acceptance among the people, such issue being related to the poli
question theory propounded by the respondents. We have not tarried on the point at all since we find no reliable basi
to form a judgment. Under a regime of martial law, with the free expression of opinions through the usual media vehic
restricted, we have no means of knowing, to the point of judicial certainty, whether the people have accepted the Con
any event, we do not find the issue decisive insofar as our vote in these cases is concerned. To interpret the Constitu
is judicial. That the Constitution should be deemed in effect because of popular acquiescence — that is political, and
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 Petitio
Counsel Lorenzo M. Tañada on January 15, 1973 in the so called Plebiscite Cases decided by this Court on January
Of course, there are amplifications of some of the grounds previously alleged and in the course of the unprecedented
hearing that was held from February 12 to 16 last, more extensive and illuminating arguments were heard by Us, but,
estimation, and with due recognition of the sincerety, brilliance and eloquence of counsels, nothing more cogent and
than what had already been previously presented by Counsel Tañada is before Us now. Accordingly, I cannot see an
why I should change the position I took in regard to the earlier cases. I reiterate, therefore, the vote I cast when these
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
history of the individual stands of the members of the Court in relation to said issues and to the final outcome of these
considering that I reserved before the filing of a more extended opinion, I will take this opportunity to explain further w
that the 1973 Constitution is already in force, if only to clarify that apart from the people's right of revolution to which I
pointed reference in my previous opinion, I can see now, after further reflection, that the vote of the people in the refe
the Citizens Assemblies held on January 10 to 15, 1973, upon the result of which Proclamation 1102 is based, may b
more importantly as a political act than as a purely legal one with the result that such vote to consider the 1973 Cons
ratified without the necessity of holding a plebiscite in the form followed in the previous ratification plebiscites in 1935
Constitution itself, 1937 of women's suffrage, 1939 of the amendments to the Ordinance Appended to the Constitutio
the re-election of the President, the bicameral legislature and the Commission on Elections, 1947 of the parity amend
1967, rejecting the proposed increase in the members of the House of Representatives and eligibility of members of C
the Constitutional Convention, may be deemed as a valid ratification substantially in compliance with the basic intent
XV of the 1935 Constitution. If indeed this explanation may be considered as a modification of my rationalization then
emphasize that my position as to the fundamental issue regarding the enforceability of the new Constitution is even fi
than ever before. As I shall elucidate anon, paramount considerations of national import have led me to the conviction
best interests of all concerned would be best served by the Supreme Court holding that the 1973 Constitution is now
necessarily as a consequence of the revolutionary concept previously suggested by me, but upon the ground that as
more than as a legal, act of the people, the result of the referendum may be construed as a compliance with the subs
Article XV of the 1935 Constitution.

The facts that gave rise to these proceedings are historical and well known. Generally, they may be taken judicial not
revolve around the purported ratification of the Constitution of 1973 declared in Proclamation 1102 issued by the Pres
January 17, 1973.

Pursuant to a joint resolution of the Congress sitting as a constituent assembly approved on March 16, 1967, delegat
constitutional convention to propose amendments to the Constitution of 1935 were elected in accordance with the im
law, Republic Act 6132, on November 10, 1970. Known as the Constitutional Convention of 1971, the assembly bega
sessions on June 1, 1971. After encountering a lot of difficulties, due to bitter rivalries over important positions and co
and an incomprehensible fear of overconcentrating powers in their officers, the delegates went about their work in co
slow pace, and by the third quarter of 1972 had finished deliberations and second-reading voting only on an insignific
of proposals — until September 21, 1972, when the President, not altogether unexpectedly, yet abruptly, issued Proc
1081 declaring martial law throughout the country. An attempt was made to have the Convention recessed until after
martial law, and not long after the motion of Delegate Kalaw to such effect was turned down, the activities within the a
shifted to high gear. As if unmindful of the arrest and continued detention of several of its members, the convention g
swift momentum in its work, and on November 30, 1972, it approved by overwhelming vote the draft of a complete co
instead of mere specific amendments of particular portions of the Constitution of 1935. Needless to say, before martia
declared, there was full and unlimited coverage of the workings in the convention by the mass media. At the same tim
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 t
decree be issued calling a plebiscite for ratification of the proposed new Constitution on appropriate date as he shall
and providing for necessary funds therefor." Acting under this authority, December 1, 1972, the President issued Pres
Decree No. 73 submitting the draft constitution for ratification by the people at a plebiscite set for January 15, 1973. T
contained provisions more or less similar to the plebiscite laws passed by Congress relative to the past plebiscites he
connection with previous proposed amendments.

In connection with the plebiscite thus contemplated, General Order No. 17 was issued ordering and enjoining the aut
allow and encourage public and free discussions on proposed constitution. Not only this, subsequently, under date of
17, 1972, the President ordered the suspension the effects of martial law and lifted the suspension of privilege of the
of habeas corpus insofar as activities connected with the ratification of the draft constitution were concerned. These t
were not, however, to last very long. On January 7, 1973, the President, invoking information related to him that the a
public debate and discussion had opened by his previous orders was being taken advantage of by subversive elemen
the purposes for which they were issued and to foment public confusion, withdrew said orders and enjoined full and s
implementation of martial law.

In the meantime, the President had issued on December 3, 1972 Presidential Decree No. 86 creating Citizens Assem
to afford ample opportunities for the citizenry to express their views on important national issues" and one of the ques
presented to said assemblies was: "Do you like the plebiscite on the proposed Constitution to be held later" So, the s
of January 7, 1973, General Order No. 20, the President ordered, "that the plebiscite scheduled to be held January 1
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 bara
(citizens assemblies) that have so far been established, the people would like to decide for the
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 e
the views of the people on important national issues;

WHEREAS, such barangays (citizens assemblies) desire that they be given legal status and d
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 referendu
certain specified questions such as the ratification of the new Constitution, continuance of ma
convening of Congress on January 22, 1973, and the elections in November 1973 pursuant to
Constitution.

NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of th

 vested in me by the Constitution as Commander-in-Chief of all Armed Forces of the Philippine
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
December 31, 1972, shall constitute the base for citizen participation in governmental affairs a
collective views shall be considered in the formulation of national policies or programs and, wh
practicable, shall be translated into concrete and specific decision;

2. Such barangays (citizens assemblies) shall consider vital national issues now confronting th
like the holding of the plebiscite on the new Constitution, the continuation of martial rule, the c
Congress on January 22, 1973, and the holding of elections in November 1973, and others in
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 ref
important national issues, including those specified in paragraph 2 hereof, and submit results
the Department of Local Governments Community Development immediately thereafter, pursu
express will of the people as reflected in the reports gathered from the many thousands of bar
(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
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, 1
Barangays (Citizens Assemblies) have petitioned the Office of the President to submit them fo
important national issues;

WHEREAS, one of the questions persistently mentioned refers to the ratification of the Consti
proposed by the 1971 Constitutional Convention;

WHEREAS, on the basis of the said petitions, it is evident that the people believe that the sub
the proposed Constitution to the Citizens Assemblies or Barangays should be taken as a pleb
itself in view of the fact that freedom of debate has always been limited to the leadership in po
economic and social fields, and that it is now necessary to bring this down to the level of the p
themselves through the Barangays or Citizens Assemblies;

NOW THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of th

me vested by the Constitution, do hereby order that important national issues shall from time t
referred to the Barangays (Citizens Assemblies) for resolution in accordance with Presidential
86-A dated January 5, 1973 and that the initial referendum shall include the matter of ratificati
Constitution proposed by the 1971 Constitutional Convention.
 The Secretary of the Department of Local Governments and Community Development shall in
implementation of this Order.

Done in the City of Manila, this 7th day of January in the year of Our Lord, nineteen hundred a
three.

And so it was that by January 10, 1973, when the Citizens Assemblies thus created started the referendum which wa
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 is
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
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
suggestive of the answer desired. It may assumed that the said "comments" came from official sources, albeit specifi
unidentified. As petitioners point out, the most relevant of these "comments" were the following:

COMMENTS ON

xxx xxx xxx

QUESTION No. 2

But we do not want the Ad Interim Assembly to be convoke. Or if it is to be con

all, it should not be done so until after at least seven (7) years from the approv
New Constitution by the Citizens Assemblies.
 QUESTION No. 3

The vote of the Citizens Assemblies should already be considered the plebisci
New Constitution.

If the Citizens Assemblies approve of the new Constitution then the new Cons
should be deemed ratified.

The Solicitor General claims, and there seems to be showing otherwise, that the results of the referendum were dete
the following manner:

Thereafter, the results of the voting were collated and sent to the Department of Local Govern
transmission of the results was made by telegram, telephone, the provincial government SSB
each province connecting all towns; the SSB communication of the PACD connecting most pr
Department of Public Information Network System; the Weather Bureau Communication Syste
connecting all provincial capitals and the National Civil Defense Network connecting all provin
The certificates of results were then flown to Manila to confirm the previous figures received b
aforementioned means of transmission. The certificates of results tallied with the previous figu
with the exception of few cases of clerical errors.

The Department adopted a system of regionalizing the receiving section of the Citizens Assem
operation at the Department wherein the identity of the barrio and the province was immediate
a staff in charge of each region. Every afternoon at 2:00 o'clock, the 11 regions submitted the
received from the field to the central committee to tabulate the returns. The last figures were t
12 midnight of January 16, 1973 and early morning of January 17, 1973 and were then comm
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 procla
reads:

PROCLAMATION NO. 1102 ANNOUNCING THE RATIFICATION BY THE FILIPINO PEOPLE

CONSTITUTION PROPOSED BY THE 1971 CONSTITUTIONAL CONVENTION.

WHEREAS, the Constitution proposed by the nineteen hundred seventy-one Constitutional Co

subject to ratification by the Filipino people;

WHEREAS, Citizens Assemblies were created in barrios in municipalities and in districts/ward

chartered cities pursuant to Presidential Decree No. 6, dated December 31, 1972, composed
persons who are residents of the barrio, district or ward for at least six months, fifteen years o
over, citizens of the Philippines and who are registered in the list of Citizen Assembly member
the barrio, district or ward secretary;

WHEREAS, the said Citizens Assemblies were establish precisely to broaden the base of citiz
participation in the democratic process and to afford ample opportunity for the citizen to expre
views on important national issues;

WHEREAS, responding to the clamor of the people an pursuant to Presidential Decree No. 86
January 5, 1973, the following questions were posed before Citizens' Assemblies or Barangay
approve of the New Constitution? Do you still want a plebiscite to be called to ratify the new C
 WHEREAS, fourteen million nine hundred seventy-six thousand five hundred sixty one (14,97
members of all the Barangays (Citizens Assemblies) voted for the adoption of the proposed C
as against seven hundred forty-three thousand eight hundred sixty nine (743,869) who voted
rejection; while on the question as to whether or not the people would still like a plebiscite to b
ratify the new Constitution fourteen million two hundred ninety-eight thousand eight hundred fo
(14,298,814) answered that there was no need for plebiscite and that the vote of the Baranga
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 m
the Barangays (Citizen Assemblies) are in favor of the New Constitution, the Katipunan ng Mg
has strongly recommended that the new Constitution should already be deemed ratified by the
people;

NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of th

me vested by the Constitution, do hereby certify and proclaim that the Constitution proposed b
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 o
Philippines to be affixed.

Done in the City of Manila, this 17th day of January, in the year of Our Lord, nineteen hundred
seventy-three.

The first attempt to question the steps just enumerated taken by the President was in the so-called Plebiscite Cases,
number, which were filed by different petitioners during the first half of December 1972.  Their common target then wa
1

Presidential Decree No. 73, but before the said cases could be decided, the series of moves tending in effect to make
and academic insofar as they referred exclusively to the said Presidential Decree began to take shape upon the issua
Presidential Decree No. 86-A, quoted above. And when Presidential Decree No. 86-B, also above quoted, was issue
six additional questions which were first publicized on January 11, 1973 were known, together with the "comments", p
sensed that a new and unorthodox procedure was being adopted to secure approval by the people of the new Consti
hence Counsel Tañada, not being satisfied with the fate of his urgent motion for early decision of the above ten cases
January 12, 1973, filed on January 15, 1973, his supplemental motion seeking the prohibition against and injunction o
proceedings going on. Principal objective was to prevent that the President be furnished the report of the results of th
referendum and thereby disable him from carrying out what petitioners were apprehensively foreseeing would be don
issuance of some kind of proclamation, order or decree, declaring that the new Constitution had been ratified. Reactin
the Court resolved on the same day, January 15, which was Monday, to consider the supplemental motion as a supp
petition and to require the respondents to answer the same the next Wednesday, January 17th, before the hour of the
the petition which set for 9:30 o'clock in the morning of that day. The details what happened that morning form part of
of facts the decision rendered by this Court in the ten cases on January 22, 1973 and need not be repeated here. Su
state no that before the hearing could be closed and while Counsel Tañada was still insisting on his prayer for prelimi
injunction or restraining order, the Secretary of Justice arrived and personally handed to the Chief Justice a copy Pro
1102 which had been issued at about 11:00 o'clock that same morning. In other words, the valiant and persistent effo
petitioners and their counsels were overtaken by adverse developments, and in the mind of the majority of the memb
Court, the cases had become academic. For my part, I took the view that even on the basis of the supplemental petit
answer thereto filed by respondents, the Court could already decide on the fundamental issue of the validity Proclam
as Justices Zaldivar, Antonio and Esguerra also believed, inasmuch as Counsel Tañada's pleading and argument ha
anticipated its issuance, but the majority felt it was not ready to resolve the matter, for lack, according them, of full ve
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 b
strongly feel needs special attention. I refer to the point raised by Counsel Arturo M. Tolentino for respondent Gil J. P
Jose Roy, who have been sued as President and President Pro Tempore of the Senate, to the effect that change in t
composition of the Supreme Court provided for the 1973 Constitution, from the 11-man tribunal under the 1935 Cons
15-man Court, makes of these cases which were filed after January 17, 1973 the date when Proclamation 1102 decla
Constitution as ratified, political nature and beyond our jurisdiction. The main consideration submitted in this connecti
inasmuch as the number votes needed for a decision of this Court has been increased from six to eight in ordinary ca
from eight to ten for the declaration of unconstitutionality of a treaty, executive agreement  or law, the Court would ha
2

resolve first as a prejudicial question whether the Court is acting in these cases as the 15-man or the 11-man Court, i
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
in issue one way or the other, and, in effect, it would be choosing between two constitutions, which is a political deter
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
necessarily preclude this Court from taking a definite stand on whether the Court is acting in these cases as the 15-M
11-man Court. I feel very strongly that the issue should not be ignored or dodged, if only to make the world know that
Supreme Court of the Philippines is never incognizant of the capacity in which it is acting, much less lacking in courag
wisdom to resolve an issue that relates directly to its own composition. What a disgrace it would be to admit that this
Court does not know, to use a common apt expression, whether it is fish or fowl. Withal, scholars and researchers wh
over our records in the future will inevitably examine minutely how each of us voted and upon what considerations we
individually acted, and, indeed, doubts may arise as to whether or not, despite the general result we might announce,
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 a
11-man Court, only six votes would suffice to declare Proclamation 1102 ineffective, and if upon analysis of our respe
opinions it should be inferable therefrom that six of us have considered the matter before the Court as justiciable and
time have found the procedure of ratification adopted in Presidential Decrees 86-A and 86-B and related orders of the
as not being in conformity with Article XV of the old Constitution, a cloud would exist as to efficacy of the dispositive p
Our decision dismiss these cases, even if we have it understood that by the vote of justices in favor of such dismissa
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 ambigu
equivocation and as a member of the Supreme Court, last thing I should knowingly countenance is uncertainty as to t
significance of any decision of the Court which is precisely being looked upon as the haven in which doubts are supp
authoritatively dispelled. Besides, from very nature of things, one thing is indubitably beyond dispute — we cannot ac
capacities of a 15-man and an 11-man Court at the same time, in like manner that it is inconceivable that the 1935 an
Constitution can be considered by Us both in force. Our inescapable duty is to make a choice between them, accordi
law and other considerations inherent to our function dictate. I cannot bear the thought that someone may someday s
Supreme Court of the Philippines once decided a case without knowing the basis of its author to act or that it was eve
judicial courage to define the same.

Accordingly, with full consciousness of my limitations but compelled by my sense of duty and propriety to straighten o
grave of issue touching on the capacity in which the Court acting in these cases, I hold that we have no alternative bu
the present situation the orthodox rule that when validity of an act or law is challenged as being repugnant constitutio
mandate, the same is allowed to have effect until the Supreme Court rules that it is unconstitutional. Stated differently
to proceed on the assumption that the new Constitution is in force and that We are acting in these cases as the 15-m
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 p
wise to defer the course of any action until after the courts have ascertained their legality, not only because if that we
rule, the functioning of government would correspondingly be undesirably hesitative and cumbersome, but more impo
because the courts must at the first instance accord due respect to the acts of the other departments, as otherwise, th
running of the government would have to depend entirely on the unanimity of opinions among all its departments, wh
possible, unless it is assumed that only the judges have the exclusive prerogative of making and enforcing the law, a
being its sole interpreter, which is contrary to all norms of juridical and political thinking. To my knowledge, there is ye
in the world that has recognized judicial supremacy as its basic governmental principle, no matter how desirable we m
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 fun
under the 1935 Constitution. It is undeniable that the whole government, including the provincial, municipal and barrio
not excluding the lower courts up to the Court of Appeals, is operating under the 1973 Constitution. Almost daily, pres
orders and decrees of the most legislative character affecting practically every aspect of governmental and private ac
as the relations between the government and the citizenry are pouring out from Malacañang under the authority of sa
Constitution. On the other hand, taxes are being exacted and penalties in connection therewith are being imposed un
orders and decrees. Obligations have been contracted and business and industrial plans have been and are being pr
pursuant to them. Displacements of public officials and employees in big numbers are going on in obedience to them
justices of the Supreme Court to constitute an island of resistance in the midst of these developments, which even un
obstinacy cannot ignore, much less impede, is unimaginable, let alone the absurd and complicated consequences su
position entails in the internal workings within the judiciary amount its different components, what with the lower court
considering such orders and decrees as forming part of the law of the land in making their orders and decisions, whe
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
feels that it cannot in the meantime consider the enforcement of the new Constitution, he can wait for its decision. Ac
truth of this assertion, it does necessarily follow that by this attitude of the President, considers the Supreme Court as
operating under the Constitution. Quite on the contrary, it is a fact that he has given instructions for the payment of th
accordance with the rate fixed in the New Constitution. Not only that, official alter ego, the Secretary of Justice, has b
this Court, since January 18, 1973, all matters related to the administrative supervision of the lower courts which by th
charter has been transferred from the Department of Justice to the Supreme Court, and as far as I know, President h
countermanded the Secretary's steps in that direction. That, on the other hand, the President has not augmented the
the Court to complete the prescribed number of fifteen is, in my appraisal, of no consequence considering that with th
of ten justices who are the Court now, there is a working quorum, and the addition of new justices cannot in anyway a
voting on the constitutional questions now before Us because, while there sufficient justices to declare by their unanim
illegality of Proclamation 1102, the votes of the justices to added would only be committed to upholding the same, sin
cannot by any standard be expected to vote against legality of the very Constitution under which they would be appoi

Moreover, what makes the premise of presumptive valid preferable and, even imperative, is that We are dealing here
whole constitution that radically modifies or alters only the form of our government from presidential parliamentary bu
constitutionally institutions vitally affecting all levels of society. It is, to mind, unrealistic to insist on that, fundamentally
Constitution is the same 1935 Constitution, with a few improvements. A cursory perusal of the former should convinc
that it is in essence a new one. While it does retain republicanism as the basic governmental tenet, the institutional ch
introduced thereby are rather radical and its social orientation is decidedly more socialistic, just as its nationalistic fea
somewhat different in certain respects. One cannot but note that the change embraces practically every part of the ol
from its preamble down to its amending and effectivity clauses, involving as they do the statement of general principle
citizenship and suffrage qualifications, the articles on the form of government, the judiciary provisions, the spelling ou
duties and responsibilities not only of citizens but also of officers of the government and the provisions on the nationa
as well as the patrimony of the nation, not to mention the distinctive features of the general provisions. What is more,
transitory provisions notably depart from traditional and orthodox views in that, in general, the powers of government
interim period are more or less concentrated in the President, to the extent that the continuation or discontinuance of
practically a one-man-rule, is even left to his discretion. Notably, the express ratification of all proclamations, orders, d
acts previously issued or done by the President, obviously meant to encompass those issued during martial law, is a
to the concept of martial law powers being implemented by President Marcos, in defiance of traditional views and pre
jurisprudence, to the effect that the Executive's power of legislation during a regime of martial law is all inclusive and
to the matters demanded by military necessity. In other words, the new constitution unlike any other constitution coun
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) Se
its Article XVII which provides that this constitution shall "supersede the Constitution of nineteen hundred and thirty-fi
amendments thereto" and (2) its transitory provisions expressly continue the effectivity of existing laws, offices and co
as the tenure of all incumbent officials, not adversely affected by it, which would have been unnecessary if the old co
were being merely amended.

The new Constitution, in its Section 10, Article XVII, provides that "(T)he incumbent members of the Judiciary (which
Chief Justice and Associate Justices of Supreme Court) may continue in office (under the constitution) until they reac
seventy years, etc." By virtue of the presumptive validity of the new charter, all of form part of the 15-man-Court provi
therein correspondingly, We have in legal contemplation, ceased in the meanwhile to be members of the 11-man-Cou
1935 Constitution. Should the Court finally decide that the Constitution is invalid, then We would automatically revert
positions in the 11-man- Court, otherwise, We would just continue to be in our membership in the 15-man-Court, unle
We cannot in conscience accept the legality of existence. On the other hand, if it is assumed that We are the 11-man
happens that Our collective decision is in favor of the new constitution, it would be problematical for any dissenting ju
consider himself as included automatically in the 15-man-Court, since that would tantamount to accepting a position h
honestly believe exists.

III

In brief, the main contention of the petitioners is that Proclamation 1102 is invalid because the ratification of the 1973
it purports to declare as having taken place as a result of the referendum above-referred to is ineffective since it cann
on the basis of the said referendum that said Constitution has been "approved by a majority of the votes cast at an el
the manner prescribed by Article XV the Constitution of 1935. More specifically, they maintain that the word "election"
Article has already acquired a definite accepted meaning out of the consistent holding in the past of ratification plebis
accordingly, no other form of ratification can be considered contemplated by the framers of the Old Constitution than
had been followed 1935, 1937, 1939, 1940, 1946 and 1967, the last three or four which were held under the supervis
Commission on Elections. Furthermore, they emphatically deny the veracity of the proclaimed results of the referendu
according to them the referendum was a farce and its results were manufactured or prefabricated, considering that M
Cruz, who is supposed to have submitted the final report to the President, which served as basis for Proclamation 11
official authority to render the same, and it is inconceivable and humanly impossible for anyone to have been able to
tabulate and canvass the 15 million votes allegedly reported within the short period of time employed. Of course, they
contend that in any event, there was no proper submission because martial law per se creates constructive duress w
deprives the voters of the complete freedom needed for the exercise of their right of choice and actually, there was ne
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
a political one which the courts are not supposed to inquire into, and, anyway, there has been a substantial complian
Article XV of the 1935 Constitution, inasmuch as, disregarding unessential matters of form, the undeniable fact is tha
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 a
the observation that in view of the lack of solemnity and regularity in the voting as well as in the manner of reporting a
canvassing conducted in connection with the referendum, I cannot say that Article XV of the Old Constitution has bee
with, albeit I held that nonetheless, the Constitution of 1973 is already in force. In order, however, to make myself cle
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 certi
through Proclamation 1102 itself that the New Constitution has been approved by a majority of the people and having
facts of general knowledge which I have judicial notice of, I am in no position to deny that the result of the referendum
President had stated. I can believe that the figures referred to in the proclamation may not accurate, but I cannot say
conscience that all of them are manufactured or prefabricated, simply because I saw with own eyes that people did a
gather and listen discussions, if brief and inadequate for those who are abreast of current events and general occurre
that they did vote. I believe I can safely say that what I have seen have also been seen by many others throughout th
and unless it can be assumed, which honestly, I do not believe to be possible, that in fact there were actually no mee
and no voting done in more places than those wherein there were such meetings and votings, I am not prepared to d
entirely the declaration that there was voting and that the majority of the votes were in favor of the New Constitution.
there were substantially less than 14 million votes of approval, the real figure, in my estimate, could still be significant
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
merely of a loose consultation and not an outright submission for purposes of ratification. I can see that at the outset,
first set of questions was released, such may have been the idea. It must not be lost sight of, however, that if the new
reports are to be believed, and I say this only because petitioners would consider the newspapers as the official gaze
administration, the last set of six questions were included precisely because the reaction to the idea of mere consulta
that the people wanted greater direct participation, thru the Citizens Assemblies, in decision-making regarding matter
national interest. Thus, looking at things more understandingly and realistically the two questions emphasized by cou
namely, (1) Do yo approve of the New Constitution? and (2) Do you want plebiscite to be called to ratify the new Con
should be considered no longer as loose consultations but as direct inquiries about the desire of the voters regarding
mentioned. Accordingly, I take it that if the majority had expressed disapproval of the new Constitution, the logical con
would have been the complete abandonment of the idea of holding any plebiscite at all. On the other hand, it is very p
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 shou
direct and expressed desire of the people to such effect in order to forestall as much as possible any serious controve
regarding the non-holding of the plebiscite required by the letter of Section 16 of Article XVII, the effectivity clause, of
Constitution. Oddly enough, the "comments" accompanying the questions do strongly suggest this view. And as it tur
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 s
the thrust of the said question does not seek an answer of fact but of opinion. It is argued that it would have been fac
worded categorically thus — Do you approve the New Constitution? The contention would have been weighty were it
unrealistic. I remember distinctly that the observation regarding the construction of the subject question was not origin
by any of the talented counsels for petitioners. It came from Mr. Justice Fred Ruiz Castro whose mastery of the Englis
can rightly be the cause of envy of even professors of English. None of the other members of the Court, as far as I ca
ever noticed how the said question is phrased, or if anyone of Us did, I am not aware that he gave it more than passin
What I mean is that if neither any of the distinguished and learned counsels nor any member of the Court understood
question otherwise than calling for a factual answer instead of a mere opinion, how could anyone expect the millions
unlettered members of the Citizens Assemblies to have noticed the point brought out by Justice Castro? Truth to tell,
not realize the difference until Justice Castro gave it emphasis. Besides, reading the question in the light of the accom
"comment" corresponding to it in particular, I am certain that any one who answered the same understood it in no oth
than a direct inquiry as to whether or not, as a matter of fact, he approves the New Constitution, and naturally, affirma
must be taken as a categorical vote of approval thereof, considering, particularly, that according to the reported resul
referendum said answer was even coupled with the request that the President defer the convening of the Interim Nat
Assembly.

It is also contended that because of this reference in answer to that question to the deferment of the convening of the
assembly, the said answer is at best a conditional approval not proper nor acceptable for purposes of ratification pleb
contention has no basis. In interest of accuracy, the additional answer proposed in pertinent "comment" reads as follo
do not want Ad Interim Assembly to be convoked etc." On the assumption that the actual answer, as reported, was of
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

As regards said "comments", it must be considered that a martial law was declared, the circumstances surrounding m
Constitution acquired a different and more meaningful aspect, namely, the formation of a new society. From the point
the President and on the basis of intelligence reports available to him, the only way to meet situation created by the s
elements was to introduce immediately effective reforms calculated to redeem the people from the depth of retrogres
stagnation caused by rampant graft and corruption in high places, influence peddling, oligarchic political practices, pr
armies, anarchy, deteriorating conditions of peace and order, the so inequalities widening the gap between the rich a
and many other deplorable long standing maladies crying for early relief and solution. Definitely, as in the case of reb
movement that threatened the Quirino Administration, the remedy was far from using bullets alone. If a constitution w
approved as an effective instrument towards the eradication of such grave problems, it had to be approved without lo
and sans the cumbersome processes that, from the realistic viewpoint, have in the past obstructed rather than hasten
progress of the people. Stated otherwise, in the context of actualities, the evident objective in having a new constitutio
establish new directions in the pursuit of the national aspirations and the carrying out of national policies. Only by bea
considerations in mind can the "comments" already referred to be properly appreciated. To others said "comments" m
as evidence of corruption of the will of those who attended the assemblies, but actually, they may also be viewed in th
light as the sample ballots commonly resorted to in the elections of officials, which no one can contend are per se me
coercion. Let us not forget that the times are abnormal, and prolonged dialogue and exchange of ideas are not gener
possible, nor practical, considering the need for faster decisions and more resolute action. After all voting on a whole
constitution is different from voting on one, two or three specific proposed amendments, the former calls for nothing m
collective view of all the provisions of the whole charter, for necessarily, one has to take the good together with the ba
rare for anyone to reject a constitution only because of a few specific objectionable features, no matter how substanti
considering the ever present possibility that after all it may be cured by subsequent amendment. Accordingly, there w
indicate to the people the paths open to them in their quest for the betterment of their conditions, and as long as it is n
that those who did not agree to the suggestions in the "comments" were actually compelled to vote against their will,
convinced that the existence of said "comments" should make any appreciable difference in the court's appraisal of th
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 dis
result of the referendum barely because of martial law per se. For one thing, many of the objectionable features of m
have not actually materialized, if only because the implementation of martial law since its inception has been general
characterized by restraint and consideration, thanks to the expressed wishes of the President that the same be made
style", which means without the rigor that has attended it in other lands and other times. Moreover, although the restr
the freedom of speech, the press and movement during martial law do have their corresponding adverse effects on th
information which should be open to a voter, in its real sense what "chills" his freedom of choice and mars his exercis
discretion is suspension of the privilege of the writ of habeas corpus. The reason is simply that a man may freely and
vote even if the needed information he possesses as to the candidates or issues being voted upon is more or less inc
but when he is subject to arrest and detention without investigation and without being informed of the cause thereof, t
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 m
It is a fact, however, borne by history and actual experience, that in the Philippines, the suspension of the privilege of
writ habeas corpus has never produced any chilling effect upon the voters, since it is known by all that only those who
the law, saving inconsequential instances, have any cause for apprehension in regard to the conduct by them of the n
activities of life. And so it is recorded that in the elections 1951 and 1971, held while the privilege of writ of habeas co
under suspension, the Filipino voters gave the then opposition parties overwhelming if not sweeping victories, in defia
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 consid
sufficient basis for declaring that the New Constitution has been ratified in accordance with the amending clause of th
Constitution. I reiterate that in point of law, I find neither strict nor substantial compliance. The foregoing discussion is
counter, if I may, certain impression regarding the general conditions obtaining during and in relation to the referendu
could have in one way or another affected the exercise of the freedom of choice and the use of discretion by the mem
Citizens Assemblies, to the end that as far as the same conditions may be relevant in my subsequent discussions of
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 pre
considered opinion is that the Court may no longer decide these cases on the basis of purely legal considerations. Fa
are non-legal but nevertheless ponderous and compelling cannot be ignored, for their relevancy is inherent in the issu
be resolved.

In my opinion in the Plebiscite Cases, I joined my colleagues in holding that the question of whether or not there was
submission under Presidential Decree No. 73 is justiciable, and I still hold that the propriety of submission under any
in any other form is constitutionally a fit subject for inquiry by the courts. The ruling in the decided cases relied upon b
petitioners are to this effect. In view, however, of the factual background of the cases at bar which include ratification
necessary for me to point out that when it comes to ratification, I am persuaded that there should be a boundary beyo
the competence of the courts no longer has any reason for being, because the other side is exclusively political territo
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 enou
indication of such acceptance in the record and in the circumstances the Court can take judicial notice of. For my par
it unnecessary to be strictly judicial in inquiring into such fact. Being personally aware, as I have already stated, that t
Assemblies did meet and vote, if irregularly and crudely, it is not for me to resort, for the purposes of these cases, to
and measure, to find out with absolute precision the veracity of the total number of votes actually cast. After all, the cl
upon a comparison of conflicting reports, cases of excess votes may be found, even if extrapolated will not, as far as
out, suffice to overcome the outcome officially announced. Rather than try to form a conclusion out of the raw evidenc
which the parties did not care to really complete, I feel safer by referring to the results announced in the proclamation
Giving substantial allowances for possible error and downright manipulation, it must not be overlooked that, after all,
been accepted and adopted by the President, based on official reports submitted to him in due course of performance
appropriate subordinate officials, elevated them to the category of an act of a coordinate department of the governme
under the principle separation of powers is clothed with presumptive correctness or at least entitled to a high degree
acceptability, until overcome by better evidence, which in these cases does not exist. In any event, considering that d
unorthodoxy of the procedure adopted and the difficulty of an accurate checking of all the figures, I am unable to conc
manageable means of acquiring information upon which to predicate a denial, I have no alternative but to rely on wha
officially declared. At this point, I would venture to express the feeling that if it were not generally conceded that there
sufficient showing of the acceptance in question by this time, there would have been already demonstrative and signi
indications of a rather widespread, if not organized resistance in one form or another. Much as they are to be given d
recognition as magnificent manifestations of loyalty and devotion to principles, I cannot accord to the filing of these ca
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 s
unequivocal pronouncements to the effect that any amendment to the Constitution of 1935, to be valid, must appear t
been made in strict conformity with the requirements of Article XV thereof. What is more, that decision asserted judici
competence to inquire into the matter of compliance or non compliance as a justiciable matter. I still believe in the cor
those views and I would even add that I sincerely feel it reflects the spirit of the said constitutional provision. Without
strain any point however, I, submit the following considerations in the context of the peculiar circumstances of the cas
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 im
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 ha
referred to is, now inviting Our attention to the exact language of Article XV and suggesting that the said Article may b
applied to proposed amendments but may hardly govern the ratification of a new Constitution. It is particularly stresse
Article specifically refers to nothing else but "amendments to this Constitution" which if ratified "shall be valid as part o
Constitution." Indeed, how can a whole new constitution be by any manner of reasoning an amendment to any other
and how can it, if ratified, form part of such other constitution? In fact, in the Tolentino case I already somehow hinted
when I made reference in the resolution denying the motion for reconsideration to the fact that Article XV must be foll
long as any amendment is formulated and submitted under the aegis of the present Charter." Said resolution even ad
is not to say that the people may not, in the exercise of their inherent revolutionary powers, amend the Constitution o
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 p
changes in any part of the same constitution itself, for the very fact that a new constitution is being adopted implies a
intent to put aside the whole of the old one, and what would be really incongrous is the idea that in such an eventualit
Constitution would subject its going into effect to any provision of the constitution it is to supersede, to use the langua
of Section 6, Article XVII, the effectivity clause, of the New Constitution. My understanding is that generally, constituti
born, they very rarely, if at all, come into being, by virtue of any provision of another constitution. 3 This must be the r
every constitution has its own effectivity clause, so that if, the Constitutional Convention had only anticipated the idea
referendum and provided for such a method to be used in the ratification of the New Constitution, I would have had s
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
and the circumstances dictating the replacement. From the very nature of things, the proposal to ordain a new constit
be viewed as the most eloquent expression of a people's resolute determination to bring about a massive change of t
order, a meaningful transformation of the old society and a responsive reformation of the contemporary institutions an
principles. Accordingly, should any question arise as to its effectivity and there is some reasonable indication that the
has already received in one way or another the sanction of the people, I would hold that the better rule is for the cour
the people's judgment, so long as they are convinced of the fact of their approval, regardless of the form by which it is
provided it be reasonably feasible and reliable. Otherwise stated, in such instances, the courts should not bother abo
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
elements, both collective and individual, of the Congress of the Philippines. Neither the Senate nor the House of Rep
has been reported to have even made any appreciable effort or attempt to convene as they were supposed to do und
Constitution of 1935 on January 22, 1973 for the regular session. It must be assumed that being composed of experie
knowledgeable and courageous members, it would not have been difficult for said parliamentary bodies to have conc
ingenious way of giving evidence of their determined adherence to the Constitution under which they were elected. F
much as I admire the efforts of the handful of senators who had their picture taken in front of the padlocked portals of
chamber, I do not feel warranted to accord such act as enough token of resistance. As counsel Tolentino has informe
there was noting to stop the senators and the congressmen to meet in any other convenient place and somehow offic
organize themselves in a way that can logically be considered as a session, even if nothing were done than to merely
and disperse. Counsel Tolentino even pointed out that if there were not enough members to form a quorum, any sma
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 presen
for mandamus have no legal and factual bases. And to top it all, quite to the contrary, the records of the Commission
Elections show that at least 15 of 24 senators and over 95 out of less than 120 members of the House of Representa
officially and in writing exercised the option given to them to join the Interim National Assembly under the New Consti
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 th
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 develo
taking place and for the sake of being the guardian of the Constitution and the defender of its integrity and supremacy
judicial power prevail against the decision of those who were duly chosen by the people to be their authorized spokes
representatives. It is not alone the physical futility of such a gesture that concerns me. More than that, there is the sta
that the Senators and the Congressmen, no less than the President, have taken the same oath of loyalty to the Cons
we, the Justices, have taken and they are, therefore, equally bound with Us to preserve and protect the Constitution.
representatives of the people, they have already opted to accept the New Constitution as the more effective instrume
fulfillment of the national destiny, I really wonder if there is even any idealistic worth in our desperately clinging by Ou
alone to Our sworn duty vis-a-vis the 1935 Constitution. Conscious of the declared objectives of the new dispensation
cognizant of the decisive steps being with the least loss of time, towards their accomplishment, cannot but feel appre
instead of serving the best interests of our people, which to me is in reality the real meaning of our oath of office, the
be standing in the way of the very thing our beloved country needs to retrieve its past glory and greatness. In other w
my conviction that what these cases demand most of all is not a decision demonstrative of our legal erudition and So
wisdom but an all rounded judgment resulting from the consideration of all relevant circumstances, principally the pol
brief, a decision more political than legal, which a court can render only by deferring to the apparent judgment of the p
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 So
General that in the legal sense, there has been at least substantial compliance with Article XV of the 1935 Constitutio
I can see is that in a political sense, the answers to the referendum questions were not given by the people as legal c
I take it that when they answered that by their signified approval of the New Constitution, they do not consider it nece
hold a plebiscite, they could not have had in mind any intent to do what was constitutionally improper. Basically accus
proceed along constitutional channels, they must have acted in the honest conviction that what was being done was
conformity with prevailing constitutional standards. We are not to assume that the sovereign people were indulging in
exercise of their supreme political right to choose the fundamental charter by which their lives, their liberties and their
shall be safeguarded. In other words, we must perforce infer that they meant their decision to count, and it behooves
render judgment herein in that context. It is my considered opinion that viewed understandingly and realistically, there
than sufficient ground to hold that, judged by such intent and, particularly, from the political standpoint, the ratification
Constitution declared in Proclamation 1102 complies substantially with Article XV of the 1935 Charter, specially when
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 constitu
substantiality of the whole article, so long as such approval is reasonably ascertained. In the last analysis, therefore,
rightly said, even if only in a broad sense, that the ratification here in question was constitutionally justified and justifia

5. Finally, if any doubt should still linger as to the legitimacy of the New Constitution on legal grounds, the same shou
dispelled by viewing the situation in the manner suggested by Counsel Tolentino and by the writer of this opinion in h
opinion, oft-referred to above, in the Plebiscite Cases — that is, as an extra constitutional exercise by the people, und
leadership of President Marcos, of their inalienable right to change their fundamental charter by any means they may
appropriate, the moment they are convinced that the existing one is no longer responsive to their fundamental, politic
social needs nor conducive to the timely attainment of their national destiny. This is not only the teaching of the Amer
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 ne
the latter may be deemed as constitutionally permissible even from the point of view of the preceding constitution. Th
may feel restrained to consider this view out of respect to the import of Tolentino vs. Comelec, supra., would be well
bear in mind that the case was decided in the context of submission, not accomplished ratification.

The language of the disputed amending clause of the 1935 Constitution should not be deemed as the be all and end
nation. More important than even the Constitution itself with all its excellent features, are the people living under it —
happiness, their posterity and their national destiny. There is nothing that cannot be sacrificed in the pursuit of these
which constitute the totality of the reasons for national existence. The sacred liberties and freedom enshrined in it and
commitment and consecration thereof to the forms of democracy we have hitherto observed are mere integral parts o
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 w
deemed as sanctioning, not only the deviations from traditional democratic concepts and principles but also the qualif
curtailment of individual liberties now being practiced, and this would amount, it is feared, to a repudiation of our oath
and defend the Constitution of 1935. This is certainly something one must gravely ponder upon. When I consider, how
the President, the Vice President, the members of both Houses of Congress, not to speak of all executive departmen
bureaus under them as well as all the lower courts, including the Court of Appeals have already accepted the New Co
as an instrument of a meaningful nationwide-all-level change in our government and society purported to make more
feasible, rather than idealistic and cumbersomely deliberative, the attainment of our national aspirations, I am led to w
whether or not we, as members of the Supreme Court are being true to our duty to our people by refusing to follow su
accept the realities of the moment, despite our being convinced of the sincerity and laudableness of their objectives,
because we feel that by the people's own act of ratifying the Constitution of 1935, they have so encased themselves
provisions and may, therefore, no longer take measures to redeem themselves from the situation brought about by th
deficiencies of the old order, unless they act in strict conformity therewith. I cannot believe that any people can be so
enchained. In any event, I consider it a God-given attribute of the people to disengage themselves, if necessary, from
covenant that would obstruct their taking what subsequently appears to them to be the better road to the promotion a
protection of their welfare. And once they have made their decision in that respect, whether sophisticatedly or crudely
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 Salo
these cases be decided on the basis of conscience. That is exactly what I am doing. But if counsel mean that only by
their petitions can this Court be worthily the bulwark of the people's faith in the government, I cannot agree, albeit my
and respect are all theirs for their zeal and tenacity, their industry and wisdom, their patriotism and devotion to princip
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
we are all animated by sincere love of country and aim exclusively at the attainment of the national destiny. Our hero
past, Rizal, Bonifacio, Aguinaldo, Antonio Luna, Mabini and so also with our patriots of the recent generations, Quezo
Roxas, Laurel and Recto, to mention only some of them, had their differences of views — and they did not hesitate to
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
provision of the Constitution or to the Constitution itself. My oath to abide by the Constitution binds me to whatever co
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 th
leading to these cases have entail will heal after the decision herein is promulgated, so that all us Filipinos may forev
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 co
amendments or of a new Constitution and that such procedure was no complied with, the validity of Presidential Proc
No. 1102 is a political, not a justiciable, issue; for it is inseparably or inextricably link with and strikes at, because it is
the validity of ratification and adoption of, as well as acquiescence of people in, the 1973 Constitution and the legitima
government organized and operating thereunder. And being political, it is beyond the ambit of judicial inquiry, tested b
definition of a political question enunciated in Tañada, et. al. vs. Cuenco, et al. (103 Phil. 1051), aside from the fact th
will not do violence to rights vested under the new Constitution, to international commitments forged pursuant thereto
decisions rendered by the judicial as well as quasi-judicial tribunals organized and functioning or whose jurisdiction h
altered by the 1973 Constitution and the government established thereunder, and will dissipate any confusion in the m
citizenry, who have been obeying the mandates of the new Constitution, as well as exercising the rights and performi
obligations defined by the new Constitution, and decrees and orders issued in implementation of the same and coope
the administration in the renovation of our social, economic and political system as re-structured by the 1973 Constitu
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 ques
which, under the Constitution, is "to be decided by the people in their sovereign capacity, or in regard to which full dis
authority had been delegated to the Legislature or Executive branch of the government." (Tañada, et al. vs. Cuenco,
al., supra).

Article XV of the 1935 Constitution provides: "Such amendments shall be valid as part of this Constitution when appro
majority of the votes cast at an election at which the amendments are submitted to the people for ratification." Under
the 1935 Constitution, the power to propose constitutional amendments is vested in Congress or in a constitutional co
while the power to ratify or reject such proposed amendments or new Constitution is reserved by the sovereign peopl
nullification of Proclamation No. 1102 would inevitably render inoperative the 1973 Constitution, which is in fact the e
prayer of the petitioners in G.R. No. L-36164. Regardless of the modality of submission or ratification or adoption — e
deviates from or violates the procedure delineated therefore by the old Constitution — once the new Constitution is ra
adopted and/or acquiesced in by the people or ratified even by a body or agency not duly authorized therefor but is s
adopted or recognized by the people and by the other official organs and functionaries of the government established
a new Constitution, this Court is precluded from inquiring into the validity of such ratification, adoption or acquiescenc
consequent effectivity of the new Constitution. This is as it should be in a democracy, for the people are the repositor
sovereign powers as well as the source of all governmental authority (Pole vs. Gray, 104 SO 2nd 841 [1958]). This ba
democratic concept is expressly restated in Section 1 of Article II of the Declaration of Principles of the 1935 and 197
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 pe
any infirmity in its submission or any other irregularities therein which are deemed mandatory before submission as th
considered merely directory after such ratification or adoption or acquiescence by the people. As Mr. Justice Brewer,
Kansas State Supreme Court and later Associate Justice of the Federal Supreme Court, stated in re Prohibitory Ame
Cases (24 Kansas 700 & 710 Reprint 499, 506): "The two important, vital elements of the Legislature and a majority o
popular vote. Beyond these, other provisions are mere machineries and forms. They may not be disregarded, becaus
certainty as to the essentials is secured. But they are not themselves the essentials." (Cited in Larken vs. Gronna, 28
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. 1
Chief Justice Hughes, speaking for the majority, stated that:

... Thus the political departments of the government dealt with the effect of both previous rejec
attempted withdrawal and determined that both were ineffectual in the presence of an actual r
. This decision by the political departments of the Government as to the validity of the adoptio
Fourteenth amendment has been accepted.

We think that in accordance with this historic precedent the question of the efficacy of ratificat
legislatures, in the light of previous rejection or attempted withdrawal, should be regarded as a
question pertaining to the political departments, with the ultimate authority in the Congress in
 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, Fra
and Douglas join, thus:

The Constitution grants Congress exclusive power to control submission of constitutional ame
Final determination by Congress that ratification by three-fourths of the States has taken place
conclusive upon the courts." In the exercise of that power, Congress, of course, is governed b
Constitution. However, whether submission, intervening procedure or Congressional determin
ratification conforms to the commands of the Constitution, calls for decisions by a "political de
questions of a type which this Court has frequently designated "political." And decision of a "p
question" by the "political department" to which the Constitution has committed it "conclusively
judges, as well as all other officers, citizens and subjects of...government." Proclamation unde
of Congress that an amendment has been ratified will carry with it a solemn assurance by the
that ratification has taken place as the Constitution commands. Upon this assurance a proclai
amendment must be accepted as a part of the Constitution, leaving to the judiciary its tradition
of interpretation. To the extent that the Court's opinion in the present case even impliedly assu
power to make judicial interpretation of the exclusive constitutional authority of Congress over
and ratification of amendments, we are unable to agree... (American Constitutional Issues, by
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. L
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. Co
(L-34150, Oct. 16, 1971, 41 SCRA 702) on which petitioners place great reliance — that the courts may review the pr
submission of a proposed constitutional amendment before the ratification or adoption of such proposed amendment
sovereign people, hardly applies to the cases at bar; because the issue involved in the aforesaid cases refers to only
propriety of the submission of a proposed constitutional amendment to the people for ratification, unlike the present p
which challenge inevitably the validity of the 1973 Constitution after its ratification or adoption thru acquiescence by th
people. As heretofore stated, it is specious and pure sophistry to advance the reasoning that the present petitions pra
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 include
general grant of legislative powers to Congress. It is part of the inherent powers of the people
repository of sovereignty in a republican state, such as ours — to make, and hence, to amend
Fundamental Law. Congress may propose amendments to the same explicitly grants such po
when exercising the same, it is said that Senators and Members of the House of Representati
act, not as members, but as component elements of a constituent assembly. When acting as
members of Congress derive their authority from the Constitution, unlike the people, when per
same function, for their authority does not emanate from the Constitution — they are the very
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 propo
amend and the ratification of such a constitutional amendment are political in nature forming as they do the essential
political scheme — the amending process. WE merely stated therein that the force of the ruling in the said case of Ma
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
 political one, declined to pass upon the question whether or not a given number of votes cast
in favor of a proposed amendment to the Constitution — which was being submitted to the pe
ratification — satisfied the three fourths vote requirement of the fundamental law. The force of
precedent has been weakened, however, by Suanes vs. Chief Accountant of the Senate, Ave
Cuenco, Tañada vs. Cuenco and Macias vs. Commission on Elections. In the first, we held th
and employees of the Senate Electoral Tribunal are supervision and control, not of that of the
President, claimed by the latter; in the second, this Court proceeded to determine the number
necessary for a quorum in the Senate; in the third we nullified the election, by Senators belong
party having the largest number of votes in said chamber purporting to act on behalf of the pa
the second largest number of votes therein, of two (2) Senators belonging to the first party, as
for the second party, of the Senate Electoral Tribunal; and in the fourth, we declared unconstit
act of Congress purporting to apportion the representative districts for the House of Represen
upon the ground that the apportionment had not been made as may be possible according to
of inhabitants of each province. Thus we rejected the theory advanced in these four (4) cases
issues therein raised were political questions the determination of which is beyond judicial rev
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 asse
violates the Constitution is essentially justiciable, not political, and, hence, subject to judicial re
and to the extent that this view may be inconsistent with the stand taken in Mabanag vs. Lope
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 peop
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 submissio
proposed constitutional amendment. Courts do not deal with propriety or wisdom or absence of either of an official ac
law. Judicial power concerns only with the legality or illegality, constitutionality or unconstitutionality of an act: it inquir
existence of power or lack of it. Judicial wisdom is not to be pitted against the wisdom of the political department of th
government.

The classic example of an illegal submission that did not impair the validity of the ratification or adoption of a new Con
the case of the Federal Constitution of the United States. It should be recalled that the thirteen (13) original states of
American Union — which succeeded in liberating themselves from England after the revolution which began on April
with the skirmish at Lexington, Massachusetts and ended with the surrender of General Cornwallis at Yorktown, Virgi
October 19, 1781(Encyclopedia Brit., Vol. I, 1933 Ed., p. 776) — adopted their Articles of Confederation and Perpetu
that was written from 1776 to 1777 and ratified on March 1, 1781 (Encyclopedia Brit., Vol. II, 1966 Ed., p. 525). Abou
thereafter, the Congress of the Confederation passed a resolution on February 21, 1787 calling for a Federal Constitu
Convention "for the sole and express purpose of revising the articles of confederation ... ." (Appendix I, Federalist, Mo
Library ed., p. 577, emphasis supplied).

The Convention convened at Philadelphia on May 14, 1787. Article XIII of the Articles of Confederation and Perpetua
stated specifically:

The articles of this confederation shall be inviolably observed in every state, and the union sha
perpetual; nor shall any alterations at any time hereafter be made in any of them; unless such
be agreed to in a congress of the united states, and be afterwards confirmed by the legislature
 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
ratification of the Federal Constitution as drafted by the Philadelphia Convention were not followed. Fearful the said F
Constitution would not be ratified by the legislatures as prescribed, the Philadelphia Convention adopted a resolution
the Congress of the Confederation to pass a resolution providing that the Constitution should be submitted to elected
conventions and if ratified by the conventions in nine (9) states, not necessarily in all thirteen (13) states, the said Con
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 merci
legislatures of each and all of the 13 states. Experience clearly indicated that ratification then
had the same chance as the scriptural camel passing through the eye of a needle. It was ther
determined to recommend to Congress that the new Constitution be submitted to conventions
several states especially elected to pass upon it and that, furthermore, the new government sh
into effect if and when it should be ratified by nine of the thirteen states ... . (The Federalist, M
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 Antifederalis
for ratification of the Constitution by popularly elected conventions in each state. Suspecting th
Island, at least, would prove recalcitrant, it declared that the Constitution would go into effect a
nine states ratified. The convention method had the further advantage that judges, ministers, a
ineligible to state legislatures, could be elected to a convention. The nine-state provision was,
mildly revolutionary. But the Congress of the Confederation, still sitting in New York to carry o
government until relieved, formally submitted the new constitution to the states and politely fad
before the first presidential inauguration. (The Oxford History of the Am. People, by Samuel E
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
(12 C.J. p. 679 footnote, 16 C.J.S., 27. — by the state conventions and not by all thirteen (13) state legislatures as re
Article XIII of the Articles of Confederation and Perpetual Union aforequoted — and in spite of the fact that the Feder
Constitution as originally adopted suffers from two basic infirmities, namely, the absence of a bill of Rights and of a pr
affirming the power of judicial review.

The liberties of the American people were guaranteed by subsequent amendments to the Federal Constitution. The d
judicial review has become part of American constitutional law only by virtue of a judicial pronouncement by Chief Jus
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, no
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
new or revised Constitution does not depend on the method of its submission or ratification by the people, but on the
or approval or adoption or acquiescence by the people which fact of ratification or adoption or acquiescence is all tha
essential, the Court cited precisely the case of the irregular revision and ratification by state conventions of the Feder
Constitution, thus:
 No case identical in its facts with the case now under consideration has been called to our atte
we have found none. We think that the principle which we apply in the instant case was very c
applied in the creation of the constitution of the United States. The convention created by a re
Congress had authority to do one thing, and one only, to wit, amend the articles of confederat
they did not do, but submitted to the sovereign power, the people, a new constitution. In this m
the constitution of the United States submitted to the people and it became operative as the o
of this nation when it had been properly adopted by the people.

Pomeroy's Constitutional Law, p. 55, discussing the convention that formulated the constitutio
United States, has this to say: "The convention proceeded to do, and did accomplish, what the
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
Congress, and afterwards ratified by all the State legislatures, in the manner pointed out by th
organic law. But the convention soon became convinced that any amendments were powerles
cure; that the disease was too deeply seated to be reached such tentative means. They saw t
system they were called to improve must be totally abandoned, and that the national idea mus
established at the center of their political society. It was objected by some members, that they
power, no authority, to construct a new government. They had no authority, if their decisions w
final; and no authority whatsoever, under the articles of confederation, to adopt the course the
they knew that their labors were only to be suggestions; and that they as well as any private in
and any private individuals as well as they, had a right to propose a plan of government to the
their adoption. They were, in fact, a mere assemblage of private citizens, and their work had n
binding sanction than a constitution drafted by Mr. Hamilton in his office would have had. The
their expressed will, transformed this suggestion, this proposal, into an organic law, and the p
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
instrument is not what gives it binding force and effect. The fiat of the people and only the fiat
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
sovereign. This would be an authorized exercise of sovereign power by the court. In State v. S
505, 519, the Indiana Supreme Court said: "The people of a State may form an original consti
abrogate an old one and form a new one, at any time, without any political restriction except th
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
the act of February 23, 1887, is unconstitutional and void, it would not, in our opinion, by any m
follow that the amendment is not a part of our state Constitution. In the recent case of Taylor v
Commonwealth (Va.) 44 S.E. 754, the Supreme Court of Virginia hold that their state Constitu
1902, having been acknowledged and accepted by the officers administering the state govern
by the people, and being in force without opposition, must be regarded as an existing Constitu
irrespective of the question as to whether or not the convention which promulgated it had auth
do without submitting it to a vote of the people. In Brittle v. People, 2 Neb. 198, is a similar hol
certain provisions of the Nebraska Constitution of 1886, which were added by the Legislature
 requirement of Congress, though never submitted to the people for their approval." (97 NW 34
emphasis supplied).

Against the decision in the Wheeler case, supra, confirming the validity of the ratification and adoption of the America
Constitution, in spite of the fact that such ratification was in clear violation of the prescription on alteration and ratifica
Articles of Confederation and Perpetual Union, petitioners in G.R. No. L-36165 dismissed this most significant historic
calling the Federal Constitution of the United States as a revolutionary one, invoking the opinion expressed in Vol. 16
Juris Secundum, p. 27, that it was a revolutionary constitution because it did not obey the requirement that the Article
Confederation and Perpetual Union can be amended only with the consent of all thirteen (13) state legislatures. This
does not cite any decided case, but merely refers to the footnotes on the brief historic account of the United States C
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 th
People, 1965 Ed. by Samuel Eliot Morison, who discusses the Articles of Confederation and Perpetual Union in Chap
captioned "Revolutionary Constitution Making, 1775 1781" (pp. 270-281). In Chapter XX on "The Creative Period in P
1785-1788," Professor Morison delineates the genesis of the Federal Constitution, but does not refer to it even implic
revolutionary constitution (pp. 297-316). However, the Federal Constitution may be considered revolutionary from the
of McIver if the term revolution is understood in "its wider sense to embrace decisive changes in the character of gove
even though they do not involve the violent overthrow of an established order, ... ." (R.M. MacIver, The Web of Gover
1965 ed., p. 203).

It is rather ridiculous to refer to the American Constitution as a revolutionary constitution. The Articles of Confederatio
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 wa
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 "cr
brain and purpose of man" in an era of peace. It can only be considered revolutionary in the sense that it is a radical d
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 Artic
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 t
Constitution and of the government established and operating thereunder. Petitioners pray for a declaration that the 1
Constitution is inoperative (L-36164). If Proclamation No. 1102 is nullified, then there is no valid ratification of the 197
Constitution and the inevitable conclusion is that the government organized and functioning thereunder is not a legitim
government.

That the issue of the legitimacy of a government is likewise political and not justiciable, had long been decided as ear
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.
L.ed. 1187) and re-enunciated in 1912 in the case of Pacific States Telephone and Telegraph Company vs. Oregon (
118, 133-151, 56 L.ed. 377-386). Because it reaffirmed the pronouncements in both Borden and Beckham cases, it is
for us to quote the decision in Pacific States Telephone and Telegraph Co., supra, penned by Mr. Chief Justice White
stated:

In view of the importance of the subject, the apparent misapprehension on one side and seem
misconception on the other, suggested by the argument as to the full significance of the previo
we do not content ourselves with a mere citation of the cases, but state more at length than w
would the issues and the doctrine expounded in the leading and absolutely controlling case —
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
that the character government had no legal existence during the period of time above mention
had been annulled by the adoption of the opposing government, — then the laws passed by i
legislature during that time were nullities; its taxes wrongfully collected, its salaries and compe
its officers illegally paid ; its public accounts improperly settled and the judgments and sentenc
courts in civil and criminal cases null and void, and the officers who carried their decisions into
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
state in the Union a republican form of government, and shall protect each of them against inv
on the application of the Legislature or of the Executive (when the legislature cannot be conve
against domestic violence.

"Under this article of the Constitution it rests with Congress to decide what government is esta
in a state. For, as the United State guarantee to each state a republican government, Congres
necessarily decide what government is established in the state before it can determine whethe
republican or not. And when the senators and representatives of a state are admitted into the
the Union, the authority of the government under which they were appointed, as well as its rep
character, is recognized by the proper constitutional authority. And its decision is binding on e
department of the government, and could not be questioned in a judicial tribunal. It is true that
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
Congress was not called upon to decide the controversy. Yet the right to decide is placed ther
the courts."

xxx xxx xxx

... We do not stop to cite other cases which indirectly or incidentally refer to the subject, but co
directing attention to the statement by the court, speaking through Mr. Chief Justice Fuller, in
Beckham, 178 U.S. 548, 44 L.ed. 1187, 20 Sup. Ct. Rep. 890, 1009, where, after disposing of
contention made concerning the 14th Amendment, and coming to consider a proposition whic
necessary to be decided concerning the nature and effect of the guaranty of S 4 of article 4, it
(p. 578):

"But it is said that the 14th Amendment must be read with S 4 of article 4, of the Constitution,
that the United States shall guarantee to every state in this Union a republican form of govern
shall protect each of them against invasion; and on application of the legislature, or the Execu
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 departm
v. Borden, 7 How. 1, 12 L.ed. 581. In that case it was held that the question, which of the two
governments of Rhode Island, namely, the charter government or the government established
voluntary convention, was the legitimate one, was a question for the determination of the polit
department; and when that department had decided, the courts were bound to take notice of t
 and follow it."

xxx xxx xxx

As the issues presented, in their very essence, are, and have long since by this Court been, d
determined to be political and governmental, and embraced within the scope of the scope of t
conferred upon Congress, and not, therefore within the reach of judicial power, it follows that t
presented is not within our jurisdiction, and the writ of error must therefore be, and it is, dismis
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
submitting the same to the people for ratification, becomes valid, when recognized, accepted and acted upon the by C
State and other government functionaries, as well as by the people. In the 1903 case of Taylor vs. Commonwealth (4
755), the Court ruled:

The sole ground urged in support of the contention that Constitution proclaimed in 1902 is inv
was ordained and promulgated by the convention without being submitted for ratification or re
the people of the commonwealth.

The Constitution of 1902 was ordained and proclaimed by convention duly called by direct vot
people of the state to revise and amend the Constitution of 1869. The result of the work that th
convention has been recognized, accepted, and acted upon as the only valid Constitution of th
the Governor in swearing fidelity to it and proclaiming it, as directed thereby; by the Legislatur
formal official act adopting a joint resolution, July 15, 1902, recognizing the Constitution ordain
convention which assembled in the city of Richmond on the 12th day of June 1901, as the Co
Virginia; by the individual oaths of members to support it, and by its having been engaged for
year in legislating under it and putting its provisions into operation but the judiciary in taking th
prescribed thereby to support and by enforcing its provisions; and by the people in their prima
by peacefully accepting it and acquiescing in it, registering as voters under it to the extent of th
through the state, and by voting, under its provisions, at a general election for their representa
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
without omitting any requisite steps, courts should uphold amendment, unless satisfied that th
Constitution was violated in submitting the proposal. ... Substance more than form must be re
considering whether the complete constitutional system for submitting the proposal to amend
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
advertisement, yet, if followed, unobjected to, by approval of the electors, it becomes part of th
Constitution. Legal complaints to the submission may be made prior to taking the vote, but, if
sanctioned, the amendment is embodied therein, and cannot be attacked, either directly or co
because of any mistake antecedent thereto. Even though it be submitted at an improper time,
effective for all purposes when accepted by the majority. Armstrong v. King, 281 Pa. 207, 126
(130 A 409).
Even if the act of the Constitutional Convention is beyond its authority, such act becomes valid upon ratification or ad
acquiescence by the people. Thus, in the 1905 case of Ex parte Birmingham and A.R. Company (42 SO pp. 118 & 1
Alabama Supreme Court upheld this principle and stated that: "The authorities are almost uniform that this ratification
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 o
enough that they are electors voting on the new Constitution. (Bott vs. Wurts, 40 A 740 [1899]; 45 LRA 251, emphasi

In the 1956 case of Thomson vs. Peoples State Bank (75 NW 2nd 370, 375), the Supreme Court of Wisconsin ruled
"irregularity in the procedure for the submission of the proposed constitutional amendment will not defeat the ratificati
people."

Again, in the 1958 case of Swaim vs. Tuscaloosa County (103 SO 2nd 769), the Alabama Supreme Court pronounce
irregularity in failing to publish the proposed constitutional amendment once in each of the 4 calendar weeks next pre
calendar week in which the election was held or once in each of the 7-day periods immediately preceding the day of t
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
where they admitted irregularities or illegalities committed in the procedure for submission of the proposed constitutio
amendment to the people for ratification consisted of: "(a) the alleged failure of the county election commissioners of
counties to provide a sufficient number of ballot boxes 'secured by good and substantial locks,' as provided by Sectio
Code of 1942, Rec., to be used in the holding of the special election on the constitutional amendment, and (b) the alle
of the State Election Commissioners to comply with the requirements of Code Sections 3204 and 3205 in the appoint
election commissioners in each of the 82 counties. The irregularities complained of, even if proved, were not such irre
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 deliberatio
Constitutional Convention from June 1, 1971 until martial law was proclaimed on Sept. 21, 1972, the salient reforms c
the 1973 Constitution which have long been desired by the people, had been thoroughly discussed in the various com
the Constitutional Convention, on the floor of the Convention itself, in civic forums and in all the media of information.
decrees promulgated by the Chief Executive from Sept. 22, 1972 to Jan. 17, 1973 implement some of the reforms an
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 a
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 oppos
out of eight senatorial seats despite the suspension of the privileges of the writ of habeas corpus (see Lansang vs. G
Dec. 14, 1971, 42 SCRA 448), which suspension implies constraint on individual freedom as the proclamation of mar
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 Exe
branches of the government elected and/or appointed under the 1935 Constitution have either recognized or are now
under the 1973 Constitution, aside from the fact of its ratification by the sovereign people through the Citizens Assem
Ninety-five (95) of a total of one hundred ten (110) members of the House of Representatives including the Speaker a
Speaker Pro Tempore as well as about eleven (11) Congressmen who belong to the Liberal Party and fifteen (15) of
twenty-four (24) senators including Liberal senators Edgar U. Ilarde and John Osmeña opted to serve in the Interim A
according to the certification of the Commission on Elections dated February 19, 1973 (Annex Rejoinder-3 to Consoli
Rejoinder of petitioners in L-36165). Only the five (5) petitioners in L-36165 close their eyes to a fait accompli. All the
functionaries recognize the new government and are performing their duties and exercising their powers under the 19
Constitution, including the lower courts. The civil courts, military tribunals and quasi-judicial bodies created by preside
decrees have decided some criminal, civil and administrative cases pursuant to such decrees. The foreign ambassad
were accredited to the Republic of the Philippines before martial law continue to serve as such in our country; while tw
ambassadors have been accepted by the Philippines after the ratification of the 1973 Constitution on January 17, 197
of the 1973 Constitution had been furnished the United Nations Organization and practically all the other countries wi
Philippines has diplomatic relations. No adverse reaction from the United Nations or from the foreign states has been
On the contrary, our permanent delegate to the United Nations Organization and our diplomatic representatives abro
appointed before martial law continue to remain in their posts and are performing their functions as such under the 19
Constitution.

Even the Commission on Elections is now implementing the provisions of the 1973 Constitution by requiring all electi
to register 18-year olds and above whether literates or not, who are qualified electors under the 1973 Constitution (se
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 th
over 10 weeks now With the petitioners herein, secessionists, rebels and subversives as the only possible exceptions
the citizenry are complying with decrees, orders and circulars issued by the incumbent President implementing the 19
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
and declare it the constitution, it would undoubtedly be the duty of the courts declare its work
This would be revolution, and this the courts of the existing government must resist until they
overturned by power, and a new government established. The convention, however, was the
law. The instrument which we are asked to declare invalid as a constitution has been made an
promulgated according to the forms of law. It is a matter of current history that both the execu
legislative branches of the government have recognized its validity as a constitution, and are n
doing so. Is the question, therefore, one of a judicial character? It is our undoubted duty, if a s
unconstitutional to so declare it; also, if a provision of the state constitution be in conflict with t
constitution, to hold the former invalid. But this is a very different case. It may be said, howeve
every violation of or non-compliance with the law, there should be a remedy in the courts. This
however, always the case. For instance, the power of a court as to the acts of the other depar
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 d
to perform a duty. It is responsible to the people; but if it does act, then, when the question is p
presented, it is the duty of the court to say whether it has conformed to the organic law. While
judiciary should protect the rights of the people with great care and jealousy, because this is it
also because, in times of great popular excitement, it is usually their last resort, yet it should a
time be careful to overstep the proper bounds of its power, as being perhaps equally dangero
especially where such momentous results might follow as would be likely in this instance, if th
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 c
and no law existed providing for the making of a new one. In 1841 public meetings were held,
the election of a convention to form a new one, — to be submitted to a popular vote. The conv
framed one, submitted it to a vote, and declared it adopted. Elections were held for state office
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, wh
formed a new constitution. Whether the charter government, or the one established by the vol
convention, was the legitimate one, was uniformly held by the courts of the state not to be a ju
political question; and the political department having recognized the one, it was held to be the
 judiciary to follow its decision. The supreme court of the United States, in Luther v. Borden, 7
while not expressly deciding the principle, as it held the federal court, yet in the argument app
in substance says that where the political department has decided such a matter the judiciary
abide by it.

Let us illustrate the difficulty of a court deciding the question: Suppose this court were to hold
convention, when it reassembled, had no power to make any material amendment, and that s
made are void by reason of the people having theretofore approved the instrument. Then, nex
must determine what amendments were material; and we find the court, in effect, making a co
This would be arrogating sovereignty to itself. Perhaps the members of the court might differ a
amendments are material, and the result would be confusion and anarchy. One judge might s
the amendments, material and immaterial, were void; another, that the convention had then th
power to correct palpable errors, and then the court might differ as to what amendments are m
the instrument as ratified by the people could not be corrected or altered at all, or if the court m
determine what changes were material, then the instrument, as passed upon by the people or
the court would be lacking a promulgation by the convention; and, if this be essential, then the
would arise, what constitution are we now living under, and what is the organic law of the state
suggestion of these matters shows what endless confusion and harm to the state might and li
arise. If, through error of opinion, the convention exceeded its power, and the people are dissa
have ample remedy, without the judiciary being asked to overstep the proper limits of its powe
instrument provides for amendment and change. If a wrong has been done, it can, in the prop
which it should be remedied, is by the people acting as a body politic. It is not a question of wh
merely an amendment to a constitution, made without calling a convention, has been adopted
required by that constitution. If it provides how it is to be done, then, unless the manner be foll
judiciary, as the interpreter of that constitution, will declare the amendment invalid. Koehler v.
Iowa, 543, 14 N.W. Rep. 738, and 15 N.W. Rep. 609; State v. Tuffy, 1 Nev. 391, 12 Pac. Rep
is a case where a new constitution has been formed and promulgated according to the forms
Great interests have already arisen under it; important rights exist by virtue of it; persons have
convicted of the highest crime known to the law, according to its provisions; the political powe
government has in many ways recognized it; and, under such circumstances, it is our duty to
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
making of them was in excess of its powers, yet, as the entire instrument has been recognized
the manner suggested, it would be equally an abuse of power by the judiciary and violative of
the people, — who can and properly should remedy the matter, if not to their liking, — if it wer
the instrument of a portion invalid, and bring confusion and anarchy upon the state. (emphasis

If this Court inquires into the validity of Proclamation No. 1102 and consequently of the adoption of the 1973 Constitu
be exercising a veto power on the act of the sovereign people, of whom this Court is merely an agent, which to say th
would be anomalous. This Court cannot dictate to our principal, the sovereign people, as to how the approval of the n
Constitution should be manifested or expressed. The sovereign people have spoken and we must abide by their deci
regardless of our notion as to what is the proper method of giving assent to the new Charter. In this respect, WE cann
to know better than the incumbent Chief Executive, who, unlike the members of this Court, only last January 8, 1973,
affirmed in Osmeña vs. Marcos (Pres. Election Contest No. 3, Jan. 8, 1973), was re-elected by the vote of over 5 mill
in 1969 for another term of four years until noon of December 30, 1973 under the 1935 Constitution. This Court, not h
similar mandate by direct fiat from the sovereign people, to execute the law and administer the affairs of government
restrain its enthusiasm to sally forth into the domain of political action expressly and exclusively reserved by the sove
themselves.

The people in Article XV of the 1935 Constitution did not intend to tie their hands to a specific procedure for popular r
their organic law. That would be incompatible with their sovereign character of which We are reminded by Section 1,
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 w
themselves define in their Constitution, cannot apply to a unitary state like the Republic of the Philippines. His opinion
in 1868 may apply to a Federal State like the United States, in order to secure and preserve the existence of the Fed
Republic of the United States against any radical innovation initiated by the citizens of the fifty (50) different states of
American Union, which states may be jealous of the powers of the Federal government presently granted by the Ame
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
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 th

Even if conclusiveness is to be denied to the truth of the declaration by the President in Proclamation No. 1102 that th
through their Citizens' Assemblies had overwhelmingly approved the new Constitution due regard to a separate, coor
co-equal branch of the government demands adherence to the presumption of correctness of the President's declara
presumption is accorded under the law and jurisprudence to officials in the lower levels of the Executive branch, there
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 Departm
Government and Community Development. (Annexes 1, to 1-E, Annexes 2 to 2-O to the compliance with manifestatio
the Solicitor General on behalf of the respondents public officers dated March 7, 1973). There is nothing in the record
contradicts, much less overthrow the results of the referendum as certified. Much less are We justified in reversing th
proof — by shifting it from the petitioners to the respondents. Under the rules on pleadings, the petitioners have the d
demonstrate by clear and convincing evidence their claim that the people did not ratify through the Citizens' Assembl
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 relaye
from private sources which could be biased and hearsay, aside from the fact that such reports are not contained in th
Proclamation No. 1102 is not just an ordinary act of the Chief Executive. It is a well-nigh solemn declaration which an
highest act of the sovereign people — their imprimatur to the basic Charter that shall govern their lives hereafter — m
decades, if not for generations.

Petitioners decry that even 15-year olds, ex convicts and illiterates were allowed to vote in the Citizens' Assemblies, d
admission that the term "Filipino people" in the preamble as well as "people" in Sections 1 and 5 of Article II of the 19
Constitution and in Section 1(3) of Article III of the Bill of Rights includes all Filipino citizens of all ages, of both sexes
literate or illiterate, whether peaceful citizens, rebels, secessionists, convicts or ex-convicts. Without admitting that ex
voted in the referendum, about which no proof was even offered, these sectors of our citizenry, whom petitioners see
with contempt or decision and whom petitioners would deny their sovereign right to pass upon the basic Charter that
their lives and the lives of their progenies, are entitled as much as the educated, the law abiding, and those who are 2
age or above to express their conformity or non conformity to the proposed Constitution, because their stake under th
Charter is not any less than the stake of the more fortunate among us. As a matter of fact, these citizens, whose jurid
personality or capacity to act is limited by age, civil interdiction or ignorance deserve more solicitude from the State th
of the citizenry. In the ultimate analysis, the inclusion of those from 15 years up to below 21 years old, the ex-convicts
ignorant, is more democratic as it broadens the base of democracy and therefore more faithful to the express affirma
Section 1 of Article II of the Declaration of Principles that "sovereignty resides in the people and all government autho
emanates from them."

Moreover, ex-convicts granted absolute pardon are qualified to vote. Not all ex-convicts are banned from voting. Only
had been sentenced to at least one year imprisonment are disenfranchised but they recover their right of suffrage upo
expiration of ten years after service of sentence (Sec. 102, 1971 Rev. Elec. Code). Furthermore, ex-convicts and imb
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
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 certific
results of the same from the Department of Local Governments. But there was such certification as per Annex 1 to 1-
Notes submitted by the Solicitor General counsel for respondents public officers. This should suffice to dispose of this
Even in the absence of such certification, in much the same way that in passing law, Congress or the legislative body
presumed to be in possession of the facts upon which such laws are predicated (Justice Fernando, The Power of Jud
Review, 1967 Ed., pp. 112-11 citing Lorenzo vs. Dir., etc., [1927] 50 Phil. 595 and O'Gonmore, et al: vs. Hartford, etc
U.S. 251), it should likewise be presumed that the President was in possession of the fact upon which Proclamation N
was based. This presumption is further strengthened by the fact that the Department of Local Governments, the Depa
National Defense and the Philippine Constabulary as well the Bureau of Posts are all under the President, which offic
alter ego, are presumptively acting for and in behalf of the President and their acts are valid until disapproved or repro
the President (Planas vs. Gil, 67 Phil. 62; Villen vs. Secretary of Interior, 67 Phil. 451). To deny the truth or the procla
the President as to the overwhelming majority vote in the Citizens' Assemblies in favor of the new Constitution, is to c
President with falsification, which is a most grievous accusation. Under the, rules of pleadings and evidence, the petit
the burden of proof by preponderance of evidence in civil cases and by proof beyond reasonable doubt in criminal pro
where the accused is always presumed to be innocent. Must this constitutional right be reversed simply because the
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
officers whose category in the official hierarchy is very much lower than that of the Chief of State. What reason is the
withhold such a presumption in favor of the President? Does the fact that the President belong to the party in power a
(4) of the five (5) senators who are petitioners in L-36165 belong to the opposition party, justify a discrimination again
President in matters of this nature? Unsupported as their word is by any credible and competent evidence under the
evidence, must the word of the petitioners prevail over that of the Chief Executive, because they happen to be former
and delegates to the Constitutional Convention? More than any of the petitioners herein in all these cases, the incum
President realizes that he risks the wrath of his people being visited upon him and the adverse or hostile verdict of his
because of the restrictions on the civil liberties of his people, inevitable concomitants of martial law, which necessarily
some degree of sacrifice on the part of the citizenry. Until the contrary is established or demonstrated, herein petition
grant that the Chief Executive is motivated by what is good for the security and stability of the country, for the progres
happiness of the people. All the petitioners herein cannot stand on the proposition that the rights under the 1935 Con
absolute and invulnerable to limitations that may be needed for the purpose of bringing about the reforms for which th
petitioners pretend to be clamoring for and in behalf of the people. The five (5) petitioners in L-36165 and four (4) of t
petitioners in L-36164 were all participants in the political drama of this country since 1946. They are witness to the fr
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 (
petitioners in L-36164 and L-36165 may not have participated in the systematic blocking of the desired reforms in Co
outside of it; but the question may be asked as to what exactly they did to support such reforms. For the last seven (7
since the turn of the century, for the last thirty-five (35) years since the establishment of the Commonwealth governm
and for the last twenty seven (27) years since the inauguration of the Republic on July 4, 1946, no tangible substantia
had been effected, funded and seriously implemented, despite the violent uprisings in the thirties, and from 1946 to 1
the violent demonstrations of recent memory. Congress and the oligarchs acted like ostriches, "burying their heads in
sand. "Now the hopes for the long-awaited reforms to be within a year or to are brighter. It would seem therefore to th
everyone including herein petitioners to give the present leadership the opportunity to institute and carry out the need
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 so

This Court in the Gonzales and Tolentino cases transcended its proper sphere and encroached upon the province ex
reserved to and by the sovereign people. This Court did not heed to the principle that the courts are not the fountain o
remedies for all wrongs. WE cannot presume that we alone can speak with wisdom as against the judgment of the pe
basic instrument which affects their very lives. WE cannot determine what is good for the people or ought to be their f
law. WE can only exercise the power delegated to Us by the sovereign people, to apply and interpret the Constitution
laws for the benefit of the people, not against them nor to prejudice them. WE cannot perform an act inimical to the in
Our principal, who at any time may directly exercise their sovereign power ratifying a new Constitution in the manner
to them.

It is pertinent to ask whether the present Supreme Court can function under the 1935 Constitution without being a pa
government established pursuant thereto. Unlike in the Borden case, supra, where there was at least another govern
claiming to be the legitimate organ of the state of Rhode Island (although only on paper as it had no established orga
Dorr who represented himself to be its head; in the cases at bar there is no other government distinct from and maint
position against the existing government headed by the incumbent Chief Executive. (See Taylor vs. Commonwealth, 
There is not even a rebel government duly organized as such even only for domestic purposes, let alone a rebel gove
engaged in international negotiations. As heretofore stated, both the executive branch and the legislative branch esta
under the 1935 Constitution had been supplanted by the government functioning under the 1973 Constitution as of Ja
1973. The vice president elected under the 1935 Constitution does not asset any claim to the leadership of the Repub
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
whom he calls the "hero of the American Bar," because during the American civil war he apparently had the courage
proclamation of President Lincoln suspending the privileges of the writ of habeas corpus in Ex parte Merryman (Fede
No. 9487 [1861]). But who exactly was Chief Justice Roger Brooke Taney? The Editorial Board of Vol. 21 of the Ency
Brit., 1966 ed. (pp. 778-779, 1969 ed., pp. 654-657), briefly recounts that he was born in 1777 in Calvert County, Mar
parents who were landed aristocrats as well as slave owners. Inheriting the traditional conservatism of his parents wh
to the landed aristocracy, Taney became a lawyer in 1799, practiced law and was later appointed Attorney General o
He also was a member of the Maryland state legislature for several terms. He was a leader of the Federalist Party, w
disintegrated after the war of 1812, compelling him to join the Democratic Party of Andrew Jackson, also a slave own
landed aristocrat, who later appointed him first as Attorney General of the United States, then Secretary of the Treasu
1836 Chief Justice of the United States Supreme Court to succeed Chief Justice John Marshall, in which position he
for 28 years until he died on October 21, 1864. His death "went largely unnoticed and unregretted." Because he hims
slave owner and a landed aristocrat, Chief Justice Taney sympathized with the Southern States and, even while Chie
hoped that the Southern States would be allowed to secede peacefully from the Union. That he had no sympathy for
was revealed by his decision in Dred Scott vs. Sandford (19 How. 398 [1857]) where he pronounced that the America
not entitled to the rights of an American citizen and that his status as a slave is determined by his returning to a slave
can therefore discern his hostility towards President Lincoln when he decided Ex parte Merryman, which animosity to
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 o
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 rhetor
Encyclopedia Britannica (Vol. 9, 1969 ed., pp. 508-509) to this effect. On the contrary, Encyclopedia Britannica (Vol.
Encyclopedia Brit., 1966 & 1969 eds., 732-733), refers to Marshal Henri Philippe Petain as the genuine hero or "Savi
Verdun"; because he held Verdun against the 1916 offensive of the German army at the cost of 350,000 of his Frenc
who were then demoralized and plotting mutiny. Certainly, the surviving members of the family of Marshal Petain wou
the error. And neither would the members of the clan of Marshal Foch acknowledge the undeserved accolade, althou
Foch has a distinct place in history on his own merits. The foregoing clarification is offered in the interest of true scho
historical accuracy, so that the historians, researchers and students may not be led astray or be confused by esteem
eloquence and mastery of the spoken and written word as well as by his eminence as law professor, author of law bo
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 th
senators who are petitioners in L-36165 to also act as "heroes and idealists," to defy the President by holding session
themselves alone in a hotel or in their houses if they can muster a quorum or by causing the arrest of other senators
quorum and thereafter remove respondents Puyat and Roy (Avelino, et al. vs. Cuenco, et al. [1949] 83 Phil. 17), if the
most vehemently in the justice and correctness of their position that the 1973 Constitution has not been validly ratified
or acquiesced in by the people since January 18, 1973 until the present. The proclaimed conviction of petitioners in L
this issue would have a ring of credibility, if they proceeded first to hold a rump session outside the legislative building
is not unreasonable to demand or to exact that he who exhorts others to be brave must first demonstrate his own cou
Surely, they will not affirm that the mere filing of their petition in L-36165 already made them "heroes and idealists." T
challenge likewise seems to insinuate that the members of this Court who disagree with petitioners' views are materia
cowards or mercenary fence-sitters. The Court need not be reminded of its solemn duty and how to perform it. WE re
believe that petitioners and their learned as well as illustrious counsels, scholars and liberal thinkers that they are, do
recognize the sincerity of those who entertain opinions that clash with their own. Such an attitude does not sit well wit
dictum that "We can differ without being difficult; we can disagree without being disagreeable," which distinguished co
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 fin
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 STRO

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 c
amendment or the revised or new Constitution has been validly submitted to the people for ratification in accordance
procedure prescribed by the existing Constitution, is a justiciable question, accord all presumption of validity to the co
amendment or the revised or new Constitution after the government officials or the people have adopted or ratified or
in the new Constitution or amendment, although there was an illegal or irregular or no submission at all to the people
Gray, 4th Dec. Dig. 935 [1934], Hammond vs. Clark, 71 SE 482-483; People vs. Sours, 31 Colo. 369, 74 Pac. 167, 10
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.
574; Weston vs. Ryan, 70 Neb. 211, 97 NW 347; Combs vs. State, 81 Ga. 780, 8 SE 318; Woodward vs. State, 103 G
SE 522; Corre vs. Cooney, 70 Mont. 355, 225 P 1007, 1009). As late as 1971, the courts stressed that the constitutio
amendment or the new Constitution should not be condemned "unless our judgment its nullity is manifest beyond rea
doubt" (1971 case of Moore vs. Shanahan, 486 Pac. 2d 506, 207 Kan. 1, 645; and the 1956 case of Tipton vs. Smith
al., supra).

Mr. Justice Enrique M. Fernando, speaking for the Court, pronounced that the presumption of constitutionality must p
absence of factual foundation of record to overthrow such presumption (Ermita-Malate Hotel, etc. vs. City Mayor, L-2
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 departme
Government, namely, the legislative, the executive and the judicial. As a fourth separate and distinct branch, to emph
independence, the Convention cannot be dictated to by either of the other three departments as to the content as we
form of the Charter that it proposes. It enjoys the same immunity from interference or supervision by any of the afores
branches of the Government in its proceedings, including the printing of its own journals (Tañada and Fernando, Con
the Philippines, 1952 ed., Vol. I, pp. 8 9; Malcolm and Laurel, Phil. Const. Law, p. 22; Frantz vs. Autry, 91 Pac. 193).
that independence, for the purpose of maintaining the same unimpaired and in order that its work will not be frustrate
Convention has the power to fix the date for the plebiscite and to provide funds therefor. To deny the Convention suc
prerogative, would leave it at the tender mercy of both legislative and executive branches of the Government. An uns
Congress would not be disposed to submit the proposed Constitution drafted by the Constitutional Convention to the
ratification, much less appropriate the necessary funds therefor. That could have been the fate of the 1973 Constitutio
the same abolished the Senate by creating a unicameral National Assembly to be presided by a Prime Minister who w
legislative and executive powers and is the actual Chief Executive, for the President contemplated in the new Constit
exercises primarily ceremonial prerogatives. The new Constitution likewise shortened abruptly the terms of the memb
present Congress (whose terms end on December 31, 1973, 1975 and 1977) which provides that the new Constitutio
effect immediately upon its ratification (Sec. 16, Article XVII, 1973 Constitution). The fact that Section 2 of the same A
secures to the members of Congress membership in the interim National Assembly as long as they opt to serve there
thirty (30) days after the ratification of the proposed Constitution, affords them little comfort; because the convening o
National Assembly depends upon the incumbent President (under Sec. 3[1], Art. XVII, 1973 Constitution). Under the
circumstances, the members of Congress, who were elected under the 1935 Constitution, would not be disposed to c
plebiscite and appropriate funds therefor to enable the people to pass upon the 1973 Constitution, ratification of whic
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 effec
possesses the power to call a plebiscite and to appropriate funds for the purpose, it inescapably must have the powe
the same to the President, who, in estimation of the Convention can better determine appropriate time for such a refe
well as the amount necessary to effect the same; for which reason the Convention thru Resolution No. 29 approved o
November 22, 1972, which superseded Resolution No. 5843 adopted on November 16, 1972, proposed to the Presid
a decree be issued calling a plebiscite for the ratification of the proposed new Constitution such appropriate date as h
determine and providing for the necessary funds therefor, ...," after stating in "whereas" clauses that the 1971 Constit
Convention expected to complete its work by the end of November, 1972 that the urgency of instituting reforms rende
imperative the early approval of the new Constitution, and that the national and local leaders desire that there be con
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 an
regulations to implement the law, this authority to delegate implementing rules should not be denied to the Constitutio
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
Constitutional Convention thru its Resolution No. 29, the organization of the Citizens' Assemblies for consultation on
issues, is comprehended within the ordinance-making power of the President under Section 63 of the Revised Admin
Code, which expressly confers on the Chief Executive the power to promulgate administrative acts and commands to
the organization or mode of operation of the government or re-arranging or re-adjusting any district, division or part o
Philippines "or disposing of issues of general concern ... ." (Emphasis supplied). Hence, as consultative bodies repre
localities including the barrios, their creation by the President thru Presidential Decree No. 86 of December 31, 1972,
successfully challenged.

The employment by the President of these Citizens' Assemblies for consultation on the 1973 Constitution or on wheth
was further need of a plebiscite thereon, — both issues of national concern — is still within the delegated authority re
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 plebisc
conducted by the Commission on Elections in accordance with the provisions of the 1971 Revised Election Code. If t
intention of the Constitutional Convention in making the delegation, it could have easily included the necessary phras
purpose, some such phrase like "to call a plebiscite to be supervised by the Commission on Elections in accordance
provisions of the 1971 Revised Election Code (or with existing laws)." That the Constitutional Convention omitted suc
can only mean that it left to the President the determination of the manner by which the plebiscite should be conducte
supervise the plebiscite, and who can participate in the plebiscite. The fact that said Resolution No. 29 expressly stat
copies of this resolution as approved in plenary session be transmitted to the President of the Philippines and the Co
Elections for implementation," did not in effect designate the Commission on Elections as supervisor of the plebiscite
of said resolution that were transmitted to the Commission on Elections at best serve merely to notify the Commission
Elections about said resolution, but not to direct said body to supervise the plebiscite. The calling as well as conduct
plebiscite was left to the discretion of the President, who, because he is in possession of all the facts funnelled to him
intelligence services, was in the superior position to decide when the plebiscite shall be held, how it shall be conducte
shall oversee it.

It should be noted that in approving said Resolution No. 29, the Constitutional Convention itself recognized the validit
validated Presidential Proclamation No. 1081 placing the entire country under martial law by resolving to "propose to
Ferdinand E. Marcos that a decree be issued calling a plebiscite ... ." The use of the term "decree" is significant for th
orders regulating the conduct of all inhabitants are issued in that form and nomenclature by the President as the Com
Chief and enforcer of martial law. Consequently, the issuance by the President of Presidential Decree No. 73 on Dec
1972 setting the plebiscite on January 15, 1973 and appropriating funds therefor pursuant to said Resolution No. 29,
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 s
does not need sufficient standards to circumscribe the exercise of the power delegated, and is beyond the competen
Court to nullify. But even if adequate criteria should be required, the same are contained in the "Whereas" clauses of
Constitutional Convention Resolution No. 29, thus:

WHEREAS, the 1971 Constitutional Convention is expected to complete its work of drafting a
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 Consti
become imperative;

WHEREAS, it is the desire of the national and local leaders that there be continuity in the imm
political transition from the old to the New Constitution;" (Annex "1" of Answer, Res. No. 29, C
Convention).

As Mr. Justice Fernando, with whom Messrs. Justices Barredo, Antonio and the writer concurred in the Plebiscite Ca

... Once this work of drafting has been completed, it could itself direct the submission to the pe
ratification as contemplated in Article XV of the Constitution. Here it did not do so. With Congr
being in session, could the President, by the decree under question, call for such a plebiscite?
such circumstances, a negative answer certainly could result in the work of the Convention be
rendered nugatory. The view has been repeatedly expressed in many American state court de
to avoid such undesirable consequence the task of submission becomes ministerial, with the p
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 Constitutio
done by him in his capacity as President, such an objection would indeed have been formidab
say insurmountable. If the appropriation were made in his capacity as agent of the Convention
that there be submission to the people, then such an argument loses force. The Convention it
have done so. It is understandable why it should be thus. If it were otherwise, then a legislativ
 appropriating arm of the government, could conceivably make use of such authority to compe
Convention to submit to its wishes, on pain of being rendered financially distraught. The Presi
performing his role as its agent, could be held as not devoid of such competence. (pp. 2-3, co
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 o
18 and 19, 1972 on the Plebiscite Cases. But the inclusion of questionable or ambiguous provisions does not affect th
the ratification or adoption of the 1973 Constitution itself (Pope vs. Gray, 104 SO, 2d 841; 7th Dec. pp. 212-219, 1956

Alexander Hamilton, one of the leading founders and defenders of the American Constitution, answering the critics of
Constitution, stated that: "I never expect to see a perfect work from imperfect man. The result of the deliberations of a
bodies must necessarily be a compound, as well of the errors and prejudices as of the good sense and wisdom, of th
of whom they are composed. The compacts which are to embrace thirteen distinct States in a common bond of amity
must necessarily be a compromise of as many dissimilar interests and inclinations. How can perfection spring from su
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 beyo
power of the Constitutional Convention to propose.

This objection relates to the wisdom of changing the form of government from Presidential to Parliamentary and inclu
provisions as Section 3 of Article IV, Section 15 of Article XIV and Sections 3(2) and 12 of Article XVII in the 1973 Co

Article IV —

Sec. 3. The right of the people to be secure in their persons, houses, papers, and effects agai
unreasonable searches and seizures of whatever nature and for any purpose shall not be viol
search warrant or warrant of arrest shall issue except upon probable cause to be determined
judge, or such other responsible officer as may be authorized by law, after examination under
affirmation of the complainant and the witnesses may produce, and particularly describing the
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
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 do
incumbent President shall be part of the law of the land, and shall remain valid, legal, binding
effective even after lifting of martial law or the ratification of this Constitution, unless modified,
superseded by subsequent proclamations, orders, decrees, instructions, or other acts of the in
President, or unless expressly and explicitly modified or repealed by the regular National Asse
 xxx xxx xxx

Sec. 12. All treaties, executive agreements, and contracts entered into by the Government, or
subdivision, agency, or instrumentality thereof, including government-owned or controlled corp
are hereby recognized as legal, valid and binding. When the national interest so requires, the
President of the Philippines or the interim Prime Minister may review all contracts, concession
or other forms of privileges for the exploration, development, exploitation, or utilization of natu
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), Chi
Roberto Concepcion, concurred in by Justices Fernando, Barredo, Antonio and the writer, overruled this objection, th

... Regardless of the wisdom and moral aspects of the contested provisions of
proposed Constitution, it is my considered view that the Convention was legall
to propose — save perhaps what is or may be insistent with what is now know
particularly in international law, as Jus Cogens — not only because the Conve
exercised sovereign powers delegated thereto by the people — although insof
the determination of the proposals to be made and formulated by said body is
— but also, because said proposals cannot be valid as part of our Fundament
unless and until "approved by the majority of the votes cast at an election whic
proposals "are submitted to the people for their ratification," as provided in Sec
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 Constitut
Convention has the authority to "entirely overhaul the present Constitution and propose an entirely new Constitution b
ideology foreign to the democratic system ...; because the same will be submitted to the people for ratification. Once
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
constitutional convention ..., is practically limitless" (citing Cf. Koehler vs. Hill, 14 NW 738, 60 Iowa 543 [1883]; Hatch
6 P 734, 66 Cal. 632 [1885]; MacMillan v. Blattner, 25 NW 245, 67 Iowa 287 [1895]; State v. Powell, 27 SO 297, 77 M
[1900]; Hammond v. Clark, 71 SE 479, 136 Ga. 313 [1911]; Hamilton v. Vaughan, 179 NW 533, 212 Mich. 31 [1920];
Smith, 138 NE 881, 105 Ohio St. 570 [1922]; Looney vs. Leeper, 292 P 365, 145 Okl. 202 [1930]; School District vs.
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 ele
delegates to the Convention and when the delegates themselves were campaigning, such limitation of the scope of th
and objective was not in their minds."

1973 CONSTITUTION DULY ADOPTED AND

PROMULGATED.

Petitioners next claim that the 1971 Constitutional Convention adjourned on November 30, 1972 without officially pro
the said Constitution in Filipino as required by Sections 3(1) of Article XV on General Provisions of the 1973 Constitu
claim is without merit because their Annex "M" is the Filipino version of the 1973 Constitution, like the English version
the certification by President Diosdado Macapagal of the Constitutional Convention, duly attested by its Secretary, th
proposed Constitution, approved on second reading on the 27th day of November, 1972 and on third reading in the C
291st plenary session on November 29, 1972 and accordingly signed on November 1972 by the delegates whose sig
thereunder affixed. It should be recalled that Constitutional Convention President Diosdado Macapagal was, as Presi
Republic 1962 to 1965, then the titular head of the Liberal Party to which four (4) of the petitioners in L-36165 includin
counsel, former Senator Jovito Salonga, belong. Are they repudiating and disowning their former party leader and be

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 Constitutio
approved by a majority of the votes cast at an election at which the amendments are submitted to the people for ratifi

But petitioners construe the aforesaid provision to read: "Such amendments shall be valid as part of this Constitution
approved by a majority of the votes cast at an election called by Congress at which the amendments are submitted fo
by the qualified electors defined in Article V hereof, supervised by the Commission on Elections in accordance with th
election law and after such amendments shall have been published in all the newspapers of general circulation for at
months prior to such election."

This position certainly imposes limitation on the sovereign people, who have the sole power of ratification, which impo
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 C
This is a clear case of usurpation of sovereign power they do not possess — through some kind of escamotage. This
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 wit
procedure prescribed by the Constitution and/or the law, nullifies the proposed amendment or the new Constitution, t
procedure prescribed by the state Constitution is so detailed that it specifies that the submission should be at a gener
election, or at the election for members of the State legislature only or of all state officials only or of local officials only
state and local officials; fixes the date of the election or plebiscite limits the submission to only electors or qualified ele
prescribes the publication of the proposed amendment or a new Constitution for a specific period prior to the election
plebiscite; and designates the officer to conduct the plebiscite, to canvass and to certify the results, including the form
ballot which should so state the substance of the proposed amendments to enable the voter to vote on each amendm
separately or authorizes expressly the Constitutional Convention or the legislature to determine the procedure or cert
thereof. See the State Constitutions of Alabama [1901]; Arizona [1912]; Arkansas [1874]; Colorado [1976]; Connectic
Florida [1887]; Georgia [1945]; Illinois [1970]; Indiana [1851]; Iowa [1857]; Kansas [1861]; Kentucky [1891]; Louisiana
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 leg
the manner following: The proposed amendments shall be read in the house in which they ori
three several days, and, if upon the third reading, three-fifths of all the members elected to tha
shall vote in favor thereof, the proposed amendments shall be sent to the other house, in whic
likewise be read on three several days, and if upon the third reading, three-fifths of all the mem
 elected that house shall vote in favor of the proposed amendments, the legislature shall order
by the qualified electors of the state upon such proposed amendments, to be held either at the
election next succeeding the session of the legislature at which the amendments are propose
another day appointed by the legislature, not less than three months after the final adjournme
session of the legislature at which the amendments were proposed. Notice of such election, to
the proposed amendments, shall be given by proclamation of the governor, which shall be pu
every county in such manner as the legislature shall direct, for at least eight successive week
preceding the day appointed for such election. On the day so appointed an election shall be h
vote of the qualified electors of the state upon the proposed amendments. If such election be
day of the general election, the officers of such general election shall open a poll for the vote o
qualified electors upon the proposed amendments; if it be held on a day other than that of a g
election, officers for such election shall be appointed; and the election shall be held in all thing
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 ma
secretary of state, and counted, in the same manner as in elections for representatives to the
and if it shall thereupon appear that a majority of the qualified electors who voted at such elec
the proposed amendments voted in favor of the same, such amendments shall be valid to all i
purposes as parts of this Constitution. The result of such election shall be made known by pro
the governor. Representation in the legislature shall be based upon population, and such basi
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
of this Constitution, the substance or subject matter of each proposed amendment shall be so
the nature thereof shall be clearly indicated. Following each proposed amendment on the ball
printed the word "Yes" and immediately under that shall be printed the word "No". The choice
elector shall be indicated by a cross mark made by him or under his direction, opposite the wo
expressing his desire, and no amendment shall be adopted unless it receives the affirmative v
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 sess
may propose amendments to this Constitution, and, if the same be agreed to by a majority of
members, elected to each house, such proposed amendments shall be entered on the journa
yeas and nays, and published in at least one newspaper in each county, where a newspaper
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 app
rejection, and if a majority of the electors voting at such election adopt such amendments, the
become a part of this Constitution; but no more than three amendments shall be proposed or
the same time. They shall be so submitted as to enable the electors to vote on each amendm
separately.

Constitution of Kansas (1861):

Article XIV. Amendments.

Sec. 1. Proposal of amendments; publications; elections. Propositions for the amendment of t

constitution may be made by either branch of the legislature; and if two thirds of all the membe
to each house shall concur therein, such proposed amendments, together with the yeas and n
 be entered on the journal; and the secretary of state shall cause the same to be published in a
newspaper in each county of the state where a newspaper is published, for three months prec
next election for representatives, at which time, the same shall be submitted to the electors, fo
approval or rejection; and if a majority of the electors voting on said amendments, at said elec
adopt the amendments, the same shall become a part of the constitution. When more than on
amendment shall be submitted at the same time, they shall be so submitted as to enable the e
vote on each amendments separately; and not more than three propositions to amend shall b
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 proclamat

General Assembly may propose Amendments to this Constitution; provided that each Amendm
be embraced in a separate bill, embodying the Article or Section, as the same will stand when
and passed by three fifths of all the members elected to each of the two Houses, by yeas and
entered on the Journals with the proposed Amendment. The bill or bills proposing amendmen
amendments shall be published by order of the Governor, in at least two newspapers, in each
where so many may be published, and where not more than one may be published, then in th
newspaper, and in three newspapers published in the City of Baltimore, once a week for four
immediately preceding the next ensuing general election, at which the proposed amendment o
amendments shall be submitted, in a form to be prescribed by the General Assembly, to the q
voters of the State for adoption or rejection. The votes cast for and against said proposed ame
amendments, severally, shall be returned to the Governor, in the manner prescribed in other c
it shall appear to the Governor that a majority of the votes cast at said election on said amend
amendments, severally, were cast in favor thereof, the Governor shall, by his proclamation, de
said amendment or amendments having received said majority of votes, to have been adopte
people of Maryland as part of the Constitution thereof, and henceforth said amendment or am
shall be part of the said Constitution. When two or more amendments shall be submitted in th
aforesaid, to the voters of this State at the same election, they shall be so submitted as that e
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 a
proposed by the general assembly or by the initiative shall be submitted to the electors for the
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 th
which he may submit any of the amendments. No such proposed amendment shall contain m
one amended and revised article of this constitution, or one new article which shall not contain
one subject and matters properly connected therewith. If possible, each proposed amendmen
published once a week for two consecutive weeks in two newspapers of different political faith
county, the last publication to be not more than thirty nor less than fifteen days next preceding
election. If there be but one newspaper in any county, publication of four consecutive weeks s
made. If a majority of the votes cast thereon is in favor of any amendment, the same shall tak
the end of thirty days after the election. More than one amendment at the same election shall
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 submiss
ratification. As heretofore stated, it does not specify what kind of election at which the new Constitution shall be subm
does it designate the Commission on Elections to supervise the plebiscite. Neither does it limit the ratification to the q
electors as defined in Article V of the 1935 Constitution. Much less does it require the publication of the proposed Co
any specific period before the plebiscite nor does it even insinuate that the plebiscite should be supervised in accorda
the existing election law.

(2) As aforequoted, Article XV does not indicate the procedure for submission of the proposed Constitution to the peo
ratification. It does not make any reference to the Commission on Elections as the body that shall supervise the plebi
Article XV could not make any reference to the Commission on Elections because the original 1935 Constitution as ra
May 14, 1935 by the people did not contain Article X on the Commission on Elections, which article was included the
pursuant to an amendment by that National Assembly proposed only about five (5) years later — on April 11, 1940, ra
people on June 18, 1940 as approved by the President of the United States on December 1940 (see Sumulong vs. C
70 Phil. 703, 713, 715; Gonzales, Phil. Const. Law, 1966 ed., p. 13). So it cannot be said that the original framers of t
Constitution as ratified May 14, 1935 intended that a body known as the Commission on Elections should be the one
supervise the plebiscite, because the Commission on Elections was not in existence then as was created only by Com
Act No. 607 approved on August 22, 1940 and amended by Commonwealth Act No. 657 approved on June 21, 1941
Tañada & Carreon, Political Law of the Philippines, Vol. I, 1961 ed., pp. 475-476; Sumulong vs. Commission, 170 Ph
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 Interio
Department of Local Governments and Community Development) supervised the plebiscites on the 1937 amendmen
woman's suffrage, the 1939 amendment to the Ordinance appended to the 1935 Constitution (Tydings-Kocialkowski
U.S. Congress) and the three 1940 amendments on the establishment of a bicameral Congress, the re-election of the
and the Vice-President, and the creation of the Commission on Elections (ratified on June 18, 1940). The supervision
plebiscites by the then Department of Interior was not automatic, but by virtue of an express authorization in Common
Nos. 34, 49 and 517.

If the National Assembly then intended that the Commission on Elections should also supervise the plebiscite for ratif
constitutional amendments or revision, it should have likewise proposed the corresponding amendment to Article XV
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 q
voters under Article V of the 1935 Constitution should participate in the referendum on any amendment or revision th
could have provided the same in 1935 or in the 1940 amendment by just adding a few words to Article XV by changin
phrase to "submitted for ratification to the qualified electors as defined in Article V hereof," or some such similar phras

Then again, the term "people" in Article XV cannot be understood to exclusively refer to the qualified electors under A
the 1935 Constitution because the said term "people" as used in several provisions of the 1935 Constitution, does no
uniform meaning. Thus in the preamble, the term "Filipino people" refer, to all Filipino citizens of all ages of both sexe
Section 1 of Article II on the Declaration of Principles, the term "people" in whom sovereignty resides and from whom
government authority emanates, can only refer also to Filipino citizens of all ages and of both sexes. But in Section 5
Article II on social justice, the term "people" comprehends not only Filipino citizens but also all aliens residing in the c
ages and of both sexes. Likewise, that is the same connotation of the term "people" employed in Section 1(3) of Artic
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 th
the election of senators and congressmen. Section 2 Article VI expressly provides that the senators "shall be chosen
the qualified electors of the Philippines as may provided by law." Section 5 of the same Article VI specifically provides
congressmen shall "be elected by the qualified electors." The only provision that seems to sustain the theory of petitio
the term "people" in Article XV should refer to the qualified electors as defined in Article V of the 1935 Constitution is
provision that the President and Vice-President shall be elected "by direct vote of the people." (Sec. 2 of Art. VII of the
Constitution). But this alone cannot be conclusive as to such construction, because of explicit provisions of Sections 2
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 proced
ratification of amendments to or revision of said Constitutions and expressly require ratification by qualified electors, n
generic term "people".

The proposal submitted to the Ozamis Committee on the Amending Process of the 1934-35 Constitutional Conventio
that the amendment shall be submitted to qualified election for ratification. This proposal was not accepted indicating
1934-35 Constitutional Convention did intend to limit the term "people" in Article XV of the 1935 Constitution to qualifi
only. As above demonstrated, the 1934-35 Constitutional Convention limits the use of the term "qualified electors" to
public officials. It did not want to tie the hands of succeeding future constitutional conventions as to who should ratify
proposed amendment or revision.

(4) It is not exactly correct to opine that Article XV of 1935 Constitution on constitutional amendment contemplates th
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 the
of a statute expressly authorizing the application of the election laws to plebiscites of this nature. Thus, Com. Act No.
woman's suffrage amendment enacted on September 30, 1936, consists of 12 sections and, aside from providing tha
shall be held a plebiscite on Friday, April 30, 1937, on the question of woman's suffrage ... and that said amendment
published in the Official Gazette in English and Spanish for three consecutive issues at least fifteen (15) days prior to
election, ... and shall be posted in a conspicuous place in its municipal and provincial office building and in its polling
later than April 22, 1937" (Sec. 12, Com. Act No. 34), specifies that the provisions of the Election Law regarding, the
a special election, insofar as said provisions are not in conflict with it, should apply to the said plebiscite (Sec. 3, Com
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 t
plebiscites. Yet the subsequent laws, namely, Com. Act Nos. 492 and 517 and Rep. Act No. 73 calling for the plebisc
constitutional amendments in 1939, 1940 and 1946, including the amendment creating the Commission on Elections,
provided that the provisions of the existing election law shall apply to such plebiscites insofar as they are not inconsis
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 t
Constitution adopted by the National Assembly on September 15, 1939, consists of 8 sections and provides that the p
amendments to the Constitution adopted in Resolution No. 39 on September 15, 1939 "shall be submitted to the Filip
for approval or disapproval at a general election to be held throughout the Philippines on Tuesday, October 24, 1939
amendments to said Constitution proposed in "Res. No. 38, adopted on the same date, shall be submitted at followin
local officials," (Sec. 1, Com. Act No. 492) that the said amendments shall be published in English and Spanish in thr
consecutive issues of the Official Gazette at least ten (10) days prior to the elections; that copies thereof shall be pos
than October 20, 1939 (Sec. 2, Com. Act 492); that the election shall be conducted according to provisions of the Ele
insofar as the same may be applicable; that within thirty (30) days after the election, Speaker of the National Assemb
request the President to call a special session of the Assembly for the purpose of canvassing the returns and certify t
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:
plebiscite on the constitutional amendments providing bicameral Congress, re-election of the President and Vice-Pre
the creation of a Commission on Elections shall be held at a general election on June 18, 1940 (Sec. 1); that said am
shall be published in three consecutive issues of the Official Gazette in English and Spanish at least 20 days prior to
and posted in every local government office building and polling place not later than May 18, 1940 (Sec. 2); that the e
be conducted in conformity with the Election Code insofar as the same may be applicable (Sec. 3) that copies of the
be forwarded to the Secretary of National Assembly and the Secretary of Interior (Sec. 7); that the National Assembly
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 sec
provides that the Amendment "shall be submitted to the people, for approval or disapproval, at a general election wh
held on March 11, 1947, in accordance with the provisions of this Act" (Sec. 1, R.A. No. 73); that the said amendmen
be published in English and Spanish in three consecutive issues of the Official Gazette at least 20 days prior to the e
copies of the same shall be posted in a conspicuous place and in every polling place not later than February 11, 194
R.A. No. 73); that the provisions of Com. Act No. 357 (Election Code) and Com. Act No. 657 creating the Commissio
Elections, shall apply to the election insofar as they are not inconsistent with this Act (Sec. 3, R.A. No. 73); and that w
days after the election, the Senate and House of Representatives shall hold a joint session to canvass the returns an
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
automatic application of the election law; and even at that, not all the provisions of the election law were made applic
because the various laws aforecited contain several provisions which are inconsistent with the provisions of the Revis
Code (Com. Act No. 357). Moreover, it should be noted that the period for the publication of the copies of the propose
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,
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 nee
Congress to expressly provide therefor in the election laws enacted after the inauguration of the Commonwealth gove
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 Stat
Constitutions of the American Union (with few exceptions), Article XV does not state that only qualified electors can v
plebiscite. As above-intimated, most of the Constitutions of the various states of the United States provide for very de
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 J
1967 and superseded Republic Act No. 2370, expanded the membership of the barrio assembly to include citizens w
least 18 years of age, whether literate or not, provided they are also residents of the barrio for at least 6 months (Sec
3590).

Sec. 4. The barrio assembly. — The barrio assembly shall consist of all persons who are resid
barrio for at least six months, eighteen years of age or over, citizens of the Republic of the Ph
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 cou
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-Tent
members of the barrio assembly.

No meeting of the barrio assembly shall take place unless notice is given one week prior to th
except in matters involving public safety or security in which case notice within a reasonable t
sufficient. The barrio captain, or in his absence, the councilman acting as barrio captain, or an
member selected during the meeting, shall act as presiding officer at all meetings of the barrio
The barrio secretary or in his absence, any member designated by the presiding officer to act
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, i
necessary that at least one-fifth of the members of the barrio assembly be present to constitut
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 follo

a. To recommend to the barrio council the adoption of measures for the welfar
barrio;

b. To decide on the holding of a plebiscite as provided for in Section 6 of this A

c. To act on budgetary and supplemental appropriations and special tax ordina

submitted for its approval by the barrio council; and

d. To hear the annual report council concerning the activities and finances of t
assembly.

Sec. 6. Plebiscite. — A plebiscite may be held in the barrio when authorized by a majority vote
members present in the barrio assembly, there being a quorum, or when called by at least fou
of the barrio council; Provided, however, That no plebiscite shall be held until after thirty days
approval by either body, and such plebiscite has been given the widest publicity in the barrio,
date, time, and place thereof, the questions or issues to be decided, action to be taken by the
such other information relevant to the holding of the plebiscite.

All duly registered barrio assembly members qualified to vote may vote in the plebiscite. Votin
procedures may be made either in writing as in regular election, and/or declaration by the vote
board of election tellers. The board of election tellers shall be the same board envisioned by s
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 plebi
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 as
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
age or over, able to read and write, who has been a resident of the barrio during the six month
immediately preceding the election, duly registered in the list of voters kept by the barrio secre
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
imprisonment, within two years after service of his sentence;

b. Any person who has violated his allegiance to the Republic of the Philippine

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
of any member of the barrio council or on a budgetary, supplemental appropriation, or special ordinances, a valid act
requires "a majority vote of all of the barrio assembly members registered in the list of the barrio secretary" (par. 5, Se
No. 3590). Such plebiscite may be authorized by a majority vote of the members present in the barrio assembly, ther
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
residents of the barrio during the 6 months immediately preceding the election and duly registered in the list of voters
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 ... eithe
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 v
plebiscite," cannot sustain the position of petitioners in G.R. No. L-36165 that only those who are 21 years of age and
who possess all other qualifications of a voter under Section 10 of R.A. No. 3590, can vote on the plebiscites referred
Section 6; because paragraph 3 of Section 6 does not expressly limit the voting to those with the qualifications under
as said Section 6 does not distinguish between those who are 21 or above on the one hand and those 18 or above b
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 lo
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 i
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
whether literate or not. Republic Act No. 3590 could simply have restated Section 4 of Republic Act No. 2370, the old
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 participa
enactment of Republic Act No. 3590 and should have known the intendment of Congress in expanding the membersh
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 a
electors for barrio plebiscites, this prerogative can also be exercised by the Chief Executive as delegate of the Consti
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
overwhelmingly ratified by the people through the Citizens' Assemblies in a referendum conducted from January 10 to
should be accorded the presumption of correctness; because the same was based on the certification by the Secreta
Department of Local Government and Community Development who tabulated the results of the referendum all over
The accuracy of such tabulation and certification by the said Department Secretary should likewise be presumed; bec
done in the regular performance of his official functions aside from the fact that the act of the Department Secretary, a
ego of the President, is presumptively the act of the President himself unless the latter disapproves or reprobates the
(Villena vs. Secretary of Interior, 67 Phil. 451 ). The truth of the certification by the Department Secretary and the Chi
on the results of the referendum, is further strengthened by the affidavits and certifications of Governor Isidro Rodrigu
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
to the 1935 Constitution, the 1940 amendments establishing the bicameral Congress, creating the Commission on El
providing for two consecutive terms for the President, and the 1947 parity amendment, cannot be invoked; because t
amendments were proposed by the National Assembly as expressly authorized by Article V of the 1935 Constitution
woman suffrage and as a constituent assembly in all the other amendments aforementioned and therefore as such, C
had also the authority to prescribe the procedure for the submission of the proposed amendments to the 1935 Consti

In the cases at bar, the 1973 Constitution was proposed by an independent Constitutional Convention, which as here
discussed, has the equal power to prescribe the modality for the submission of the 1973 Constitution to the people fo
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 fo
extrapolation of the Citizens' Assemblies in all the other provinces, cities and municipalities in all the other provinces,
municipalities, and the affirmative votes in the Citizens' Assemblies resulting from such extrapolation would still const
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 Communit
Development that in Rizal there were 1,126,000 Yes votes and 100,310 No votes, the certification of Governor Isidro
of Rizal, shows only 614,157 Yes votes against 292,530 No votes. In Cavite province, there were 249,882 Yes votes
12,269 No votes as disclosed in Annex 1-A of respondents' Compliance (the certification by the Department of Local
and Community Development), while the alleged certification of Governor Lino Bocalan of Cavite shows only 126,163
and 5,577 No votes. If such a ratio is extended by way of extrapolation to the other provinces, cities and towns of 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 certificati
March 16, 1973, he states that since the declaration of martial law and up to the present time, he has been under hou
his residence in Urdaneta Village, Makati, Rizal; that he never participated in the conduct of the Citizens' Assemblies
10 15, 1973 in the province of Cavite; that the acting chairman and coordinator of the Citizens' Assemblies at that tim
Governor Dominador Camerino; and that he was shown a letter for his signature during the conduct of the Citizens' A
which he did not sign but which he referred to Vice-Governor Camerino (Annex 1-Rejoinder of the Sol. Gen. dated M
1973).

Mayor Pablo Cuneta likewise executed an affidavit dated March 16, 1973 stating that on January 15, 1973, he cause
preparation of a letter addressed to Secretary Jose Roño of the Department of Local Government and Community De
showing the results of the referendum in Pasay City; that on the same day, there were still in any Citizens' Assemblie
referendum in Pasay City, for which reason he did not send the aforesaid letter pending submittal of the other results
said Citizens' Assemblies; and that in the afternoon of January 15, 1973, he indorsed the complete certificate of resul
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
stating that a certain Atty. Delia Sutton of the Salonga Law Office asked him for the results of the referendum; that he
her that he had in his possession unsigned copies of such results which may not be considered official as they had th
knowledge whether the original thereof had been signed by the mayor; and that in spite of his advice that said unsign
were not official, she requested him if she could give her the unofficial copies thereof, which he gave in good faith (An
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 Pet
Notes in L-36165). The fact that a certain Mrs. Remedio Gutierrez, wife of alleged barrio treasurer Faustino Gutierrez
South Triangle, Quezon City, states that "as far as we know, there has been no Citizens' Assembly meeting in our Ar
particularly in January of this year," does not necessarily mean that there was no such meeting in said barrio; for she
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
there was no meeting at all in the other barrios of Quezon City. The barrio captain or the secretary of the barrio assem
have been a credible witness.

Councilor Eduardo T. Paredes, chairman of the Secretariat of Quezon City Ratification and Coordinating Council, cer
March 12, 1973 that as such chairman he was in charge of the compilation and tabulation of the results of the referen
the Citizens' Assemblies in Quezon City based on the results submitted to the Secretariat by the different Citizens' As
but many results of the referendum were submitted direct to the national agencies having to do with such activity and
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 Presid
January 15, 1973 informing him of the results of the referendum in Rizal, in compliance with the instruction of the Nat
Secretariat to submit such letter 2 or 3 days from January 10 to show the trend of voting in the Citizens' Assemblies;
figures 614,157 and 292,530 mentioned in said letter were based on the certificates of results in his possession as of
1973, which results were made the basis of the computation of the percentage of voting trend in the province; that his
never intended to show the final or complete result in the referendum in the province as said referendum was then sti
from January 14-17, 1973, for which reason the said letter merely stated that it was only a "summary result"; and that
January 15, 1973, he sent to the National Secretariat all the certificates of results in 26 municipalities of Rizal for final
(Annex 3-Rejoinder of the Sol. Gen.; emphasis supplied).

Lydia M. Encarnacion, acting chief of the Records Section, Department of Local Government and Community Develo
issued a certificate dated March 16, 1973 that she was shown xerox copies of unsigned letters allegedly coming from
Lino Bocalan dated January 15, 1973 and marked "Rejoinder Annex Cavite" addressed to the President of the Philipp
through the Secretary of the Department of Local Government and Community Development and another unsigned le
reportedly from Mayor Pablo Cuneta dated January 15, 1973 and marked "Rejoinder Annex Pasay City" addressed to
Secretary of the Department of Local Government and Community Development; that both xerox copies of the unsign
contain figures showing the results of the referendum of the Citizens' Assemblies in those areas; and that the said let
not received by her office and that her records do not show any such documents received by her office (Annex 2-Rejo
Sol. Gen.).

Thus it would seem that petitioners in L-36165 have attempted to deceive this Court by representing said unsigned le
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
summary report of Governor Rodriguez of Rizal as well as those contained in the alleged report of Governor Lino Boc
Cavite who repudiated the same as not having been signed by him for he was then under house arrest, on the one ha
number of votes certified by the Department of Local Government and Community Development, on the other, to the
even assuming the correctness of the figures insisted on by counsel for petitioners in L-36165, if they were extrapolat
applied to the other provinces and cities of the country, the Yes votes would still be overwhelmingly greater than the N
applies equally to the alleged discrepancy between the figures contained in the certification of the Secretary of the De
Local Government and Community Development and the figures furnished to counsel for petitioners in L-36165 conc
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 fav
plebiscite to be held later than those against, only serve to emphasize that there was freedom of voting among the m
the Citizens' Assemblies all over the country during the referendum from January 10 to 15, 1973 (Annex-6 Camarines
Rejoinder of Petitioners in L-36165). If there was no such freedom of choice, those who wanted a plebiscite would no
those against holding such plebiscite.

The letter of Governor Felix O. Alfelor, Sr. dated January 1973 confirms the "strong manifestation of approval of the n
Constitution by almost 97% by the members of the Citizens' Assemblies in Camarines Sur" (Annex-Camarines Sur to
of Petitioners in L-36165).

The report of Governor Efren B. Pascual of Bataan shows that the members of the Citizens' Assemblies voted overw
favor of the new Constitution despite the fact that the second set of questions including the question "Do you approve
Constitution?" was received only on January 10. Provincial Governor Pascual stated that "orderly conduct and favora
of the referendum" were due not only to the coordinated efforts and cooperation of all teachers and government empl
area but also to the enthusiastic participation by the people, showing "their preference and readiness to accept this n
of government to people consultation in shaping up government policies." (Annex-Bataan to Rejoinder of Petitioners i

As heretofore stated, it is not necessary that voters ratifying the new Constitution are registered in the book of voters;
that they are electors voting on the new Constitution (Bott vs. Wurts, 40 A 740 [1898]; 43 A 744, 881 [1899]; 45 LRA
fact that the number of actual voters in the referendum in certain localities may exceed the number of voters actually
for the 1971 elections, can only mean that the excess represents the qualified voters who are not yet registered inclu
who are at least 15 years of age and the illiterates. Although ex-convicts may have voted also in the referendum, som
might have been granted absolute pardon or were sentenced to less than one year imprisonment to qualify them to v
201, 1971 Rev. Election Code). At any rate, the ex-convicts constitute a negligible number, discounting which would n
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 lette
March 13, 1973 that he does not "feel authorized by the proper authorities to confirm or deny the data" concerning th
participants, the Yes votes and No votes in the referendum on the new Constitution among the members of the Citize
Assemblies in Caloocan City, does not necessarily give rise to the inference that Mayor Samson of Caloocan City is b
intimidated, having been recently released from detention; because in the same letter of Mayor Samson, he suggeste
counsel for petitioners in L-36165 that he can secure "the true and legitimate results of the referendum" from the Offic
President (Annex Caloocan-B to Rejoinder of Petitioners in L-36165). Why did not learned and eminent counsel heed
suggestion?

Counsel for petitioners in L-36165, to sustain their position, relies heavily on the computation of the estimated turnove
Citizens' Assemblies referendum on January 10 to 15, 1973 by a certain Professor Benjamin R. Salonga, of the Mapu
of Technology, ostensibly a close relative of former Senator Jovito R. Salonga, eminent counsel for petitioners in L-36
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
the Bureau of Census and Statistics, in his letter dated March 16, 1973 address to the Secretary of the Department o
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-yea
(1972) will have to be estimated in order to give a 101.9% estimate of the percentage participa
"15-20 year old plus total number of qualified voters" which does not deem to answer the prob
computation apparently fails to account for some 5.6 million persons "21 years old and over" w
not registered voters (COMELEC), but who might be qualified to participate at the Citizen's As

2) The official population projection of this office (medium assumption) for "15 year olds and o
January 1, 1973 is 22.506 million. If total number of participants at the Citizens' Assembly Ref
held on January 10-15, 1973 was 16.702 million, participation rate will therefore be the ratio o
figure to the former which gives 74.2%.

3) 1 cannot also understand c-2 "Solution to Problem 11." The "difference or implied number o
 year olds" of 5,039,906 would represent really not only all 15-year olds and over who participa
Citizens' Assembly but might not have been registered voters at the time, assuming that all th
11,661,909 registered voted at Citizens' Assembly. Hence, the "estimate percentage participa
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 gro
was estimated to be 4.721 million as of January 1, 1973 by the population of "15 years old and
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 a
dead. It cannot therefore be assumed that all of them participated at the Citizens' Assembly. It
therefore be inferred that "a total number of persons 15 and over unqualified/disqualified to vo
more than 10,548,197 and hence the "difference or implied number of registered voters that p
will be less than 6,153,618.

I have reservations on whether an "appropriate number of qualified voters that supposedly vot
be meaningfully estimated.

5) The last remark will therefore make the ratio (a) [Solution to Problem] more than 1.71 and t
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 pr
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

If the registered electors as of the election of November 8, 1971 numbered 11,661,909, the difference between 16,70
participated in the referendum and the registered electors of 11,661,909 for the November 8, 1971 elections, is 5,040
may include not only the 15-year olds and above but below 21 but also the qualified electors who were not registered
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
votes as against about 3,000,000 votes for his rival LP Senator Sergio Osmeña, Jr., garnering a majority of from abou
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
not vote in favor of the 1973 Constitution during the referendum from January 10 to 15, 1973. It should also be stress
many of the partisans of the President in the 1969 Presidential elections, have several members in their families and
who are qualified to participate in the referendum because they are 15 years or above including illiterates, which fact
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
fear to disagree with the President and Commander-in-Chief of the Armed Forces of the Philippines and therefore ca
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 in
Even without martial law, the penal, civil or administrative sanction provided for the violation of ordinarily engenders f
individual which persuades the individual to comply with or obey the law. But before martial law was proclaimed, man
individuals fear such sanctions of the law because of lack of effective equal enforcement or implementation thereof —
compartmentalized justice and extraneous pressures and influences frustrated the firm and just enforcement of the la
fear that is generated by martial law is merely the fear of immediate execution and swift enforcement of the law and t
immediate infliction of the punishment or sanction prescribed by the law whenever it is transgressed during the period
law. This is not the fear that affects the voters' freedom of choice or freedom to vote for or against the 1973 Constituti
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
laws. But the 1935 Constitution does not require secret voting. We search in vain for such guarantee or prescription i
organic law. The Commission on Elections under the 1940 Amendment, embodied as Article X is merely mandated to
"free, orderly and honest election." Congress, under its plenary law-making authority, could have validly prescribed in
law open voting in the election of public officers, without trenching upon the Constitution. Any objection to such a stat
concerns its wisdom or propriety, not its legality or constitutionality. Secret balloting was demanded by partisan strife
for elective officials. Partisanship based on party or personal loyalties does not generally obtain in a plebiscite on pro
constitutional amendments or on a new Constitution. We have seen even before and during martial law that voting in
government agencies or private organizations is usually done openly. This is specially true in sessions of Congress, p
boards, city councils, municipal boards and barrio councils when voting on national or local issues, not on personalitie

Then again, open voting was not a universal phenomenon in the Citizens' Assemblies. It might have been true in cert
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 w
by acclamation presided over by its former president, petitioner Eduardo Monteclaro in L-36236 (see Bulletin Today,
3, 1973 issue). There can be no more hardboiled group of persons than newspapermen, who cannot say that voting a
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
Constitution. They will not deny that there are those who favor the same, even among the 400,000 teachers among w
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 drive
driver, bus driver, pedestrian, salesman, or salesgirl — does not want the new Constitution, or the reforms provided f

(8) Petitioners likewise claim that there was no sufficient publicity given to the new Constitution. This is quite inaccura
even before the election in November, 1970 of delegates to the Constitutional Convention, the proposed reforms wer
discussed in various forums and through the press as well as other media of information. Then after the Constitutiona
Convention convened in June, 1971, specific reforms advanced by the delegates were discussed both in committee h
well as in the tri-media — the press, radio and television. Printed materials on the proposed reforms were circulated b
proponents. From June, 1971 to November 29, 1972, reforms were openly discussed and debated except for a few d
the proclamation of martial law on September 21, 1972. From the time the Constitutional Convention reconvened in O
1972 until January 7, 1973, the provisions of the new Constitution were debated and discussed in forums sponsored
organizations universities and debated over the radio and on television. The Philippines is a literate country, second o
Japan in the Far East, and more literate perhaps than many of mid-western and southern states of the American Unio
Spain. Many residents in about 1,500 towns and 33,000 barrios of the country have radios. Even the illiterates listene
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, 19
"Otto Lang, Hollywood producer director (Tora, Tora, Tora) went around the country doing a 30-minute documentary
Philippines for American television stated that what impressed him most in his travel throughout the country was the g
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, M
Secretary of the United States Senate, who conducted a personal survey of the country as delegate of Senator Mike
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
Marcos has been prompt and sure-footed in using the power of presidential decree under mar
this purpose. He has zeroed in on areas which have been widely recognized as prime sources
nation's difficulties — land tenancy, official corruption, tax evasion and abuse of oligarchic eco
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 alternative
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 popul
like the reforms stipulated in the new Constitution, as well as the decrees, orders and circulars issued to implement th
should be recalled, as hereinbefore stated, that all these reforms were the subject of discussion both in the committee
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 thereo
the media of information before the proclamation of martial law on September 21, 1972. This is the reason why the C
Convention, after spending close to P30 million during the period from June 1, 1971 to November 29, 1972, found it e
accelerate their proceedings in November, 1972 because all views that could possibly be said on the proposed provis
1973 Constitution were already expressed and circulated. The 1973 Constitution may contain some unwise provision
objection to such unwise or vague provisions, as heretofore stated, refers to the wisdom of the aforesaid provisions, w
is not for this Court to decide; otherwise We will be substituting Our judgment for the judgment of the Constitutional C
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 w
legislative powers, is sustained by the ruling in the 1949 case of Kuroda vs. Jalandoni, et al. (83 Phil. 171, 177-178) w
reiterates the 1945 case of Yamashita vs. Styer (75 Phil. 563, 571-72). The trial of General Kuroda was after the surr
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 Preside
Philippines has acted in conformity with the generally accepted principles and policies of inter
which are part of our Constitution.

The promulgation of said executive order is an exercise by the President of his powers as Com
Chief of all our armed forces, as upheld by this Court in the case of Yamashita vs. Styver (L-1
Gaz., 664) when we said —

"War is not ended simply because hostilities have ceased. After cessation of a
hostilities, incidents of war may remain pending which should be disposed of a
war. "An important incident to a conduct of war is the adoption measures by th
command not only to repel and defeat the enemies but to seize and subject to
measures those enemies who in their attempt to thwart or impede our military
violated the law of war." (Ex parte Quirin, 317 U.S., 1; 63 Sup. Ct., 2.) Indeed,
 to create a military commission for the trial and punishment of war criminals is
of waging war. And, in the language of a writer, a military commission "has jur
long as the technical state of war continues. This includes the period of an arm
military occupation, up to the effective date of treaty of peace, and may extend
treaty agreement." (Cowles, Trial of War Criminals by Military Tribunals, Amer
Association Journal, June, 1944).

Consequently, the President as Commander-in-Chief is fully empowered to consummate this

aspect of war, namely the trial and punishment of war criminals, through the issuance and enf
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 conc
opinion in Duncan vs. Kahanamoku (327 U.S. 304 [1946]), he defined martial law as "the exercise of the power which
the executive branch of the government to preserve order and insure the public safety in times of emergency, when o
branches of the government are unable to function, or their functioning would itself threaten the public safety." (Emph
supplied). There is an implied recognition in the aforesaid definition of martial law that even in places where the court
function, such operation of the courts may be affected by martial law should their "functioning ... threaten the public s
possible that the courts, in asserting their authority to pass upon questions which may adversely affect the conduct of
campaign against rebels, secessionists, dissidents as well as subversives, martial law may restrict such judicial funct
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 dictatorsh
no other purposes than the preservation of the independence of the state, the maintenance of
constitutional order, and the defense of the political and social liberties of the people. It is impo
recognize the true and limited ends of any practical application of the principle of constitutiona
dictatorship. Perhaps the matter may be most clearly stated in this way: the government of a f
proceeding on its way and meeting the usual problems of peace and normal times within the l
framework of its established constitutional order. The functions of government are parceled ou
number of mutually independent offices and institutions; the power to exercise those functions
circumscribed by well-established laws, customs, and constitutional prescriptions; and the peo
whom this government was instituted are in possession of a lengthy catalogue of economic, p
social rights which their leaders recognize as inherent and inalienable. A severe crisis arises —
country is invaded by a hostile power, or a dissident segment of the citizenry revolts, or the im
world-wide depression threatens to bring the nation's economy in ruins. The government mee
by assuming more powers and respecting fewer rights. The result is a regime which can act a
and even dictatorially in the swift adaption of measures designed to save the state and its peo
destructive effects of the particular crisis. And the narrow duty to be pursued by this strong go
this constitutional dictatorship? Simply this and nothing more: to end the crisis and restore no
The government assumes no power and abridges no right unless plainly indispensable to that
extends no further in time than the attainment of that end; and it makes no alteration in the po
and economic structure of the nation which cannot be eradicated with the restoration of norma
short, the aim of constitutional dictatorship is the complete restoration of the status quo ante b
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 t
all institutions of government, and the principle of constitutional dictatorship remains eternally
matter how often and seriously it may have been violated in practice. (Constitutional Dictators
ed., by Clinton L. Rossiter, p. 7; emphasis supplied.)

Finally, Rossiter expressly recognizes that during martial law, the Chief Executive exercises legislative power, whethe
temporary or permanent character, thus:

The measures adopted in the prosecution of a constitutional dictatorship should never be perm
character or effect. Emergency powers are strictly conditioned by their purpose and this purpo
restoration of normal conditions. The actions directed to this end should therefore be provision
example, measures of a legislative nature which work a lasting change in the structure of the
constitute permanent derogations from existing law should not be adopted under an emergen
act, at least not without the positively registered approval of the legislature. Permanent laws, w
adopted in regular or irregular times, are for parliaments to enact. By this same token, the dec
sentences of extraordinary courts should be reviewed by the regular courts after the terminatio
crisis.

But what if a radical act of permanent character, one working lasting changes in the political a
fabric, is indispensable to the successful prosecution of the particular constitutional dictatorsh
answer can be: it must be resolutely taken and openly acknowledged. President Lincoln found
necessary to proceed to the revolutionary step of emancipation in aid of his conservative purp
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
the positive approval of the people or of their representatives in the legislature. (P. 303, emph
supplied).

From the foregoing citations, under martial law occasioned by severe crisis generated by revolution, insurrection or e
depression or dislocation, the government exercises more powers and respects fewer rights in order "to end the crisis
restore normal times." The government can assume additional powers indispensable to the attainment of that end —
complete restoration of peace. In our particular case, eradication of the causes that incited rebellion and subversion a
secession, is the sine qua non to the complete restoration of normalcy. Exercise of legislative power by the President
Commander in Chief, upon his proclamation of martial law, is justified because, as he professes, it is directed towards
institution of radical reforms essential to the elimination of the causes of rebellious, insurgent or subversive conspirac
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 th
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?" T
dilemma that vexed President Lincoln during the American Civil War, when without express authority in the Constituti
laws of the United States, he suspended one basic human freedom — the privilege of the writ of habeas corpus — in
preserve with permanence the American Union, the Federal Constitution of the United States and all the civil liberties
American people. This is the same dilemma that presently confronts the Chief Executive of the Republic of the Philipp
more than the Courts and Congress, must, by express constitutional mandate, secure the safety of our Republic and
as well as lives of the people against open rebellion, insidious subversion secession. The Chief Executive announced
that in choosing to proclaim martial law, the power expressly vested in him by the 1935 Constitution (Sec. 10[2], Art. V
Constitution) to insure our national and individual survival in peace and freedom, he is in effect waging a peaceful, de
revolution from the center against the violent revolution and subversion being mounted by the economic oligarchs of
right, who resist reforms to maintain their economic hegemony, and the communist rebels a Maoist oriented secessio
extreme left who demand swift institution of reforms. In the exercise of his constitutional and statutory powers, to save
and to protect the citizenry against actual and threatened assaults from insurgents, secessionists and subversives, do
concepts and principles, no matter how revered they may be by jurisprudence and time, should not be regarded as p
commands; otherwise the dead hand of the past will regulate and control the security and happiness of the living pres
contrary view would be to deny the self-evident proposition that constitutions and laws are mere instruments for the w
peace, security and prosperity of the country and its citizenry. The law as a means of social control is not static but dy
Paraphrasing Mr. Justice Frankfurter, the Constitution is neither a printed finality nor the imprisonment of the past, bu
enfolding of the future. In the vein of Mr. Justice Holmes, the meaning of the words of the Constitution is not to be det
merely opening a dictionary. Its terms must be construed in the context of the realities in the life of a nation it is intend
Because experience may teach one generation to doubt the validity and efficacy of the concepts embodied in the exis
Constitution and persuade another generation to abandon them entirely, heed should be paid to the wise counsel of s
learned jurists that in the resolution of constitutional questions — like those posed before Us — the blending of idealis
practical wisdom or progressive legal realism should be applied (see Alexander M. Bickel, the Supreme Court and the
Progress, 1970 ed., pp. 19-21). To Justice Frankfurter, law is "a vital agency for human betterment" and constitutiona
applied politics using the word in its noble sense." (Frankfurter, Law and Politics, 1939 ed., pp. 3 & 6; emphasis supp
Brandeis gave utterance to the truth that "Our Constitution is not a straight jacket. It is a living organism. As such, it is
growth — or expansion and adaptation to new conditions. Growth implies changes, political, economic and social." (B
Papers, Harvard Law School; emphasis supplied). Harvard Professor Thomas Reed Powell emphasizes "practical wi
"the logic of constitutional law is the common sense of the Supreme Court." (Powell, the Validity of State Legislation,
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 o
well as man-made institutions are not immutable. Civilized men organize themselves into a State only for the purpose
their supreme interest — their welfare. To achieve such end, they created an agency known as the government. From
savage era thru ancient times, the Middle Ages, the Dark Ages and the Renaissance to this era of sophisticated elect
nuclear weaponry, states and governments have mutated in their search for the magic instrument for their well-being
and error then as it is still now. Political philosophies and constitutional concepts, forms and kinds of government, had
adopted, overturned, discarded, re-adopted or modified to suit the needs of a given society at a particular given epoc
true of constitutions and laws because they are not "the infallible instruments of a manifest destiny." No matter how w
law to be stable, it cannot stand still. As Mr. Justice Holmes aptly observed, every "constitution is an experiment as a
experiment," (Abrahms vs. U.S., 250 US 616, 631) for "the life of the law is not logic, but experience." In the pontifica
Mr. Justice Benjamin Nathan Cardozo, "so long as society is inconstant, there can be no constancy in law," and "ther
change whether we will it or not." As Justice Jose P. Laurel was wont to say, "We cannot, Canute-like, command the
progress to halt."

Thus, political scientists and jurists no longer exalt with vehemence a "government that governs least." Adherents the
poetic dictum of Alexander Pope: "For forms of government let fools contest; whatever is best administered is best." (
Pope, 1931 Cambridge ed., p. 750). In between, the shades vary from direct democracy, representative democracy,
states, socialist democracy, mitigated socialism, to outright communism which degenerated in some countries into to
or authoritarianism.

Hence, even the scholar, who advances academic opinions unrelated to factual situations in the seclusion of his ivory
must perforce submit to the inexorable law of change in his views, concepts, methods and techniques when brought
actual arena of conflict as a public functionary — face to face with the practical problems of state, government and pu
administration. And so it is that some learned jurists, in the resolution of constitutional issues that immediately affect t
liberties and fortunes of the citizens and the nation, recommend the blending of idealism with practical wisdom which
thinkers prefer to identify as progressive legal realism. The national leader, who wields the powers of government, mu
to innovate if he must govern effectively to serve the supreme interests of the people. This is especially true in times
crises where the need for a leader with vision, imagination, capacity for decision and courageous action is greater, to
the unity of people, to promote their well-being, and to insure the safety and stability of the Republic. When the metho
rebellion and subversion have become covert, subtle and insidious, there should be a recognition of the correspondin
on the part of the Commander-in-Chief of the Armed Forces to utilize all the available techniques to suppress the per
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 forme
of the United States, who personifies the progressive liberal, spoke the truth when he said that some men "ascribe m
preceding age a wisdom more than human, and suppose what they did to be beyond amendment. ... But I know also
and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more
as new discoveries are made, new truths disclosed and manners and opinions change, with the change of circumstan
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 adeq
fairly appraised within the present ambience, charged as it is with so much tension and emotion, if not partisan passio
analytical, objective historians will write the final verdict in the same way that they pronounced judgment on Presiden
Lincoln who suspended the privilege of the writ of habeas corpus without any constitutional or statutory authority ther
President Franklin Delano Roosevelt who approved the proclamation of martial law in 1941 by the governor of Hawai
the Hawaiian territory. President Lincoln not only emancipated the Negro slaves in America, but also saved the Fede
of the United States from disintegration by his suspension of the privilege of the writ of habeas corpus, which power t
American Constitution and Congress did not then expressly vest in him. No one can deny that the successful defense
preservation of the territorial integrity of the United States was due in part, if not to a great extent, to the proclamation
law over the territory of Hawaii — main bastion of the outer periphery or the outpost of the American defense perimet
Pacific — which protected the United States mainland not only from actual invasion but also from aerial or naval bom
by the enemy. Parenthetically, the impartial observer cannot accurately conclude that the American Supreme Court a
courage in its decision in the cases of Ex parte Milligan and Duncan vs. Kahanamoku (filed on May 10, 1865 argued
to 13, 1866, decided on April 3, 1866, and opinion delivered on December 17, 1866) after the lifting of the proclamatio
suspending the privilege of the writ of habeas corpus, long after the Civil War and the Second World ended respectiv
9 or 26, 18-65 (Vol. 1, Encyclopedia Britannica, 1969 ed., pp. 730, 742) and on September 2, 1945 (Vol. 23, Encyclop
Britannica, 1969 ed., p. 799). Was the delay on the part of the American Supreme Court in deciding these cases aga
position of the United States President — in suspending the privilege of the writ of habeas corpus in one case and ap
proclamation of martial law in the other — deliberate as an act of judicial statesmanship and recognition on their part
adverse court ruling during the period of such a grave crisis might jeopardize the survival of the Federal Republic of t
States in its life-and-death struggle against an organized and well armed rebellion within its own borders and against
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
Philippines even on the assumption that the 1935 Constitution still subsists; because pursuant to the doctrine of sepa
powers under the 1935 Constitution, the processes of this Court cannot legally reach a coordinate branch of the gove
its head. This is a problem that is addressed to the Senate itself for resolution; for it is purely an internal problem of th
a majority of the senators can convene, they can elect a new Senate President and a new Senate President Pro Tem
they have no quorum, those present can order the arrest of the absent members (Sec. 10[2], Art. VI, 1935 Constitutio
fails, then there is no remedy except an appeal to the people. The dictum ubi jus, ubi remedium, is not absolute and c
does not justify the invocation of the power of this Court to compel action on the part of a co-equal body or its leaders
was emphasized with sufficient clarity by this Court in the 1949 case of Avelino vs. Cuenco (83 Phil. 17, 22,24), with w
distinguished counsels for the petitioners in L-36164 and L-36165 are familiar. We stress that the doctrine of separati
powers and the political nature of the controversy such as this, preclude the interposition of the Judiciary to nullify an
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 mo
a magic formula which should be disregarded by this Court, forgetting that this magic formula constitutes an essentia
constitutional fabric of our government, which, together with other basic constitutional precepts, conserves the unity o
people, strengthens the structure of the government and assures the continued stability of the country against the for
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 depen
place of session; for the Constitution does not designate the place of such a meeting. Section 9 of Article VI imposes
Congress to convene in regular session every year on the 4th Monday of January, unless a different date is fixed by l
special session called by the President. As former Senator Arturo Tolentino, counsel for respondents Puyat and Roy
stated, the duty to convene is addressed to all members of Congress, not merely to its presiding officers. The fact tha
of Congress are padlocked, will not prevent the senators — especially the petitioners in L-36165 — if they are minded
from meeting elsewhere — at the Sunken Gardens, at the Luneta Independence Grandstand, in any of the big hotels
in their own houses, or at the Araneta Coliseum, which is owned by the father-in-law of petitioner Gerardo Roxas in L

However, a session by the Senate alone would be purely an exercise in futility, for it cannot validly meet without the lo
(Sec. 10[5], Art. VI, 1935 Constitution). Hence, this petition by five former senators for mandamus in L-36165 is usele

And as pointed out by former Senator Arturo Tolentino, counsel for respondents Puyat and Roy, mandamus will lie on
a law imposing on the respondents the duty to convene the body. The rule imposing such a duty invoked by petitione
36165 is purely an internal rule of the Senate; it is not a law because it is not enacted by both Houses and approved
President.

The Constitutional provision on the convening of Congress, is addressed to the individual members of the legislative
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 Con
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
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 unco
The proposed Constitution is an act of the Constitutional Convention, which is co-equal and coordinate with as well a
independent of either Congress or the Chief Executive. Hence, its final act, the 1973 Constitution, must have the sam
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
of Article VIII of the 1935 Constitution in relation to Section 9 of the Judiciary Act or Republic Act No. 296, as amende
be ten (10) under Section 2(2) of Article X of the 1973 Constitution. Should the required vote of eight (8) or ten (10), a
may be, for the declaration of invalidity or unconstitutionality be not achieved, the 1973 Constitution must be deemed
in force and operative.

ARTICLE OF FAITH

WE yield to no man as devotees of human rights and civil liberties. Like Thomas Jefferson, We swear "eternal hostilit
any form of tyranny over the mind of man" as well as towards bigotry and intolerance, which are anathema to a free s
human rights and civil liberties under a democratic or republican state are never absolute and never immune to restri
essential to the common weal. A civilized society cannot long endure without peace and order, the maintenance of w
primary function of the government. Neither can civilized society survive without the natural right to defend itself again
dangers that may destroy its life, whether in the form of invasion from without or rebellion and subversion from within.
first law of nature and ranks second to none in the hierarchy of all values, whether human or governmental. Every citi
prides himself in being a member or a civilized society under an established government, impliedly submits to certain
on his freedom for the general welfare and the preservation of the State itself, even as he reserves to himself certain
constitute limitations on the powers of government. But when there is an inevitable clash between an exertion of gove
authority and the assertion of individual freedom, the exercise of which freedom imperils the State and the civilized so
which the individual belongs, there can be no alternative but to submit to the superior right of the government to defen
preserve the State. In the language of Mr. Justice Holmes — often invoked by herein petitioners — "when it comes to
involving its (state life, the ordinary rights of individuals must yield to what he (the President) deems the necessities o
moment. Public danger warrants the substitution of executive process for judicial process. (See Keely vs. Sanders, 9
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 ob
although it was disputed, that the same is true of temporary detention to prevent apprehended harm." (Moyer vs. Pea
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 sho
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,
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
institution of the needed reforms. The people have been victimized by such bargaining and dilly-dallying. To vert a ter
blood bath and the breakdown of the Republic, the incumbent President proclaimed martial law to save the Republic
overrun by communists, secessionists and rebels by effecting the desired reforms in order to eradicate the evils that p
society, which evils have been employed by the communists, the rebels and secessionists to exhort the citizenry to ri
the government. By eliminating the evils, the enemies of the Republic will be decimated. How many of the petitioners
counsels have been utilizing the rebels, secessionists and communists for their own personal or political purposes an
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 o
they should be willing to give the incumbent Chief Executive a chance to implement the desired reforms. The incumb
President assured the nation that he will govern within the framework of the Constitution and if at any time, before no
restored, the people thru their Citizens' Assemblies, cease to believe in his leadership, he will step down voluntarily fr
Presidency. But if, as apprehended by the petitioners, he abuses and brutalizes the people, then to the battlements w
to man the ramparts against tyranny. This, it is believed, he knows only too well; because he is aware that he who rid
will eventually end inside the tiger's stomach. He who toys with revolution will be swallowed by that same revolution.
replete with examples of libertarians who turned tyrants and were burned at stake or beheaded or hanged or guillotin
very people whom they at first championed and later deceived. The most bloody of such mass executions by the wra
wronged people, was the decapitation by guillotine of about 15,000 Frenchmen including the leaders of the French re
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 sign
November 30, 1972; in L-36165, to compel respondents Gil Puyat and Jose J. Roy, President and President Pro-Tem
respectively, of the Senate under the 1935 Constitution, to convene the Senate in regular session which should have
January 22, 1973; to nullify Proclamation No. 1102 of the President, issued on January 17, 1973, which declared the
of the Constitution on November 30, 1972, by the Filipino people, through the barangays or Citizens Assemblies esta
under Presidential Decree No. 86 issued on December 31, 1972, which were empowered under Presidential Decree
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 Ma
September 21, 1972.

2. The Convention was not empowered to incorporate certain provisions in the 1972 Constitution because they are hi
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 th
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 o

The petitions were not given due course immediately but were referred to the Solicitor General as counsel for the res
comment, with three members of the Court, including the undersigned, voting to dismiss them outright. The comment
considered motions to dismiss which were set for hearing and extensively argued. Thereafter both parties submitted
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 an
judicial determination?

2. Was the new Constitution of November 30, 1972, ratified in accordance with the amending process prescribed by A
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 main
Court should abstain from assuming jurisdiction, but, instead, as an act of judicial statesmanship, should dismiss the
resolving whether or not the question presented is political, joint discussion of issues Nos. 1, 3 and 4 is necessary so
at a logical conclusion. For after the acceptance of a new Constitution and acquiescence therein by the people by pu
practical operation, any question regarding its validity should be foreclosed and all debates on whether it was duly or
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 a
forth in the majority and dissenting opinions in the Plebiscite cases decided on January 22, 1973, and need not be re
here.
Petitioners seek to set at naught Proclamation No. 1102 and Presidential Decrees Nos. 86 and 86-A, claiming that th
of the new Constitution pursuant to the said decrees is invalid and of no effect. Presidential Decree No. 86 organized
barangays or Citizens Assemblies composed of all citizens at least fifteen years of age, and through these assemblie
proposed 1972 Constitution was submitted to the people for ratification. Proclamation No. 1102 of the President anno
declared the result of the referendum or plebiscite conducted through the Citizens Assemblies, and that 14,976,561 m
thereof voted for the ratification of the new Constitution and 743,869 voted against it. Petitioners assail these two acts
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 sou
invalidated is the new Constitution itself — the very framework of the present Government since January 17, 1973. T
obvious. The Presidential decrees set up the means for the ratification and acceptance of the new Constitution and P
No. 1102 simply announced the result of the referendum or plebiscite by the people through the Citizens Assemblies.
Government under the new Constitution has been running on its tracks normally and apparently without obstruction in
organized resistance capable of jeopardizing its existence and disrupting its operation. Ultimately the issue is whethe
Constitution may be set aside by this Court. But has it the power and authority to assume such a stupendous task wh
result of such invalidation would be to subject this nation to divisive controversies that may totally destroy the social o
the Government under the new Constitution has been admirably protecting and promoting under Martial Law? That th
Constitution has taken deep root and the people are happy and contended with it is a living reality which the most art
critics of the new order cannot deny. 95 out of 108 members of the House of Representatives have opted to serve in
National Assembly provided for under the new Constitution. 15 out of 24 Senators have done likewise. The members
Congress did not meet anymore last January 22, 1973, not because they were really prevented from so doing but be
serious effort on their parts to assert their offices under the 1935 Constitution. In brief, the Legislative Department und
Constitution is a thing of the past. The Executive Department has been fully reorganized; the appointments of key exe
officers including those of the Armed Forces were extended and they took an oath to support and defend the new Co
The courts, except the Supreme Court by reason of these cases, have administered justice under the new constitutio
government offices have dealt with the public and performed their functions according to the new Constitution and law
promulgated thereunder.

If the real purpose of the petitions is to set aside the new Constitution, how can this Court justify its assumption of juri
when no power has ... conferred upon it the jurisdiction to declare the Constitution or any part thereof null and void? I
height of absurdity and impudence for a court to wage open war against the organic act to which it owes its existence
situation in which this Court finds itself does not permit it to pass upon the question whether or not the new Constituti
entered into force and has superseded the 1935 Constitution. If it declares that the present Constitution has not been
ratified, it has to uphold the 1935 Constitution as still the prevailing organic law. The result would be too anomalous to
for then this Court would have to declare that it is governed by one Constitution or the 1935 Constitution, and the legi
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
no other choice but to uphold the new Constitution as against any other one? In the circumstances it would be bereft
attributes as the matter would then be not meet for judicial determination, but one addressed to the sovereign power
people who have already spoken and delivered their mandate by accepting the fundamental law on which the govern
Republic is now functioning. To deny that the new Constitution has been accepted and actually is in operation would
the face of reason and pounding one's bare head against a veritable stone wall or a heavily reinforced concrete, or si
"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 p
thereto by the organization of the government provided therein and observance of its prescriptions by public officers c
thereunder, is indicative of approval. Courts should be slow in nullifying a Constitution claimed to have been adopted
accordance with constitutional or statutory directives [Miller vs. Johnson, 92 Ky. 589; 189 S.W. 522; Taylor vs Commo
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 th
law. Great interests have already arisen under it; important rights exist by virtue of it; persons
convicted of the highest crimes known to the law, according to its provisions; the political pow
government has in many ways recognized it; and, under such circumstances, it is our duty to
regard it as a valid constitution, and now the organic law of our state. We need not consider th
the amendments made after the convention reassembled. If the making of them was in exces
power, yet as the entire instrument has been recognized as valid in the manner suggested, it
equally an abuse of power by the judiciary, and violative of the rights of the people, — who ca
properly should remedy the matter, if not to their liking, — if it were to declare the instrument o
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 n
constitution, and not an amendment, because the judicial power presupposes an established
and if the authority of that government is annulled and overthrown, the power of its courts is a
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 ce
court, and it would be incapable of pronouncing a judicial decision upon the question before it
decides at all, it must necessarily affirm the existence of the government under which it exerci
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 enforcin
execution, and appointing judges to expound and administer them. The acceptance of the jud
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
if a State court should enter upon the inquiry proposed in this case, and should come to concl
the government under which it acted had been put aside and displaced by an opposing gover
would cease to be a court, and be incapable of pronouncing a judicial decision upon the ques
undertook to try. If it decides at all as a court, it necessarily affirms the existence and authority
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 Consti
no state with which we maintain diplomatic relations has withdrawn its recognition of our government. (For particulars
executive acts done under the new Constitution, see pages 22-25 of the Comments of the Solicitor General, dated Fe
1973.)

Certainly the invalidation of Proclamation No. 1102 and Presidential Decrees Nos. 86 and 86-A by this Court would s
plain political meddling which is described by the United States Supreme Court as "entering a political thicket" in Cole
Green, 328 U.S. p. 549. At this juncture it would be the part of wisdom for this Court to adopt the proper attitude towa
upheavals and realize that the question before Us is political and not fit for judicial determination. For a political quest
entrusted to the people for judgment in their sovereign capacity (Tañada vs. Cuenco, G.R. No. L-10520, Feb. 28,196
1101), or to a co-equal and coordinate branch of the Government (Vera vs. Arellano, 77 Phil. 192; Mabanag vs. Lope
Phil. 1; Alejandrino vs. Quezon, 46 Phil. 35; Cabili vs. Francisco, G.R. No. 4638, May 8, 1931). A case involves a poli
question when there would be "the impossibility of undertaking independent resolutions without expressing a lack of r
to coordinate branches of government", or when there is "the potentiality of embarrassment from multifarious pronoun
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
in that vast range of legal problems often strongly entangled in popular feeling on which this Court must pronounce",
harken to the following admonition of Justice Frankfurter in his dissent in Baker vs. Carr, 369 U.S. 186; 82 S. Ct. 691;
663:

The Court's authority — possessed neither of the purse nor the sword — ultimately rests on s
public confidence in its moral sanction. Such feeling must be nourished by the Court's comple
detachment, in fact and appearance, from political entanglements and abstention from injectin
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 n
plenitude of its efficacy and vigor. We are now living under its aegis and protection and only the cynics will deny this.
should not in the least attempt to act as a super-legislature or a super-board of canvassers and sow confusion and di
among our people by pontificating there was no valid ratification of the new Constitution. The sober realization of its p
and delicate function and its consciousness of the limitations on its competence, especially situations like this, are mo
keeping with the preservation of our democratic tradition than the blatant declamations of those who wish the Court to
their brand of activism and would not mind plunging it into the whirlpool of passion and emotion in an effort to capture
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 Constit
Convention of 1971 had been ratified in accordance with the provisions of Article XV of the 1935 Constitution. In the p
cases, which were decided by this Court on January 22, 1973 , I held the view that this issue could be properly resolv
1

Court, and that it was in the public interest that this Court should declare then whether or not the proposed Constitutio
validly ratified. The majority of this Court, however, was of the view that the issue was not squarely raised in those ca
the Court, as a body, did make any categorical pronouncement on the question of whether or not the Constitution pro
the 1971 Convention was validly ratified. I was the only one who expressed the opinion that the proposed Constitutio
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 Const
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 mention
that issue is a political question that cannot be decided by this Court. This contention by the Solicitor General is unten
political question relates to "those questions which under the Constitution are to be decided by the people in their sov
capacity or in regard to which full discretionary authority has been delegated to the legislative, or to the executive, bra
government.  The courts have the power to determine whether the acts of the executive are authorized by the Constit
2

the laws whenever they are brought before the court in a judicial proceeding. The judicial department of the governm
exercises a sort of controlling, or rather restraining, power over the two other departments of the government. Each o
departments, within its proper constitutional sphere, acts independently of the other, and restraint is only placed on o
department when that sphere is actually transcended. While a court may not restrain the executive from committing a
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
declare a law enacted by the legislature to be unconstitutional.  It is a settled doctrine that every officer under a const
3

government must act according to law and subject to its restrictions, and every departure therefrom, or disregard ther
subject him to the restraining and controlling power of the people, acting through the agency of the judiciary. It must b
remembered that the people act through the courts, as well as through the executive or the legislature. One departme
representative as the other, and judiciary is the department which is charged with the special duty of determining the
which the law places upon all official actions  . In the case of Gonzales v. Commission on Elections , this Court ruled
4 5
issue as to whether or not a resolution of Congress acting as a constituent assembly violates the Constitution is not a
question and is therefore subject to judicial review. In the case of Avelino v. Cuenco , this Court held that the exceptio
6

that courts will not interfere with a political question affecting another department is when such political question invol
issue as to the construction and interpretation of the provision of the constitution. And so, it has been held that the qu
whether a constitution shall be amended or not is a political question which is not in the power of the court to decide,
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
United States — where, after all, our constitutional system has been patterned to a large extent — made me arrive at
considered view that it is in the power of this Court, as the ultimate interpreter of the Constitution, to determine the va
proposal, the submission, and the ratification of any change in the Constitution. Ratification or non-ratification of a con
amendment is a vital element in the procedure to amend the constitution, and I believe that the Court can inquire into
on, the question of whether or not an amendment to the constitution, as in the present cases, has been ratified in acc
with the requirements prescribed in the Constitution that was amended. And so, in the cases now before Us, I believe
question of whether or not the Constitution proposed by the 1971 Constitutional Convention had been validly ratified
justiciable question.

The Chief Justice, in his opinion, has discussed lengthily the subject on whether or not, the cases, before Us involve
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 va
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 d
accordance with the provisions of Section 1, Article XV of the 1935 Constitution of the Philippi
reads:

"Section 1. The Congress in joint session assembled by a vote of three fourths

Members of the Senate and of the House of Representatives voting separately
propose amendments to the Constitution or call a convention for that purpose.
amendments shall be valid as part of this Constitution when approved by a ma
votes cast at an election at which the amendments are submitted to the people
ratification."

It is in consonance with the abovequoted provision of the 1935 Constitution that on March 16,
Congress of the Philippines Resolution No. 2 calling a convention to propose amendments to
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 c

part of the Constitution when approved by a majority of the votes cast in an ele
which they are submitted to the people for their ratification pursuant to Article X
Constitution.

It follows that from the very resolution of the Congress of the Philippines which called for the 1
Constitutional Convention, there was a clear mandate that the amendments proposed by the 1
Convention, in order to be valid and considered part of the Constitution, must be approved by
the votes cast in an election at which they are submitted to the people for the ratification as pr
the Constitution.

This Court, in the case of Tolentino vs. Commission Elections, L-35140, October 16, 1971 (41
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 Con
the Philippines. This Convention has not been called by the people directly as
of a revolutionary convention which drafts the first Constitution of an entirely n
government born of either a war of liberation from a mother country or of revol
against an existing government or of a bloodless seizure of power a la coup d'
such kind of conventions, it is absolutely true that the convention is completely
restraint and omnipotent all wise, and it as to such conventions that the remark
Delegate Manuel Roxas of the Constitutional Convention of 1934 quoted by S
Pelaez refer. No amount of rationalization can belie the fact that the current co
came into being only because it was called by a resolution of a joint session of
acting as a constituent assembly by authority of Section 1, Article XV of the pr
Constitution ... ."

xxx xxx xxx

"As to matters not related to its internal operation and the performance of its a
mission to propose amendments to the Constitution, the Convention and its of
members are all subject to all the provisions of the existing Constitution. Now
even as to its latter task of proposing amendments to the Constitution, it is sub
provisions of Section 1 of Article XV."

In Proclamation No. 1102, issued on January 17, 1973, the President of the Philippines certifie
result of the voting before the barangays (Citizens Assemblies) 14,976,561 members of the ba
voted for the adoption of the proposed Constitution, as against 743,869 who voted for its rejec
the basis of the overwhelming majority of the votes cast by the members of all the barangays
the Philippines, the President proclaimed that the Constitution proposed by the 1971 Convent
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
XV of the Constitution of 1935 were not complied with. It is not necessary that evidence be pro
before this Court to show that no elections were held in accordance with the provisions of the
Code. Proclamation No. 1102 unequivocally states that the proposed Constitution of 1972 wa
upon by the barangays. It is very clear, therefore, that the voting held in these barangays is no
election contemplated in the provisions of Section 1, Article XV, of the 1935 Constitution. The
contemplated in said constitutional provision is an election held in accordance with the provisi
election law, where only the qualified and registered voters of the country would cast their vote
official ballots prepared for the purpose are used, where the voters would prepare their ballots
inside the voting booths in the polling places established in the different election precincts thro
country, where the election is conducted by election inspectors duly appointed in accordance
election law, where the votes are canvassed and reported in a manner provided for in the elec
was this kind of election that was held on May 14, 1935, when the Constitution of 1935 was ra
April 30, 1937, when the amendment to the Constitution providing for Women's Suffrage was
June 18, 1940, when the 1940 Amendments to the Constitution were ratified; on March 11, 19
the Parity Amendment to the Constitution was ratified; and on November 14, 1967 when the a
to the Constitution to increase the number of Members of the House of Representatives and t
Members of Congress to run in the elections for Delegates to the Constitutional Convention of
rejected.
I cannot see any valid reason why the practice or procedure in the past, in implementing the c
provision requiring the holding, of an election to ratify or reject an amendment to the Constitut
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
1972 Constitution thru a voting in the barangays and make said result the basis for proclaimin
ratification of the proposed constitution. It is very clear, to me, that Proclamation No. 1102 was
complete disregard or in violation, of the provisions of Section 1 of Article X of the 1935 Const

Proclamation No. 1102 mentions, furthermore, that on the question as to whether or not the p
still like a plebiscite to be called to ratify the new Constitution, 14,298,814 members of the bar
answered that there was no need for a plebiscite but that the vote of the barangays should be
a vote in a plebiscite. It would thus appear that the barangays assumed the power to determin
plebiscite as ordained in the Constitution be held or not. Indeed, the provision of Section 1, Ar
the Constitution was completely disregarded.

The affirmative votes cast in the barangays are not the votes contemplated in Section 1 of Art
the 1935 Constitution. The votes contemplated in said constitutional provision are votes obtain
the election processes as provided by law.

"An election is the embodiment of the popular will, the expression of the sover
of the people. In common parlance, an election is the act of casting and receiv
ballots, counting them, and making the return." (Hontiveros vs. Altavas, 24 Ph

"Election" implies a choice by an electoral body at the time and substantially in

and with the safeguards provided by law with respect to some question or issu
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 p

matters submitted to them — the election of officers, national, state, county, to
the passing on various other questions submitted for their determination." (29
citing Iowa-Illinois Gas & Elec. Co. v. City of Bettendorf, 41 N.W. 2d 1, 5, 241 I

"Election" is expression of choice by voters of body politic. (Ginsburg v. Giles,

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 req
as have been set by the legislature." (People ex rel. Rago v. Lipsky, 63 N.E. 2
III. App. 63; Rothfels v. Southworth, 356 P. 2d 612, 11 Utah 2d 169 in 29 C.J.S
(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 ple
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 v
regular or special election or in any plebiscite, he must be registered in the permanent list of v
city, municipality or municipal district in which he resides: Provided, that no person shall regist
than once without first applying for cancellation of his previous registration." (Emphasis suppli
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 ass
are 15 years of age or over. Under the provision of Section I of Article V of the 1935 Constituti
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 ins
done by the raising of hands by the persons indiscriminately gathered to participate in the voti
even children below 15 years of age were included. This is a matter of common observation, o
common knowledge, which the Court may take judicial notice of. To consider the votes in the
as expressive of the popular will and use them as the basis in declaring whether a Constitutio
or rejected is to resort to a voting by demonstrations, which is would mean the rule of the crow
only one degree higher than the rule by the mob. Certainly, so important a question as to whe
Constitution, which is the supreme law of the land, should be ratified or not, must not be decid
simply gathering people and asking them to raise their hands in answer to the question of whe
vote for or against a proposed Constitution. The election as provided by law should be strictly
determining the will of the sovereign people in a democracy. In our Republic, the will of the pe
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
but the will of the people must be expressed in a manner as the law and the demands a well-o
society require. The rule of law must prevail even over the apparent will of the majority of the p
that will had not been expressed, or obtained, in accordance with the law. Under the rule of la
questions must be decided in accordance with the Constitution and the law. This is specially t
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 propose
Constitution of 1972 had been validly ratified, or not:

"When it is said that "the people" have the right to alter or amend the constituti
not be understood that term necessarily includes all the inhabitants of the state
question of the adoption or rejection of a proposed new constitution or constitu
amendment must be answered a vote, the determination of it rests with those
existing constitution, are accorded the right of suffrage. But the qualified electo
understood in this, as in many other cases, as representing those who have no
to participate in the ballot. If a constitution should be abrogated and a new one
by the whole mass of people in a state acting through representatives not chos
"people" in political sense of the term, but by the general body of the populace
movement would be extra-legal." (BIack's Constitutional Law, Second Edition,

"The theory of our political system is that the ultimate sovereignty is in the peo
whom springs all legitimate authority. The people of the Union created a nation
constitution, and conferred upon it powers of sovereignty on certain subjects, a
people of each State created a State government, to exercise the remaining p
sovereignty so far as they were disposed to allow them to be exercised at all. B
constitution which they establish, they not only tie up the hands of their official
but their own hands as well; and neither the officers of the State, nor the whole
an aggregate body, are at liberty to take action in opposition to this fundament
(Cooley's Constitutional Limitations, 8th Edition, Vol. I, p. 81 cited in Graham v
So. 2d. 761, 782).
 "The theory that a favorable vote by the electorate, however unanimous, on a
amend a constitution, may cure, render innocuous, all or any antecedent failur
observe commands of that Constitution in respect of the formulation or submis
proposed amendments thereto, does not prevail in Alabama, where the doctrin
stated theory was denied, in obvious effect, by the pronouncement 60 years a
wholesome constitutional principles in Collier v. Frierson, supra, as quoted in t
opinion, ante. The people themselves are bound by the Constitution; and, bein
are powerless, whatever their numbers, to change or thwart its mandates, exc
the peaceful means of a constitutional convention, or of an amendment accord
mode therein prescribed, or through the exertion of the original right of revoluti
Constitution may be set aside by revolution, but it can only be amended in the
provides," said Hobson, C.J., in McCreary v. Speer, 156 Ky. 783, 791, 162 S.W
(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 a
by the Constitution, is not sufficient to make a change in that instrument. Whet
proposed amendment has been legally adopted is a judicial question, for the c
uphold and enforce the Constitution as written until it is amended in the way w
provides for." Wood v. Tooker, 15 Mont. 8, 37 Pac 840, 25 L.R.A. 560; McCon
State, 106 Minn. 409, 119 N.W. 408; Oakland Paving Company v. Hilton, 69 C
Pac. 3; Utter v. Mosely, 16 Idaho 274, 100 Pac. 1958, 133 Am. St. Rep. 94, 18
723. (McCreary v. Speer, 162 S.W. 99, 104).

"Provisions of a constitution regulating its own amendment, ... are not merely d
are mandatory; and a strict observance of every substantial mandatory; and a
observance of every substantial requirement is essential to the validity of the p
amendment. These provisions are as binding on the people as on the legislatu
former are powerless by vote of acceptance to give legal sanction to an amend
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 r
the Court's action in declaring the proposed constitutional amendment void. Th
statement is grossly and manifestly inaccurate. If confusion and chaos should
not be due to the action of the Court but will be the result of the failure of the d
resolution to observe, follow and obey the plain essential provisions of the Con
Furthermore, to say that, the Court disregards its sworn duty to enforce the Co
chaos and confusion will result, is an inherently weak argument in favor of the
constitutionality of the proposed amendment. It is obvious that, if the Court we
countenance the violations of the sacramental provisions Constitution, those w
thereafter desire to violate it disregard its clear mandatory provisions would re
scheme of involving and confusing the affairs of the State then simply tell the C
was powerless to exercise one of its primary functions by rendering the proper
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
because the requirements of the law were not complied with. In the case of Monsale v. Nico, 8
Monsale and Nico were both candidates for the office of Municipal Mayor of Miagao, Iloilo, in t
of November 11, 1947. Monsale had duly filed his certificate of candidacy before the expiratio
period for the filing of the same. However, on October 10, 1947, after the period for the filing o
certificate of candidacy, Monsale withdrew his certificate of candidacy. But on November 7, 19
 attempted to revive his certificate of candidacy by withdrawing the withdrawal of certificate of c
The Commission on Elections, November 8, 1947, ruled that Monsale could no longer be a ca
Monsale nevertheless proceeded with his candidacy. The boards of inspectors in Miagao, how
not count the votes cast for Monsale upon the ground that the votes cast for him were stray vo
because he was considered as having no certificate of candidacy. On the other hand, the boa
inspectors credited Nico with 2,291 votes, and Nico was proclaimed elected. Monsale filed a p
against the election of Nico in the Court of First Instance of Iloilo. In the count of the ballots du
proceedings in the trial court, it appeared that Monsale had obtained 2,877 votes while Nico o
2,276 votes, or a margin of 601 votes in favor of Monsale. The Court of First Instance of Iloilo
election protest in favor of Monsale. Upon appeal by Nico, this Court reversed the decision of
court. This Court declared that because Monsale withdrew his certificate of candidacy, his atte
revive it by withdrawing his withdrawal of his certificate of candidacy did not restore the effecti
his certificate of candidacy, and this Court declared Nico the winner in spite of the fact that Mo
obtained more votes than he.

We have cited this Monsale case to show that the will of the majority of the voters would not b
effect, as declared by this Court, if certain legal requirements have not been complied with in
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 (
is not the election that is provided for in the 1935 Constitution for the ratification of the amendm
Constitution, the affirmative votes cast in those assemblies can not be made the basis for dec
ratification of the proposed 1972 Constitution, in spite of the fact that it was reported that 14,9
members of the citizens assemblies voted for the adoption as against 743,869 for the rejection
the votes thus obtained were not in accordance with the provisions of Section 1 of Article XV o
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
as provided in Presidential Decree No. 73, is that there is no freedom on the part of the people
their right of choice because of the existence of martial law in our country. The same ground h
regards to the voting of the barangays on January 10 to 15, 1973. More so, because by Gene
No. 20, issued on January 7, 1973, the President of the Philippines ordered "that the provision
3 of Presidential Decree No. 73 in so far as they allow free public discussion of the proposed c
as well as my order of December 17, 1972 temporarily suspending the effects of Proclamation
for the purpose of free and open debate on the proposed constitution, be suspended in the me
is, therefore, my view that voting in the barangays on January 10, 1973 was not free, and so t
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 s
invalid, and should not be given effect. The Constitution of 1972 proposed by the 1971 Consti
Convention should be considered as not yet ratified by the people of this Republic, and so it s
given force and effect.

It is urged by the Solicitor General, however, that the voting in the citizens assemblies was a substantial compliance w
provisions of Article XV of the 1935 Constitution. The Solicitor General maintains that the primary thrust of the provisi
XV of the 1935 Constitution is that "to be valid, amendments must gain the approval of the majority recognition of the
postulate that sovereign resides in the people." It is not disputed that in a democratic sovereignty resides in the peopl
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, in Section 2 of Article VII of the 1935 Constitution, it is provided
8

President shall hold his office during a term of four years and, together with the Vice-President chosen for the same t
be elected by direct vote of the people..." Certainly under that constitutional provision, the "people" who elect directly
President and the Vice-President are no other than the persons who, under the provisions of the same Constitution, a
the right to vote. In like manner the provision in Section 1 of Article II of the 1935 Constitution which says "Sovereignt
the people and all government authority emanates from them", the "people" who exercise the sovereign power are no
the persons who have the right to vote under the Constitution. In the case of Garchitorena vs. Crescini , this Court, sp
9

through Mr. Justice Johnson, said, "In democracies, the people, combined, represent the sovereign power of the Stat
sovereign authority is expressed through the ballot, of the qualified voters, in duly appointed elections held from time
means of which they choose their officials for definite fixed periods, and to whom they entrust, for the time being, as t
representatives, the exercise of the powers of government." In the case of Moya v. Del Fierro,   this Court, speaking
10

Justice Laurel, said, "As long as popular government is an end to be achieved and safeguarded, suffrage, whatever m
modality and form devised, must continue to be the means by which the great reservoir of power must be emptied int
receptacular agencies wrought by the people through their Constitution in the interest of good government and the co
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."
case of Abanil v. Justice of the Peace of Bacolod,   this Court said: "In the scheme of our present republican governm
11

the people are allowed to have a voice therein through the instrumentality of suffrage to be availed of by those posse
certain prescribed qualifications. The people, in clothing a citizen with the elective franchise for the purpose of securin
consistent and perpetual administration of the government they ordain, charge him with the performance of a duty in
of a public trust, and in that respect constitute him a representative of the whole people. This duty requires that the pr
bestowed exclusively for the benefit of the citizen or class of citizens professing it, but in good faith and with an intellig
the general benefit and welfare of the state. (U.S. v. Cruikshauk, 92 U.S. 588)..." There is no question, therefore, that
talk of sovereign people, what is meant are the people who act through the duly qualified and registered voters who v
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 ter
as used in the Provisions of Section 4 of the Philippine Independence Act of the Congress of the United States, popu
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
provisions of this act, it shall be submitted to the people of the Philippine Islands for their ratifi
rejection at an election to he held within months after the date of such certification, on a date t
by the Philippine Legislature at which election, the qualified voters of the Philippine Islands sh
opportunity to vote directly or against the proposed constitution and ordinances append there
election shall be held in such manner as may prescribed by the Philippine Legislature to which
of the election shall be made. The Philippine Legislature shall certify the result to the Governo
the Philippine Islands, together with a statement of the votes cast, and a copy of said constitu
ordinances. If a majority of the votes cast shall be for the constitution, such vote shall be deem
expression of the will of the people of the Philippine Independence, and the Governor-Genera
within thirty days after receipt of the certification from the Philippine Legislature, issue a procla
the election of officers of the government of the Commonwealth of the Philippine Islands provi
the Constitution...

It can safely be said, therefore, that when the framers of the 1935 Constitution used, the word "election" in Section I A
the 1935 Constitution they had no other idea in mind except the elections that were periodically held in the Philippine
choice of public officials prior to the drafting of the 1935 Constitution, and also the "election" mentioned in the Indepen
at which "the qualified voters of the Philippine Islands shall have an opportunity to vote directly for or against the prop
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
the term "election" was understood, and practiced, when the 1935 Constitution as drafted. The alleged referendum in
assemblies — participated in by persons aged 15 years or more, regardless of whether they were qualified voters or
by raising their hands, and the results of the voting reported by the barrio or ward captain, to the municipal mayor, wh
submitted the report to the provincial Governor, and the latter forwarding the reports to the Department of Local Gove
without the intervention of the Commission on Elections which is the constitutional body which has exclusive charge o
enforcement and administration of all laws, relative to the conduct of elections — was not only a non-substantial com
the provisions of Section 1 of Article XV of the 1935 Constitution but a downright violation of said constitutional provis
be indulging in sophistry to maintain that the voting in the citizens assemblies amounted to a substantial compliance w
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 Conv
not ratified in accordance with the provisions of Section 1 of Article XV of the 1935 Constitution, the fact is that after t
of the Philippines had issued Proclamation No. 1102 declaring that the said proposed Constitution "has been ratified
overwhelming majority of all the votes cast by the members of all the barangays (citizens assemblies) throughout the
and had thereby come into effect" the people have accepted the new Constitution. What appears to me, however, is t
practically it is only the officials and employees under the executive department of the Government who have been p
their duties apparently in observance of the provisions of the new Constitution. It could not be otherwise, because the
of the Philippines, who is the head of the executive department, had proclaimed that the new Constitution had come i
and his office had taken the steps to implement the provisions of the new Constitution. True it is, that some 92 memb
House of Representatives and 15 members of the Senate, of the Congress of the Philippines had expressed their op
in the interim National Assembly that is provided for in Section 2 of Article XVII of the proposed Constitution. It must b
however, that of the 15 senators who expressed their option to serve in the interim National Assembly only one them
oath of office; and of the 92 members of the House of Representatives who opted to serve in the interim National Ass
22 took their oath of office. The fact that only one Senator out of 24, and only 22 Representative out of 110, took their
office, is an indication that only a small portion of the members of Congress had manifested the acceptance of the ne
Constitution. It is in the taking of the oath of office where the affiant says that he swears to "support and defend the C
that the acceptance of the Constitution is made manifest. I agree with counsel petitioners in L-36165 (Gerardo Roxas
Alejandro Melchor, et al.) when he said that the members of Congress who opted to serve in the interim National Ass
only ex abundante cautela, or by way of a precaution, making sure, that in the event the new Constitution becomes d
effective and the interim National Assembly convened, they can participate in legislative work in the capacity as duly
representatives of the people, which otherwise they could not do if they did not manifest their option to serve, and tha
to be made within 30 day from January 17, 1973, the date when Proclamation No. 110 was issued. Of course, if the p
Constitution does not become effective, they continue to be members of Congress under the 1935 Constitution. Let it
considered that the members of the House of Representatives were elected in 1969 to serve a term which will yet exp
December 31, 1973. Whereas, of the Senators who opted to serve in the interim National Assembly, the term of som
will yet expire on December 31, 1973, some on December 31, 1975, and the rest on December 31, 1977. Let if be no
Senators did not opt to serve in the interim National Assembly, and 18 members of the House of Representatives als
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 reporte
affirmative votes in the citizens assemblies as a true and correct expression by the people of their approval, or accep
proposed Constitution. I have my serious doubts regarding the freedom of the people to express their views regarding
proposed Constitution during the voting in the citizens assemblies, and I have also my serious doubts regarding the t
and accuracy of the reports of the voting in the citizens assemblies. This doubt has been engendered in my mind afte
examination and study of the records of these cases, particularly with respect to the reports of the voting in the citizen
assemblies. Perhaps, it may be said that the people, or the inhabitants of this country, have acquiesced to the new C
in the sense that they have continued to live peacefully and orderly under the government that has been existing sinc
17, 1973 when it was proclaimed that the new Constitution came into effect. But what could the people do? In the sam
the people have lived under martial law since September 23, 1972, they also have to live under the government as it
and as it has existed since the declaration of martial law on September 21, 1972, regardless of what Constitution is o
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 ne
state in this opinion. I cannot agree, therefore, with my worthy colleagues in the Court who hold the view that the peo
accepted the new Constitution, and that because the people have accepted it, the new Constitution should be consid
force, regardless of the fact that it was not ratified in accordance with the provisions of Section 1 of Article XV of the 1
Constitution.

It is my honest view that the Constitution proposed by the 1971 Constitutional Convention has not come into effect. I
however, that the proposed Constitution is invalid. To me, the validity of the proposed Constitution is not in issue in th
before Us. What the petitioners assail is not the validity of the proposed Constitution but the validity of Presidential Pr
No. 1102 which declares the proposed Constitution as having been ratified and has come into effect. It being my con
that the ratification of the proposed Constitution, as proclaimed in Proclamation No. 1102, is not in accordance with th
provisions of Section 1 of Article XV, of the 1935 Constitution, I hold that Proclamation No. 1102 is invalid and should
given force and effect. Their proposed Constitution, therefore, should be considered as not yet validly ratified, and so
force. The proposed Constitution may still be submitted to a plebiscite in conformity with Section 1 of Article XV of the
Constitution. Incidentally, I must state that the Constitution is still in force, and this Court is still functioning under the 1
Constitution.

I sincerely believe that the proposed Constitution may still be submitted to the people in an election or plebiscite held
accordance with the provisions of Section 1 of Article XV of the 1935 Constitution. In fact, as we have adverted to in t
this was the mandate of Congress when, on March 16, 1967, it passed Resolution No. 2 calling a convention to propo
amendments to the 1935 Constitution. The Court may take judicial notice of the fact that the President of the Philippin
reassured the nation that the government of our Republic since the declaration of martial law is not a revolutionary go
and that he has been acting all the way in consonance with his powers under the Constitution. The people of this Rep
reason to be happy because, according to the President, we still have a constitutional government. It being my view t
1935 Constitution is still in force, I believe Congress may still convene and pass a law calling for an election at which
Constitution proposed by the 1971 Constitutional Convention will be submitted to the people their ratification or reject
plebiscite called pursuant to Section 1 of Article XV of the 1935 Constitution is an assurance to our people that we sti
our country the Rule of Law and that the democratic system of government that has been implanted in our country by
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 democra
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
Constitution had not been complied with, We will be opening the gates for a similar disregard of the Constitution in th
What I mean is that if this Court now declares that a new Constitution is now in force because the members of the cit
assemblies had approved the said new Constitution, although that approval was not in accordance with the procedur
requirements prescribed in the 1935 Constitution, it can happen again in some future time that some amendments to
Constitution may be adopted, even in a manner contrary to the existing Constitution and the law, and then said propo
amendment is submitted to the people in any manner and what will matter is that a basis is claimed that there was ap
the people. There will not be stability in our constitutional system, and necessarily no stability in our government. As a
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 asse
clear violation of the 1935 Constitution, what I say in this opinion is simply an endeavor on my part to be true to my oa
to defend and support the 1935 Constitution. I am inspired by what the great jurist and statesman, Jose P. Laurel, sa

Let our judges be as it were the vestal keepers of the purity and sanctity of our Constitution, a
protection and vindication of popular rights will be safe and secure in their reverential guardian

I only wish to help prevent, if I can, democracy and the liberties of our people from vanishing in our land, because, as
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 b
 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
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
distant future as that posed by these petitions. For while the specific substantive issue is the validity of Presidential P
No. 1102, an adverse judgment may be fraught with consequences that, to say the least, are far-reaching in its implic
stressed by respondents, "what petitioners really seek to invalidate is the new Constitution."  Strict accuracy would of
1

qualify such statement that what is in dispute, as noted in the opinion of the Chief Justice, goes only as far as the vali
ratification. It could very well be though that the ultimate outcome is not confined within such limit, and this is not to de
under its aegis, there have been marked gains in the social and economic sphere, but given the premise of continuity
under a fundamental law, which itself explicitly recognizes the need for change and the process for bringing it about, 2

me that the more appropriate course is this Court to give heed to the plea of petitioners that the most serious attentio
their submission that the challenged executive act fails to meet the test of constitutionality. Under the circumstances,
and with due respect for the opinion of my brethren, I must perforce dissent. It would follow therefore that the legal po
by the Chief Justice as set forth with his usual lucidity and thoroughness has, on the whole, my concurrence, subject,
to reservations insofar as it contains views and nuances to which I have in the past expressed doubts. Nonetheless, I
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 g
utterances of eternal verities, but certainly it is more than just a keen but passive observer of the contemporary scene
virtue of its role under the separation of powers concept, involved not necessarily as a participant in the formation of g
policy, but as an arbiter of its legality. Even then, there is realism in what Lerner did say about the American Supreme
"the focal point of a set of dynamic forces which [could play] havoc with the landmarks of the American state and dete
power configuration of the day."  That is why there is this caveat. In the United States as here, the exercise of the pow
3

judicial review is conditioned on the necessity that the decision of a case or controversy before it so requires. To repe
Justices of the highest tribunal are not, as Justice Frankfurter made clear, "architects of policy. They can nullify the po
others, they are incapable of fashioning their own solutions for social problems."  Nonetheless, as was stressed by Pr
4

Black  and Murphy,  a Supreme Court by the conclusion it reaches and the decision it renders does not merely check
5 6

coordinate branches, but also by its approval stamps with legitimacy the action taken. Thus in affirming constitutional
the political departments could seek the aid of the judiciary. For the assent it gives to what has been done conduces
support in a regime where the rule of law holds sway. In discharging such a role, this Court must necessarily take in a
only what the exigent needs of the present demand but what may lie ahead in the unexplored and unknown vistas of
must guard against the pitfall of lack of understanding of the dominant forces at work to seek a better life for all, espe
suffering from the pangs of poverty and disease, by a blind determination to adhere to the status quo. It would be trag
clear case of its being recreant to its trust, if the suspicion can with reason be entertained that its approach amounts m
militant vigilantism that is violently opposed to any form of social change. It follows then that it does not suffice that re
had only to what passes for scholarship in the law that could be marred by inapplicable erudition and narrow legalism
due recognition, such factors, however, I cannot, for reasons to be set more lengthily and in the light of the opinion of
Justice, reach the same result as the majority of my brethren. For, in the last analysis, it is my firm conviction that the
of judicial review speaks too clearly for the point to be missed that official action, even with due allowance made for th
faith that invariably inspires the step taken, has to face the gauntlet of a court suit whenever there is a proper case wi
appropriate parties.

1. Respondents are acting in the soundest constitutional tradition when, at the outset, they would seek a dismissal of
petitions. For them, the question raised is political and thus beyond the jurisdiction of this Court. Such an approach ca
indicted for unorthodoxy. It is implicit in the concept of the rule of law that rights belong to the people and the governm
possesses powers only. Essentially then, unless such an authority may either be predicated on express or implied gr
Constitution or the statutes, an exercise thereof cannot survive an inquiry as to its validity. Respondents through Solic
General Mendoza would deny our competence to proceed further. It is their view, vigorously pressed and plausibly as
since what is involved is not merely the effectivity of an amendment but the actual coming into effect of a new constitu
matter is not justiciable. The immediate reaction is that such a contention is to be tested in the light of the fundamenta
separation of powers that it is not only the function but the solemn duty of the judiciary to determine what the law is a
it in cases and controversies that call for decision.  Since the Constitution pre-eminently occupies the highest rung in
7

hierarchy of legal norms, it is in the judiciary, ultimately this Tribunal, that such a responsibility is vested. With the 193
Constitution containing, as above noted, an explicit article on the subject of amendments, it would follow that the pres
be indulged in is that the question of whether there has been deference to its terms is for this Court to pass upon. Wh
the Gonzales,  Tolentino  and Planas   cases speak unequivocally to that effect. Nor is it a valid objection to this conc
8 9 10

what was involved in those cases was the legality of the submission and not ratification, for from the very language o
controlling article, the two vital steps are proposal and ratification, which as pointed out in Dillon v. Gloss,   "cannot b
11

unrelated acts, but as succeeding steps in a single endeavor."   Once an aspect thereof is viewed as judicial, there w
12

justification for considering the rest as devoid of that character. It would be for me then an indefensible retreat, derivin
justification from circumstances of weight and gravity, if this Court were to accede to what is sought by respondents a
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 ter
13

made applicable to controversies clearly non-judicial and therefore beyond its jurisdiction or to an issue involved in a
appropriately subject to its cognizance, as to which there has been a prior legislative or executive determination to wh
deference must be paid. It has likewise been employed loosely to characterize a suit where the party proceeded agai
President or Congress, or any branch thereof. If to be delimited with accuracy, "political questions" should refer to suc
under the Constitution be decided by the people in their sovereign capacity or in regard to full discretionary authority
either in the President or Congress. It is thus beyond the competence of the judiciary to pass upon. Unless clearly fal
the formulation, the decision reached by the political branches whether in the form of a congressional act or an execu
could be tested in court. Where private rights are affected, the judiciary has no choice but to look into its validity. It is
lost sight of that such a power comes into play if there be an appropriate proceeding that may be filed only after each
branch has acted. Even when the Presidency or Congress possesses plenary powers, its improvident exercise or the
thereof, if shown, may give rise to a justiciable controversy. For the constitutional grant of authority is usually unrestric
are limits to what may be done and how it is to be accomplished. Necessarily then, the courts in the proper exercise o
review could inquire into the question of whether or not either of the two coordinate branches has adhered to what is
by the Constitution. The question thus posed is judicial rather than political."   The view entertained by Professor Dod
14

dissimilar. For him such a term "is employed to designate certain types of functions committed to the political organs
government (the legislative and executive departments, or either of them) and not subject to judicial investigation."   A 15

thorough study of American judicial decisions, both federal and state, he could conclude: "The field of judicial nonenfo
important, but is not large when contrasted with the whole body of written constitutional texts. The exceptions from ju
enforceability fall primarily within the field of public or governmental interests."   Nor was Professor Weston's formula
16

different. As was expressed by him: "Judicial questions, in what may be thought the more useful sense, are those wh
sovereign has set to be decided in the courts. Political questions, similarly, are those which the sovereign has entrust
so-called political departments of government or has reserved to be settled by its own extra-governmental action."   W 17

appears undeniable then both from the standpoint of Philippine as well as American decisions is the care and circum
required before the conclusion is warranted that the matter at issue is beyond judicial cognizance, a political question
raised.

2. The submission of respondents on this subject of political question, admittedly one of complexity and importance, d
be pursued further. They would derive much aid and comfort from the writings of both Professor Bickel   of Yale and
18

Freund   of Harvard, both of whom in turn are unabashed admirers of Justice Brandeis. Whatever be the merit inhere
19

lack of enthusiasm for a more active and positive role that must be played by the United States Supreme Court in con
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 Am
sovereignty, there has sprung a tradition of what has been aptly termed as judicial activism. Such an approach could
the valedictory address before the 1935 Constitutional Convention of Claro M. Recto. He spoke of the trust reposed i
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 wou
appear that even then this Court was expected not to assume an attitude of timidity and hesitancy when a constitution
is posed. There was the assumption of course that it would face up to such a task, without regard to political consider
with no thought except that of discharging its trust. Witness these words Justice Laurel in an early landmark case, Pe
Vera,   decided in 1937: "If it is ever necessary for us to make vehement affirmance during this formative period of po
21

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 pop
unafraid of criticism in the accomplishment of our sworn duty as we see it and as we understand it."   The hope of co
22

that such assertion of independence impartiality was not mere rhetoric. That is a matter more appropriately left to oth
determine. It suffices to stake that what elicits approval on the part of our people of a judiciary ever alert to inquire int
breaches of the fundamental law is the realization that to do so is merely to do what is expected of it and that thereby
invasion of spheres appropriately belonging to the political branches. For it needs to be kept in kind always that it can
when there is a suit with proper parties before it, wherein rights appropriate for judicial enforcement are sought to be
Then, too, it does not approach constitutional questions with dogmatism or apodictic certainty nor view them from the
cliffs of perfection. This is not to say though that it is satisfied with an empiricism untroubled by the search for jural co
and rational coherence. A balance has to be struck. So juridical realism requires. Once allowance made that for all its
circumspection this Court manned by human beings fettered by fallibility, nonetheless earnestly and sincerely striving
the public acceptance of its vigorous pursuit of the task of assuring that the Constitution be obeyed is easy to underst
not in the past shirked its responsibility to ascertain whether there has been compliance with and fidelity to constitutio
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 jurisdiction, even in the face
23 24

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
able associates presents the whole picture. On the question of judicial review, it is not a case of black and white; ther
shaded areas. It goes too far, in my view, if the perspective is one of dissatisfaction, with its overtones of distrust. Thi
expression of disapproval has not escaped Dean Rostow of Yale, who began one of his most celebrated legal essays
Democratic Character of Judicial Review, thus: "A theme of uneasiness, and even of guilt, colors the literature about
review. Many of those who have talked, lectured, and written about the Constitution have been troubled by a sense th
review is undemocratic."   He went on to state: "Judicial review, they have urged, is an undemocratic shoot on an oth
25

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 review, to be exercised by s
26

the government, is implicit in the conception of a written constitution delegating limited powers. A written constitution
promote discord rather than order in society if there were no accepted authority to construe it, at the least in case of c
action by different branches of government or of constitutionally unauthorized governmental action against individuals
limitation and separation of powers, if they are to survive, require a procedure for independent mediation and constru
reconcile the inevitable disputes over the boundaries of constitutional power which arise in the process of governmen
than that, he took pains to emphasize: "Whether another method of enforcing the Constitution could have been devis
answer is that no such method developed. The argument over the constitutionality of judicial review has long since be
by history. The power and duty of the Supreme Court to declare statutes or executive action unconstitutional in appro
is part of the living Constitution. 'The course of constitutional history,' Mr. Justice Frankfurter recently remarked, 'has
responsibilities upon the Supreme Court which it would be "stultification" for it to evade.' "   Nor is it only Dean Rostow
28

point Frankfurter, reputed to belong to the same school of thought opposed to judicial activism, if not its leading advo
his long stay in the United States Supreme Court, as one fully cognizant of the stigma that attaches to a tribunal whic
to meet the demands of judicial review. There is a statement of similar importance from Professor Mason: "In Stein v.
York Frankfurter remarked, somewhat self-consciously perhaps, that the 'duty of deference cannot be allowed imperc
slide into abdication.' "   Professor Konefsky, like Dean Rostow, could not accept characterization of judicial review a
29

undemocratic. Thus his study of Holmes and Brandeis, the following appears: "When it is said that judicial review is a
undemocratic feature of our political system, it ought also to be remembered that architects of that system did not equ
constitutional government with unbridled majority rule. Out of their concern for political stability and security for private
they designed a structure whose keystone was to consist of barriers to the untrammeled exercise of power by any gro
perceived no contradiction between effective government and constitutional checks. To James Madison, who may leg
regarded as the philosopher of the Constitution, the scheme of mutual restraints was the best answer to what he view
chief problem in erecting a system of free representative government: 'In framing a government which is to be admini
men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the
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 w
eminent authorities on the subject evince at the most fears that the American Supreme Court might overstep the bou
to the judiciary? It cannot be a denial of the fitness of such competence being vested in judges and of their being call
fulfill such a trust whenever appropriate to the decision of a case before them. That is why it has been correctly maint
notwithstanding the absence of any explicit provision in the fundamental law of the United States Constitution, that di
American constitutional historian, Professor Corwin, could rightfully state that judicial review "is simply incidental to th
courts to interpret the law, of which the Constitution is part, in connection with the decision of cases."   This is not to d
31

there are those who would place the blame or the credit, depending upon one's predilection, on Marshall's epochal op
in Marbury v. Madison.   Curtis belonged to that persuasion. As he put it: "The problem was given no answer by the C
32

A hole was left where the Court might drive in the peg of judicial supremacy, if it could. And that is what John Marsha
any rate there was something in the soil of American juristic thought resulting in this tree of judicial power so precario
by Marshall striking deep roots and showing wonderful vitality and hardiness. It now dominates the American legal sc
Through it, Chief Justice Hughes, before occupying that exalted position, could state in a lecture: "We are under a Co
but the Constitution is what the judges say it is ... ."   The above statement is more than just an aphorism that lends it
34

inclusion in judicial anthologies or bar association speeches. It could and did provoke from Justice Jackson, an expon
judicial restraint school of thought, this meaningful query: "The Constitution nowhere provides that it shall be what the
it is. How, did it come about that the statement not only could be but could become current as the most understandab
comprehensive summary of American Constitutional law?"   It is no wonder that Professor Haines could pithily and su
35

sum up the place of the highest American tribunal in the scheme of things in this wise: "The Supreme Court of the Un
has come to be regarded as the unique feature of the American governmental system."   Let me not be misunderstoo
36

here no attempt to close one's eyes to a discernible tendency on the part of some distinguished faculty minds to look
what for them may be inadvisable extension of judicial authority. For such indeed is the case as reflected in two leadi
recent vintage, Baker v. Carr,   decided in 1962 and Powell v. MacCormack,   in 1969, both noted in the opinion of th
37 38

Justice. The former disregarded the warning of Justice Frankfurter in Colegrove v. Green 39 about the American Sup
declining jurisdiction on the question of apportionment as to do so would cut very deep into the very being of Congres
him, the judiciary "ought not to enter this political thicket." Baker has since then been followed; it has spawned a host
cases.   Powell, on the question of the power of a legislative body to exclude from its ranks a person whose qualificat
41

uncontested, for many the very staple of what is essentially political, certainly goes even further than the authoritative
decision of Vera v. Avelino,   It does look then that even in the United States, the plea for judicial self-restraint, even
42

voice by those competent in the field of constitutional law, has fallen on deaf ears. There is in the comments of respo
excerpt from Professor Freund quoting from one of his essays appearing in a volume published in 1968. It is not with
to note that in another paper, also included therein, he was less than assertive about the necessity for self-restraint a
apparently mindful of the claims of judicial activism. Thus: "First of all, the Court has a responsibility to maintain the c
order, the distribution of public power, and the limitations on that power."   As for Professor Bickel, it has been said th
43

counsel for the New York Times in the famous Vietnam papers case,   he was less than insistent on the American Su
44

Court exercising judicial self-restraint. There are signs that the contending forces on such question, for some an uneq
are now quiescent. The fervor that characterized the expression of their respective points of view appears to have be
minimized. Not that it is to be expected that it will entirely disappear, considering how dearly cherished are, for each g
convictions, prejudices one might even say, entertained. At least what once was fitly characterized as the booming gu
rhetoric, coming from both directions, have been muted. Of late, scholarly disputations have been centered on the sta
should govern the exercise of the power of judicial review. In his celebrated Holmes lecture in 1959 at the Harvard La
Professor Wechsler advocated as basis for decision what he termed neutral principles of constitutional law.   It has b
45

a plethora of law review articles, the reaction ranging from guarded conformity to caustic criticism.   There was, to be
46

clear call to a court in effect abandoning the responsibility incumbent on it to keep governmental agencies within cons
channels. The matter has been put in temperate terms by Professor Frank thus: "When allowance has been made fo
it nevertheless seems to me that the doctrine of political questions ought to be very sharply confined to where the fun
reasons justify it and that in a give involving its expansion there should be careful consideration also of the social con
which may militate against it. The doctrine has a certain specious charm because of its nice intellectualism and becau
fine deference it permits to expertise, to secret knowledge, and to the prerogatives of others. It should not be allowed
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 sig
judicial review in the United States. I cannot resist the conclusion then that the views advanced on this subject by dis
counsel for petitioners, with Senators Lorenzo M. Tañada and Jovito Salonga at the van, rather than the advocacy of
Solicitor-General, possess the greater weight and carry persuasion. So much then for the invocation of the political qu
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 Proclam
1102 manifests fidelity to the explicit terms of Article XV. There is, of course, the view not offensive to reason that a s
realities should temper the rigidity of devotion to the strict letter of the text to allow deference to its spirit to control. W
recognition of its force in constitutional litigation,   if my reading of the events and the process that led to such proclam
48

clearly set forth in the opinion of the Chief Justice, is not inaccurate, then it cannot be confidently asserted that there
compliance. It would be to rely on conjectural assumptions that did founder on the rock of the undisputed facts. Any o
conclusion would, for me, require an interpretation that borders on the strained. So it has to be if one does not lose si
the article on amendments is phrased. A word, to paraphrase Justice Holmes may not be a crystal, transparent and u
but it is not, to borrow from Learned Hand, that eminent jurist, a rubber band either. It would be unwarranted in my vie
assert that the requirements of the 1935 Constitution have been met. There are American decisions,   and they are n
49

number, which require that there be obedience to the literal terms of the applicable provision. It is understandable wh
be thus. If the Constitution is the supreme law, then its mandate must be fulfilled. No evasion is tolerated. Submission
commands can be shown only if each and every word is given meaning rather than ignored or disregarded. This is no
that a recognition conclusive effect attached to the electorate manifesting its will to vote affirmatively on the amendme
proposed poses an obstacle to the judiciary being insistent on the utmost regularity. Briefly stated, substantial compli
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 Cou
upon to give meaning and perspective to what could be considered words of vague generality, pregnant with uncerta
whatever obscurity it possesses is illumined when the light of the previous legislation is thrown on it. In the first Comm
Act,   submitting to the Filipino people for approval or disapproval certain amendments to the original ordinance appe
51

1935 Constitution, it was made that the election for such purpose was to "be conducted in conformity with the provisio
Election Code insofar as the same may be applicable."   Then came the statute,   calling for the plebiscite on the thre
52 53

amendments providing for the plebiscite on the three 1930 amendments providing for a bicameral Congress or a Sen
House of Representatives to take the place of a unicameral National Assembly,   reducing the term of the President t
54

but allowing his re-election with the limitation that he cannot serve more than eight consecutive years,   and creating
55

independent Commission on Elections.   Again, it was expressly provided that the election "shall be conducted in con
56

the provisions of the Election Code in so far as the same may be applicable."   The approval of the present parity am
57

was by virtue of a Republic Act   which specifically made applicable the then Election Code.   There is a similar provi
58 59

legislation,   which in cotemplation of the 1971 Constitutional Convention, saw to it that there be an increase in the m
60

of the House of Representatives a maximum of one hundred eighty and assured the eligibility of senators and repres
become members of such constituent body without forfeiting their seats, as proposed amendments to be voted on in
elections.   That is the consistent course of interpretation followed by the legislative branch. It is most persuasive, if n
61

controlling. The restraints thus imposed would set limits to the Presidential action taken, even on the assumption that
agent of the Constitutional Convention or under his martial law prerogatives, he was not devoid of power to specify th
ratification. On two vital points, who can vote and how they register their will, Article XV had been given a definitive co
That is why I fail to see sufficient justification for this Court affixing the imprimatur of its approval on the mode employ
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. Ind
of the lack of validity of the ratification of the new Constitution, if it be accepted by the people, in whom sovereignty re
according to the Constitution,   then this Court cannot refuse to yield assent to such a political decision of the utmost
62

conclusive in its effect. Such a fundamental principle is meaningless if it does not imply, to follow Laski, that the natio
whole constitutes the "single center of ultimate reference," necessarily the possessor of that "power that is able to res
disputes by saying the last word."   If the origins of the democratic polity enshrined in the 1935 Constitution with the d
63

that the Philippines is a republican state could be traced back to Athens and to Rome, it is no doubt true, as McIver p
that only with the recognition of the nation as the separate political unit in public law is there the juridical recognition o
composing it "as the source of political authority."   From them, as Corwin did stress, emanate "the highest possible e
64

of human will,"   which is supreme and must be obeyed. To avoid any confusion and in the interest of clarity, it should
65

expressed in the manner ordained by law. Even if such is not the case, however, once it is manifested, it is to be acce
final and authoritative. The government which is merely an agency to register its commands has no choice but to sub
officials must act accordingly. No agency is exempt such a duty, not even this Court. In that sense, the lack of regular
method employed to register its wishes is fatal in its consequences. Once the fact of acceptance by people of a new
law is made evident, the judiciary is left with no choice but to accord it recognition. The obligation to render it obeisan
the courts as well.

There are American State decisions that enunciate such a doctrine. While certainly not controlling, they are not entire
persuasive significance. In Miller v. Johnson,   decided in 1892, it was set forth in the opinion of Chief Justice Holt tha
66

1890, an act was passed in Kentucky, providing for the calling of a convention for the purpose of framing a new cons
the election of delegates. It provided that before any form of constitution made by them should become operative, it s
submitted to the vote of the state and ratified by a majority of those voting. The constitution then in force authorized th
legislature, the preliminary steps having been taken, to call a convention "for the purpose of readopting, amending, or
it contained no provision giving the legislature the power to require a submission of its work to a vote of the people. T
convention met in September, 1890. By April, 1891, it completed a draft of a constitution, submitted it to a popular vo
adjourned until September following. When the convention reassembled, the delegates made numerous changes in i
As thus amended, it was promulgated by the convention of September 28, 1891, as the new constitution. An action w
to challenge its validity. It failed in the lower court. In affirming such judgment dismissing the action, Chief Justice Hol
a set of men, not selected by the people according to the forms of law, were to formulate an instrument and declare it
constitution, it would undoubtedly be the duty of the courts to declare its work a nullity. This would be revolution, and
courts of the existing government must resist until they are overturned by power, and a new government established.
convention, however, was the offspring of law. The instrument which we are asked to declare invalid as a constitution
made and promulgated according to the forms of law. It is a matter of current history that both the executive and legis
branches of the government have recognized its validity as a constitution, and are now daily doing so. ... While the ju
should protect the rights of the people with great care and jealousy, because this is its duty, and also because; in time
popular excitement, it is usually their last resort, yet it should at the same time be careful not to overstep the proper b
power, as being perhaps equally dangerous; and especially where such momentous results might follow as would be
instance, if the power of the judiciary permitted, and its duty requires, the overthrow of the work of the convention."    67

Commonwealth,   a 1903 decision, it was contended that the Virginia Constitution reclaimed in 1902 is invalid as it w
68

and promulgated by the convention without being submitted for ratification or rejection by the people. The Court rejec
view. As stated in the opinion of Justice Harrison: "The Constitution of 1902 was ordained and proclaimed by a conve
called by direct vote of the people of the state to revise and amend the Constitution of 1869. The result of the work of
convention has been recognized, accepted, and acted upon as the only valid Constitution of the state by the Governo
swearing fidelity to it and proclaiming it, as directed thereby; by the Legislature in its formal official act adopting a join
July 15, 1902, recognizing the Constitution ordained by the convention which assembled in the city of Richmond on th
of June, 1901, as the Constitution of Virginia; by the individual oaths of members to support it, and by enforcing its pr
and the people in their primary capacity by peacefully accepting it and acquiescing in it, by registering as voters unde
extent of thousands throughout the state, and by voting, under its provisions, at a general election for their representa
Congress of the United States. The Constitution having been thus acknowledged and accepted by the office administ
government and by the people of the state, and there being no government in existence under the Constitution of 186
or denying its validity, we have no difficulty in holding that the Constitution in question, which went into effect at noon
day of July, 1902, is the only rightful, valid, and existing Constitution of this state, and that to it all the citizens of Virgin
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 h
accepted by the Filipino people. What is more, so it has been argued, it is not merely a case of its being implied. Thro
Citizens Assemblies, there was a plebiscite with the result as indicated in Proclamation No. 1102. From the standpoin
respondents then, they could allege that there was more than just mere acquiescence by the sovereign people. Its wi
expressed formally and unmistakably. It may be added that there was nothing inherently objectionable in the informal
followed in ascertaining its preference. Nor is the fact that Filipinos of both sexes above the age of fifteen were given
opportunity to vote to be deplored. The greater the base of mass participation, the more there is fealty to the democra
It does logically follow likewise that such circumstances being conceded, then no justifiable question may be raised. T
to respect what had thus received the people's sanction. That is not for me though whole of it. Further scrutiny even t
entirely foreclosed. There is still an aspect that is judicial, an inquiry may be had as to whether such indeed was the r
is no more than what the courts do in election cases. There are other factors to bear in mind. The fact that the Presid
certified is well-nigh conclusive. There is in addition the evidence flowing from the conditions of peace and stability. T
appears to be conformity to the existing order of things. The daily course of events yields such a conclusion. What is
officials under the 1935 Constitution, including practically all Representatives and a majority of the Senators, have sig
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 t
during a period of martial law. It would have been different had there been that freedom of debate with the least interf
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.
a clear-cut decision either way. One could be certain as to the fact of the acceptance of the new or of adherence to th
is not to deny that votes are cast by individuals with their personal concerns uppermost in mind, worried about their im
needs and captive to their existing moods. That is inherent in any human institution, much more so in a democratic po
it open to any valid objection because in the final analysis the state exists for the individuals who in their collectivity co
Whatever be their views, they are entitled to respect. It is difficult for me, however, at this stage to feel secure in the c
that they did utilize the occasion afforded to give expression to what was really in their hearts. This is not to imply tha
could not be dispelled by evidence to the contrary. If the petitions be dismissed however, then such opportunity is for

5. With the foregoing legal principles in mind, I find myself unable to join the ranks of my esteemed brethren who vote
dismissal of these petitions. I cannot yield an affirmative response to the plea of respondents to consider the matter c
proceedings terminated once and for all. It is not an easy decision to reach. It has occasioned deep thought and cons
soul-searching. For there are countervailing considerations that exert a compulsion not easy to resist. It can be asser
truth, especially in the field of social and economic rights, that with the revised Constitution, there is an auspicious be
further progress. Then too it could resolve what appeared to be the deepening contradictions of political life, reducing
governmental authority to near impotence and imparting a sense of disillusionment in democratic processes. It is not
say therefore that there had indeed been the revision of a fundamental law to vitalize the very values out of which dem
grows. It is one which has all the earmarks of being responsive to the dominant needs of the times. It represents an o
cognizant of the tensions of a turbulent era that is the present. That is why for some what was done represented an a
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
are being further considered, the least interference, with the executive department. The President in the discharge of
functions is entitled to obedience. He remains commander-in-chief with all the constitutional powers it implies. Public
go about their accustomed tasks in accordance with the revised Constitution. They can pursue even the tenor of their
are free to act according to its tenets. That was so these past few weeks, even petitions were filed. There was not at
any thought of any restraining order. So it was before. That is how things are expected to remain even if the motions
were not granted. It might be asked though, suppose the petitions should prevail? What then? Even so, the decision
need not be executory right away. Such a disposition of a case before this Court is not novel. That was how it was do
Emergency Powers Act controversy.   Once compliance is had with the requirements of Article XV of the 1935 Const
70

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 stan
actuality. What is more, it may give the impression of reliance on what may, for the practical man of affairs, be no mo
gossamer distinctions and sterile refinements unrelated to events. That may be so, but I find it impossible to transcen
me are the implications of traditional constitutionalism. This is not to assert that an occupant of the bench is bound to
undeviating rigidity doctrines which may have served their day. He could at times even look upon them as mere scrib
sands to be washed away by the advancing tides of the present. The introduction of novel concepts may be carried o
though. As Cardozo put the matter: "The judge, even when he is free, is still not wholly free. He is not to innovate at p
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
consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to ex
discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to "the primordial ne
order in the social life." Wide enough in all conscience is the field of discretion that remains."   Moreover what made i
71

this Court to apply settled principles, which for me have not lost their validity, is traceable to the fact that the revised C
was made to take effect immediately upon ratification. If a period of time were allowed to elapse precisely to enable th
power to be exercised, no complication would have arisen. Likewise, had there been only one or two amendments, n
problem would be before us. That is why I do not see sufficient justification for the orthodoxies of constitutional law no
operate.

Even with full realization then that the approach pursued is not all that it ought to have been and the process of reaso
without its shortcomings, the basic premises of a constitutional democracy, as I understand them and as set forth in t
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 b
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
by the members of all the Barangays (Citizens Assemblies) throughout the Philippines, and has thereby come into ef

More specifically, the issue submitted is whether the purported ratification of the proposed Constitution by means of t
Assemblies has substantially complied with the mandate of Article XV of the existing Constitution of 1935 that duly pr
amendments thereto, in toto or parts thereof, "shall be valid as part of this Constitution when approved by a majority 
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
by the 1971 Constitutional Convention may be said also to have substantially complied with its own mandate that "(T)
Constitution shall take immediately upon its ratification by a majority of the votes cast in a plebiscite called for the pur
except as herein provided, shall supersede the Constitution of Nineteen hundred and thirty-five and all amendments t

Respondents contend that "(A)lthough apparently what is sought to be annulled is Proclamatio

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 "politic
character" and that "what is sought to be invalidated is not an act of the President but of the p

— "(T)he fact of approval of the new Constitution by an overwhelming majority of the votes ca

 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 un
law. ... Alternatively, or contemporaneously, he did so as "agent" of the Constitutional Conven

— "alleged defects, such as absence of secret voting, enfranchisement of persons less than 2

years, non supervision (by) the Comelec are matters not required by Article XV of the 1935 C
(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 rati
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 pop
direct participation of the citizenry ... ."
3

To test the validity of respondents' submittal that the Court, in annulling Proclamation No. 1102 would really be "invali
new Constitution", the terms and premises of the issues have to be defined.

— Respondents themselves assert that "Proclamation No. 1102 ... is plainly merely declarato
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
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

Constitution, dealing with the procedure or manner of amending the fundamental law are bind
the Convention and the other departments of the government. It must be added that ... they ar
less binding upon the people." 7

— In the same Tolentino case, this Court further proclaimed that "as long as any amendment
formulated and submitted under the aegis of the present Charter, any proposal for such amen
which is not in conformity with the letter, spirit and intent of the Charter for effecting amendme
receive the sanction of this Court."8

— As continues to be held by a majority of this Court, proposed amendments to the Constituti

be ratified in only one way, that is, in an election or plebiscite held in accordance with law and
in only by qualified and duly registered voters"  and under the supervision of the Commission
9

Elections. 
10

— Hence, if the Court declares Proclamation 1102 null and void because on its face, the purp
ratification of the proposed Constitution has not faithfully nor substantially observed nor comp
mandatory requirements of Article XV of the (1935) Constitution, it would not be "invalidating"
proposed new Constitution but would be simply declaring that the announced fact of ratificatio
means of the Citizens Assemblies referendums does not pass the constitutional test and that
proposed new Constitution has not constitutionally come into existence.

— Since Proclamation 1102 is acknowledged by respondent to be "plainly merely declaratory"

disputed fact of ratification, they cannot assume the very fact to be established and beg the is
 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 immediate
effect upon the issuance on January 17, 1973 of Proclamation 1102 and the question of whether "confusion and diso
government affairs would (not) result" from a judicial declaration of nullity of the purported ratification is raised by the
General on behalf of respondents.

A comparable precedent of great crisis proportions is found in the Emergency Powers cases,   wherein the Court in i
11

Resolution of September 16, 1949 after judgment was initially not obtained on August 26, 1949 for lack of the require
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 inoperativ
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 o
"issued in good faith and with the best of intentions by three successive Presidents, and some of them may have alre
produced extensive effects on the life of the nation" — in the same manner as may have arisen under the bona fide a
President now in the honest belief that the 1972 Constitution had been validly ratified by means of the Citizens Assem
referendums — and indicated the proper course and solution therefor, which were duly abided by and confusion and
well as harm to public interest and innocent parties thereby avoided as follows:

Upon the other hand, while I believe that the emergency powers had ceased in June 1945, I a
prepared to hold that all executive orders issued thereafter under Commonwealth Act No. 671
se null and void. It must be borne in mind that these executive orders had been issued in good
with the best of intentions by three successive Presidents, and some of them may have alread
extensive effects in the life of the nation. We have, for instance, Executive Order No. 73, issue
November 12, 1945, appropriating the sum of P6,750,000 for public works; Executive Order N
issued on January 7, 1946, amending a previous order regarding the organization of the Supr
Executive Order No. 89, issued on January 1, 1946, reorganizing Courts of First Instance; Exe
Order No. 184, issued on November 19, 1948, controlling rice and palay to combat hunger; an
executive orders appropriating funds for other purposes. The consequences of a blanket nullif
these executive orders will be unquestionably serious and harmful. And I hold that before null
them, other important circumstances should be inquired into, as for instance, whether or not th
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 litig
facto officers; acts and contracts of parties acting in good faith; etc. It is my opinion that each
order must be viewed in the light of its peculiar circumstances, and, if necessary and possible
precautionary measures should be taken to avoid harm to public interest and innocent parties

Initially, then Chief Justice Moran voted with a majority of the Court to grant the Araneta and Guerrero petitions holdin
void the executive orders on rentals and export control but to defer judgment on the Rodriguez and Barredo petitions
declarations of nullity of the executive orders appropriating the 1949-1950 fiscal year budget for the government and
for the holding of the 1949 national elections. After rehearsing, he further voted to also declare null and void the last t
executive orders appropriating funds for the 1949 budget and elections, completing the "sufficient majority" of six aga
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 g
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 executive orders in question appears remote and uncertain, I am compelled to, and do he
my unqualified concurrence in the decision penned by Mr. Justice Tuason declaring that these
 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 posit
compliance with the Constitution by the other branches of the Government, which is our prime
all these cases, would be effected, and indefinite deferment will produce the opposite result be
would legitimize a prolonged or permanent evasion of our organic law. Executive orders which
opinion, repugnant to the Constitution, would be given permanent life, opening the way or pra
may undermine our constitutional structure.

The harmful consequences which, as I envisioned in my concurring opinion, would come to pa

the said executive orders be immediately declared null and void are still real. They have not d
by reason of the fact that a special session of Congress is not now forthcoming. However, the
now lies in the hands of the Chief Executive and of Congress, for the Constitution vests in the
power to call a special session should the need for one arise, and in the latter, the power to pa
appropriations act.

That Congress may again fail to pass a valid appropriations act is a remote possibility, for und
circumstances it fully realizes its great responsibility of saving the nation from breaking down;
furthermore, the President in the exercise of his constitutional powers may, if he so desires, co
Congress to remain in special session till it approves the legislative measures most needed by
country.

Democracy is on trial in the Philippines, and surely it will emerge victorious as a permanent w
this country, if each of the great branches of the Government, within its own allocated sphere,
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 m
firm and strong, hard as the best of steel, so as to insure its growth and development along so
stable and vigorous democracy.  14

The late Justice Pedro Tuason who penned the initial majority judgment (declaring null and void the rental and export
executive orders) likewise observed that "(T)he truth is that under our concept of constitutional government, in times o
perils more than in normal circumstances 'the various branches, executive, legislative, and judicial,' given the ability t
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
the President's public manifestation of adherence to constitutional processes and of working within the proper constit
framework as per his press conference of January 20,1973, wherein he stated that "(T)he Supreme Court is the final
the Constitution. It can and will probably determine the validity of this Constitution. I did not want to talk about this bec
actually there is a case pending before the Supreme Court. But suffice it to say that I recognize the power of the Supr
With respect to appointments, the matter falls under a general provision which authorizes the Prime Minister to appoi
members to the Supreme Court. Until the matter of the new Constitution is decided, I have no intention of utilizing tha

Thus, it is that as in an analogous situation wherein the state Supreme Court of Mississippi held that the questions of
submission of the proposed constitutional amendment of the State Constitution providing for an elective, instead of an
judiciary and whether the proposition was in fact adopted, were justifiable and not political questions, we may echo th
therein of Chief Justice Whitfield that "(W)e do not seek a jurisdiction not imposed upon us by the Constitution. We co
we would, escape the exercise of that jurisdiction which the Constitution has imposed upon us. In the particular instan
we are now acting, our duty to know what the Constitution of the state is, and in accordance with our oaths to suppor
maintain it in its integrity, imposed on us a most difficult and embarrassing duty, one which we have not sought, but o
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 c
maintaining a firm and strict — perhaps, even rigid — stand that the Constitution is a "superior paramount law, uncha
ordinary means" save in the particular mode and manner prescribed therein by the people, who, in Cooley's words, s
(not only) the hands of their official agencies, but their own hands as well"   in the exercise of their sovereign will or a
18

flexible stand that would consider compliance with the constitutional article on the amending process as merely direct
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
otherwise exclusively "by approval by a majority of the votes cast an election at which the amendments are submitted
people for their ratification",   participated in only by qualified and duly registered voters twenty-one years of age or o
19

duly supervised by the Commission on Elections,   in accordance with the cited mandatory constitutional requiremen
21

The alternative choice of a liberal stand would permit a disregard of said requirements on the theory urged by respon
"the procedure outlined in Article XV was not intended to be exclusive of other procedures especially one which conte
popular and direct participation of the citizenry",   that the constitutional age and literacy requirements and other statu
22

safeguards for ascertaining the will of the majority of the people may likewise be changed as "suggested, if not presc
people (through the Citizens Assemblies) themselves",   and that the Comelec is constitutionally "mandated to overs
23

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  2

Supreme Court's power of judicial review and to declare void laws repugnant to the Constitution, there is no middle g
between these two alternatives. As Marshall expounded it: "(T)he Constitution is either a superior paramount law, unc
by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, alterable when the legislature
to alter it. If the former part of the alternative be true, then a legislative act, contrary to the Constitution, is not law; if th
be true, then written constitutions are absurd attempts on the part of a people, to limit a power, in its own nature, illim

As was to be restated by Justice Jose P. Laurel a century and a third later in the 1936 landmark case of Angara vs. E
Commission,   "(T)he Constitution sets forth in no uncertain language the restrictions and limitations upon governmen
26

and agencies. If these restrictions and limitations are transcended it would be inconceivable if the Constitution had no
for a mechanism by which to direct the course of government along constitutional channels, for then the distribution o
would be mere verbiage, the bill of rights mere expressions of sentiment, and the principles of good government mere
apothegms. Certainly, the limitations of good government and restrictions embodied in our Constitution are real as th
be in any living Constitution."

Justice Laurel pointed out that in contrast to the United States Constitution, the Philippine Constitution as "a definition
powers of government" placed upon the judiciary the great burden of "determining the nature, scope and extent of su
and stressed that "when the judiciary mediates to allocate constitutional boundaries, it does not assert any superiority
other departments ... but only asserts the solemn and sacred obligation entrusted to it by the Constitution to determin
claims of authority under the Constitution and to establish for the parties in an actual controversy the rights which the
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,"
27

never forget that it is a constitution we are expounding," — termed by Justice Frankfurter as "the single most importa
in the literature of constitutional law — most important because most comprehensive and comprehending."   This end 29

concept to my mind permeated to this Court's exposition and rationale in the hallmark case of Tolentino, wherein we
contentions on the Convention's behalf "that the issue ... is a political question and that the Convention being a legisla
the highest order is sovereign, and as such, its acts impugned by petitioner are beyond the control of Congress and t
Courts." 30
This Court therein made its unequivocal choice of strictly requiring faithful (which really includes substantial) complia
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
Constitutional Convention's Organic Resolution No. 1 proposing to amend Article V, section 1 of the Constitution by lo
voting age to 18 years (vice 21 years) 30a "without prejudice to other amendments that will be proposed in the future
portions of the amended section", this Court stated that "the constitutional provision in question (as proposed) presen
which may be resolved in favor of respondents and intervenors. We do not believe such doubt can exist only because
that the end sought to be achieved is to be desired. Paraphrasing no less than the President of Constitutional Conven
1934, Claro M. Recto, let those who would put aside, invoking grounds at best controversial, any mandate of the fund
law purportedly in order to attain some laudable objective bear in mind that someday somehow others with purported
laudable objectives may take advantage of the precedent and continue the destruction of the Constitution, making tho
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 missio
propose amendments to the Constitution, the Convention and its officers and members are al
all the provisions of the existing Constitution. Now We hold that even as to its latter task of pro
amendments to the Constitution, it is subject to the provisions of Section 1 of Article XV. This
because it is plain to Us that the framers of the Constitution took care that the process of ame
same should not be undertaken with the same ease and facility in changing an ordinary legisl
Constitution making is the most valued power, second to none, of the people in a constitutiona
democracy such as the one our founding fathers have chosen for this nation, and which we of
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 cou
those subject to its sovereignty, every degree of care is taken in preparing and drafting it. A co
worthy of the people for deliberation and study. It is obvious that correspondingly, any amendm
Constitution is of no less importance than the whole Constitution itself, and perforce must be c
and prepared with as much care and deliberation. From the very nature of things, the drafters
original constitution, as already observed earlier, operate without any limitations, restraints or
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 t
their handiwork is not lightly treated and as easily mutilated or changed, not only for reasons p
personal but more importantly, because written constitutions are supposed to be designed so
for some time, if not for ages, or for, at least, as long as they can be adopted to the needs and
of the people, hence, they must be insulated against precipitate and hasty actions motivated b
less passing political moods or fancies. Thus, as a rule, the original constitutions carry with the
limitations and conditions, more or less stringent, made so by the people themselves, in regar
process of their amendment. And when such limitations or conditions are so incorporated in th
constitution, it does not lie in the delegates of any subsequent convention to claim that they m
and disregard such conditions because they are powerful and omnipotent as their original cou

3. This Court in Tolentino likewise formally adopted the doctrine of proper submission first advanced in Gonzales vs.
thus:

We are certain no one can deny that in order that a plebiscite for the ratification of an amendm
Constitution may be validly held, it must provide the voter not only sufficient time but ample ba
an intelligent appraisal of the nature of amendment per se as well as its relation to the other p
Constitution with which it has to form a harmonious whole. In the context of the present state o
where the Convention hardly started considering the merits of hundreds, if not thousands, pro
 amend the existing Constitution, to present to people any single proposal or a few of them can
with this requirement. We are of the opinion that the present Constitution does not contemplat
1 of Article XV a plebiscite or "election" wherein the people are in the dark as to frame of refer
can base their judgment on. We reject the rationalization that the present Constitution is a pos
of reference, for the simple reason that intervenors themselves are stating the sole purpose o
proposed amendment is to enable the eighteen year olds to take part in the election for the ra
the Constitution to be drafted by the Convention. In brief, under the proposed plebiscite, there
the language of Justice Sanchez, speaking for the six members of the Court in Gonzales, sup
proper submission.' "  34

4. Four other members of the Court   in a separate concurrence in Tolentino, expressed their "essential agreement" w
35

Sanchez' separate opinion in Gonzales on the need for "fair submission (and) intelligent rejection" as "minimum requ
that must be met in order that there can be a proper submission to the people of a proposed constitutional amendme

... amendments must be fairly laid before the people for their blessing or spurning. The people
be mere rubber stamps. They are not to vote blindly. They must be afforded ample opportunit
over the original provisions, compare them with the proposed amendments, and try to reach a
as the dictates of their conscience suggest, free from the incubus of extraneous or possibly in
influences. We believe the word "submitted" can only mean that the government, within its ma
capabilities, should strain every effort to inform every citizen of the provisions to be amended,
proposed amendments and the meaning, nature and effects thereof. By this, we are not to be
as saying that, if one citizen or 100 citizens or 1,000 citizens cannot be reached, then there is
submission within the meaning of the word as intended by the framers of the Constitution. Wh
Constitution in effect directs is that the government, in submitting an amendment for ratificatio
put every instrumentality or agency within its structural framework to enlighten the people, edu
with respect to their act of ratification or rejection. For as we have earlier stated, one thing is s
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 inten
Article XV, section 1 of the Constitution, in this wise:

A number of doubts or misgivings could conceivably and logically assail the average voter. W
the voting age be lowered at all, in the first place? Why should the new voting age be precisel
and not 19 or 20? And why not 17? Or even 16 or 15? Is the 18-year old as mature as the 21-
that there is no need of an educational qualification to entitle him to vote? In this age of permis
and dissent, can the 18-year old be relied upon to vote with judiciousness when the 21-year o
past elections, has not performed so well? If the proposed amendment is voted down by the p
the Constitutional Convention insist on the said amendment? Why is there an unseemly haste
of the Constitutional Convention in having this particular proposed amendment ratified at this
time? Do some of the members of the Convention have future political plans which they want
subserve by the approval this year of this amendment? If this amendment is approved, does i
mean that the 18-year old should not also shoulder the moral and legal responsibilities of the
Will he be required to compulsory military service under the colors? Will the contractual conse
reduced to 18 years? If I vote against the amendment, will I not be unfair to my own child who
years old, come 1973?

The above are just samplings from here, there and everywhere — from a domain (of searchin
the bounds of which are not immediately ascertainable. Surely, many more questions can be
already long litany. And the answers cannot except as the questions are debated fully, ponder
purposefully, and accorded undivided attention.
 Scanning the contemporary scene, we say that the people are not, and by election time will no
be, sufficiently informed of the meaning, nature and effects of the proposed constitutional ame
They have not been afforded ample time to deliberate thereon conscientiously. They have bee
effectively distracted from a full and dispassionate consideration of the merits and demerits of
proposed amendment by their traditional pervasive involvement in local elections and politics.
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 o
the sovereign people to express their decision on the proposed amendments" as "anachronistic in the real constitutio
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 'Filipi
imploring the aid of Divine Providence.' Section 1 of Article XV is nothing than a part of the Co
thus ordained by the people. Hence, in construing said section, We must read it as if the peop
'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.' ... Accor
real issue here cannot be whether or not the amending process delineated by the present Con
may be disregarded in favor of allowing the sovereign people to express their decision on the
amendments, if only because it is evident that the very idea of departing from the fundamenta
is anachronistic in the realm of constitutionalism and repugnant to the essence of the rule of la
is whether or not the provisional nature of the proposed amendment and the manner of its sub
the people for ratification or rejection conform with the mandate of the people themselves in s
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
of these perspectives, if the Court were to allow itself in deciding this case to be carried astray by considerations othe
the imperatives of the rule of law and of the applicable provisions of the Constitution. Needless to say, in a larger me
when it binds other departments of the government or any other official or entity, the Constitution imposes upon the C
sacred duty to give meaning and vigor to the Constitution, by interpreting and construing its provisions in appropriate
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 reconsid
succinctly restated this Court's position on the fundamentals, as follows:

— On the premature submission of a partial amendment proposal, with a "temporary provision

tentative character": — "... a partial amendment would deprive the voters of the context which
necessary for them to make a reasonably intelligent appraisal of the issue submitted for their
or rejection. ... Then, too, the submission to a plebiscite of a partial amendment, without a def
of reference, is fraught with possibilities which may jeopardize the social fabric. For one thing,
door to wild speculations. It offers ample opportunities for overzealous leaders and members
political camps to unduly exaggerate the pros and cons of the partial amendment proposed. In
apt to breed false hopes and create wrong impressions. As a consequence, it is bound to und
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 incomplet
although inconsistent with the letter and spirit of the Constitution: "The view, has, also, advanc
foregoing considerations are not decisive on the issue before Us, inasmuch as the people are
and the partial amendment involved in this case is being submitted to them. The issue before
whether or not said partial amendment may be validly submitted to the people for ratification "
 plebiscite coincide with the local elections in November 1971," and this particular issue will no
submitted to the people. What is more, the Constitution does not permit its submission to the
question sought to be settled in the scheduled plebiscite is whether or not the people are in fa
reduction of the voting age.

— On a "political" rather than "legalistic" approach: "Is this approach to the problem too "legal
term has possible connotations. It may mean strict adherence to the law, which in the case at
the Supreme Law of the land. On point, suffice it to say that, in compliance with the specific m
Supreme Law, the members of the Supreme Court taken the requisite "oath to support and de
Constitution." ... Then, again, the term "legalistic" may be used to suggest inversely that the so
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 re
will of the people, specially the youth. This course of action favors, in effect, adoption of a poli
approach, inasmuch as the advisability of the amendment and an appraisal of the people's fee
thereon political matters. In fact, apart from the obvious message of the mass media, and, at
pulpit, the Court has been literally bombarded with scores of handwritten letters, almost all of
the penmanship and the signature of girls, as well as letterhead of some sectarian educationa
institutions, generally stating that the writer is 18 years of age and urging that she or he be allo
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 polit
questions beyond our province. In fact, respondents and the intervenors originally maintained
have no jurisdiction to entertain the petition herein, upon the ground that the issue therein rais
political one. Aside from the absence of authority to pass upon political question, it is obviousl
and unwise for the bench to develop into such questions owing to the danger of getting involv
politics, more likely of a partisan nature, and, hence, of impairing the image and the usefulnes
of justice as objective and impartial arbiters of justiciable controversies.

Then, too, the suggested course of action, if adopted, would constitute a grievous disservice t
and the very Convention itself. Indeed, the latter and the Constitution it is in the process of dra
essentially for the Rule of Law. However, as the Supreme Law of the land, a Constitution wou
worthy of its name, and the Convention called upon to draft it would be engaged in a futile und
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 e
overlooked a circumvention of said tenets and provisions, because of the good intention with w
Resolution No. 1 is animated, the Court would thereby become the Judge of the good or bad
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
statesmanship in deciding the present case. Indeed, "politics" is the word commonly used to e
compromise, even with principles, for the sake of political expediency or the advancement of t
power of a given political party. Upon the other hand, statesmanship is the expression usually
to refer to high politics or politics on the highest level. In any event, politics, political approach,
expediency and statesmanship are generally associated, and often identified, with the dictum
end justifies the means." I earnestly hope that the administration of justice in this country and
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 pro
amendment lowering the voting age to the plebiscite on November 8, 1971 is to enable the youth 18 to 20 years who
more than three (3) million of our population to participate in the ratification of the new Constitution in so far as "to allo
people who would be governed by the Constitution to be given a say on what kind of Constitution they will have" is a
end, ... those urging the vitality and importance of the proposed constitutional amendment and its approval ahead of t
complete and final draft of the Constitution must seek a valid solution to achieve it in a manner sanctioned by the ame
process ordained by our people in the present Constitution"   — so that there may be "submitted, not piece-meal, but
41

complete and final amendments as an integrated whole (integrated either with the subsisting Constitution or with the
proposed Constitution)..."

9. The universal validity of the vital constitutional precepts and principles above-enunciated can hardly be gainsaid. I
the attempted distinction of restricting their application to proposals for amendments of particular provisions of the Co
and not to so-called entirely new Constitutions. Amendments to an existing Constitution presumably may be only of c
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 c
and prepared with as much care and deliberation", it would appeal that the reverse would equally be true; which is to
the adoption of a whole new Constitution would be of no less importance than any particular amendment and therefo
necessary care and deliberation as well as the mandatory restrictions and safeguards in the amending process ordai
people themselves so that "they (may) be insulated against precipitate and hasty actions motivated by more or less p
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 a majority of the votes cast at an election at which the (duly proposed) amendments are submitted to the people fo
ratification."

The people ordained in Article V, section 1 that only those thereby enfranchised and granted the right of suffrage may
"will of the body politic", viz, qualified literate voters twenty one years of age or over with one year's residence in the m
where they have registered.

The people, not as yet satisfied, further provided by amendment duly approved in 1940 in accordance with Article XV
creation of an independent Commission on Elections with "exclusive charge" for the purpose of "insuring free, orderly
elections" and ascertaining the true will of the electorate — and more, as ruled by this Court in Tolentino, in the case
constitutional amendments, insuring proper submission to the electorate of such proposals.  42

2. A Massachussets case   with a constitutional system and provisions analogous to ours, best defined the uses of th
43

term "people" as a body politic and "people" in the political sense who are synonymous with the qualified voters grant
to vote by the existing Constitution and who therefore are "the sole organs through which the will of the body politic ca
expressed."

It was pointed out therein that "(T)he word 'people' may have somewhat varying significations dependent upon the co
which it is used. In some connections in the Constitution it is confined to citizens and means the same as citizens. It e
aliens. It includes men, women and children. It comprehends not only the sane, competent, law-abiding and educated
those who are wholly or in part dependents and charges upon society by reason of immaturity, mental or moral defici
of the common essentials of education. All these persons are secured fundamental guarantees of the Constitution in
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 comm
"social compact ... for the common good" and in another sense of "people" in a "practical sense" for "political purpose
therein fittingly stated that in this sense, "people" comprises many who, by reason of want of years, of capacity or of t
educational requirements of Article 20 of the amendments of the Constitution, can have no voice in any government a
are entitled to all the immunities and protection established by the Constitution. 'People' in this aspect is coextensive 
the body politic. But it is obvious that 'people' cannot be used with this broad meaning of political signification. The 'pe
connection means that part of the entire body of inhabitants who under the Constitution are intrusted with the exercis
sovereign power and the conduct of government. The 'people' in the Constitution in a practical sense means those w
existing Constitution possess the right to exercise the elective franchise and who, while that instrument remains in for
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 govern
national and state, have been limited by constitutions, and they have themselves thereby set bounds to their own pow
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
election at which the amendments are submitted to the people for their ratification", it seems obvious as above-stated
"people" as therein used must be considered synonymous with "qualified voters" as enfranchised under Article V, sec
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 im
statutes to ascertain and record the will of the people in free, orderly and honest elections supervised by the Comelec
imperative that there be strict adherence to the constitutional requirements laid down for the process of amending 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: "
6. Plebiscite. — A plebiscite may be held in the barrio when authorized by a majority vote of the members present in
assembly, there being a quorum, or when called by at least four members of the barrio council: Provided, however, T
plebiscite shall be held until after thirty days from its approval by either body, and such plebiscite has been given the
publicity in the barrio, stating the date, time and place thereof, the questions or issues to be decided, action to be take
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 member
to vote may vote in the plebiscite. Voting procedures may be made either in writing as in regular elections, and/or dec
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 o
member of the barrio council. A plebiscite shall be called to approve any budgetary, supplemental appropriations or s
ordinances" and the required majority vote is specified: "(F)or taking action on any of the above enumerated measure
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 qualif
49

Article V, section 1 of the Constitution and provide that "(S)EC. 10. Qualifications of Voters and Candidates. — Every
the Philippines, twenty one years of age or over, able to read and write, who has been a resident of the barrio during
months immediately preceding the election, duly registered in the list of voters by the barrio secretary, who is not othe
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 constitu
articles have not been complied with and that no election or plebiscite for ratification as therein provided as well as in
of Article XVII of the proposed Constitution itself   has been called or held, there cannot be said to have been a valid
51

2. Petitioners raised serious questions as to the veracity and genuineness of the reports or certificates of results purp
showing unaccountable discrepancies in seven figures in just five provinces   between the reports as certified by the
52
of Local Governments and the reports as directly submitted by the provincial and city executives, which latter reports
respondents disclaimed inter alia as not final and complete or as not signed;   whether the reported votes of approva
53

proposed Constitution conditioned upon the non-convening of the interim National Assembly provided in Article XVII,
thereof,   may be considered as valid; the allegedly huge and uniform votes reported; and many others.
54

3. These questions only serve to justify and show the basic validity of the universal principle governing written constit
proposed amendments thereto or in replacement thereof may be ratified only in the particular mode or manner prescr
by the people. Under Article XV, section 1 of our Constitution, amendments thereto may be ratified only in the one wa
provided, i.e. in an election or plebiscite held in accordance with law and duly supervised by the Commission on Elec
which is participated in only by qualified and duly registered voters. In this manner, the safeguards provided by the el
generally assure the true ascertainment of the results of the vote and interested parties would have an opportunity to
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 Proclama
itself which shows on its face, as already stated, that the mandatory amending process required by the (1935) Consti
not observed, the cases at bar need not reach the stage of answering the host of questions, raised by petitioners aga
procedure observed by the Citizens Assemblies and the reported referendum results — since the purported ratificatio
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 November 22, 1973, and "as agent of the Convention the Pre
55

devise other forms of plebiscite to determine the will of the majority vis-a-vis the ratification of the proposed Constituti

The minutes of November 22, 1972, of the Convention, however, do not at all support this contention. On the contrary
minutes fully show that the Convention's proposal and "agency" was that the President issue a decree precisely callin
a plebiscite for the ratification of the proposed new Constitution on an appropriate date, under the charge of the Com
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, t
resolution portion of which read as follows:

"RESOLVED, AS IT IS HEREBY RESOLVED, that the 1971 Constitutional Co

propose to President Ferdinand E. Marcos that a decree be issued calling a pl
the ratification of the proposed New Constitution on such appropriate date as h
determine and providing for the necessary funds therefor, and that copies of th
resolution as approved in plenary session be transmitted to the President of th
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
November 1972 according to the Convention's timetable, it would be necessary to lay the grou
the appropriate agencies of the government to undertake the necessary preparation for the pl

xxx xxx xxx

12.2 Interpellating, Delegate Pimentel (V.) contended that the resolution was unnecessary bec
section 15, Article XVII on the Transitory Provision, which had already been approved on seco
third readings, provided that the new constitution should be ratified in a plebiscite called for th
by the incumbent President. Delegate Duavit replied that the provision referred to did not inclu
the appropriation of funds for the plebiscite and that, moreover, the resolution was intended to
formal notice to the President and the Commission on Elections to initiate the necessary prep
 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 signif
the new charter. Delegate Duavit agreed, adding that this was precisely why the resolution wa
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 o
adoption of the new Constitution would not suffice considering that under Section 15 of the Tr
Provisions, the President would be duty-bound to call a plebiscite for its ratification. Delegate
replied in the negative, adding that the resolution was necessary to serve notice to the proper
to prepare everything necessary for the plebiscite.

12.6 In reply to Delegate Britanico, Delegate Duavit stated that the mechanics for the holding
the plebiscite would be laid down by the Commission on Elections in coordination with the Pre

12.7 Delegate Catan inquired if such mechanics for the plebiscite could include a partial lifting
law in order to allow the people to assemble peaceably to discuss the new Constitution. Deleg
suggested that the Committee on Plebiscite and Ratification could coordinate with the COMEL
matter.

12.8 Delegate Guzman moved for the previous question. The Chair declared that there was o
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
in view of the provision of section 15, Article XVII on the Transitory Provisions. Delegate Duav
disagreed, pointing out that the said provision did not provide for the funds necessary for the p

13. Delegate Ozamiz then moved to close the debate and proceed to the period of amendmen

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
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 h

I, therefore, vote to deny respondents' motion to dismiss and to give due course to the petitions.

Promulgated: Ju

ANTONIO, J., concurring:
In conformity with my reservation, I shall discuss the grounds for my concurrence.

It is my view that to preserve the independence of the State, the maintenance of the existing constitutional order and
of the political and social liberties of the people, in times of a grave emergency, when the legislative branch of the gov
unable to function or its functioning would itself threaten the public safety, the Chief Executive may promulgate meas
legislative in character, for the successful prosecution of such objectives. For the "President's power as Commander-
been transformed from a simple power of military command to a vast reservoir of indeterminate powers in time of em
In other words, the principal canons of constitutional interpretation are ... set aside so far as concerns both the scope
national power and the capacity of the President to gather unto himself all constitutionally available powers in order th
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 po
government in a constitutional democracy entails the concentration of governmental power. "The more complete the
of powers in a constitutional system, the more difficult, and yet the more necessary" according to Rossiter, "will be the
time of crisis... The power of the state in crisis must not only be concentrated and expanded, it must be freed from the
system of constitutional and legal limitations. One of the basic features of emergency powers is the release of the gov
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 perso
Chief Executive. "Energy in the executive," according to Hamilton, "is essential to the protection of the community aga
attacks ... to the protection of property against those irregular and high-handed combinations which sometimes interru
ordinary course of justice; to the security of liberty against the enterprises and assaults of ambition, of faction, and of
(The Federalist, Number 70). "The entire strength of the nation", said Justice Brewer in the Debs case (158 U.S. 564;
1092), "may be used to enforce in any part of the land the full and free exercise of all national powers and the securit
entrusted by the constitution to its care." The marshalling and employment of the "strength of the nation" are matters
discretion of the Chief Executive. The President's powers in time of emergency defy precise definition since their exte
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 Pres
the Executive power, with the added specific grant of power under the "Commander-in-Chief" clause of the constitutio
contours of such powers have been shaped more by a long line of historical precedents of Presidential action in times
rather than judicial interpretation. Lincoln wedded his powers under the "commander-in-chief" clause with his duty "to
that the laws be faithfully executed," to justify the series of extraordinary measures which he took — the calling of vo
military service, the augmentation of the regular army and navy, the payment of two million dollars from unappropriate
the Treasury to persons unauthorized to receive it, the closing of the Post Office to "treasonable correspondence", the
of southern ports, the suspension of the writ of habeas corpus, the arrest and detention of persons "who were repres
him" as being engaged in or contemplating "treasonable practices" — all this for the most part without the least statu
authorization. Those actions were justified by the imperatives of his logic, that the President may, in an emergency th
him to require it, partially suspend the constitution. Thus his famous question: "Are all laws but one to be unexecuted
Government itself go to pieces lest that one be violated?" The actions of Lincoln "assert for the President", according
"an initiative of indefinite scope and legislative in effect in meeting the domestic aspects of a war emergency." (Corwi
President: Office & Powers, p. 280 [1948]). The facts of the civil war have shown conclusively that in meeting the dom
problems as a consequence of a great war, an indefinite power must be attributed to the President to take emergency
The concept of "emergency" under which the Chief Executive exercised extraordinary powers underwent correlative e
during the first and second World Wars. From its narrow concept as an "emergency" in time of war during the Civil W
World War I, the concept has been expanded in World War II to include the "emergency" preceding the war and even
"The Second World War" observed Corwin and Koenig, was the First World War writ large, and the quasi-legislative p
Franklin Roosevelt as "Commander-in-Chief in wartime"... burgeoned correspondingly. The precedents were there to
most of them from the First World War, but they proliferated amazingly. What is more, Roosevelt took his first step to
some fifteen months before our entrance into shooting war. This step occurred in September, 1940, when he handed
so-called overage destroyers to Great Britain. The truth is, they were not overage, but had been recently reconditione
recommissioned. ... Actually, what President Roosevelt did was to take over for the nonce Congress's power to dispo
property of the United States (Article IV, Section 3) and to repeal at least two statutes." (Corwin & Koenig, The Presid
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 W
on the basis of his powers under the "Commander-in-Chief" clause created "offices" which were copied in lavish scale
President Roosevelt in World War II. In April 1942, thirty-five "executive agencies" were purely of Presidential creation
7, 1941 on the basis of his powers as "Commander-in-Chief", he issued an executive order seizing the North America
plant of Inglewood, California, where production stopped as a consequence of a strike. This was justified by the gove
the exercise of presidential power growing out of the "duty constitutionally and inherently resting upon the President t
civil and military as well as his moral authority to keep the defense efforts of the United States a going concern" as we
obtain supplies for which Congress has appropriated money, and which it has directed the President to obtain." On a
justification, other plants and industries were taken over by the government. It is true that in Youngstown Sheet & Tub
Sawyer (343 U.S. 579; 72 S. Ct. 863; 96 L. Ed. 1153, [1952]), the Supreme Court of the United States did not sustain
that the President could, as the Nation's Chief Executive and Commander-in-Chief of the armed forces, validly order
of most of the country's steel mills. The Court however did not face the naked question of the President's power to se
plants in the absence of any congressional enactment or expressions of policy. The majority of the Court found that th
legislative occupation of the field made untenable the President's claim of authority to seize the plants as an exercise
executive power or as Commander-in-Chief. Justice Clark, in his concurrence to the main opinion of the Court, explic
that the President does possess, in the absence of restrictive legislation, a residual or resultant power above or in con
of his granted powers, to deal with emergencies that he regards as threatening the national security. The same view
with vague qualification by Justices Frankfurter and Jackson, two of the concurring Justices. The three dissenting Jus
speaking through Chief Justice Vinson, apparently went further by quoting with approval a passage extracted from th
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 c
sustained the power of the President to order withdrawals from the public domain not only without Congressional san
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 Pres
times of a grave crisis does not possess a residual power above or in consequence of his granted powers, to deal wit
emergencies that he regards as threatening the national security. The lesson of the Steel Seizure case, according to
Koenig, "Unquestionably ... tends to supplement presidential emergency power to adopt temporary remedial legislatio
Congress has been, in the judgment of the President, unduly remiss in taking cognizance of and acting on a given sit
(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
prerogative as described by John Locke, of a power to wit, to fill needed gaps in the law, or even to supersede it so fa
requisite to realize the fundamental law of nature and government, namely, that as much as may be all the members
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 po
Presidential Decree Nos. 86 and 86-A as well as Proclamation No. 1102, since these measures were considered indi
to effect the desired reforms at the shortest time possible and hasten the restoration of normalcy? It is unavailing for p
to contend that we are not faced by an actual "shooting war" for today's concept of the emergency which justified the
those powers has of necessity been expanded to meet the exigencies of new dangers and crisis that directly threaten
nation's continued and constitutional existence. For as Corwin observed: "... today the concept of 'war' as a special ty
emergency warranting the realization of constitutional limitations tends to spread, as it were, in both directions, so tha
not only "the war before the war," but the 'war after the war.' Indeed, in the economic crisis from which the New Deal
to have issued, the nation was confronted in the opinion of the late President with an 'emergency greater than war'; a
sustaining certain of the New Deal measures the Court invoked the justification of 'emergency.' In the final result cons
practices of wartime have moulded the Constitution to greater or less extent for peacetime as well, seem likely to do s
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 op
large numbers of citizens who are engaged in violent insurrection against enforcement of its la
bent on capturing it illegally or destroying it altogether. The third crisis, one recognized particu
modern times as sanctioning emergency action by constitutional governments, is economic de
The economic troubles which plagued all the countries of the world in the early thirties involve
governmental methods of an unquestionably dictatorial character in many democracies. It was
acknowledged that an economic existence as a war or a rebellion. And these are not the only
which have justified extraordinary governmental action in nations like the United States. Fire,
drought, earthquake, riots, great strikes have all been dealt with by unusual and of dictatorial m
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 regar
tenets of free enterprise, hardships caused by the eruptions of nature cannot be mitigated lett
take its course. The Civil War, the depression of 1933 and the recent global conflict were not a
not have been successfully resolved by governments similar to those of James Buchanan, Wi
Howard Taft, or Calvin Coolidge. (Rossiter, Constitutional Dictatorship — Crisis of Governme
Modern Democracies, p. 6 [1948).

II

We are next confronted with the insistence of Petitioners that the referendum in question not having been done inacc
with the provisions of existing election laws, which only qualified voters who are allowed to participate, under the supe
the Commission on Elections, the new Constitution, should therefore be a nullity. Such an argument is predicated upo
assumption, that Article XV of the 1935 Constitution provides the method for the revision of the constitution, and auto
apply in the final approval of such proposed new Constitution the provisions of the election law and those of Article V
the old Constitution. We search in vain for any provision in the old charter specifically providing for such procedure in
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 r

the whole constitution. The act of amending a constitution, on the other hand, envisages a change of only specific pro
The intention of an act to amend is not the change of the entire constitution but only the improvement of specific parts
existing constitution of the addition of provisions deemed essential as a consequence of new constitutions or the elim
parts already considered obsolete or unresponsive to the needs of the times.  The 1973 Constitution is not a mere am
1

the 1935 Constitution. It is a completely new fundamental charter embodying new political, social and economic conc

According to an eminent authority on Political Law, "The Constitution of the Philippines and that of the United States e
provide merely for methods of amendment. They are silent on the subject of revision. But this is not a fatal omission.
nothing that can legally prevent a convention from actually revising the Constitution of the Philippines or of the United
even were such conventions called merely for the purpose of proposing and submitting amendments to the people. F
final analysis, it is the approval of the people that gives validity to any proposal of amendment or revision." (Sinco, Ph
Political Law, p. 49).

Since the 1935 Constitution does not specifically provide for the method or procedure for the revision or for the appro
constitution, should it now be held, that the people have placed such restrictions on themselves that they are not disa
exercising their right as the ultimate source of political power from changing the old constitution which, in their view, w
responsive to their needs and in adopting a new charter of government to enable them to rid themselves from the sha
traditional norms and to pursue with new dynamism the realization of their true longings and aspirations, except in the
and form provided by Congress for previous plebiscites? Was not the expansion of the base of political participation,
inclusion of the youth in the process of ratification who after all constitute the preponderant majority more in accord w
and philosophy of the constitution that political power is inherent in the people collectively? As clearly expounded by J
Makasiar, in his opinion, in all the cases cited where the Courts held that the submission of the proposed amendmen
due to the absence of substantial compliance with the procedure prescribed by the constitution, the procedure prescr
state Constitution, is so detailed, that specified the manner in which such submission shall be made, the persons qua
vote for the same, the date of election and other definite standards, from which the court could safely ascertain wheth
the submission was in accordance with the Constitution. Thus the case of In re McConaughy (119 N.E. 408) relied up
the dissenting opinions involved in the application of the provisions of the state Constitution of Minnesota which clear
prescribed in detail the procedure under which the Constitution may be amended or revised.  This is not true with our
2

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 re
the entire constitution, and if such was their intention, they could and should have so provided. Precedents were not w
The constitutions of the various states of the American Union did provide for procedures for their amendment and me
their revision.
4

Certainly We cannot, under the guise of interpretation, modify, revise, amend, remodel or rewrite the 1935 Charter. T
what the law is, or has been, is a judicial power, but to declare what the law shall be is not within Our judicial compete
authority.

Upon the other hand, since our fundamental charter has not provided the method or procedure for the revision or com
change of the Constitution, it is evident that the people have reserved such power in themselves. They decided to ex
through their legislature, but through a Convention expressly chosen for that purpose. The Convention as an indepen
sovereign body has drafted not an amendment but a completely new Constitution, which decided to submit to the peo
approval, not through an act of Congress, but by means of decrees to be promulgated by the President. In view of the
Congress to act, it was within the constitutional powers of the President, either as agent of the Constitutional Conven
under his authority under martial law, to promulgate the necessary measures for the ratification of the proposed new
The adoption the new Charter was considered as a necessary basis for all the reforms set in motion under the new s
root out the causes of unrest. The imperatives of the emergency underscored the urgency of its adoption. The people
accepting such procedure and in voting overwhelmingly for the approval of the new Constitution have, in effect, ratifie
method and procedure taken. "When the people adopt completely revised or new constitution," said the Court in Whe
Board of Trustees (37 SE 2nd 322, 326-330), "the framing or submission of the instrument is not what gives it binding
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 a
on their authority and instituted for their benefit. Thus Section 1 of Article II of the 1935 Constitution declares that: "So
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 g
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
it has been accepted and acquiesced in by the people as shown by their compliance with the decree promulgated the
their cooperation in its implementation, and is now maintained by the Government that is in undisputed authority and

Of course it is argued that acquiescence by the people can be deduced from their acts of conformity, because under
martial law the people are bound to obey and act in conformity with the orders of the President, and has absolutely no
choice. The flaw of this argument lies in its application of a mere theoretical assumption based on the experiences of
nations on an entirely different factual setting. Such an assumption flounders on the rock of reality. It is true that as a
martial law is the use of military forces to perform the functions of civil government. Some courts have viewed it as a
regime which can be imposed in emergency situations. In other words, martial rule exists when the military rises supe
civil power in the exercise of some or all the functions of government. Such is not the case in this country. The govern
functions thru its civilian officials. The supremacy of the civil over the military authority is manifest. Except for the impo
curfew hours and other restrictions required for the security of the State, the people are free to pursue their ordinary c

In short, the existing regime in this Country, does not contain the oppressive features, generally associated with a reg
Martial law in other countries. "Upon the other hand the masses of our people have accepted it, because of its manifo
blessings. The once downtrodden rice tenant has at long last been emancipated — a consummation devoutly wished
Philippine President since the 1930's. The laborer now holds his head high because his rights are amply protected an
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 S
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 ma
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
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 ha
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
United States Senate. "President Marcos has been prompt and sure-footed in using the power of presidential decree
martial law for this purpose. He has zeroed in on areas which have been widely recognized as prime sources of the n
difficulties — land tenancy, official corruption, tax evasion and abuse of oligarchic economic power. Clearly he knows
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 le
approve urgently needed reforms. He found his second term further frustrated by spread riots
uprising in Luzon and a much more serious Moslem insurrection in the southern islands from
across the Sulu archipelago to the frontier regions of Malaysia and Indonesia. Manila claims th
Maoist-coordinated.

Mr. Marcos has now in effect taken all the reins of power and makes no promise as to when h
relinquish them. But, while fettering a free press, terminating Congress and locking up some o
(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
funds. New roads have been started. The educational system is undergoing revision, a corrup
diminished. In non-communist Asia it is virtually impossible to wholly end it and this disagreea
phenomenon still reaches very high.

Mr. Marcos, an imaginative, gifted man, hopes to reshape society by creating an agrarian mid
replace the archaic sharecropper-absentee landlord relationship. He is even pushing for a birt
program with the tacit acceptance of the Catholic Church. He has started labor reforms and in
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 petitioner

The new Constitution is considered effective "if the norms created in conformity with it are by and large applied and o
soon as the old Constitution loses its effectiveness and the new Constitution has become effective, the acts that appe
subjective meaning of creating or applying legal norms are no longer interpreted by presupposing the old basic norm,
presupposing the new one. The statutes issued under the old Constitution and not taken over are no longer regarded
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, w
assailed is not merely the validity of Proclamation No. 1102 of the President, which is merely declaratory of the fact o
or ratification, but the legitimacy of the government. It is addressed more to the framework and political character of th
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 ju
expound and administer them. If it decides at all as a court, it necessarily affirms the existence and authority of the go
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 Cour
existence is affected by such change is, in the words of Mr. Melville Fuller Weston, "precluded from passing upon the
change by a logical difficulty which is not to be surmounted."  Such change in the organic law relates to the existence
5

point in the Court's "chain of title" to its authority and "does not relate merely to a question of the horizontal distributio
powers."  It involves in essence a matter which "the sovereign has entrusted to the so-called political departments of
6

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 C
consistently recognized," said Justice Frankfurter, in his illuminating dissent in Baker v. Carr, 369 U.S. 186, 7 L. Ed. 2
726, 727), "a class of controversies which do not lend themselves to judicial standards and judicial remedies. To clas
various instances as "political questions" is rather a form of stating this conclusion than revealing of analysis ... The c
matter is that courts are not fit instruments of decision where what is essentially at stake is the composition of those l
contests of policy traditionally fought out in non-judicial forums, by which governments and the actions of government
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 o
"wrong" views of the Constitution. It is one of attitudes and values. For there is scarcely any principle, authority or inte
which has not been countered by the opposite. At bottom, it is the degree of one's faith — in the nation's leadership a
maturity of judgment of our people.

IN VIEW OF THE FOREGOING, the dismissal of these five cases, and the conclusion of this
judgment of March question becomes wholly moot except for this consideration, that, when th
individuals or as a body of individuals come to decide which king or which constitution they wi
and assert to represent, it may often be good judgment for them to follow the lead of the men
practical matter are likely to be looked to by the people as more representative of themselves
conversely are likely to be more directly in touch with popular sentiment. If, however, the judge
strong views of their own to be able to take this course, they may follow their own leads at the
hazard. No question of law is involved. (Political Questions, 38 Harvard Law Review [1924-25
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 leg
The secretary of state shall prepare a ballot title and proposition summarizing each proposed amendment, and shall p
on the ballot for the next statewide election. If a majority of the votes cast on the proposition favor the amendment, it
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
shall place on the ballot for the next general election the question: "Shall there be a Constitutional Convention?" If a m
the votes cast on the question are in the negative, the question need not be placed on the ballot until the end of the n
period. If a majority of the votes cast on the question are in the affirmative, delegates to the convention shall be chose
next regular statewide election, unless the legislature provides for the election of the election delegates at a special e
secretary of state shall issue the call for the convention. Unless other provisions have been made by law, the call sha
as nearly as possible to the act calling the Alaska Constitutional Convention of 1955, including, but not limited to, num
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
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 Sen
Assembly, and if two-thirds of all the members elected to each of the houses shall vote in favor thereof, such propose
amendment or amendments shall be entered in their Journals, with the yeas and nays taken thereon; and it shall be t
the Legislature to submit such proposed amendment or amendments to the people in such manner, and at such time
such publication as may be deemed expedient. Should more amendments than one be submitted at the same electio
be so prepared and distinguished, by numbers or otherwise, that each can be voted on separately. If the people shall
and ratify such amendment or amendments, or any of them, by a majority of the qualified electors voting thereon suc
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 sha
necessary to revise this Constitution, they shall recommend to the electors to vote at the next general for or against a
for that purpose, and if a majority of the electors voting at such election on the proposition for a Convention shall vote
thereof, the Legislature shall, at its next session, provide by law for calling the same. The Convention shall consist of
delegates not to exceed that of both branches of the Legislature, who shall be chosen in the same manner, and have
qualifications, as Members of the Legislature. The delegates so elected shall meet within three months after their elec
place as the Legislature may direct. At a special election to be provided for by law, the Constitution that may be agre
such Convention shall be submitted to the people for their ratification or rejection, in such manner as the Convention
determine. The returns of such election shall, in such manner as the Convention shall direct, be certified to the Execu
State, who shall call to his assistance the Controller, Treasurer, and Secretary of State, and compare the returns so c
him; and it shall be the duty of the Executive to declare, by his proclamation, such Constitution, as may have been ra
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 m
elected to each house, recommend to the electors of the state, to vote at the next general election for or against a co
to revise, alter and amend this constitution; and if a majority of those voting on the question shall declare in favor of s
convention, the general assembly shall, at the next session, provide for the calling thereof. The number of members o
convention shall be twice that of the senate and they shall be elected in the same manner, at the same places, and in
districts. The general assembly shall, in the act calling the convention, designate the day, hour and place of its meetin
pay of its members and officers, and provide for the payment of the same, together with the necessary expenses of th
convention. Before proceeding, the members shall take an oath to support the constitution of the United States, and o
of Colorado, and to faithfully discharge their duties as members of the convention. The qualifications of members sha
same as of members of the senate; and vacancies occurring shall be filled in the manner provided for filling vacancie
general assembly. Said convention shall meet within three months after such election and prepare such revisions, alt
amendments to the constitution as may be deemed necessary; which shall be submitted to the electors for their ratific
rejection at an election appointed by the convention for that purpose, not less than two nor more than six months afte
adjournment thereof; and unless so submitted and approved by a majority of the electors voting at the election, no su
alteration or amendment shall take effect.

Sec. 2. Amendments to constitution; how adopted. Any amendment or amendments to this constitution may be propo
either house of the general assembly, and if the same shall be voted for by two-thirds of all the members elected to e
such proposed amendment or amendments, together with the ayes and noes of each house hereon, shall be entered
their respective journals; the proposed amendment or amendments shall be published with the laws of that session o
general assembly, and the secretary of state shall also cause the said amendment or amendments to be published in
more than one newspaper of general circulation in each county, for four successive weeks previous to the next gener
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 votin
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
separately and votes thereon cast shall be separately counted the same as though but one amendment was submitte
general assembly shall have no power to propose amendments to more than six articles of this constitution at the sam

4. Delaware (1897) — Art. XVI. Amendments and Conventions.

Sec. 1. Proposal of constitutional amendments in general assembly; procedure. Any amendment or amendments to t
Constitution may be proposed in the Senate or House of Representatives; and if the same shall be agreed to by two-
the members elected to each House, such proposed amendment or amendments shall be entered on their journals, w
yeas and nays taken thereon, and the Secretary of State shall cause such proposed amendment or amendments to b
three months before the next general election in at least three newspapers in each County in which such newspaper
published; and if in the General Assembly next after the said election such proposed amendment or amendments sha
and nay vote be agreed to by two-thirds of all the members elected to each House, the same shall thereupon become
Constitution.

Sec. 2. Constitutional conventions; procedure; compensation of delegates; quorum; powers and duties; vacancies. T
Assembly by a two-thirds vote of all the members elected to each House may from time to time provide for the submi
qualified electors of the State at the general election next thereafter the question, "Shall there be a Convention to rev
Constitution and amend the same?;" and upon such submission, if a majority of those voting on said question shall de
favor of a Convention for such purpose, the General Assembly at its next session shall provide for the election of dele
such convention at the next general election. Such Convention shall be composed of forty-one delegates, one of who
chosen from each Representative District by the qualified electors thereof, and two of whom shall be chosen from Ne
County, two from Kent County and two from Sussex County by the qualified electors thereof respectively. The delega
chosen shall convene at the Capital of the State on the first Tuesday in September next after their election. Every del
receive for his services such compensation as shall be provided by law. A majority of the Convention shall constitute
for the transaction of business. The Convention shall have the power to appoint such officers, employees and assista
may be deem necessary, and fix their compensation, and provide for the printing of its documents, journals, debates
proceedings. The Convention shall determine the rules of its proceedings, and be the judge of the elections, returns a
qualifications of its members. Whenever there shall be a vacancy in the office of delegate from any district or county b
failure to elect, ineligibility, death, resignation or otherwise, a writ of election to fill such vacancy shall be issued by the
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
ordinary session thereof called for such purpose either in the governor's original call or any amendment thereof, may
revision or amendment of any portion or portions of this Constitution. Any such revision or amendment may relate to
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 e
upon their respective journals with the yeas and nays and published in one newspaper in each county where a newsp
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 o
for approval or rejection at the next general election, provided, however, that such revision or amendment may be su
approval or rejection in a special election under the conditions described in and in the manner provided by Section 3
XVII of the Constitution. If a majority of the electors voting upon the amendment adopt such amendment the same sh
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 bo
shall determine that a revision of this Constitution is necessary, such determination shall be entered upon their respe
Journals, with yea's and nay's thereon. Notice of said action shall be published weekly in one newspaper in every cou
which a newspaper is published, for three months preceding the next general election of Representatives, and in thos
where no newspaper is published, notice shall be given by posting at the several polling precincts in such counties fo
next preceding said election. The electors at said election may vote for or against the revision in question. If a majorit
electors so voting be in favor of revision, the Legislature chosen at such election shall provide by law for a Conventio
the Constitution, said Convention to be held within six months after the passage of such law. The Convention shall co
number equal to the membership of the House of Representatives, and shall be apportioned among the several coun
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 i
branch of the legislature, and if the same shall be agreed to by two-thirds of all the members of each of the two house
separately, such proposed amendment or amendments shall, with the yeas and nays thereon, be entered on their jou
shall be the duty of the legislature to submit such amendment or amendments to the electors of the state at the next g
election, and cause the same to be published without delay for at least six consecutive weeks, prior to said election, i
than one newspaper of the general circulation published in each county; and if a majority of the electors shall ratify th
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 l
shall deem it necessary to call a convention to revise or amend this Constitution, they shall recommend to the elector
the next general election, for or against a convention, and if a majority of all the electors voting at said election shall h
for a convention, the legislature shall at the next session provide by law for calling the same; and such convention sh
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 ea
year thereafter, and also at such times as the General Assembly may, by law, provide, the question, "Shall there be a
to revise the Constitution, and amend the same?" shall be decided by the electors qualified to vote for members of th
Assembly; and in case a majority of the electors so qualified, voting at such election, for and against such proposition
decide in favor of a Convention for such purpose, the General Assembly, at its next session, shall provide by law for t
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
constitution may be proposed in the senate or house of representatives. If the same shall be agreed to by 2/3 of the m
elected to each house, such amendment or amendments shall be entered on the journals, respectively, with the yeas
taken thereon; and the same shall be submitted to the electors at the next spring or autumn election thereafter, as the
shall direct; and, if a majority of the electors qualified to vote for members of the legislature voting thereon shall ratify
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 s
year thereafter and at such times as may be provided by law, the question of a General Revision of the Constitution s
submitted to the Electors qualified to vote for members of the Legislature. In case a majority of the Electors voting on
question shall decide in favor of a Convention for such purpose, at an Election to be held not later than four months a
Proposal shall have been certified as approved, the Electors of each House of Representatives District as then organ
Elect One Delegate for each Electors of each Senatorial District as then organized shall Elect One Delegate for each
Senator to which the District is entitled. The Delegates so elected shall convene at the Capital City on the First Tuesd
October next succeeding such election, and shall continue their sessions until the business of the convention shall be
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
unless by the assent of a majority of all the delegates elected to the convention, the yeas and nays being entered on
Any proposed constitution or amendments adopted by such convention shall be submitted to the qualified electors in
provided by such convention on the first Monday in April following the final adjournment of the convention; but, in cas
of at least 90 days shall not intervene between such final adjournment and the date of such election. Upon the approv
constitution or amendments by a majority of the qualified electors voting thereon such constitution or amendments sh
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 o
houses of the legislature shall deem it necessary to alter or amend this Constitution, they may proposed such alterati
or amendments, which proposed amendments shall be published with the laws which have been passed at the same
and said amendments shall be submitted to the people for their approval or rejection at any general election, and if it
appear, in a manner to be provided by law, that a majority of all the electors voting at said election shall have voted fo
ratified such alterations or amendments, the same shall be valid to all intents and purposes as a part of this Constitut
more alterations or amendments shall be submitted at the same time, it shall be so regulated that the voters shall vot
against each separately.

Sec. 2. Revision of constitution. Whenever two-thirds of the members elected to each branch of the legislature shall t
necessary to call a convention to revise this Constitution, they shall recommend to the electors to vote at the next gen
election for members of the legislature, for or against a convention; and if a majority of all the electors voting at said e
have voted for a convention, the legislature shall, at their next session, provide by law for calling the same. The conve
consist of as many members as the House of Representatives, who shall be chosen in the same manner, and shall m
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 consti
submit any revision thereof by said convention to the people of the State of Minnesota for their approval or rejection a
general election held not less than 90 days after the adoption of such revision, and, if it shall appear in the manner p
law that three-fifths of all the electors voting on the question shall have voted for and ratified such revision, the same
constitute a new constitution of the State of Minnesota. Without such submission and ratification, said revision shall b
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 propose
Senate or Assembly; and if the same shall be agreed to by a Majority of all the members elected to each of the two h
proposed amendment or amendments shall be entered on their respective journals, with the Yeas and Nays taken th
referred to the Legislature then next to be chosen, and shall be published for three months next preceding the time of
such choice. And if in the Legislature next chosen as aforesaid, such proposed amendment or amendments shall be
by a majority of all the members elected to each house, then it shall be the duty of the Legislature to submit such pro
amendment or amendments to the people, in such manner and at such time as the Legislature shall prescribe; and if
shall approve and ratify such amendment or amendments by a majority of the electors qualified to vote for members
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 M
elected to each house, shall determine that it is necessary to cause a revision of this entire Constitution they shall rec
the electors at the next election for Members of the Legislature, to vote for or against a convention, and if it shall appe
majority of the electors voting at such election, shall have voted in favor of calling a Convention, the Legislature shall,
session provide by law for calling a Convention to be holden within six months after the passage of such law, and suc
Convention shall consist of a number of Members not less that of both branches of the legislature. In determining wha
majority of the electors voting such election, reference shall be had to the highest number of vote cast at such electio
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 town
places in this state, in warning the first annual meetings for the choice of senators, after the expiration of seven years
adoption of this constitution, as amended, to insert expressly in the warrant this purpose, among the others for the me
wit, to take the sense of the qualified voters on the subject of a revision of the constitution; and, the meeting being wa
accordingly, and not otherwise, the moderator shall take the sense of the qualified voters present as to the necessity
revision; and a return of the number of votes for and against such necessity, shall be made by the clerk sealed up, an
to the general court at their then next session; and if, it shall appear to the general court by such return, that the sens
people of the state has taken, and that, in the opinion of the majority of the qualified voters in the state, present and v
meetings, there is a necessity for a revision of the constitution, it shall be the duty of the general court to call a conve
purpose, otherwise the general court shall direct the sense of the people to be taken, and then proceed in the manne
mentioned. The delegates to be chosen in the same manner, and proportioned, as the representatives to the general
provided that no alterations shall be made in this constitution, before the same shall be laid before the towns and unin
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 Constitu

proposed in either branch of the Legislature, and if the same shall be agreed to by a majority of all the members elec
of the two houses, such proposed amendment or amendments shall, with yeas and nays thereon, be entered in their
and referred by the Secretary of State to the people for their approval or rejection, at the next regular general election
when the Legislature, by a two-thirds vote of each house, shall order a special election for that purpose. If a majority
the electors voting at such election shall vote in favor of any amendment thereto, it shall thereby become a part of thi
Constitution.

If two or more amendments are proposed they shall be submitted in such manner that electors may vote for or agains
separately.

No proposal for the amendment or alteration of this Constitution which is submitted to the voters shall embrace more
general subject and the voters shall vote separately for or against each proposal submitted; provided, however, that i
submission of proposals for the amendment of this Constitution by articles, which embrace one general subject, each
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 L
propose alterations, revisions, or amendments to this Constitution, or to propose a new Constitution, unless the law p
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 elec
State at a general or special election and be approved by a majority of the electors voting thereon, before the same s
effective Provided, That the question of such proposed convention shall be submitted to the people at least once in e
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 ei
of the legislative assembly, and if the same shall be agreed to by a majority of all the members elected to each of the
houses, such proposed amendment or amendments shall, with the yeas and nays thereon, be entered in their journa
referred by the secretary of state to the people for their approval or rejection, at the next regular election, except whe
legislative assembly shall order a special election for that purpose. If a majority of the electors voting on any such am
shall vote in favor thereof, it shall thereby become a part of this Constitution. The votes for and against such amendm
or amendments, severally, whether proposed by the legislative assembly or by initiative petition, shall be canvassed b
secretary of state in the presence of the governor, and if it shall appear to the governor that the majority of the votes c
election on said amendment, or amendments, severally, are cast in favor thereof, it shall be his duty forthwith after su
by his proclamation, to declare the said amendment, or amendments, severally, having received said majority of vote
been adopted by the people of Oregon as part of the Constitution thereof, and the same shall be in effect as a part of
Constitution from the date of such proclamation. When two or more amendments shall be submitted in the manner af
the voters of this state at the same election, they shall be so submitted that each amendment shall be voted on separ
convention shall be called to amend or propose amendments to this Constitution, or to propose a new Constitution, u
law providing for such convention shall first be approved by the people on a referendum vote at a regular general ele
article shall not be construed to impair the right of the people to amend this Constitution by vote upon an initiative pet
therefor.

Sec. 2. Method of revising constitution. (1) In addition to the power to amend this Constitution granted by section 1, A
and section 1 of this Article, a revision of all or part of this Constitution may be proposed in either house of the Legisl
Assembly and, if the proposed revision is agreed to by at least two-thirds of all the members of each house, the propo
revision shall, with the yeas and nays thereon, be entered in their journals and referred by the Secretary of State to th
their approval or rejection, notwithstanding section 1, Article IV of this Constitution, at the next regular state-wide prim
election, except when the Legislative Assembly orders a special election for that purpose. A proposed revision may d
more than one subject and shall be voted upon as one question. The votes for and against the proposed revision sha
canvassed by the Secretary of State in the presence of the Governor and, if it appears to the Governor that the major
votes cast in the election on the proposed revision are in favor of the proposed revision, he shall, promptly following t
declare, by his proclamation, that the proposed revision has received a majority of votes and has been adopted by th
the Constitution of the State of Oregon, as the case may be. The revision shall be in effect as the Constitution or as a
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 eith
the Legislature, and if two-thirds of all the members elected of the two houses, shall vote in favor thereof, such propo
amendment or amendments shall be entered on their respective journals with the yeas and nays taken thereon; and
Legislature shall cause the same to be published in at least one newspaper in every county of the State, where a new
published, for two months immediately preceding the next general election, at which time the said amendment or ame
shall be submitted to the electors of the State, for their approval or rejection, and if a majority of the electors voting th
approve the same, such amendment or amendments shall become part of this Constitution. If two or more amendme
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 th
Legislature, shall deem it necessary to call a convention to revise or amend this Constitution, they shall recommend
electors to vote at the next general election, for or against a convention, and, if a majority of all the electors, voting at
election, shall vote for a convention. The Legislature, at its next session, shall provide by law for calling the same. Th
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 b
the legislature, and, if the same shall be agreed to by two-thirds of all the members of the two houses, voting separat
proposed amendment or amendments shall, with the yeas and nays thereon, be entered on their journals, and it shal
of the legislature to submit such amendment or amendments to the electors of the state at the next general election,
one newspaper of general circulation, published in each county, and if a majority of the electors shall ratify the same,
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 ele
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 le
shall deem it necessary to call a convention to revise or amend this constitution, they shall recommend to the elector
the next general election for or against a convention, and if a majority of all the electors voting at such election shall h
for a convention, the legislature shall at the next session provide by a law for calling the same; and such convention s
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 submitte
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 ca
petitions to justify their being given due course. Considering on the one hand the urgency of the matter and on the oth
transcendental importance, which suggested the need for hearing the side of the respondents before that preliminary
was resolved, We required them to submit their comments on the petitions. After the comments were filed We consid
as motions to dismiss so that they could be orally argued. As it turned out, the hearing lasted five days, morning and
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 Presiden
January 17, 1973 (Proclamation No. 1102) was not an act of ratification, let alone a valid one, of the proposed Consti
because it was not in accordance with the existing Constitution (of 1935) and the Election Code of 1971. Other groun
relied upon by the petitioners in support of their basic proposition, but to our mind they are merely subordinate and pe

Article XV, Section 1, of the 1935 Constitution provides that amendments (proposed either by Congress in joint sessi
Convention called by it for the purpose) "shall be valid part of this Constitution when approved by a majority of votes c
an election at which the amendments submitted to the people for their ratification." At the time Constitution was appro
Constitutional Convention on February 8, 1935, and ratified in a plebiscite held on following May 14, the word "electio
already a definite meaning in our law and jurisprudence. It was not a vague and amorphous concept, but a procedure
by statute ascertaining the people's choices among candidates for public offices, or their will on important matters sub
the pursuant to law, for approval. It was in this sense that word was used by the framers in Article XV (also in Articles
and in accordance with such procedure that plebiscites were held to ratify the very same Constitution in 1935 as well
subsequent amendments thereto, thus: in 1939 (Ordinance appended to the Constitution); 1940 (establishment of a b
legislature; eligibility of the President and the Vice President for re election; creation of the Commission of Elections);
(Parity Amendment); and 1967 (increase in membership of the House of Representatives and eligibility of members o
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 plebi
be conducted in the manner provided by this Code." This is a statutory requirement designed, as were the other elect
previously in force, to carry out the constitutional mandate relative to the exercise of the right suffrage, and with speci
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. Sec
requires that qualified voters be registered in a permanent list, the qualifications being those set forth in Article V, Sec
the 1935 Constitution on the basis of age (21), literacy and residence. These qualifications are reiterated in Section 1
Election Code. Section 102 enumerates the classes of persons disqualified to vote. Succeeding sections prescribe th
paraphernalia to be used, the procedure for registering voters, the records, of registration and the custody thereof, th
description and printing of official ballots, the actual casting of votes and their subsequent counting by the boards of i
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 co

(1) This draft was prepared and approved by a Convention which had been convened pursuant to Resolution No. 2 p
Congress on March 16, 1967, which provides:

Sec. 7. The amendments proposed by the Convention shall be valid and considered part of th
Constitution when approved by a majority of the votes cast in an election at which they are su
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
in a plebiscite called for the purpose and, except as herein provided, shall supersede the Con
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
Constitution.

(3) After the draft Constitution was approved by the Constitutional Convention on November 30, 1972 the said body a
Resolution No. 5843, proposing "to President Ferdinand E. Marcos that a decree be issued calling a plebiscite for the
of the proposed New Constitution on such appropriate date as he shall determine and providing for the necessary fun
therefor." Pursuant to said Resolution the President issued Decree No. 73 on the same day, calling a plebiscite to be
January 15, 1973, at which the proposed Constitution "shall be submitted to the people for ratification or rejection." Th
had eighteen (18) sections in all, prescribing in detail the different steps to be taken to carry out the process of ratifica
as: (a) publication of the proposed Constitution in English and Pilipino; (b) freedom of information and discussion; (c)
of voters: (d) appointment of boards of election inspectors and designation of watchers in each precinct; (e) printing o
ballots; (f) manner of voting to insure freedom and secrecy thereof; (g) canvass of plebiscite returns; and (h) in gener
compliance with the provisions of the Election Code of 1971, with the Commission on Elections exercising its constitu
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 C
since then to the 1971 Constitutional Convention — amendments to the Constitution should be ratified in only one wa
an election or plebiscite held in accordance with law and participated in only by qualified and duly registered voters. I
concerned was this Court with the importance and indispensability of complying with the mandate of the (1935) Cons
this respect that in the recent case of Tolentino vs. Commission on Elections, No. L-34150, October 16, 1971 (41 SC
resolution of the (1971) Constitutional Convention submitting a proposed amendment for ratification to a plebiscite to
November 1971 was declared null and void. The amendment sought to reduce the voting age from twenty-one to eig
and was approved by the Convention for submission to a plebiscite ahead of and separately from other amendments
or to be considered by it, so as to enable the youth to be thus enfranchised to participate in the plebiscite for the ratifi
such other amendments later. This Court held that such separate submission was violative of Article XV, Section 1, o
Constitution, which contemplated that "all the amendments to be proposed by the same Convention must be submitte
people in a single "election" or plebiscite." * Thus a grammatical construction based on a singular, instead of plural, rendition of the word "election"
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 p
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. C
but the ratification of an entire charter setting up a new form of government; and the issue has arisen not because of
construction of one word or one provision in the 1935 Constitution but because no election or plebiscite in accordanc
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
December 31, 1972, "to broaden the base of citizen participation in the democratic process and to afford ample oppo
the citizenry to express their views on important national issues." The Assemblies "shall consist of all persons who ar
of the barrio, district or ward for at least six months, fifteen years of age or over, citizens of the Philippines and who a
registered in the lists of Citizen Assembly members kept by the barrio, district or ward secretary." By Presidential Dec
A, dated January 5, 1973, the Assemblies were convened for a referendum between January 10 and 15, to "consider
national issues now confronting the country, like the holding of the plebiscite on the new Constitution, the continuation
rule, the convening of Congress on January 22, 1973, and the holding of elections in November 1973."

On January 5, 1973 the newspapers came out with a list of four questions to be submitted to the Citizens Assemblies
one being as follows: "How soon would you like plebiscite on the new Constitution to be held?" It should be noted in t
connection that the President had previously announced that he had ordered the postponement of plebiscite which he
for January 15, 1973 (Presidential Decree No. 73) for the ratification of the Constitution, and that he was considering
dates for the purpose — February 19 or March 5; that he had ordered that the registration of voters (pursuant to Decr
be extended to accommodate new voters; and that copies of the new Constitution would be distributed in eight dialec
people. (Bulletin Today, December 24, 1972.)
On January 10, 1973 it was reported that one more question would be added to the original four which were to be sub
the Citizens Assemblies. The question concerning plebiscite was reworded as follows: "Do you like the plebiscite to b
later?" The implication, it may likewise be noted, was that the Assemblies should express their views as to the plebisc
be held, not as to whether or not it should be held at all.

The next day, January 11, it was reported that six additional questions would be submitted, namely:

(1) Do you approve of the citizens assemblies as the base of popular government to decide is
national interest?

(2) Do you approve of the new Constitution?

(3) Do you want a plebiscite to be called to ratify the new Constitution?

(4) Do you want the elections to be held in November, 1973 accordance with the provisions of
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 supplie

Appended to the six additional questions above quoted were the suggested answers, thus:

COMMENTS ON

QUESTION No. 1

In order to broaden the base of citizens' participation in government.

QUESTION No. 2

But we do not want the Ad Interim Assembly to be convoked. Or if it is to be co

all, it should not be done so until after at least seven (7) years from the approv
New Constitution by the Citizens Assemblies.

QUESTION No. 3

If the Citizens Assemblies approve of the New Constitution, then the new Con
should be deemed ratified.

The vote of the Citizens Assemblies should already be considered the plebisci
New Constitution.

QUESTION No. 4

We are sick and tired of too frequent elections. We are fed up with politics, of s
debates and so much expenses.

QUESTION No. 5
 Probably a period of at least seven (7) years moratorium on elections will be e
stability to be established in the country, for reforms to take root and normalcy

QUESTION No. 6

We want President Marcos to continue with Martial Law. We want him to exerc
powers with more authority. We want him to be strong and firm so that he can
all his reform program and establish normalcy in the country. If all other measu
want President Marcos to declare a revolutionary government along the lines o
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 th
that the plebiscite should be done away with and a favorable vote by the Assemblies deemed equivalent ratification. T
done, not in the questionnaire itself, but in the suggested answer to question No. 3. Strangely, however, it was not sim
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 As
assuming that such voting was held, was not within the intendment of Article XV, Section 1, of the 1935 Constitution n
accordance with the Election Code of 1971. The referendum can by no means be considered as the plebiscite contem
Section 2 of said Code and in Article XVII, Section 16, of the draft Constitution itself, or as the election intended by Co
when it passed Resolution No. 2 on March 16, 1967 calling a Convention for the revision of the 1935 Constitution. Th
Assemblies were not limited to qualified, let alone registered voters, but included all citizens from the age of fifteen, a
regardless of whether or not they were illiterates, feeble-minded, or ex convicts  * — these being the classes of persons expressly dis
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
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, w
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 th
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 assess
results.

It has been suggested that since according to Proclamation No. 1102 the overwhelming majority of all the members o
Citizens Assemblies had voted for the adoption of the proposed Constitution there was a substantial compliance with
Section 1, of the 1935 Constitution and with the Election Code of 1971. The suggestion misses the point entirely. It is
essence of a valid exercise of the right of suffrage that not only must a majority or plurality of the voters carry the day
same must be duly ascertained in accordance with the procedure prescribed by law. In other words the very existenc
majority or plurality depends upon the manner of its ascertainment, and to conclude that it exists even if it has not bee
ascertained according to law is simply to beg the issue, or to assume the very fact to be established. Otherwise no el
plebiscite could be questioned for non-compliance with the provisions of the Election Law as long as it is certified tha
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 Preside
Proclamation No. 1102, was not in accordance with the constitutional and statutory procedure laid down for the purpo
quite resolve the questions raised in these cases. Such a finding, in our opinion, is on a matter which is essentially ju
that is, within the power of this Court to inquire into. It imports nothing more than a simple reading and application of t
provisions of the 1935 Constitution, of the Election Code and of other related laws and official acts. No question of wi
policy is involved. But from this finding it does not necessarily follow that this Court may justifiably declare that the Co
has not become effective, and for that reason give due course to these petitions or grant the writs herein prayed for. T
effectivity of the said Constitution, in the final analysis, is the basic and ultimate question posed by these cases, to re
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 rat
process adopted by the Citizens Assemblies and on that premise would have this Court grant the reliefs they seek. T
respondents represented by the Solicitor General, whose theory may be taken as the official position of the Governm
challenge the jurisdiction of this Court on the ground that the questions raised in the petitions are political and therefo
justiciable, and that in any case popular acquiescence in the new Constitution and the prospect of unsettling acts don
reliance thereon should caution against interposition of the power of judicial review. Respondents Gil J. Puyat and Jo
L-36165), in their respective capacities as President and President Pro Tempore of the Senate of the Philippines, and
their counsel, Senator Arturo Tolentino, likewise invoke the political question doctrine, but on a ground not concurred
Solicitor General, namely, that approval of the 1973 Constitution by the people was made under a revolutionary gove
the course of a successful political revolution, which was converted by act of the people to the present de jure govern
the 1973 Constitution."

Heretofore, constitutional disputes which have come before this Court for adjudication proceeded on the assumption,
by all, that the Constitution was in full force and effect, with the power and authority of the entire Government behind
task of this Court was simply to determine whether or not the particular act or statute that was being challenged contr
some rule or mandate of that Constitution. The process employed was one of interpretation and synthesis. In the cas
there is no such assumption: the Constitution (1935) has been derogated and its continued existence as well as the v
act of derogation is issue. The legal problem posed by the situation is aggravated by the fact that the political arms of
Government — the Executive Departments and the two Houses of Congress — have accepted the new Constitution
the former by organizing themselves and discharging their functions under it, and the latter by not convening on Janu
1973 or at any time thereafter, as ordained by the 1935 Constitution, and in the case of a majority of the members by
their option to serve in the Interim National Assembly in accordance with Article XVIII, Section 2, of the 1973 Constitu

The theory advanced by Senator Tolentino, as counsel for respondents Puyat and Roy, may be taken up and restate
length if only because it would constitute, if sustained, the most convenient ground for the invocation of the political-q
doctrine. In support of his theory, Senator Tolentino contends that after President Marcos declared martial law on Sep
1972 (Proclamation No. 1081) he established a revolutionary government when he issued General Order No. 1 the n
wherein he proclaimed "that I shall govern the nation and direct the operation of the entire government, including all it
and instrumentalities, in my capacity, and shall exercise all the powers and prerogatives appurtenant and incident to
as such Commander-in-Chief of all the Armed Forces of the Philippines." By this order, it is pointed out, the Comman
of the Armed Forces assumed all the powers of government — executive, legislative, and judicial; and thereafter proc
exercise such powers by a series of Orders and Decrees which amounted to legislative enactments not justified unde
law and, in some instances, trenched upon the domain of the judiciary, by removing from its jurisdiction certain classe
such as "those involving the validity, legality, or constitutionality of Proclamation No. 1081, or of any decree, order or
promulgated or performed by me or by my duly designated representative pursuant thereto." (General Order No. 3 as
by General Order No. 3-A, dated September 24, 1972.) The ratification by the Citizens Assemblies, it is averred, was
culminating act of the revolution, which thereupon converted the government into a de jure one under the 1973 Cons

If indeed it be accepted that the Citizens Assemblies had ratified the 1973 Constitution and that such ratification as w
establishment of the government thereunder formed part of a revolution, albeit peaceful, then the issue of whether or
Constitution has become effective and, as necessary corollary, whether or not the government legitimately functions
instead of under the 1935 Constitution, is political and therefore non-judicial in nature. Under such a postulate what th
did in the Citizen Assemblies should be taken as an exercise of the ultimate sovereign power. If they had risen up in a
force deposed the then existing government and set up a new government in its place, there could not be the least do
their act would be political and not subject to judicial review but only to the judgment of the same body politic act, in th
just set forth, is based on realities. If a new government gains authority and dominance through force, it can be effect
challenged only by a stronger force; judicial dictum can prevail against it. We do not see that situation would be any d
far as the doctrine of judicial review is concerned, if no force had been resorted to and the people, in defiance of the e
Constitution but peacefully because of the absence of any appreciable opposition, ordained a new Constitution and s
having the government operate under it. Against such a reality there can be no adequate judicial relief; and so courts
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, cur
by the Solicitor General, who disagrees with the revolutionary government theory of Senator Tolentino. The case involved the issue of which of two opposing govern
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 unifor
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 en
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 gover
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 exis
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 orde
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 th
that the ratification of the Constitution was a revolutionary act and that the government now functioning it is the produ
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 note
Citizens Assemblies were created, according to Presidential Decree No. 86, "to broaden the base of citizen participat
democratic process and to afford ample opportunities for the citizenry to express their views on important national iss
The President announced, according to the Daily Express of January 2, 1973, that "the referendum will be in the natu
a loose consultation with the people." (3) The question, as submitted to them on the particular point at issue here, wa
a approve of the Constitution?" (4) President Marcos, in proclaiming that the Constitution had been ratified, stated as
"(S)ince the referendum results show that more than ninety-five (95) per cent of the members of the Barangays (Citiz
Assemblies) are in favor of the new Constitution, the Katipunan ng mga Barangay has strongly recommended that th
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 s
them. In fact the plebiscite planned for January 15, 1973 under Presidential Decree No. 73 had been postponed to an
date, the reasons for the postponement being, as attributed to the President in the newspapers, that "there was little t
campaign for or against ratification" (Daily Express, Dec. 22, 1972); that he would base his decision (as to the date, o
plebiscite) on the compliance by the Commission (on Elections) on the publication requirement of the new Charter an
position taken by national leaders" (Daily Express, Dec. 23, 1972); and that "the postponement would give us more ti
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 underst
referendum to be for the ratification of the Constitution, but only for the expression of their views on a consultative ba
if the expression of those views had been intended as an act of ratification (or of rejection as a logical corollary) — th
have been no need for the Katipunan ng mga Barangay to recommend that the Constitution should already be deeme
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 ha
effect. The more relevant consideration, therefore, as far as we can see, should be as to what the President had in m
convening the Citizens Assemblies, submitting the Constitution to them and proclaiming that the favorable expression
views was an act of ratification. In this respect subjective factors, which defy judicial analysis and adjudication, are ne
involved.

In positing the problem within an identifiable frame of reference we find no need to consider whether or not the regim
established by President Marcos since he declared martial law and under which the new Constitution was submitted
Citizens Assemblies was a revolutionary one. The pivotal question is rather whether or not the effectivity of the said C
by virtue of Presidential Proclamation No. 1102, upon the recommendation of the Katipunan ng mga Barangay, was i
be definite and irrevocable, regardless of non-compliance with the pertinent constitutional and statutory provisions pre
procedure for ratification. We must confess that after considering all the available evidence and all the relevant circum
have found no reasonably reliable answer to the question. On one hand we read, for instance, the following public sta
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 destiny. We have burned our bridges behind us. Let no man misunderstand the strength o
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, amon
things:

... We can, perhaps delimit the power of the people to speak on legal matters, on justiciable m
matters that may come before the experts and interpreters of the law. But we cannot disqualif
from speaking on what we and the people consider purely political matters especially those th
fundamental law of the land.

... The political questions that were presented to the people are exactly those that refer to the
government which the people want ... The implications of disregarding the people's will are too
to be even considered. For if any power in government should even dare to disregard the peo
there would be valid ground for revolt.

... Let it be known to everybody that the people have spoken and they will no longer tolerate a
to undermine the stability of their Republic; they will rise up in arms not in revolt against the R
in protection of the Republic which they have installed. It is quite clear when the people say, w
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 fo
portion is quoted:

... the times are too grave and the stakes too high for us permit the customary concessions to
democratic process to hold back our people's clear and unequivocal resolve and mandate to m
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
our citizens ... that when all other measures should fail, that the President be directed to organize and establish a Re
Government," but in the next breath added: "... if we do ratify the Constitution, how can we speak of Revolutionary Go
They cannot be compatible ..." "(I)t is my feeling," he said, "that the Citizens' Assemblies which submitted this recomm
merely sought articulate their impatience with the status quo that has brought about anarchy, confusion and misery to
masses ..." The only alternatives which the President clearly implied by the foregoing statements were the ratification
Constitution and the establishment of a revolutionary government, the latter being unnecessary, in his opinion, becau
the Constitution had been ratified. The third obvious alternative was entirely ruled out, namely, a return to the 1935 C
for it was the status quo under that Constitution that had caused "anarchy, confusion and misery." The message seem
rather than return to such status quo, he would heed the recommendation of the Citizens' Assemblies to establish a r
government, because that would be the only other way to carry out the reforms he had envisioned and initiated — ref
in all fairness and honesty, must be given credit for the improved quality of life in its many aspects, except only in the
liberties.

If there is any significance, both explicit and implicit, and certainly unmistakable, in the foregoing pronouncements, it
step taken in connection with the ratification of the Constitution was meant to be irreversible, and that nothing anyone
would make the least difference. And if this is a correct and accurate assessment of the situation, then we would say
has been brought about by political action and is now maintained by the government that is in undisputed authority an
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
Constitution. In "Today's Revolution: Democracy" he says:

I believe, therefore, in the necessity of Revolution as an instrument of individual and social ch

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 Co
of the Philippines.

xxx xxx xxx

I repeat, this is not a military takeover of civil government functions. The Government of the R
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 Republ
reform our society...

I have had to use this constitutional power in order that we may not completely lose the civil ri
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 2
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 seriou
you run into critical problems with your programs?

R. I have never gotten off the constitutional track. Everything I am doing is in a

with the 1935 Constitution. The only thing is that instead of 18-year-olds voting
allowed 15-year-olds the right to vote. But the 15-year-olds of today are high-s
students, if not graduates, and they are better informed than my contemporarie
age. On the matter of whether it is constitutional to proclaim martial law, it is co
because the Constitution provides for it in the event of invasion, insurrection, r
immediate danger thereof. We may quarrel about whether what we have gone
sufficient cause to proclaim martial law but at the very least there is a danger o
because so many of our soldiers have been killed. You must remember this (m
provision) was lifted from the American legislation that was the fundamental la
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 h
made reference to subjective factors on which this Court, to our mind, is in no position to pass judgment. Among them
President's own assessment of the will of the people as expressed through the Citizens Assemblies and of the import
1973 Constitution to the successful implementation of the social and economic reforms he has started or envisioned.
decide that there is no turning back, that what the people recommended through the Citizens Assemblies, as they we
to him, demand that the action he took pursuant thereto be final and irrevocable, then judicial review is out of the que

In articulating our view that the procedure of ratification that was followed was not in accordance with the 1935 Const
related statutes, we have discharged our sworn duty as we conceive it to be. The President should now perhaps deci
not already decided, whether adherence to such procedure is weighty enough a consideration, if only to dispel any cl
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, sin
submission to the Citizens Assemblies, has found acceptance among the people, such issue being related to the poli
question theory propounded by the respondents. We have not tarried on the point at all since we find no reliable basi
to form a judgment. Under a regime of martial law, with the free expression of opinions through the usual media vehic
restricted, we have no means of knowing, to the point of judicial certainty, whether the people have accepted the Con
any event, we do not find the issue decisive insofar as our vote in these cases is concerned. To interpret the Constitu
is judicial. That the Constitution should be deemed in effect because of popular acquiescence — that is political, and
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 Petitio
Counsel Lorenzo M. Tañada on January 15, 1973 in the so called Plebiscite Cases decided by this Court on January
Of course, there are amplifications of some of the grounds previously alleged and in the course of the unprecedented
hearing that was held from February 12 to 16 last, more extensive and illuminating arguments were heard by Us, but,
estimation, and with due recognition of the sincerety, brilliance and eloquence of counsels, nothing more cogent and
than what had already been previously presented by Counsel Tañada is before Us now. Accordingly, I cannot see an
why I should change the position I took in regard to the earlier cases. I reiterate, therefore, the vote I cast when these
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
history of the individual stands of the members of the Court in relation to said issues and to the final outcome of these
considering that I reserved before the filing of a more extended opinion, I will take this opportunity to explain further w
that the 1973 Constitution is already in force, if only to clarify that apart from the people's right of revolution to which I
pointed reference in my previous opinion, I can see now, after further reflection, that the vote of the people in the refe
the Citizens Assemblies held on January 10 to 15, 1973, upon the result of which Proclamation 1102 is based, may b
more importantly as a political act than as a purely legal one with the result that such vote to consider the 1973 Cons
ratified without the necessity of holding a plebiscite in the form followed in the previous ratification plebiscites in 1935
Constitution itself, 1937 of women's suffrage, 1939 of the amendments to the Ordinance Appended to the Constitutio
the re-election of the President, the bicameral legislature and the Commission on Elections, 1947 of the parity amend
1967, rejecting the proposed increase in the members of the House of Representatives and eligibility of members of C
the Constitutional Convention, may be deemed as a valid ratification substantially in compliance with the basic intent
XV of the 1935 Constitution. If indeed this explanation may be considered as a modification of my rationalization then
emphasize that my position as to the fundamental issue regarding the enforceability of the new Constitution is even fi
than ever before. As I shall elucidate anon, paramount considerations of national import have led me to the conviction
best interests of all concerned would be best served by the Supreme Court holding that the 1973 Constitution is now
necessarily as a consequence of the revolutionary concept previously suggested by me, but upon the ground that as
more than as a legal, act of the people, the result of the referendum may be construed as a compliance with the subs
Article XV of the 1935 Constitution.

The facts that gave rise to these proceedings are historical and well known. Generally, they may be taken judicial not
revolve around the purported ratification of the Constitution of 1973 declared in Proclamation 1102 issued by the Pres
January 17, 1973.

Pursuant to a joint resolution of the Congress sitting as a constituent assembly approved on March 16, 1967, delegat
constitutional convention to propose amendments to the Constitution of 1935 were elected in accordance with the im
law, Republic Act 6132, on November 10, 1970. Known as the Constitutional Convention of 1971, the assembly bega
sessions on June 1, 1971. After encountering a lot of difficulties, due to bitter rivalries over important positions and co
and an incomprehensible fear of overconcentrating powers in their officers, the delegates went about their work in co
slow pace, and by the third quarter of 1972 had finished deliberations and second-reading voting only on an insignific
of proposals — until September 21, 1972, when the President, not altogether unexpectedly, yet abruptly, issued Proc
1081 declaring martial law throughout the country. An attempt was made to have the Convention recessed until after
martial law, and not long after the motion of Delegate Kalaw to such effect was turned down, the activities within the a
shifted to high gear. As if unmindful of the arrest and continued detention of several of its members, the convention g
swift momentum in its work, and on November 30, 1972, it approved by overwhelming vote the draft of a complete co
instead of mere specific amendments of particular portions of the Constitution of 1935. Needless to say, before martia
declared, there was full and unlimited coverage of the workings in the convention by the mass media. At the same tim
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 t
decree be issued calling a plebiscite for ratification of the proposed new Constitution on appropriate date as he shall
and providing for necessary funds therefor." Acting under this authority, December 1, 1972, the President issued Pres
Decree No. 73 submitting the draft constitution for ratification by the people at a plebiscite set for January 15, 1973. T
contained provisions more or less similar to the plebiscite laws passed by Congress relative to the past plebiscites he
connection with previous proposed amendments.

In connection with the plebiscite thus contemplated, General Order No. 17 was issued ordering and enjoining the aut
allow and encourage public and free discussions on proposed constitution. Not only this, subsequently, under date of
17, 1972, the President ordered the suspension the effects of martial law and lifted the suspension of privilege of the
of habeas corpus insofar as activities connected with the ratification of the draft constitution were concerned. These t
were not, however, to last very long. On January 7, 1973, the President, invoking information related to him that the a
public debate and discussion had opened by his previous orders was being taken advantage of by subversive elemen
the purposes for which they were issued and to foment public confusion, withdrew said orders and enjoined full and s
implementation of martial law.

In the meantime, the President had issued on December 3, 1972 Presidential Decree No. 86 creating Citizens Assem
to afford ample opportunities for the citizenry to express their views on important national issues" and one of the ques
presented to said assemblies was: "Do you like the plebiscite on the proposed Constitution to be held later" So, the s
of January 7, 1973, General Order No. 20, the President ordered, "that the plebiscite scheduled to be held January 1
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 bara
(citizens assemblies) that have so far been established, the people would like to decide for the
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 e
the views of the people on important national issues;

WHEREAS, such barangays (citizens assemblies) desire that they be given legal status and d
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 referendu
certain specified questions such as the ratification of the new Constitution, continuance of ma
convening of Congress on January 22, 1973, and the elections in November 1973 pursuant to
Constitution.

NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of th

vested in me by the Constitution as Commander-in-Chief of all Armed Forces of the Philippine
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
December 31, 1972, shall constitute the base for citizen participation in governmental affairs a
collective views shall be considered in the formulation of national policies or programs and, wh
practicable, shall be translated into concrete and specific decision;

2. Such barangays (citizens assemblies) shall consider vital national issues now confronting th
like the holding of the plebiscite on the new Constitution, the continuation of martial rule, the c
Congress on January 22, 1973, and the holding of elections in November 1973, and others in
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 ref
important national issues, including those specified in paragraph 2 hereof, and submit results
the Department of Local Governments Community Development immediately thereafter, pursu
express will of the people as reflected in the reports gathered from the many thousands of bar
(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
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, 1
Barangays (Citizens Assemblies) have petitioned the Office of the President to submit them fo
important national issues;

WHEREAS, one of the questions persistently mentioned refers to the ratification of the Consti
proposed by the 1971 Constitutional Convention;

WHEREAS, on the basis of the said petitions, it is evident that the people believe that the sub
the proposed Constitution to the Citizens Assemblies or Barangays should be taken as a pleb
itself in view of the fact that freedom of debate has always been limited to the leadership in po
economic and social fields, and that it is now necessary to bring this down to the level of the p
themselves through the Barangays or Citizens Assemblies;

NOW THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of th

me vested by the Constitution, do hereby order that important national issues shall from time t
referred to the Barangays (Citizens Assemblies) for resolution in accordance with Presidential
86-A dated January 5, 1973 and that the initial referendum shall include the matter of ratificati
Constitution proposed by the 1971 Constitutional Convention.

The Secretary of the Department of Local Governments and Community Development shall in
implementation of this Order.

Done in the City of Manila, this 7th day of January in the year of Our Lord, nineteen hundred a
three.

And so it was that by January 10, 1973, when the Citizens Assemblies thus created started the referendum which wa
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 is
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
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
suggestive of the answer desired. It may assumed that the said "comments" came from official sources, albeit specifi
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 con

all, it should not be done so until after at least seven (7) years from the approv
New Constitution by the Citizens Assemblies.

QUESTION No. 3

The vote of the Citizens Assemblies should already be considered the plebisci
New Constitution.

If the Citizens Assemblies approve of the new Constitution then the new Cons
should be deemed ratified.

The Solicitor General claims, and there seems to be showing otherwise, that the results of the referendum were dete
the following manner:

Thereafter, the results of the voting were collated and sent to the Department of Local Govern
transmission of the results was made by telegram, telephone, the provincial government SSB
each province connecting all towns; the SSB communication of the PACD connecting most pr
Department of Public Information Network System; the Weather Bureau Communication Syste
connecting all provincial capitals and the National Civil Defense Network connecting all provin
The certificates of results were then flown to Manila to confirm the previous figures received b
aforementioned means of transmission. The certificates of results tallied with the previous figu
with the exception of few cases of clerical errors.

The Department adopted a system of regionalizing the receiving section of the Citizens Assem
operation at the Department wherein the identity of the barrio and the province was immediate
a staff in charge of each region. Every afternoon at 2:00 o'clock, the 11 regions submitted the
received from the field to the central committee to tabulate the returns. The last figures were t
12 midnight of January 16, 1973 and early morning of January 17, 1973 and were then comm
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 procla
reads:
 PROCLAMATION NO. 1102 ANNOUNCING THE RATIFICATION BY THE FILIPINO PEOPLE
CONSTITUTION PROPOSED BY THE 1971 CONSTITUTIONAL CONVENTION.

WHEREAS, the Constitution proposed by the nineteen hundred seventy-one Constitutional Co

subject to ratification by the Filipino people;

WHEREAS, Citizens Assemblies were created in barrios in municipalities and in districts/ward

chartered cities pursuant to Presidential Decree No. 6, dated December 31, 1972, composed
persons who are residents of the barrio, district or ward for at least six months, fifteen years o
over, citizens of the Philippines and who are registered in the list of Citizen Assembly member
the barrio, district or ward secretary;

WHEREAS, the said Citizens Assemblies were establish precisely to broaden the base of citiz
participation in the democratic process and to afford ample opportunity for the citizen to expre
views on important national issues;

WHEREAS, responding to the clamor of the people an pursuant to Presidential Decree No. 86
January 5, 1973, the following questions were posed before Citizens' Assemblies or Barangay
approve of the New Constitution? Do you still want a plebiscite to be called to ratify the new C

WHEREAS, fourteen million nine hundred seventy-six thousand five hundred sixty one (14,97
members of all the Barangays (Citizens Assemblies) voted for the adoption of the proposed C
as against seven hundred forty-three thousand eight hundred sixty nine (743,869) who voted
rejection; while on the question as to whether or not the people would still like a plebiscite to b
ratify the new Constitution fourteen million two hundred ninety-eight thousand eight hundred fo
(14,298,814) answered that there was no need for plebiscite and that the vote of the Baranga
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 m
the Barangays (Citizen Assemblies) are in favor of the New Constitution, the Katipunan ng Mg
has strongly recommended that the new Constitution should already be deemed ratified by the
people;

NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of th

me vested by the Constitution, do hereby certify and proclaim that the Constitution proposed b
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 o
Philippines to be affixed.

Done in the City of Manila, this 17th day of January, in the year of Our Lord, nineteen hundred
seventy-three.

The first attempt to question the steps just enumerated taken by the President was in the so-called Plebiscite Cases,
number, which were filed by different petitioners during the first half of December 1972.  Their common target then wa
1

Presidential Decree No. 73, but before the said cases could be decided, the series of moves tending in effect to make
and academic insofar as they referred exclusively to the said Presidential Decree began to take shape upon the issua
Presidential Decree No. 86-A, quoted above. And when Presidential Decree No. 86-B, also above quoted, was issue
six additional questions which were first publicized on January 11, 1973 were known, together with the "comments", p
sensed that a new and unorthodox procedure was being adopted to secure approval by the people of the new Consti
hence Counsel Tañada, not being satisfied with the fate of his urgent motion for early decision of the above ten cases
January 12, 1973, filed on January 15, 1973, his supplemental motion seeking the prohibition against and injunction o
proceedings going on. Principal objective was to prevent that the President be furnished the report of the results of th
referendum and thereby disable him from carrying out what petitioners were apprehensively foreseeing would be don
issuance of some kind of proclamation, order or decree, declaring that the new Constitution had been ratified. Reactin
the Court resolved on the same day, January 15, which was Monday, to consider the supplemental motion as a supp
petition and to require the respondents to answer the same the next Wednesday, January 17th, before the hour of the
the petition which set for 9:30 o'clock in the morning of that day. The details what happened that morning form part of
of facts the decision rendered by this Court in the ten cases on January 22, 1973 and need not be repeated here. Su
state no that before the hearing could be closed and while Counsel Tañada was still insisting on his prayer for prelimi
injunction or restraining order, the Secretary of Justice arrived and personally handed to the Chief Justice a copy Pro
1102 which had been issued at about 11:00 o'clock that same morning. In other words, the valiant and persistent effo
petitioners and their counsels were overtaken by adverse developments, and in the mind of the majority of the memb
Court, the cases had become academic. For my part, I took the view that even on the basis of the supplemental petit
answer thereto filed by respondents, the Court could already decide on the fundamental issue of the validity Proclam
as Justices Zaldivar, Antonio and Esguerra also believed, inasmuch as Counsel Tañada's pleading and argument ha
anticipated its issuance, but the majority felt it was not ready to resolve the matter, for lack, according them, of full ve
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 b
strongly feel needs special attention. I refer to the point raised by Counsel Arturo M. Tolentino for respondent Gil J. P
Jose Roy, who have been sued as President and President Pro Tempore of the Senate, to the effect that change in t
composition of the Supreme Court provided for the 1973 Constitution, from the 11-man tribunal under the 1935 Cons
15-man Court, makes of these cases which were filed after January 17, 1973 the date when Proclamation 1102 decla
Constitution as ratified, political nature and beyond our jurisdiction. The main consideration submitted in this connecti
inasmuch as the number votes needed for a decision of this Court has been increased from six to eight in ordinary ca
from eight to ten for the declaration of unconstitutionality of a treaty, executive agreement  or law, the Court would ha
2

resolve first as a prejudicial question whether the Court is acting in these cases as the 15-man or the 11-man Court, i
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
in issue one way or the other, and, in effect, it would be choosing between two constitutions, which is a political deter
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
necessarily preclude this Court from taking a definite stand on whether the Court is acting in these cases as the 15-M
11-man Court. I feel very strongly that the issue should not be ignored or dodged, if only to make the world know that
Supreme Court of the Philippines is never incognizant of the capacity in which it is acting, much less lacking in courag
wisdom to resolve an issue that relates directly to its own composition. What a disgrace it would be to admit that this
Court does not know, to use a common apt expression, whether it is fish or fowl. Withal, scholars and researchers wh
over our records in the future will inevitably examine minutely how each of us voted and upon what considerations we
individually acted, and, indeed, doubts may arise as to whether or not, despite the general result we might announce,
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 a
11-man Court, only six votes would suffice to declare Proclamation 1102 ineffective, and if upon analysis of our respe
opinions it should be inferable therefrom that six of us have considered the matter before the Court as justiciable and
time have found the procedure of ratification adopted in Presidential Decrees 86-A and 86-B and related orders of the
as not being in conformity with Article XV of the old Constitution, a cloud would exist as to efficacy of the dispositive p
Our decision dismiss these cases, even if we have it understood that by the vote of justices in favor of such dismissa
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 ambigu
equivocation and as a member of the Supreme Court, last thing I should knowingly countenance is uncertainty as to t
significance of any decision of the Court which is precisely being looked upon as the haven in which doubts are supp
authoritatively dispelled. Besides, from very nature of things, one thing is indubitably beyond dispute — we cannot ac
capacities of a 15-man and an 11-man Court at the same time, in like manner that it is inconceivable that the 1935 an
Constitution can be considered by Us both in force. Our inescapable duty is to make a choice between them, accordi
law and other considerations inherent to our function dictate. I cannot bear the thought that someone may someday s
Supreme Court of the Philippines once decided a case without knowing the basis of its author to act or that it was eve
judicial courage to define the same.

Accordingly, with full consciousness of my limitations but compelled by my sense of duty and propriety to straighten o
grave of issue touching on the capacity in which the Court acting in these cases, I hold that we have no alternative bu
the present situation the orthodox rule that when validity of an act or law is challenged as being repugnant constitutio
mandate, the same is allowed to have effect until the Supreme Court rules that it is unconstitutional. Stated differently
to proceed on the assumption that the new Constitution is in force and that We are acting in these cases as the 15-m
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 p
wise to defer the course of any action until after the courts have ascertained their legality, not only because if that we
rule, the functioning of government would correspondingly be undesirably hesitative and cumbersome, but more impo
because the courts must at the first instance accord due respect to the acts of the other departments, as otherwise, th
running of the government would have to depend entirely on the unanimity of opinions among all its departments, wh
possible, unless it is assumed that only the judges have the exclusive prerogative of making and enforcing the law, a
being its sole interpreter, which is contrary to all norms of juridical and political thinking. To my knowledge, there is ye
in the world that has recognized judicial supremacy as its basic governmental principle, no matter how desirable we m
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 fun
under the 1935 Constitution. It is undeniable that the whole government, including the provincial, municipal and barrio
not excluding the lower courts up to the Court of Appeals, is operating under the 1973 Constitution. Almost daily, pres
orders and decrees of the most legislative character affecting practically every aspect of governmental and private ac
as the relations between the government and the citizenry are pouring out from Malacañang under the authority of sa
Constitution. On the other hand, taxes are being exacted and penalties in connection therewith are being imposed un
orders and decrees. Obligations have been contracted and business and industrial plans have been and are being pr
pursuant to them. Displacements of public officials and employees in big numbers are going on in obedience to them
justices of the Supreme Court to constitute an island of resistance in the midst of these developments, which even un
obstinacy cannot ignore, much less impede, is unimaginable, let alone the absurd and complicated consequences su
position entails in the internal workings within the judiciary amount its different components, what with the lower court
considering such orders and decrees as forming part of the law of the land in making their orders and decisions, whe
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
feels that it cannot in the meantime consider the enforcement of the new Constitution, he can wait for its decision. Ac
truth of this assertion, it does necessarily follow that by this attitude of the President, considers the Supreme Court as
operating under the Constitution. Quite on the contrary, it is a fact that he has given instructions for the payment of th
accordance with the rate fixed in the New Constitution. Not only that, official alter ego, the Secretary of Justice, has b
this Court, since January 18, 1973, all matters related to the administrative supervision of the lower courts which by th
charter has been transferred from the Department of Justice to the Supreme Court, and as far as I know, President h
countermanded the Secretary's steps in that direction. That, on the other hand, the President has not augmented the
the Court to complete the prescribed number of fifteen is, in my appraisal, of no consequence considering that with th
of ten justices who are the Court now, there is a working quorum, and the addition of new justices cannot in anyway a
voting on the constitutional questions now before Us because, while there sufficient justices to declare by their unanim
illegality of Proclamation 1102, the votes of the justices to added would only be committed to upholding the same, sin
cannot by any standard be expected to vote against legality of the very Constitution under which they would be appoi

Moreover, what makes the premise of presumptive valid preferable and, even imperative, is that We are dealing here
whole constitution that radically modifies or alters only the form of our government from presidential parliamentary bu
constitutionally institutions vitally affecting all levels of society. It is, to mind, unrealistic to insist on that, fundamentally
Constitution is the same 1935 Constitution, with a few improvements. A cursory perusal of the former should convinc
that it is in essence a new one. While it does retain republicanism as the basic governmental tenet, the institutional ch
introduced thereby are rather radical and its social orientation is decidedly more socialistic, just as its nationalistic fea
somewhat different in certain respects. One cannot but note that the change embraces practically every part of the ol
from its preamble down to its amending and effectivity clauses, involving as they do the statement of general principle
citizenship and suffrage qualifications, the articles on the form of government, the judiciary provisions, the spelling ou
duties and responsibilities not only of citizens but also of officers of the government and the provisions on the nationa
as well as the patrimony of the nation, not to mention the distinctive features of the general provisions. What is more,
transitory provisions notably depart from traditional and orthodox views in that, in general, the powers of government
interim period are more or less concentrated in the President, to the extent that the continuation or discontinuance of
practically a one-man-rule, is even left to his discretion. Notably, the express ratification of all proclamations, orders, d
acts previously issued or done by the President, obviously meant to encompass those issued during martial law, is a
to the concept of martial law powers being implemented by President Marcos, in defiance of traditional views and pre
jurisprudence, to the effect that the Executive's power of legislation during a regime of martial law is all inclusive and
to the matters demanded by military necessity. In other words, the new constitution unlike any other constitution coun
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) Se
its Article XVII which provides that this constitution shall "supersede the Constitution of nineteen hundred and thirty-fi
amendments thereto" and (2) its transitory provisions expressly continue the effectivity of existing laws, offices and co
as the tenure of all incumbent officials, not adversely affected by it, which would have been unnecessary if the old co
were being merely amended.

The new Constitution, in its Section 10, Article XVII, provides that "(T)he incumbent members of the Judiciary (which
Chief Justice and Associate Justices of Supreme Court) may continue in office (under the constitution) until they reac
seventy years, etc." By virtue of the presumptive validity of the new charter, all of form part of the 15-man-Court provi
therein correspondingly, We have in legal contemplation, ceased in the meanwhile to be members of the 11-man-Cou
1935 Constitution. Should the Court finally decide that the Constitution is invalid, then We would automatically revert
positions in the 11-man- Court, otherwise, We would just continue to be in our membership in the 15-man-Court, unle
We cannot in conscience accept the legality of existence. On the other hand, if it is assumed that We are the 11-man
happens that Our collective decision is in favor of the new constitution, it would be problematical for any dissenting ju
consider himself as included automatically in the 15-man-Court, since that would tantamount to accepting a position h
honestly believe exists.

III

In brief, the main contention of the petitioners is that Proclamation 1102 is invalid because the ratification of the 1973
it purports to declare as having taken place as a result of the referendum above-referred to is ineffective since it cann
on the basis of the said referendum that said Constitution has been "approved by a majority of the votes cast at an el
the manner prescribed by Article XV the Constitution of 1935. More specifically, they maintain that the word "election"
Article has already acquired a definite accepted meaning out of the consistent holding in the past of ratification plebis
accordingly, no other form of ratification can be considered contemplated by the framers of the Old Constitution than
had been followed 1935, 1937, 1939, 1940, 1946 and 1967, the last three or four which were held under the supervis
Commission on Elections. Furthermore, they emphatically deny the veracity of the proclaimed results of the referendu
according to them the referendum was a farce and its results were manufactured or prefabricated, considering that M
Cruz, who is supposed to have submitted the final report to the President, which served as basis for Proclamation 11
official authority to render the same, and it is inconceivable and humanly impossible for anyone to have been able to
tabulate and canvass the 15 million votes allegedly reported within the short period of time employed. Of course, they
contend that in any event, there was no proper submission because martial law per se creates constructive duress w
deprives the voters of the complete freedom needed for the exercise of their right of choice and actually, there was ne
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
a political one which the courts are not supposed to inquire into, and, anyway, there has been a substantial complian
Article XV of the 1935 Constitution, inasmuch as, disregarding unessential matters of form, the undeniable fact is tha
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 a
the observation that in view of the lack of solemnity and regularity in the voting as well as in the manner of reporting a
canvassing conducted in connection with the referendum, I cannot say that Article XV of the Old Constitution has bee
with, albeit I held that nonetheless, the Constitution of 1973 is already in force. In order, however, to make myself cle
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 certi
through Proclamation 1102 itself that the New Constitution has been approved by a majority of the people and having
facts of general knowledge which I have judicial notice of, I am in no position to deny that the result of the referendum
President had stated. I can believe that the figures referred to in the proclamation may not accurate, but I cannot say
conscience that all of them are manufactured or prefabricated, simply because I saw with own eyes that people did a
gather and listen discussions, if brief and inadequate for those who are abreast of current events and general occurre
that they did vote. I believe I can safely say that what I have seen have also been seen by many others throughout th
and unless it can be assumed, which honestly, I do not believe to be possible, that in fact there were actually no mee
and no voting done in more places than those wherein there were such meetings and votings, I am not prepared to d
entirely the declaration that there was voting and that the majority of the votes were in favor of the New Constitution.
there were substantially less than 14 million votes of approval, the real figure, in my estimate, could still be significant
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
merely of a loose consultation and not an outright submission for purposes of ratification. I can see that at the outset,
first set of questions was released, such may have been the idea. It must not be lost sight of, however, that if the new
reports are to be believed, and I say this only because petitioners would consider the newspapers as the official gaze
administration, the last set of six questions were included precisely because the reaction to the idea of mere consulta
that the people wanted greater direct participation, thru the Citizens Assemblies, in decision-making regarding matter
national interest. Thus, looking at things more understandingly and realistically the two questions emphasized by cou
namely, (1) Do yo approve of the New Constitution? and (2) Do you want plebiscite to be called to ratify the new Con
should be considered no longer as loose consultations but as direct inquiries about the desire of the voters regarding
mentioned. Accordingly, I take it that if the majority had expressed disapproval of the new Constitution, the logical con
would have been the complete abandonment of the idea of holding any plebiscite at all. On the other hand, it is very p
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 shou
direct and expressed desire of the people to such effect in order to forestall as much as possible any serious controve
regarding the non-holding of the plebiscite required by the letter of Section 16 of Article XVII, the effectivity clause, of
Constitution. Oddly enough, the "comments" accompanying the questions do strongly suggest this view. And as it tur
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 s
the thrust of the said question does not seek an answer of fact but of opinion. It is argued that it would have been fac
worded categorically thus — Do you approve the New Constitution? The contention would have been weighty were it
unrealistic. I remember distinctly that the observation regarding the construction of the subject question was not origin
by any of the talented counsels for petitioners. It came from Mr. Justice Fred Ruiz Castro whose mastery of the Englis
can rightly be the cause of envy of even professors of English. None of the other members of the Court, as far as I ca
ever noticed how the said question is phrased, or if anyone of Us did, I am not aware that he gave it more than passin
What I mean is that if neither any of the distinguished and learned counsels nor any member of the Court understood
question otherwise than calling for a factual answer instead of a mere opinion, how could anyone expect the millions
unlettered members of the Citizens Assemblies to have noticed the point brought out by Justice Castro? Truth to tell,
not realize the difference until Justice Castro gave it emphasis. Besides, reading the question in the light of the accom
"comment" corresponding to it in particular, I am certain that any one who answered the same understood it in no oth
than a direct inquiry as to whether or not, as a matter of fact, he approves the New Constitution, and naturally, affirma
must be taken as a categorical vote of approval thereof, considering, particularly, that according to the reported resul
referendum said answer was even coupled with the request that the President defer the convening of the Interim Nat
Assembly.

It is also contended that because of this reference in answer to that question to the deferment of the convening of the
assembly, the said answer is at best a conditional approval not proper nor acceptable for purposes of ratification pleb
contention has no basis. In interest of accuracy, the additional answer proposed in pertinent "comment" reads as follo
do not want Ad Interim Assembly to be convoked etc." On the assumption that the actual answer, as reported, was of
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

As regards said "comments", it must be considered that a martial law was declared, the circumstances surrounding m
Constitution acquired a different and more meaningful aspect, namely, the formation of a new society. From the point
the President and on the basis of intelligence reports available to him, the only way to meet situation created by the s
elements was to introduce immediately effective reforms calculated to redeem the people from the depth of retrogres
stagnation caused by rampant graft and corruption in high places, influence peddling, oligarchic political practices, pr
armies, anarchy, deteriorating conditions of peace and order, the so inequalities widening the gap between the rich a
and many other deplorable long standing maladies crying for early relief and solution. Definitely, as in the case of reb
movement that threatened the Quirino Administration, the remedy was far from using bullets alone. If a constitution w
approved as an effective instrument towards the eradication of such grave problems, it had to be approved without lo
and sans the cumbersome processes that, from the realistic viewpoint, have in the past obstructed rather than hasten
progress of the people. Stated otherwise, in the context of actualities, the evident objective in having a new constitutio
establish new directions in the pursuit of the national aspirations and the carrying out of national policies. Only by bea
considerations in mind can the "comments" already referred to be properly appreciated. To others said "comments" m
as evidence of corruption of the will of those who attended the assemblies, but actually, they may also be viewed in th
light as the sample ballots commonly resorted to in the elections of officials, which no one can contend are per se me
coercion. Let us not forget that the times are abnormal, and prolonged dialogue and exchange of ideas are not gener
possible, nor practical, considering the need for faster decisions and more resolute action. After all voting on a whole
constitution is different from voting on one, two or three specific proposed amendments, the former calls for nothing m
collective view of all the provisions of the whole charter, for necessarily, one has to take the good together with the ba
rare for anyone to reject a constitution only because of a few specific objectionable features, no matter how substanti
considering the ever present possibility that after all it may be cured by subsequent amendment. Accordingly, there w
indicate to the people the paths open to them in their quest for the betterment of their conditions, and as long as it is n
that those who did not agree to the suggestions in the "comments" were actually compelled to vote against their will,
convinced that the existence of said "comments" should make any appreciable difference in the court's appraisal of th
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 dis
result of the referendum barely because of martial law per se. For one thing, many of the objectionable features of m
have not actually materialized, if only because the implementation of martial law since its inception has been general
characterized by restraint and consideration, thanks to the expressed wishes of the President that the same be made
style", which means without the rigor that has attended it in other lands and other times. Moreover, although the restr
the freedom of speech, the press and movement during martial law do have their corresponding adverse effects on th
information which should be open to a voter, in its real sense what "chills" his freedom of choice and mars his exercis
discretion is suspension of the privilege of the writ of habeas corpus. The reason is simply that a man may freely and
vote even if the needed information he possesses as to the candidates or issues being voted upon is more or less inc
but when he is subject to arrest and detention without investigation and without being informed of the cause thereof, t
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 m
It is a fact, however, borne by history and actual experience, that in the Philippines, the suspension of the privilege of
writ habeas corpus has never produced any chilling effect upon the voters, since it is known by all that only those who
the law, saving inconsequential instances, have any cause for apprehension in regard to the conduct by them of the n
activities of life. And so it is recorded that in the elections 1951 and 1971, held while the privilege of writ of habeas co
under suspension, the Filipino voters gave the then opposition parties overwhelming if not sweeping victories, in defia
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 consid
sufficient basis for declaring that the New Constitution has been ratified in accordance with the amending clause of th
Constitution. I reiterate that in point of law, I find neither strict nor substantial compliance. The foregoing discussion is
counter, if I may, certain impression regarding the general conditions obtaining during and in relation to the referendu
could have in one way or another affected the exercise of the freedom of choice and the use of discretion by the mem
Citizens Assemblies, to the end that as far as the same conditions may be relevant in my subsequent discussions of
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 pre
considered opinion is that the Court may no longer decide these cases on the basis of purely legal considerations. Fa
are non-legal but nevertheless ponderous and compelling cannot be ignored, for their relevancy is inherent in the issu
be resolved.

In my opinion in the Plebiscite Cases, I joined my colleagues in holding that the question of whether or not there was
submission under Presidential Decree No. 73 is justiciable, and I still hold that the propriety of submission under any
in any other form is constitutionally a fit subject for inquiry by the courts. The ruling in the decided cases relied upon b
petitioners are to this effect. In view, however, of the factual background of the cases at bar which include ratification
necessary for me to point out that when it comes to ratification, I am persuaded that there should be a boundary beyo
the competence of the courts no longer has any reason for being, because the other side is exclusively political territo
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 enou
indication of such acceptance in the record and in the circumstances the Court can take judicial notice of. For my par
it unnecessary to be strictly judicial in inquiring into such fact. Being personally aware, as I have already stated, that t
Assemblies did meet and vote, if irregularly and crudely, it is not for me to resort, for the purposes of these cases, to
and measure, to find out with absolute precision the veracity of the total number of votes actually cast. After all, the cl
upon a comparison of conflicting reports, cases of excess votes may be found, even if extrapolated will not, as far as
out, suffice to overcome the outcome officially announced. Rather than try to form a conclusion out of the raw evidenc
which the parties did not care to really complete, I feel safer by referring to the results announced in the proclamation
Giving substantial allowances for possible error and downright manipulation, it must not be overlooked that, after all,
been accepted and adopted by the President, based on official reports submitted to him in due course of performance
appropriate subordinate officials, elevated them to the category of an act of a coordinate department of the governme
under the principle separation of powers is clothed with presumptive correctness or at least entitled to a high degree
acceptability, until overcome by better evidence, which in these cases does not exist. In any event, considering that d
unorthodoxy of the procedure adopted and the difficulty of an accurate checking of all the figures, I am unable to conc
manageable means of acquiring information upon which to predicate a denial, I have no alternative but to rely on wha
officially declared. At this point, I would venture to express the feeling that if it were not generally conceded that there
sufficient showing of the acceptance in question by this time, there would have been already demonstrative and signi
indications of a rather widespread, if not organized resistance in one form or another. Much as they are to be given d
recognition as magnificent manifestations of loyalty and devotion to principles, I cannot accord to the filing of these ca
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 s
unequivocal pronouncements to the effect that any amendment to the Constitution of 1935, to be valid, must appear t
been made in strict conformity with the requirements of Article XV thereof. What is more, that decision asserted judici
competence to inquire into the matter of compliance or non compliance as a justiciable matter. I still believe in the cor
those views and I would even add that I sincerely feel it reflects the spirit of the said constitutional provision. Without
strain any point however, I, submit the following considerations in the context of the peculiar circumstances of the cas
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 im
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 ha
referred to is, now inviting Our attention to the exact language of Article XV and suggesting that the said Article may b
applied to proposed amendments but may hardly govern the ratification of a new Constitution. It is particularly stresse
Article specifically refers to nothing else but "amendments to this Constitution" which if ratified "shall be valid as part o
Constitution." Indeed, how can a whole new constitution be by any manner of reasoning an amendment to any other
and how can it, if ratified, form part of such other constitution? In fact, in the Tolentino case I already somehow hinted
when I made reference in the resolution denying the motion for reconsideration to the fact that Article XV must be foll
long as any amendment is formulated and submitted under the aegis of the present Charter." Said resolution even ad
is not to say that the people may not, in the exercise of their inherent revolutionary powers, amend the Constitution o
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 p
changes in any part of the same constitution itself, for the very fact that a new constitution is being adopted implies a
intent to put aside the whole of the old one, and what would be really incongrous is the idea that in such an eventualit
Constitution would subject its going into effect to any provision of the constitution it is to supersede, to use the langua
of Section 6, Article XVII, the effectivity clause, of the New Constitution. My understanding is that generally, constituti
born, they very rarely, if at all, come into being, by virtue of any provision of another constitution. 3 This must be the r
every constitution has its own effectivity clause, so that if, the Constitutional Convention had only anticipated the idea
referendum and provided for such a method to be used in the ratification of the New Constitution, I would have had s
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
and the circumstances dictating the replacement. From the very nature of things, the proposal to ordain a new constit
be viewed as the most eloquent expression of a people's resolute determination to bring about a massive change of t
order, a meaningful transformation of the old society and a responsive reformation of the contemporary institutions an
principles. Accordingly, should any question arise as to its effectivity and there is some reasonable indication that the
has already received in one way or another the sanction of the people, I would hold that the better rule is for the cour
the people's judgment, so long as they are convinced of the fact of their approval, regardless of the form by which it is
provided it be reasonably feasible and reliable. Otherwise stated, in such instances, the courts should not bother abo
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
elements, both collective and individual, of the Congress of the Philippines. Neither the Senate nor the House of Rep
has been reported to have even made any appreciable effort or attempt to convene as they were supposed to do und
Constitution of 1935 on January 22, 1973 for the regular session. It must be assumed that being composed of experie
knowledgeable and courageous members, it would not have been difficult for said parliamentary bodies to have conc
ingenious way of giving evidence of their determined adherence to the Constitution under which they were elected. F
much as I admire the efforts of the handful of senators who had their picture taken in front of the padlocked portals of
chamber, I do not feel warranted to accord such act as enough token of resistance. As counsel Tolentino has informe
there was noting to stop the senators and the congressmen to meet in any other convenient place and somehow offic
organize themselves in a way that can logically be considered as a session, even if nothing were done than to merely
and disperse. Counsel Tolentino even pointed out that if there were not enough members to form a quorum, any sma
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 presen
for mandamus have no legal and factual bases. And to top it all, quite to the contrary, the records of the Commission
Elections show that at least 15 of 24 senators and over 95 out of less than 120 members of the House of Representa
officially and in writing exercised the option given to them to join the Interim National Assembly under the New Consti
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 th
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 develo
taking place and for the sake of being the guardian of the Constitution and the defender of its integrity and supremacy
judicial power prevail against the decision of those who were duly chosen by the people to be their authorized spokes
representatives. It is not alone the physical futility of such a gesture that concerns me. More than that, there is the sta
that the Senators and the Congressmen, no less than the President, have taken the same oath of loyalty to the Cons
we, the Justices, have taken and they are, therefore, equally bound with Us to preserve and protect the Constitution.
representatives of the people, they have already opted to accept the New Constitution as the more effective instrume
fulfillment of the national destiny, I really wonder if there is even any idealistic worth in our desperately clinging by Ou
alone to Our sworn duty vis-a-vis the 1935 Constitution. Conscious of the declared objectives of the new dispensation
cognizant of the decisive steps being with the least loss of time, towards their accomplishment, cannot but feel appre
instead of serving the best interests of our people, which to me is in reality the real meaning of our oath of office, the
be standing in the way of the very thing our beloved country needs to retrieve its past glory and greatness. In other w
my conviction that what these cases demand most of all is not a decision demonstrative of our legal erudition and So
wisdom but an all rounded judgment resulting from the consideration of all relevant circumstances, principally the pol
brief, a decision more political than legal, which a court can render only by deferring to the apparent judgment of the p
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 So
General that in the legal sense, there has been at least substantial compliance with Article XV of the 1935 Constitutio
I can see is that in a political sense, the answers to the referendum questions were not given by the people as legal c
I take it that when they answered that by their signified approval of the New Constitution, they do not consider it nece
hold a plebiscite, they could not have had in mind any intent to do what was constitutionally improper. Basically accus
proceed along constitutional channels, they must have acted in the honest conviction that what was being done was
conformity with prevailing constitutional standards. We are not to assume that the sovereign people were indulging in
exercise of their supreme political right to choose the fundamental charter by which their lives, their liberties and their
shall be safeguarded. In other words, we must perforce infer that they meant their decision to count, and it behooves
render judgment herein in that context. It is my considered opinion that viewed understandingly and realistically, there
than sufficient ground to hold that, judged by such intent and, particularly, from the political standpoint, the ratification
Constitution declared in Proclamation 1102 complies substantially with Article XV of the 1935 Charter, specially when
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 constitu
substantiality of the whole article, so long as such approval is reasonably ascertained. In the last analysis, therefore,
rightly said, even if only in a broad sense, that the ratification here in question was constitutionally justified and justifia

5. Finally, if any doubt should still linger as to the legitimacy of the New Constitution on legal grounds, the same shou
dispelled by viewing the situation in the manner suggested by Counsel Tolentino and by the writer of this opinion in h
opinion, oft-referred to above, in the Plebiscite Cases — that is, as an extra constitutional exercise by the people, und
leadership of President Marcos, of their inalienable right to change their fundamental charter by any means they may
appropriate, the moment they are convinced that the existing one is no longer responsive to their fundamental, politic
social needs nor conducive to the timely attainment of their national destiny. This is not only the teaching of the Amer
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 ne
the latter may be deemed as constitutionally permissible even from the point of view of the preceding constitution. Th
may feel restrained to consider this view out of respect to the import of Tolentino vs. Comelec, supra., would be well
bear in mind that the case was decided in the context of submission, not accomplished ratification.

The language of the disputed amending clause of the 1935 Constitution should not be deemed as the be all and end
nation. More important than even the Constitution itself with all its excellent features, are the people living under it —
happiness, their posterity and their national destiny. There is nothing that cannot be sacrificed in the pursuit of these
which constitute the totality of the reasons for national existence. The sacred liberties and freedom enshrined in it and
commitment and consecration thereof to the forms of democracy we have hitherto observed are mere integral parts o
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 w
deemed as sanctioning, not only the deviations from traditional democratic concepts and principles but also the qualif
curtailment of individual liberties now being practiced, and this would amount, it is feared, to a repudiation of our oath
and defend the Constitution of 1935. This is certainly something one must gravely ponder upon. When I consider, how
the President, the Vice President, the members of both Houses of Congress, not to speak of all executive departmen
bureaus under them as well as all the lower courts, including the Court of Appeals have already accepted the New Co
as an instrument of a meaningful nationwide-all-level change in our government and society purported to make more
feasible, rather than idealistic and cumbersomely deliberative, the attainment of our national aspirations, I am led to w
whether or not we, as members of the Supreme Court are being true to our duty to our people by refusing to follow su
accept the realities of the moment, despite our being convinced of the sincerity and laudableness of their objectives,
because we feel that by the people's own act of ratifying the Constitution of 1935, they have so encased themselves
provisions and may, therefore, no longer take measures to redeem themselves from the situation brought about by th
deficiencies of the old order, unless they act in strict conformity therewith. I cannot believe that any people can be so
enchained. In any event, I consider it a God-given attribute of the people to disengage themselves, if necessary, from
covenant that would obstruct their taking what subsequently appears to them to be the better road to the promotion a
protection of their welfare. And once they have made their decision in that respect, whether sophisticatedly or crudely
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 Salo
these cases be decided on the basis of conscience. That is exactly what I am doing. But if counsel mean that only by
their petitions can this Court be worthily the bulwark of the people's faith in the government, I cannot agree, albeit my
and respect are all theirs for their zeal and tenacity, their industry and wisdom, their patriotism and devotion to princip
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
we are all animated by sincere love of country and aim exclusively at the attainment of the national destiny. Our hero
past, Rizal, Bonifacio, Aguinaldo, Antonio Luna, Mabini and so also with our patriots of the recent generations, Quezo
Roxas, Laurel and Recto, to mention only some of them, had their differences of views — and they did not hesitate to
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
provision of the Constitution or to the Constitution itself. My oath to abide by the Constitution binds me to whatever co
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 th
leading to these cases have entail will heal after the decision herein is promulgated, so that all us Filipinos may forev
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 co
amendments or of a new Constitution and that such procedure was no complied with, the validity of Presidential Proc
No. 1102 is a political, not a justiciable, issue; for it is inseparably or inextricably link with and strikes at, because it is
the validity of ratification and adoption of, as well as acquiescence of people in, the 1973 Constitution and the legitima
government organized and operating thereunder. And being political, it is beyond the ambit of judicial inquiry, tested b
definition of a political question enunciated in Tañada, et. al. vs. Cuenco, et al. (103 Phil. 1051), aside from the fact th
will not do violence to rights vested under the new Constitution, to international commitments forged pursuant thereto
decisions rendered by the judicial as well as quasi-judicial tribunals organized and functioning or whose jurisdiction h
altered by the 1973 Constitution and the government established thereunder, and will dissipate any confusion in the m
citizenry, who have been obeying the mandates of the new Constitution, as well as exercising the rights and performi
obligations defined by the new Constitution, and decrees and orders issued in implementation of the same and coope
the administration in the renovation of our social, economic and political system as re-structured by the 1973 Constitu
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 ques
which, under the Constitution, is "to be decided by the people in their sovereign capacity, or in regard to which full dis
authority had been delegated to the Legislature or Executive branch of the government." (Tañada, et al. vs. Cuenco,
al., supra).

Article XV of the 1935 Constitution provides: "Such amendments shall be valid as part of this Constitution when appro
majority of the votes cast at an election at which the amendments are submitted to the people for ratification." Under
the 1935 Constitution, the power to propose constitutional amendments is vested in Congress or in a constitutional co
while the power to ratify or reject such proposed amendments or new Constitution is reserved by the sovereign peopl
nullification of Proclamation No. 1102 would inevitably render inoperative the 1973 Constitution, which is in fact the e
prayer of the petitioners in G.R. No. L-36164. Regardless of the modality of submission or ratification or adoption — e
deviates from or violates the procedure delineated therefore by the old Constitution — once the new Constitution is ra
adopted and/or acquiesced in by the people or ratified even by a body or agency not duly authorized therefor but is s
adopted or recognized by the people and by the other official organs and functionaries of the government established
a new Constitution, this Court is precluded from inquiring into the validity of such ratification, adoption or acquiescenc
consequent effectivity of the new Constitution. This is as it should be in a democracy, for the people are the repositor
sovereign powers as well as the source of all governmental authority (Pole vs. Gray, 104 SO 2nd 841 [1958]). This ba
democratic concept is expressly restated in Section 1 of Article II of the Declaration of Principles of the 1935 and 197
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 pe
any infirmity in its submission or any other irregularities therein which are deemed mandatory before submission as th
considered merely directory after such ratification or adoption or acquiescence by the people. As Mr. Justice Brewer,
Kansas State Supreme Court and later Associate Justice of the Federal Supreme Court, stated in re Prohibitory Ame
Cases (24 Kansas 700 & 710 Reprint 499, 506): "The two important, vital elements of the Legislature and a majority o
popular vote. Beyond these, other provisions are mere machineries and forms. They may not be disregarded, becaus
certainty as to the essentials is secured. But they are not themselves the essentials." (Cited in Larken vs. Gronna, 28
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. 1
Chief Justice Hughes, speaking for the majority, stated that:

... Thus the political departments of the government dealt with the effect of both previous rejec
attempted withdrawal and determined that both were ineffectual in the presence of an actual r
. This decision by the political departments of the Government as to the validity of the adoptio
Fourteenth amendment has been accepted.

We think that in accordance with this historic precedent the question of the efficacy of ratificat
legislatures, in the light of previous rejection or attempted withdrawal, should be regarded as a
question pertaining to the political departments, with the ultimate authority in the Congress in
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, Fra
and Douglas join, thus:

The Constitution grants Congress exclusive power to control submission of constitutional ame
Final determination by Congress that ratification by three-fourths of the States has taken place
conclusive upon the courts." In the exercise of that power, Congress, of course, is governed b
Constitution. However, whether submission, intervening procedure or Congressional determin
ratification conforms to the commands of the Constitution, calls for decisions by a "political de
questions of a type which this Court has frequently designated "political." And decision of a "p
question" by the "political department" to which the Constitution has committed it "conclusively
judges, as well as all other officers, citizens and subjects of...government." Proclamation unde
of Congress that an amendment has been ratified will carry with it a solemn assurance by the
that ratification has taken place as the Constitution commands. Upon this assurance a proclai
amendment must be accepted as a part of the Constitution, leaving to the judiciary its tradition
of interpretation. To the extent that the Court's opinion in the present case even impliedly assu
power to make judicial interpretation of the exclusive constitutional authority of Congress over
and ratification of amendments, we are unable to agree... (American Constitutional Issues, by
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. L
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. Co
(L-34150, Oct. 16, 1971, 41 SCRA 702) on which petitioners place great reliance — that the courts may review the pr
submission of a proposed constitutional amendment before the ratification or adoption of such proposed amendment
sovereign people, hardly applies to the cases at bar; because the issue involved in the aforesaid cases refers to only
propriety of the submission of a proposed constitutional amendment to the people for ratification, unlike the present p
which challenge inevitably the validity of the 1973 Constitution after its ratification or adoption thru acquiescence by th
people. As heretofore stated, it is specious and pure sophistry to advance the reasoning that the present petitions pra
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 include
general grant of legislative powers to Congress. It is part of the inherent powers of the people
repository of sovereignty in a republican state, such as ours — to make, and hence, to amend
Fundamental Law. Congress may propose amendments to the same explicitly grants such po
when exercising the same, it is said that Senators and Members of the House of Representati
act, not as members, but as component elements of a constituent assembly. When acting as
members of Congress derive their authority from the Constitution, unlike the people, when per
same function, for their authority does not emanate from the Constitution — they are the very
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 propo
amend and the ratification of such a constitutional amendment are political in nature forming as they do the essential
political scheme — the amending process. WE merely stated therein that the force of the ruling in the said case of Ma
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
political one, declined to pass upon the question whether or not a given number of votes cast
in favor of a proposed amendment to the Constitution — which was being submitted to the pe
ratification — satisfied the three fourths vote requirement of the fundamental law. The force of
precedent has been weakened, however, by Suanes vs. Chief Accountant of the Senate, Ave
Cuenco, Tañada vs. Cuenco and Macias vs. Commission on Elections. In the first, we held th
and employees of the Senate Electoral Tribunal are supervision and control, not of that of the
President, claimed by the latter; in the second, this Court proceeded to determine the number
necessary for a quorum in the Senate; in the third we nullified the election, by Senators belong
party having the largest number of votes in said chamber purporting to act on behalf of the pa
the second largest number of votes therein, of two (2) Senators belonging to the first party, as
for the second party, of the Senate Electoral Tribunal; and in the fourth, we declared unconstit
act of Congress purporting to apportion the representative districts for the House of Represen
upon the ground that the apportionment had not been made as may be possible according to
of inhabitants of each province. Thus we rejected the theory advanced in these four (4) cases
issues therein raised were political questions the determination of which is beyond judicial rev
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 asse
violates the Constitution is essentially justiciable, not political, and, hence, subject to judicial re
and to the extent that this view may be inconsistent with the stand taken in Mabanag vs. Lope
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 peop
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 submissio
proposed constitutional amendment. Courts do not deal with propriety or wisdom or absence of either of an official ac
law. Judicial power concerns only with the legality or illegality, constitutionality or unconstitutionality of an act: it inquir
existence of power or lack of it. Judicial wisdom is not to be pitted against the wisdom of the political department of th
government.

The classic example of an illegal submission that did not impair the validity of the ratification or adoption of a new Con
the case of the Federal Constitution of the United States. It should be recalled that the thirteen (13) original states of
American Union — which succeeded in liberating themselves from England after the revolution which began on April
with the skirmish at Lexington, Massachusetts and ended with the surrender of General Cornwallis at Yorktown, Virgi
October 19, 1781(Encyclopedia Brit., Vol. I, 1933 Ed., p. 776) — adopted their Articles of Confederation and Perpetu
that was written from 1776 to 1777 and ratified on March 1, 1781 (Encyclopedia Brit., Vol. II, 1966 Ed., p. 525). Abou
thereafter, the Congress of the Confederation passed a resolution on February 21, 1787 calling for a Federal Constitu
Convention "for the sole and express purpose of revising the articles of confederation ... ." (Appendix I, Federalist, Mo
Library ed., p. 577, emphasis supplied).

The Convention convened at Philadelphia on May 14, 1787. Article XIII of the Articles of Confederation and Perpetua
stated specifically:

The articles of this confederation shall be inviolably observed in every state, and the union sha
perpetual; nor shall any alterations at any time hereafter be made in any of them; unless such
be agreed to in a congress of the united states, and be afterwards confirmed by the legislature
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
ratification of the Federal Constitution as drafted by the Philadelphia Convention were not followed. Fearful the said F
Constitution would not be ratified by the legislatures as prescribed, the Philadelphia Convention adopted a resolution
the Congress of the Confederation to pass a resolution providing that the Constitution should be submitted to elected
conventions and if ratified by the conventions in nine (9) states, not necessarily in all thirteen (13) states, the said Con
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 merci
legislatures of each and all of the 13 states. Experience clearly indicated that ratification then
had the same chance as the scriptural camel passing through the eye of a needle. It was ther
determined to recommend to Congress that the new Constitution be submitted to conventions
several states especially elected to pass upon it and that, furthermore, the new government sh
into effect if and when it should be ratified by nine of the thirteen states ... . (The Federalist, M
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 Antifederalis
for ratification of the Constitution by popularly elected conventions in each state. Suspecting th
Island, at least, would prove recalcitrant, it declared that the Constitution would go into effect a
nine states ratified. The convention method had the further advantage that judges, ministers, a
ineligible to state legislatures, could be elected to a convention. The nine-state provision was,
mildly revolutionary. But the Congress of the Confederation, still sitting in New York to carry o
government until relieved, formally submitted the new constitution to the states and politely fad
before the first presidential inauguration. (The Oxford History of the Am. People, by Samuel E
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
(12 C.J. p. 679 footnote, 16 C.J.S., 27. — by the state conventions and not by all thirteen (13) state legislatures as re
Article XIII of the Articles of Confederation and Perpetual Union aforequoted — and in spite of the fact that the Feder
Constitution as originally adopted suffers from two basic infirmities, namely, the absence of a bill of Rights and of a pr
affirming the power of judicial review.

The liberties of the American people were guaranteed by subsequent amendments to the Federal Constitution. The d
judicial review has become part of American constitutional law only by virtue of a judicial pronouncement by Chief Jus
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, no
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
new or revised Constitution does not depend on the method of its submission or ratification by the people, but on the
or approval or adoption or acquiescence by the people which fact of ratification or adoption or acquiescence is all tha
essential, the Court cited precisely the case of the irregular revision and ratification by state conventions of the Feder
Constitution, thus:

No case identical in its facts with the case now under consideration has been called to our atte
we have found none. We think that the principle which we apply in the instant case was very c
applied in the creation of the constitution of the United States. The convention created by a re
Congress had authority to do one thing, and one only, to wit, amend the articles of confederat
they did not do, but submitted to the sovereign power, the people, a new constitution. In this m
the constitution of the United States submitted to the people and it became operative as the o
of this nation when it had been properly adopted by the people.

Pomeroy's Constitutional Law, p. 55, discussing the convention that formulated the constitutio
United States, has this to say: "The convention proceeded to do, and did accomplish, what the
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
Congress, and afterwards ratified by all the State legislatures, in the manner pointed out by th
organic law. But the convention soon became convinced that any amendments were powerles
cure; that the disease was too deeply seated to be reached such tentative means. They saw t
system they were called to improve must be totally abandoned, and that the national idea mus
established at the center of their political society. It was objected by some members, that they
power, no authority, to construct a new government. They had no authority, if their decisions w
final; and no authority whatsoever, under the articles of confederation, to adopt the course the
they knew that their labors were only to be suggestions; and that they as well as any private in
and any private individuals as well as they, had a right to propose a plan of government to the
their adoption. They were, in fact, a mere assemblage of private citizens, and their work had n
binding sanction than a constitution drafted by Mr. Hamilton in his office would have had. The
their expressed will, transformed this suggestion, this proposal, into an organic law, and the p
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
instrument is not what gives it binding force and effect. The fiat of the people and only the fiat
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
sovereign. This would be an authorized exercise of sovereign power by the court. In State v. S
505, 519, the Indiana Supreme Court said: "The people of a State may form an original consti
abrogate an old one and form a new one, at any time, without any political restriction except th
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
the act of February 23, 1887, is unconstitutional and void, it would not, in our opinion, by any m
follow that the amendment is not a part of our state Constitution. In the recent case of Taylor v
Commonwealth (Va.) 44 S.E. 754, the Supreme Court of Virginia hold that their state Constitu
1902, having been acknowledged and accepted by the officers administering the state govern
by the people, and being in force without opposition, must be regarded as an existing Constitu
irrespective of the question as to whether or not the convention which promulgated it had auth
do without submitting it to a vote of the people. In Brittle v. People, 2 Neb. 198, is a similar hol
certain provisions of the Nebraska Constitution of 1886, which were added by the Legislature
requirement of Congress, though never submitted to the people for their approval." (97 NW 34
emphasis supplied).

Against the decision in the Wheeler case, supra, confirming the validity of the ratification and adoption of the America
Constitution, in spite of the fact that such ratification was in clear violation of the prescription on alteration and ratifica
Articles of Confederation and Perpetual Union, petitioners in G.R. No. L-36165 dismissed this most significant historic
calling the Federal Constitution of the United States as a revolutionary one, invoking the opinion expressed in Vol. 16
Juris Secundum, p. 27, that it was a revolutionary constitution because it did not obey the requirement that the Article
Confederation and Perpetual Union can be amended only with the consent of all thirteen (13) state legislatures. This
does not cite any decided case, but merely refers to the footnotes on the brief historic account of the United States C
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 th
People, 1965 Ed. by Samuel Eliot Morison, who discusses the Articles of Confederation and Perpetual Union in Chap
captioned "Revolutionary Constitution Making, 1775 1781" (pp. 270-281). In Chapter XX on "The Creative Period in P
1785-1788," Professor Morison delineates the genesis of the Federal Constitution, but does not refer to it even implic
revolutionary constitution (pp. 297-316). However, the Federal Constitution may be considered revolutionary from the
of McIver if the term revolution is understood in "its wider sense to embrace decisive changes in the character of gove
even though they do not involve the violent overthrow of an established order, ... ." (R.M. MacIver, The Web of Gover
1965 ed., p. 203).

It is rather ridiculous to refer to the American Constitution as a revolutionary constitution. The Articles of Confederatio
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 wa
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 "cr
brain and purpose of man" in an era of peace. It can only be considered revolutionary in the sense that it is a radical d
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 Artic
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 t
Constitution and of the government established and operating thereunder. Petitioners pray for a declaration that the 1
Constitution is inoperative (L-36164). If Proclamation No. 1102 is nullified, then there is no valid ratification of the 197
Constitution and the inevitable conclusion is that the government organized and functioning thereunder is not a legitim
government.

That the issue of the legitimacy of a government is likewise political and not justiciable, had long been decided as ear
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.
L.ed. 1187) and re-enunciated in 1912 in the case of Pacific States Telephone and Telegraph Company vs. Oregon (
118, 133-151, 56 L.ed. 377-386). Because it reaffirmed the pronouncements in both Borden and Beckham cases, it is
for us to quote the decision in Pacific States Telephone and Telegraph Co., supra, penned by Mr. Chief Justice White
stated:

In view of the importance of the subject, the apparent misapprehension on one side and seem
misconception on the other, suggested by the argument as to the full significance of the previo
we do not content ourselves with a mere citation of the cases, but state more at length than w
would the issues and the doctrine expounded in the leading and absolutely controlling case —
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
that the character government had no legal existence during the period of time above mention
had been annulled by the adoption of the opposing government, — then the laws passed by i
legislature during that time were nullities; its taxes wrongfully collected, its salaries and compe
its officers illegally paid ; its public accounts improperly settled and the judgments and sentenc
courts in civil and criminal cases null and void, and the officers who carried their decisions into
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
state in the Union a republican form of government, and shall protect each of them against inv
on the application of the Legislature or of the Executive (when the legislature cannot be conve
against domestic violence.

"Under this article of the Constitution it rests with Congress to decide what government is esta
in a state. For, as the United State guarantee to each state a republican government, Congres
necessarily decide what government is established in the state before it can determine whethe
republican or not. And when the senators and representatives of a state are admitted into the
the Union, the authority of the government under which they were appointed, as well as its rep
character, is recognized by the proper constitutional authority. And its decision is binding on e
department of the government, and could not be questioned in a judicial tribunal. It is true that
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
Congress was not called upon to decide the controversy. Yet the right to decide is placed ther
the courts."

xxx xxx xxx

 ... We do not stop to cite other cases which indirectly or incidentally refer to the subject, but co
directing attention to the statement by the court, speaking through Mr. Chief Justice Fuller, in
Beckham, 178 U.S. 548, 44 L.ed. 1187, 20 Sup. Ct. Rep. 890, 1009, where, after disposing of
contention made concerning the 14th Amendment, and coming to consider a proposition whic
necessary to be decided concerning the nature and effect of the guaranty of S 4 of article 4, it
(p. 578):

"But it is said that the 14th Amendment must be read with S 4 of article 4, of the Constitution,
that the United States shall guarantee to every state in this Union a republican form of govern
shall protect each of them against invasion; and on application of the legislature, or the Execu
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 departm
v. Borden, 7 How. 1, 12 L.ed. 581. In that case it was held that the question, which of the two
governments of Rhode Island, namely, the charter government or the government established
voluntary convention, was the legitimate one, was a question for the determination of the polit
department; and when that department had decided, the courts were bound to take notice of t
and follow it."

xxx xxx xxx

As the issues presented, in their very essence, are, and have long since by this Court been, d
determined to be political and governmental, and embraced within the scope of the scope of t
conferred upon Congress, and not, therefore within the reach of judicial power, it follows that t
presented is not within our jurisdiction, and the writ of error must therefore be, and it is, dismis
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
submitting the same to the people for ratification, becomes valid, when recognized, accepted and acted upon the by C
State and other government functionaries, as well as by the people. In the 1903 case of Taylor vs. Commonwealth (4
755), the Court ruled:

The sole ground urged in support of the contention that Constitution proclaimed in 1902 is inv
was ordained and promulgated by the convention without being submitted for ratification or re
the people of the commonwealth.

The Constitution of 1902 was ordained and proclaimed by convention duly called by direct vot
people of the state to revise and amend the Constitution of 1869. The result of the work that th
convention has been recognized, accepted, and acted upon as the only valid Constitution of th
the Governor in swearing fidelity to it and proclaiming it, as directed thereby; by the Legislatur
formal official act adopting a joint resolution, July 15, 1902, recognizing the Constitution ordain
convention which assembled in the city of Richmond on the 12th day of June 1901, as the Co
Virginia; by the individual oaths of members to support it, and by its having been engaged for
year in legislating under it and putting its provisions into operation but the judiciary in taking th
prescribed thereby to support and by enforcing its provisions; and by the people in their prima
by peacefully accepting it and acquiescing in it, registering as voters under it to the extent of th
through the state, and by voting, under its provisions, at a general election for their representa
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
without omitting any requisite steps, courts should uphold amendment, unless satisfied that th
Constitution was violated in submitting the proposal. ... Substance more than form must be re
considering whether the complete constitutional system for submitting the proposal to amend
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
advertisement, yet, if followed, unobjected to, by approval of the electors, it becomes part of th
Constitution. Legal complaints to the submission may be made prior to taking the vote, but, if
sanctioned, the amendment is embodied therein, and cannot be attacked, either directly or co
because of any mistake antecedent thereto. Even though it be submitted at an improper time,
effective for all purposes when accepted by the majority. Armstrong v. King, 281 Pa. 207, 126
(130 A 409).

Even if the act of the Constitutional Convention is beyond its authority, such act becomes valid upon ratification or ad
acquiescence by the people. Thus, in the 1905 case of Ex parte Birmingham and A.R. Company (42 SO pp. 118 & 1
Alabama Supreme Court upheld this principle and stated that: "The authorities are almost uniform that this ratification
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 o
enough that they are electors voting on the new Constitution. (Bott vs. Wurts, 40 A 740 [1899]; 45 LRA 251, emphasi

In the 1956 case of Thomson vs. Peoples State Bank (75 NW 2nd 370, 375), the Supreme Court of Wisconsin ruled
"irregularity in the procedure for the submission of the proposed constitutional amendment will not defeat the ratificati
people."

Again, in the 1958 case of Swaim vs. Tuscaloosa County (103 SO 2nd 769), the Alabama Supreme Court pronounce
irregularity in failing to publish the proposed constitutional amendment once in each of the 4 calendar weeks next pre
calendar week in which the election was held or once in each of the 7-day periods immediately preceding the day of t
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
where they admitted irregularities or illegalities committed in the procedure for submission of the proposed constitutio
amendment to the people for ratification consisted of: "(a) the alleged failure of the county election commissioners of
counties to provide a sufficient number of ballot boxes 'secured by good and substantial locks,' as provided by Sectio
Code of 1942, Rec., to be used in the holding of the special election on the constitutional amendment, and (b) the alle
of the State Election Commissioners to comply with the requirements of Code Sections 3204 and 3205 in the appoint
election commissioners in each of the 82 counties. The irregularities complained of, even if proved, were not such irre
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 deliberatio
Constitutional Convention from June 1, 1971 until martial law was proclaimed on Sept. 21, 1972, the salient reforms c
the 1973 Constitution which have long been desired by the people, had been thoroughly discussed in the various com
the Constitutional Convention, on the floor of the Convention itself, in civic forums and in all the media of information.
decrees promulgated by the Chief Executive from Sept. 22, 1972 to Jan. 17, 1973 implement some of the reforms an
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 a
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 oppos
out of eight senatorial seats despite the suspension of the privileges of the writ of habeas corpus (see Lansang vs. G
Dec. 14, 1971, 42 SCRA 448), which suspension implies constraint on individual freedom as the proclamation of mar
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 Exe
branches of the government elected and/or appointed under the 1935 Constitution have either recognized or are now
under the 1973 Constitution, aside from the fact of its ratification by the sovereign people through the Citizens Assem
Ninety-five (95) of a total of one hundred ten (110) members of the House of Representatives including the Speaker a
Speaker Pro Tempore as well as about eleven (11) Congressmen who belong to the Liberal Party and fifteen (15) of
twenty-four (24) senators including Liberal senators Edgar U. Ilarde and John Osmeña opted to serve in the Interim A
according to the certification of the Commission on Elections dated February 19, 1973 (Annex Rejoinder-3 to Consoli
Rejoinder of petitioners in L-36165). Only the five (5) petitioners in L-36165 close their eyes to a fait accompli. All the
functionaries recognize the new government and are performing their duties and exercising their powers under the 19
Constitution, including the lower courts. The civil courts, military tribunals and quasi-judicial bodies created by preside
decrees have decided some criminal, civil and administrative cases pursuant to such decrees. The foreign ambassad
were accredited to the Republic of the Philippines before martial law continue to serve as such in our country; while tw
ambassadors have been accepted by the Philippines after the ratification of the 1973 Constitution on January 17, 197
of the 1973 Constitution had been furnished the United Nations Organization and practically all the other countries wi
Philippines has diplomatic relations. No adverse reaction from the United Nations or from the foreign states has been
On the contrary, our permanent delegate to the United Nations Organization and our diplomatic representatives abro
appointed before martial law continue to remain in their posts and are performing their functions as such under the 19
Constitution.

Even the Commission on Elections is now implementing the provisions of the 1973 Constitution by requiring all electi
to register 18-year olds and above whether literates or not, who are qualified electors under the 1973 Constitution (se
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 th
over 10 weeks now With the petitioners herein, secessionists, rebels and subversives as the only possible exceptions
the citizenry are complying with decrees, orders and circulars issued by the incumbent President implementing the 19
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
and declare it the constitution, it would undoubtedly be the duty of the courts declare its work
This would be revolution, and this the courts of the existing government must resist until they
overturned by power, and a new government established. The convention, however, was the
law. The instrument which we are asked to declare invalid as a constitution has been made an
promulgated according to the forms of law. It is a matter of current history that both the execu
legislative branches of the government have recognized its validity as a constitution, and are n
doing so. Is the question, therefore, one of a judicial character? It is our undoubted duty, if a s
unconstitutional to so declare it; also, if a provision of the state constitution be in conflict with t
constitution, to hold the former invalid. But this is a very different case. It may be said, howeve
every violation of or non-compliance with the law, there should be a remedy in the courts. This
however, always the case. For instance, the power of a court as to the acts of the other depar
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 d
to perform a duty. It is responsible to the people; but if it does act, then, when the question is p
presented, it is the duty of the court to say whether it has conformed to the organic law. While
judiciary should protect the rights of the people with great care and jealousy, because this is it
also because, in times of great popular excitement, it is usually their last resort, yet it should a
time be careful to overstep the proper bounds of its power, as being perhaps equally dangero
especially where such momentous results might follow as would be likely in this instance, if th
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 c
and no law existed providing for the making of a new one. In 1841 public meetings were held,
the election of a convention to form a new one, — to be submitted to a popular vote. The conv
framed one, submitted it to a vote, and declared it adopted. Elections were held for state office
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, wh
formed a new constitution. Whether the charter government, or the one established by the vol
convention, was the legitimate one, was uniformly held by the courts of the state not to be a ju
political question; and the political department having recognized the one, it was held to be the
judiciary to follow its decision. The supreme court of the United States, in Luther v. Borden, 7
while not expressly deciding the principle, as it held the federal court, yet in the argument app
in substance says that where the political department has decided such a matter the judiciary
abide by it.

Let us illustrate the difficulty of a court deciding the question: Suppose this court were to hold
convention, when it reassembled, had no power to make any material amendment, and that s
made are void by reason of the people having theretofore approved the instrument. Then, nex
must determine what amendments were material; and we find the court, in effect, making a co
This would be arrogating sovereignty to itself. Perhaps the members of the court might differ a
amendments are material, and the result would be confusion and anarchy. One judge might s
the amendments, material and immaterial, were void; another, that the convention had then th
power to correct palpable errors, and then the court might differ as to what amendments are m
the instrument as ratified by the people could not be corrected or altered at all, or if the court m
determine what changes were material, then the instrument, as passed upon by the people or
the court would be lacking a promulgation by the convention; and, if this be essential, then the
would arise, what constitution are we now living under, and what is the organic law of the state
suggestion of these matters shows what endless confusion and harm to the state might and li
arise. If, through error of opinion, the convention exceeded its power, and the people are dissa
have ample remedy, without the judiciary being asked to overstep the proper limits of its powe
instrument provides for amendment and change. If a wrong has been done, it can, in the prop
which it should be remedied, is by the people acting as a body politic. It is not a question of wh
merely an amendment to a constitution, made without calling a convention, has been adopted
required by that constitution. If it provides how it is to be done, then, unless the manner be foll
judiciary, as the interpreter of that constitution, will declare the amendment invalid. Koehler v.
Iowa, 543, 14 N.W. Rep. 738, and 15 N.W. Rep. 609; State v. Tuffy, 1 Nev. 391, 12 Pac. Rep
is a case where a new constitution has been formed and promulgated according to the forms
Great interests have already arisen under it; important rights exist by virtue of it; persons have
convicted of the highest crime known to the law, according to its provisions; the political powe
government has in many ways recognized it; and, under such circumstances, it is our duty to
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
 making of them was in excess of its powers, yet, as the entire instrument has been recognized
the manner suggested, it would be equally an abuse of power by the judiciary and violative of
the people, — who can and properly should remedy the matter, if not to their liking, — if it wer
the instrument of a portion invalid, and bring confusion and anarchy upon the state. (emphasis

If this Court inquires into the validity of Proclamation No. 1102 and consequently of the adoption of the 1973 Constitu
be exercising a veto power on the act of the sovereign people, of whom this Court is merely an agent, which to say th
would be anomalous. This Court cannot dictate to our principal, the sovereign people, as to how the approval of the n
Constitution should be manifested or expressed. The sovereign people have spoken and we must abide by their deci
regardless of our notion as to what is the proper method of giving assent to the new Charter. In this respect, WE cann
to know better than the incumbent Chief Executive, who, unlike the members of this Court, only last January 8, 1973,
affirmed in Osmeña vs. Marcos (Pres. Election Contest No. 3, Jan. 8, 1973), was re-elected by the vote of over 5 mill
in 1969 for another term of four years until noon of December 30, 1973 under the 1935 Constitution. This Court, not h
similar mandate by direct fiat from the sovereign people, to execute the law and administer the affairs of government
restrain its enthusiasm to sally forth into the domain of political action expressly and exclusively reserved by the sove
themselves.

The people in Article XV of the 1935 Constitution did not intend to tie their hands to a specific procedure for popular r
their organic law. That would be incompatible with their sovereign character of which We are reminded by Section 1,
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 w
themselves define in their Constitution, cannot apply to a unitary state like the Republic of the Philippines. His opinion
in 1868 may apply to a Federal State like the United States, in order to secure and preserve the existence of the Fed
Republic of the United States against any radical innovation initiated by the citizens of the fifty (50) different states of
American Union, which states may be jealous of the powers of the Federal government presently granted by the Ame
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
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 th

Even if conclusiveness is to be denied to the truth of the declaration by the President in Proclamation No. 1102 that th
through their Citizens' Assemblies had overwhelmingly approved the new Constitution due regard to a separate, coor
co-equal branch of the government demands adherence to the presumption of correctness of the President's declara
presumption is accorded under the law and jurisprudence to officials in the lower levels of the Executive branch, there
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 Departm
Government and Community Development. (Annexes 1, to 1-E, Annexes 2 to 2-O to the compliance with manifestatio
the Solicitor General on behalf of the respondents public officers dated March 7, 1973). There is nothing in the record
contradicts, much less overthrow the results of the referendum as certified. Much less are We justified in reversing th
proof — by shifting it from the petitioners to the respondents. Under the rules on pleadings, the petitioners have the d
demonstrate by clear and convincing evidence their claim that the people did not ratify through the Citizens' Assembl
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 relaye
from private sources which could be biased and hearsay, aside from the fact that such reports are not contained in th
Proclamation No. 1102 is not just an ordinary act of the Chief Executive. It is a well-nigh solemn declaration which an
highest act of the sovereign people — their imprimatur to the basic Charter that shall govern their lives hereafter — m
decades, if not for generations.

Petitioners decry that even 15-year olds, ex convicts and illiterates were allowed to vote in the Citizens' Assemblies, d
admission that the term "Filipino people" in the preamble as well as "people" in Sections 1 and 5 of Article II of the 19
Constitution and in Section 1(3) of Article III of the Bill of Rights includes all Filipino citizens of all ages, of both sexes
literate or illiterate, whether peaceful citizens, rebels, secessionists, convicts or ex-convicts. Without admitting that ex
voted in the referendum, about which no proof was even offered, these sectors of our citizenry, whom petitioners see
with contempt or decision and whom petitioners would deny their sovereign right to pass upon the basic Charter that
their lives and the lives of their progenies, are entitled as much as the educated, the law abiding, and those who are 2
age or above to express their conformity or non conformity to the proposed Constitution, because their stake under th
Charter is not any less than the stake of the more fortunate among us. As a matter of fact, these citizens, whose jurid
personality or capacity to act is limited by age, civil interdiction or ignorance deserve more solicitude from the State th
of the citizenry. In the ultimate analysis, the inclusion of those from 15 years up to below 21 years old, the ex-convicts
ignorant, is more democratic as it broadens the base of democracy and therefore more faithful to the express affirma
Section 1 of Article II of the Declaration of Principles that "sovereignty resides in the people and all government autho
emanates from them."

Moreover, ex-convicts granted absolute pardon are qualified to vote. Not all ex-convicts are banned from voting. Only
had been sentenced to at least one year imprisonment are disenfranchised but they recover their right of suffrage upo
expiration of ten years after service of sentence (Sec. 102, 1971 Rev. Elec. Code). Furthermore, ex-convicts and imb
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
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 certific
results of the same from the Department of Local Governments. But there was such certification as per Annex 1 to 1-
Notes submitted by the Solicitor General counsel for respondents public officers. This should suffice to dispose of this
Even in the absence of such certification, in much the same way that in passing law, Congress or the legislative body
presumed to be in possession of the facts upon which such laws are predicated (Justice Fernando, The Power of Jud
Review, 1967 Ed., pp. 112-11 citing Lorenzo vs. Dir., etc., [1927] 50 Phil. 595 and O'Gonmore, et al: vs. Hartford, etc
U.S. 251), it should likewise be presumed that the President was in possession of the fact upon which Proclamation N
was based. This presumption is further strengthened by the fact that the Department of Local Governments, the Depa
National Defense and the Philippine Constabulary as well the Bureau of Posts are all under the President, which offic
alter ego, are presumptively acting for and in behalf of the President and their acts are valid until disapproved or repro
the President (Planas vs. Gil, 67 Phil. 62; Villen vs. Secretary of Interior, 67 Phil. 451). To deny the truth or the procla
the President as to the overwhelming majority vote in the Citizens' Assemblies in favor of the new Constitution, is to c
President with falsification, which is a most grievous accusation. Under the, rules of pleadings and evidence, the petit
the burden of proof by preponderance of evidence in civil cases and by proof beyond reasonable doubt in criminal pro
where the accused is always presumed to be innocent. Must this constitutional right be reversed simply because the
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
officers whose category in the official hierarchy is very much lower than that of the Chief of State. What reason is the
withhold such a presumption in favor of the President? Does the fact that the President belong to the party in power a
(4) of the five (5) senators who are petitioners in L-36165 belong to the opposition party, justify a discrimination again
President in matters of this nature? Unsupported as their word is by any credible and competent evidence under the
evidence, must the word of the petitioners prevail over that of the Chief Executive, because they happen to be former
and delegates to the Constitutional Convention? More than any of the petitioners herein in all these cases, the incum
President realizes that he risks the wrath of his people being visited upon him and the adverse or hostile verdict of his
because of the restrictions on the civil liberties of his people, inevitable concomitants of martial law, which necessarily
some degree of sacrifice on the part of the citizenry. Until the contrary is established or demonstrated, herein petition
grant that the Chief Executive is motivated by what is good for the security and stability of the country, for the progres
happiness of the people. All the petitioners herein cannot stand on the proposition that the rights under the 1935 Con
absolute and invulnerable to limitations that may be needed for the purpose of bringing about the reforms for which th
petitioners pretend to be clamoring for and in behalf of the people. The five (5) petitioners in L-36165 and four (4) of t
petitioners in L-36164 were all participants in the political drama of this country since 1946. They are witness to the fr
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 (
petitioners in L-36164 and L-36165 may not have participated in the systematic blocking of the desired reforms in Co
outside of it; but the question may be asked as to what exactly they did to support such reforms. For the last seven (7
since the turn of the century, for the last thirty-five (35) years since the establishment of the Commonwealth governm
and for the last twenty seven (27) years since the inauguration of the Republic on July 4, 1946, no tangible substantia
had been effected, funded and seriously implemented, despite the violent uprisings in the thirties, and from 1946 to 1
the violent demonstrations of recent memory. Congress and the oligarchs acted like ostriches, "burying their heads in
sand. "Now the hopes for the long-awaited reforms to be within a year or to are brighter. It would seem therefore to th
everyone including herein petitioners to give the present leadership the opportunity to institute and carry out the need
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 so

This Court in the Gonzales and Tolentino cases transcended its proper sphere and encroached upon the province ex
reserved to and by the sovereign people. This Court did not heed to the principle that the courts are not the fountain o
remedies for all wrongs. WE cannot presume that we alone can speak with wisdom as against the judgment of the pe
basic instrument which affects their very lives. WE cannot determine what is good for the people or ought to be their f
law. WE can only exercise the power delegated to Us by the sovereign people, to apply and interpret the Constitution
laws for the benefit of the people, not against them nor to prejudice them. WE cannot perform an act inimical to the in
Our principal, who at any time may directly exercise their sovereign power ratifying a new Constitution in the manner
to them.

It is pertinent to ask whether the present Supreme Court can function under the 1935 Constitution without being a pa
government established pursuant thereto. Unlike in the Borden case, supra, where there was at least another govern
claiming to be the legitimate organ of the state of Rhode Island (although only on paper as it had no established orga
Dorr who represented himself to be its head; in the cases at bar there is no other government distinct from and maint
position against the existing government headed by the incumbent Chief Executive. (See Taylor vs. Commonwealth, 
There is not even a rebel government duly organized as such even only for domestic purposes, let alone a rebel gove
engaged in international negotiations. As heretofore stated, both the executive branch and the legislative branch esta
under the 1935 Constitution had been supplanted by the government functioning under the 1973 Constitution as of Ja
1973. The vice president elected under the 1935 Constitution does not asset any claim to the leadership of the Repub
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
whom he calls the "hero of the American Bar," because during the American civil war he apparently had the courage
proclamation of President Lincoln suspending the privileges of the writ of habeas corpus in Ex parte Merryman (Fede
No. 9487 [1861]). But who exactly was Chief Justice Roger Brooke Taney? The Editorial Board of Vol. 21 of the Ency
Brit., 1966 ed. (pp. 778-779, 1969 ed., pp. 654-657), briefly recounts that he was born in 1777 in Calvert County, Mar
parents who were landed aristocrats as well as slave owners. Inheriting the traditional conservatism of his parents wh
to the landed aristocracy, Taney became a lawyer in 1799, practiced law and was later appointed Attorney General o
He also was a member of the Maryland state legislature for several terms. He was a leader of the Federalist Party, w
disintegrated after the war of 1812, compelling him to join the Democratic Party of Andrew Jackson, also a slave own
landed aristocrat, who later appointed him first as Attorney General of the United States, then Secretary of the Treasu
1836 Chief Justice of the United States Supreme Court to succeed Chief Justice John Marshall, in which position he
for 28 years until he died on October 21, 1864. His death "went largely unnoticed and unregretted." Because he hims
slave owner and a landed aristocrat, Chief Justice Taney sympathized with the Southern States and, even while Chie
hoped that the Southern States would be allowed to secede peacefully from the Union. That he had no sympathy for
was revealed by his decision in Dred Scott vs. Sandford (19 How. 398 [1857]) where he pronounced that the America
not entitled to the rights of an American citizen and that his status as a slave is determined by his returning to a slave
can therefore discern his hostility towards President Lincoln when he decided Ex parte Merryman, which animosity to
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 o
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 rhetor
Encyclopedia Britannica (Vol. 9, 1969 ed., pp. 508-509) to this effect. On the contrary, Encyclopedia Britannica (Vol.
Encyclopedia Brit., 1966 & 1969 eds., 732-733), refers to Marshal Henri Philippe Petain as the genuine hero or "Savi
Verdun"; because he held Verdun against the 1916 offensive of the German army at the cost of 350,000 of his Frenc
who were then demoralized and plotting mutiny. Certainly, the surviving members of the family of Marshal Petain wou
the error. And neither would the members of the clan of Marshal Foch acknowledge the undeserved accolade, althou
Foch has a distinct place in history on his own merits. The foregoing clarification is offered in the interest of true scho
historical accuracy, so that the historians, researchers and students may not be led astray or be confused by esteem
eloquence and mastery of the spoken and written word as well as by his eminence as law professor, author of law bo
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 th
senators who are petitioners in L-36165 to also act as "heroes and idealists," to defy the President by holding session
themselves alone in a hotel or in their houses if they can muster a quorum or by causing the arrest of other senators
quorum and thereafter remove respondents Puyat and Roy (Avelino, et al. vs. Cuenco, et al. [1949] 83 Phil. 17), if the
most vehemently in the justice and correctness of their position that the 1973 Constitution has not been validly ratified
or acquiesced in by the people since January 18, 1973 until the present. The proclaimed conviction of petitioners in L
this issue would have a ring of credibility, if they proceeded first to hold a rump session outside the legislative building
is not unreasonable to demand or to exact that he who exhorts others to be brave must first demonstrate his own cou
Surely, they will not affirm that the mere filing of their petition in L-36165 already made them "heroes and idealists." T
challenge likewise seems to insinuate that the members of this Court who disagree with petitioners' views are materia
cowards or mercenary fence-sitters. The Court need not be reminded of its solemn duty and how to perform it. WE re
believe that petitioners and their learned as well as illustrious counsels, scholars and liberal thinkers that they are, do
recognize the sincerity of those who entertain opinions that clash with their own. Such an attitude does not sit well wit
dictum that "We can differ without being difficult; we can disagree without being disagreeable," which distinguished co
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 fin
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 S

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 c
amendment or the revised or new Constitution has been validly submitted to the people for ratification in accordance
procedure prescribed by the existing Constitution, is a justiciable question, accord all presumption of validity to the co
amendment or the revised or new Constitution after the government officials or the people have adopted or ratified or
in the new Constitution or amendment, although there was an illegal or irregular or no submission at all to the people
Gray, 4th Dec. Dig. 935 [1934], Hammond vs. Clark, 71 SE 482-483; People vs. Sours, 31 Colo. 369, 74 Pac. 167, 10
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.
574; Weston vs. Ryan, 70 Neb. 211, 97 NW 347; Combs vs. State, 81 Ga. 780, 8 SE 318; Woodward vs. State, 103 G
SE 522; Corre vs. Cooney, 70 Mont. 355, 225 P 1007, 1009). As late as 1971, the courts stressed that the constitutio
amendment or the new Constitution should not be condemned "unless our judgment its nullity is manifest beyond rea
doubt" (1971 case of Moore vs. Shanahan, 486 Pac. 2d 506, 207 Kan. 1, 645; and the 1956 case of Tipton vs. Smith
al., supra).

Mr. Justice Enrique M. Fernando, speaking for the Court, pronounced that the presumption of constitutionality must p
absence of factual foundation of record to overthrow such presumption (Ermita-Malate Hotel, etc. vs. City Mayor, L-2
31, 1967, 20 SCRA 849).

III

CONSTITUTIONAL CONVENTION — CO-EQUAL WITH AND INDEPENDENT OF CONGRESS, EXECUTIVE

JUDICIARY.

The Constitutional Convention is co-ordinate and co-equal with, as well as independent of, the three grand departme
Government, namely, the legislative, the executive and the judicial. As a fourth separate and distinct branch, to emph
independence, the Convention cannot be dictated to by either of the other three departments as to the content as we
form of the Charter that it proposes. It enjoys the same immunity from interference or supervision by any of the afores
branches of the Government in its proceedings, including the printing of its own journals (Tañada and Fernando, Con
the Philippines, 1952 ed., Vol. I, pp. 8 9; Malcolm and Laurel, Phil. Const. Law, p. 22; Frantz vs. Autry, 91 Pac. 193).
that independence, for the purpose of maintaining the same unimpaired and in order that its work will not be frustrate
Convention has the power to fix the date for the plebiscite and to provide funds therefor. To deny the Convention suc
prerogative, would leave it at the tender mercy of both legislative and executive branches of the Government. An uns
Congress would not be disposed to submit the proposed Constitution drafted by the Constitutional Convention to the
ratification, much less appropriate the necessary funds therefor. That could have been the fate of the 1973 Constitutio
the same abolished the Senate by creating a unicameral National Assembly to be presided by a Prime Minister who w
legislative and executive powers and is the actual Chief Executive, for the President contemplated in the new Constit
exercises primarily ceremonial prerogatives. The new Constitution likewise shortened abruptly the terms of the memb
present Congress (whose terms end on December 31, 1973, 1975 and 1977) which provides that the new Constitutio
effect immediately upon its ratification (Sec. 16, Article XVII, 1973 Constitution). The fact that Section 2 of the same A
secures to the members of Congress membership in the interim National Assembly as long as they opt to serve there
thirty (30) days after the ratification of the proposed Constitution, affords them little comfort; because the convening o
National Assembly depends upon the incumbent President (under Sec. 3[1], Art. XVII, 1973 Constitution). Under the
circumstances, the members of Congress, who were elected under the 1935 Constitution, would not be disposed to c
plebiscite and appropriate funds therefor to enable the people to pass upon the 1973 Constitution, ratification of whic
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 effec
possesses the power to call a plebiscite and to appropriate funds for the purpose, it inescapably must have the powe
the same to the President, who, in estimation of the Convention can better determine appropriate time for such a refe
well as the amount necessary to effect the same; for which reason the Convention thru Resolution No. 29 approved o
November 22, 1972, which superseded Resolution No. 5843 adopted on November 16, 1972, proposed to the Presid
a decree be issued calling a plebiscite for the ratification of the proposed new Constitution such appropriate date as h
determine and providing for the necessary funds therefor, ...," after stating in "whereas" clauses that the 1971 Constit
Convention expected to complete its work by the end of November, 1972 that the urgency of instituting reforms rende
imperative the early approval of the new Constitution, and that the national and local leaders desire that there be con
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 an
regulations to implement the law, this authority to delegate implementing rules should not be denied to the Constitutio
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
Constitutional Convention thru its Resolution No. 29, the organization of the Citizens' Assemblies for consultation on
issues, is comprehended within the ordinance-making power of the President under Section 63 of the Revised Admin
Code, which expressly confers on the Chief Executive the power to promulgate administrative acts and commands to
the organization or mode of operation of the government or re-arranging or re-adjusting any district, division or part o
Philippines "or disposing of issues of general concern ... ." (Emphasis supplied). Hence, as consultative bodies repre
localities including the barrios, their creation by the President thru Presidential Decree No. 86 of December 31, 1972,
successfully challenged.

The employment by the President of these Citizens' Assemblies for consultation on the 1973 Constitution or on wheth
was further need of a plebiscite thereon, — both issues of national concern — is still within the delegated authority re
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 plebisc
conducted by the Commission on Elections in accordance with the provisions of the 1971 Revised Election Code. If t
intention of the Constitutional Convention in making the delegation, it could have easily included the necessary phras
purpose, some such phrase like "to call a plebiscite to be supervised by the Commission on Elections in accordance
provisions of the 1971 Revised Election Code (or with existing laws)." That the Constitutional Convention omitted suc
can only mean that it left to the President the determination of the manner by which the plebiscite should be conducte
supervise the plebiscite, and who can participate in the plebiscite. The fact that said Resolution No. 29 expressly stat
copies of this resolution as approved in plenary session be transmitted to the President of the Philippines and the Co
Elections for implementation," did not in effect designate the Commission on Elections as supervisor of the plebiscite
of said resolution that were transmitted to the Commission on Elections at best serve merely to notify the Commission
Elections about said resolution, but not to direct said body to supervise the plebiscite. The calling as well as conduct
plebiscite was left to the discretion of the President, who, because he is in possession of all the facts funnelled to him
intelligence services, was in the superior position to decide when the plebiscite shall be held, how it shall be conducte
shall oversee it.

It should be noted that in approving said Resolution No. 29, the Constitutional Convention itself recognized the validit
validated Presidential Proclamation No. 1081 placing the entire country under martial law by resolving to "propose to
Ferdinand E. Marcos that a decree be issued calling a plebiscite ... ." The use of the term "decree" is significant for th
orders regulating the conduct of all inhabitants are issued in that form and nomenclature by the President as the Com
Chief and enforcer of martial law. Consequently, the issuance by the President of Presidential Decree No. 73 on Dec
1972 setting the plebiscite on January 15, 1973 and appropriating funds therefor pursuant to said Resolution No. 29,
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 s
does not need sufficient standards to circumscribe the exercise of the power delegated, and is beyond the competen
Court to nullify. But even if adequate criteria should be required, the same are contained in the "Whereas" clauses of
Constitutional Convention Resolution No. 29, thus:

WHEREAS, the 1971 Constitutional Convention is expected to complete its work of drafting a
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 Consti
become imperative;
 WHEREAS, it is the desire of the national and local leaders that there be continuity in the imm
political transition from the old to the New Constitution;" (Annex "1" of Answer, Res. No. 29, C
Convention).

As Mr. Justice Fernando, with whom Messrs. Justices Barredo, Antonio and the writer concurred in the Plebiscite Ca

... Once this work of drafting has been completed, it could itself direct the submission to the pe
ratification as contemplated in Article XV of the Constitution. Here it did not do so. With Congr
being in session, could the President, by the decree under question, call for such a plebiscite?
such circumstances, a negative answer certainly could result in the work of the Convention be
rendered nugatory. The view has been repeatedly expressed in many American state court de
to avoid such undesirable consequence the task of submission becomes ministerial, with the p
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 Constitutio
done by him in his capacity as President, such an objection would indeed have been formidab
say insurmountable. If the appropriation were made in his capacity as agent of the Convention
that there be submission to the people, then such an argument loses force. The Convention it
have done so. It is understandable why it should be thus. If it were otherwise, then a legislativ
appropriating arm of the government, could conceivably make use of such authority to compe
Convention to submit to its wishes, on pain of being rendered financially distraught. The Presi
performing his role as its agent, could be held as not devoid of such competence. (pp. 2-3, co
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 o
18 and 19, 1972 on the Plebiscite Cases. But the inclusion of questionable or ambiguous provisions does not affect th
the ratification or adoption of the 1973 Constitution itself (Pope vs. Gray, 104 SO, 2d 841; 7th Dec. pp. 212-219, 1956

Alexander Hamilton, one of the leading founders and defenders of the American Constitution, answering the critics of
Constitution, stated that: "I never expect to see a perfect work from imperfect man. The result of the deliberations of a
bodies must necessarily be a compound, as well of the errors and prejudices as of the good sense and wisdom, of th
of whom they are composed. The compacts which are to embrace thirteen distinct States in a common bond of amity
must necessarily be a compromise of as many dissimilar interests and inclinations. How can perfection spring from su
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 beyo
power of the Constitutional Convention to propose.

This objection relates to the wisdom of changing the form of government from Presidential to Parliamentary and inclu
provisions as Section 3 of Article IV, Section 15 of Article XIV and Sections 3(2) and 12 of Article XVII in the 1973 Co

Article IV —

Sec. 3. The right of the people to be secure in their persons, houses, papers, and effects agai
unreasonable searches and seizures of whatever nature and for any purpose shall not be viol
search warrant or warrant of arrest shall issue except upon probable cause to be determined
 judge, or such other responsible officer as may be authorized by law, after examination under
affirmation of the complainant and the witnesses may produce, and particularly describing the
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
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 do
incumbent President shall be part of the law of the land, and shall remain valid, legal, binding
effective even after lifting of martial law or the ratification of this Constitution, unless modified,
superseded by subsequent proclamations, orders, decrees, instructions, or other acts of the in
President, or unless expressly and explicitly modified or repealed by the regular National Asse

xxx xxx xxx

Sec. 12. All treaties, executive agreements, and contracts entered into by the Government, or
subdivision, agency, or instrumentality thereof, including government-owned or controlled corp
are hereby recognized as legal, valid and binding. When the national interest so requires, the
President of the Philippines or the interim Prime Minister may review all contracts, concession
or other forms of privileges for the exploration, development, exploitation, or utilization of natu
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), Chi
Roberto Concepcion, concurred in by Justices Fernando, Barredo, Antonio and the writer, overruled this objection, th

... Regardless of the wisdom and moral aspects of the contested provisions of
proposed Constitution, it is my considered view that the Convention was legall
to propose — save perhaps what is or may be insistent with what is now know
particularly in international law, as Jus Cogens — not only because the Conve
exercised sovereign powers delegated thereto by the people — although insof
the determination of the proposals to be made and formulated by said body is
— but also, because said proposals cannot be valid as part of our Fundament
unless and until "approved by the majority of the votes cast at an election whic
proposals "are submitted to the people for their ratification," as provided in Sec
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 Constitut
Convention has the authority to "entirely overhaul the present Constitution and propose an entirely new Constitution b
ideology foreign to the democratic system ...; because the same will be submitted to the people for ratification. Once
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
constitutional convention ..., is practically limitless" (citing Cf. Koehler vs. Hill, 14 NW 738, 60 Iowa 543 [1883]; Hatch
6 P 734, 66 Cal. 632 [1885]; MacMillan v. Blattner, 25 NW 245, 67 Iowa 287 [1895]; State v. Powell, 27 SO 297, 77 M
[1900]; Hammond v. Clark, 71 SE 479, 136 Ga. 313 [1911]; Hamilton v. Vaughan, 179 NW 533, 212 Mich. 31 [1920];
Smith, 138 NE 881, 105 Ohio St. 570 [1922]; Looney vs. Leeper, 292 P 365, 145 Okl. 202 [1930]; School District vs.
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 ele
delegates to the Convention and when the delegates themselves were campaigning, such limitation of the scope of th
and objective was not in their minds."

1973 CONSTITUTION DULY ADOPTED AND

PROMULGATED.

Petitioners next claim that the 1971 Constitutional Convention adjourned on November 30, 1972 without officially pro
the said Constitution in Filipino as required by Sections 3(1) of Article XV on General Provisions of the 1973 Constitu
claim is without merit because their Annex "M" is the Filipino version of the 1973 Constitution, like the English version
the certification by President Diosdado Macapagal of the Constitutional Convention, duly attested by its Secretary, th
proposed Constitution, approved on second reading on the 27th day of November, 1972 and on third reading in the C
291st plenary session on November 29, 1972 and accordingly signed on November 1972 by the delegates whose sig
thereunder affixed. It should be recalled that Constitutional Convention President Diosdado Macapagal was, as Presi
Republic 1962 to 1965, then the titular head of the Liberal Party to which four (4) of the petitioners in L-36165 includin
counsel, former Senator Jovito Salonga, belong. Are they repudiating and disowning their former party leader and be

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 Constitutio
approved by a majority of the votes cast at an election at which the amendments are submitted to the people for ratifi

But petitioners construe the aforesaid provision to read: "Such amendments shall be valid as part of this Constitution
approved by a majority of the votes cast at an election called by Congress at which the amendments are submitted fo
by the qualified electors defined in Article V hereof, supervised by the Commission on Elections in accordance with th
election law and after such amendments shall have been published in all the newspapers of general circulation for at
months prior to such election."

This position certainly imposes limitation on the sovereign people, who have the sole power of ratification, which impo
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 C
This is a clear case of usurpation of sovereign power they do not possess — through some kind of escamotage. This
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 wit
procedure prescribed by the Constitution and/or the law, nullifies the proposed amendment or the new Constitution, t
procedure prescribed by the state Constitution is so detailed that it specifies that the submission should be at a gener
election, or at the election for members of the State legislature only or of all state officials only or of local officials only
state and local officials; fixes the date of the election or plebiscite limits the submission to only electors or qualified ele
prescribes the publication of the proposed amendment or a new Constitution for a specific period prior to the election
plebiscite; and designates the officer to conduct the plebiscite, to canvass and to certify the results, including the form
ballot which should so state the substance of the proposed amendments to enable the voter to vote on each amendm
separately or authorizes expressly the Constitutional Convention or the legislature to determine the procedure or cert
thereof. See the State Constitutions of Alabama [1901]; Arizona [1912]; Arkansas [1874]; Colorado [1976]; Connectic
Florida [1887]; Georgia [1945]; Illinois [1970]; Indiana [1851]; Iowa [1857]; Kansas [1861]; Kentucky [1891]; Louisiana
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 leg
the manner following: The proposed amendments shall be read in the house in which they ori
three several days, and, if upon the third reading, three-fifths of all the members elected to tha
shall vote in favor thereof, the proposed amendments shall be sent to the other house, in whic
likewise be read on three several days, and if upon the third reading, three-fifths of all the mem
elected that house shall vote in favor of the proposed amendments, the legislature shall order
by the qualified electors of the state upon such proposed amendments, to be held either at the
election next succeeding the session of the legislature at which the amendments are propose
another day appointed by the legislature, not less than three months after the final adjournme
session of the legislature at which the amendments were proposed. Notice of such election, to
the proposed amendments, shall be given by proclamation of the governor, which shall be pu
every county in such manner as the legislature shall direct, for at least eight successive week
preceding the day appointed for such election. On the day so appointed an election shall be h
vote of the qualified electors of the state upon the proposed amendments. If such election be
day of the general election, the officers of such general election shall open a poll for the vote o
qualified electors upon the proposed amendments; if it be held on a day other than that of a g
election, officers for such election shall be appointed; and the election shall be held in all thing
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 ma
secretary of state, and counted, in the same manner as in elections for representatives to the
and if it shall thereupon appear that a majority of the qualified electors who voted at such elec
the proposed amendments voted in favor of the same, such amendments shall be valid to all i
purposes as parts of this Constitution. The result of such election shall be made known by pro
the governor. Representation in the legislature shall be based upon population, and such basi
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
of this Constitution, the substance or subject matter of each proposed amendment shall be so
the nature thereof shall be clearly indicated. Following each proposed amendment on the ball
printed the word "Yes" and immediately under that shall be printed the word "No". The choice
elector shall be indicated by a cross mark made by him or under his direction, opposite the wo
expressing his desire, and no amendment shall be adopted unless it receives the affirmative v
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 sess
may propose amendments to this Constitution, and, if the same be agreed to by a majority of
members, elected to each house, such proposed amendments shall be entered on the journa
yeas and nays, and published in at least one newspaper in each county, where a newspaper
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 app
rejection, and if a majority of the electors voting at such election adopt such amendments, the
become a part of this Constitution; but no more than three amendments shall be proposed or
the same time. They shall be so submitted as to enable the electors to vote on each amendm
separately.

Constitution of Kansas (1861):

Article XIV. Amendments.

Sec. 1. Proposal of amendments; publications; elections. Propositions for the amendment of t

constitution may be made by either branch of the legislature; and if two thirds of all the membe
to each house shall concur therein, such proposed amendments, together with the yeas and n
be entered on the journal; and the secretary of state shall cause the same to be published in a
newspaper in each county of the state where a newspaper is published, for three months prec
next election for representatives, at which time, the same shall be submitted to the electors, fo
approval or rejection; and if a majority of the electors voting on said amendments, at said elec
adopt the amendments, the same shall become a part of the constitution. When more than on
amendment shall be submitted at the same time, they shall be so submitted as to enable the e
vote on each amendments separately; and not more than three propositions to amend shall b
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 proclamat

General Assembly may propose Amendments to this Constitution; provided that each Amendm
be embraced in a separate bill, embodying the Article or Section, as the same will stand when
and passed by three fifths of all the members elected to each of the two Houses, by yeas and
entered on the Journals with the proposed Amendment. The bill or bills proposing amendmen
amendments shall be published by order of the Governor, in at least two newspapers, in each
where so many may be published, and where not more than one may be published, then in th
newspaper, and in three newspapers published in the City of Baltimore, once a week for four
immediately preceding the next ensuing general election, at which the proposed amendment o
amendments shall be submitted, in a form to be prescribed by the General Assembly, to the q
voters of the State for adoption or rejection. The votes cast for and against said proposed ame
amendments, severally, shall be returned to the Governor, in the manner prescribed in other c
it shall appear to the Governor that a majority of the votes cast at said election on said amend
amendments, severally, were cast in favor thereof, the Governor shall, by his proclamation, de
said amendment or amendments having received said majority of votes, to have been adopte
people of Maryland as part of the Constitution thereof, and henceforth said amendment or am
shall be part of the said Constitution. When two or more amendments shall be submitted in th
aforesaid, to the voters of this State at the same election, they shall be so submitted as that e
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 a
proposed by the general assembly or by the initiative shall be submitted to the electors for the
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 th
which he may submit any of the amendments. No such proposed amendment shall contain m
one amended and revised article of this constitution, or one new article which shall not contain
one subject and matters properly connected therewith. If possible, each proposed amendmen
published once a week for two consecutive weeks in two newspapers of different political faith
county, the last publication to be not more than thirty nor less than fifteen days next preceding
election. If there be but one newspaper in any county, publication of four consecutive weeks s
made. If a majority of the votes cast thereon is in favor of any amendment, the same shall tak
the end of thirty days after the election. More than one amendment at the same election shall
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 submiss
ratification. As heretofore stated, it does not specify what kind of election at which the new Constitution shall be subm
does it designate the Commission on Elections to supervise the plebiscite. Neither does it limit the ratification to the q
electors as defined in Article V of the 1935 Constitution. Much less does it require the publication of the proposed Co
any specific period before the plebiscite nor does it even insinuate that the plebiscite should be supervised in accorda
the existing election law.

(2) As aforequoted, Article XV does not indicate the procedure for submission of the proposed Constitution to the peo
ratification. It does not make any reference to the Commission on Elections as the body that shall supervise the plebi
Article XV could not make any reference to the Commission on Elections because the original 1935 Constitution as ra
May 14, 1935 by the people did not contain Article X on the Commission on Elections, which article was included the
pursuant to an amendment by that National Assembly proposed only about five (5) years later — on April 11, 1940, ra
people on June 18, 1940 as approved by the President of the United States on December 1940 (see Sumulong vs. C
70 Phil. 703, 713, 715; Gonzales, Phil. Const. Law, 1966 ed., p. 13). So it cannot be said that the original framers of t
Constitution as ratified May 14, 1935 intended that a body known as the Commission on Elections should be the one
supervise the plebiscite, because the Commission on Elections was not in existence then as was created only by Com
Act No. 607 approved on August 22, 1940 and amended by Commonwealth Act No. 657 approved on June 21, 1941
Tañada & Carreon, Political Law of the Philippines, Vol. I, 1961 ed., pp. 475-476; Sumulong vs. Commission, 170 Ph
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 Interio
Department of Local Governments and Community Development) supervised the plebiscites on the 1937 amendmen
woman's suffrage, the 1939 amendment to the Ordinance appended to the 1935 Constitution (Tydings-Kocialkowski
U.S. Congress) and the three 1940 amendments on the establishment of a bicameral Congress, the re-election of the
and the Vice-President, and the creation of the Commission on Elections (ratified on June 18, 1940). The supervision
plebiscites by the then Department of Interior was not automatic, but by virtue of an express authorization in Common
Nos. 34, 49 and 517.

If the National Assembly then intended that the Commission on Elections should also supervise the plebiscite for ratif
constitutional amendments or revision, it should have likewise proposed the corresponding amendment to Article XV
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 q
voters under Article V of the 1935 Constitution should participate in the referendum on any amendment or revision th
could have provided the same in 1935 or in the 1940 amendment by just adding a few words to Article XV by changin
phrase to "submitted for ratification to the qualified electors as defined in Article V hereof," or some such similar phras

Then again, the term "people" in Article XV cannot be understood to exclusively refer to the qualified electors under A
the 1935 Constitution because the said term "people" as used in several provisions of the 1935 Constitution, does no
uniform meaning. Thus in the preamble, the term "Filipino people" refer, to all Filipino citizens of all ages of both sexe
Section 1 of Article II on the Declaration of Principles, the term "people" in whom sovereignty resides and from whom
government authority emanates, can only refer also to Filipino citizens of all ages and of both sexes. But in Section 5
Article II on social justice, the term "people" comprehends not only Filipino citizens but also all aliens residing in the c
ages and of both sexes. Likewise, that is the same connotation of the term "people" employed in Section 1(3) of Artic
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 th
the election of senators and congressmen. Section 2 Article VI expressly provides that the senators "shall be chosen
the qualified electors of the Philippines as may provided by law." Section 5 of the same Article VI specifically provides
congressmen shall "be elected by the qualified electors." The only provision that seems to sustain the theory of petitio
the term "people" in Article XV should refer to the qualified electors as defined in Article V of the 1935 Constitution is
provision that the President and Vice-President shall be elected "by direct vote of the people." (Sec. 2 of Art. VII of the
Constitution). But this alone cannot be conclusive as to such construction, because of explicit provisions of Sections 2
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 proced
ratification of amendments to or revision of said Constitutions and expressly require ratification by qualified electors, n
generic term "people".

The proposal submitted to the Ozamis Committee on the Amending Process of the 1934-35 Constitutional Conventio
that the amendment shall be submitted to qualified election for ratification. This proposal was not accepted indicating
1934-35 Constitutional Convention did intend to limit the term "people" in Article XV of the 1935 Constitution to qualifi
only. As above demonstrated, the 1934-35 Constitutional Convention limits the use of the term "qualified electors" to
public officials. It did not want to tie the hands of succeeding future constitutional conventions as to who should ratify
proposed amendment or revision.

(4) It is not exactly correct to opine that Article XV of 1935 Constitution on constitutional amendment contemplates th
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 the
of a statute expressly authorizing the application of the election laws to plebiscites of this nature. Thus, Com. Act No.
woman's suffrage amendment enacted on September 30, 1936, consists of 12 sections and, aside from providing tha
shall be held a plebiscite on Friday, April 30, 1937, on the question of woman's suffrage ... and that said amendment
published in the Official Gazette in English and Spanish for three consecutive issues at least fifteen (15) days prior to
election, ... and shall be posted in a conspicuous place in its municipal and provincial office building and in its polling
later than April 22, 1937" (Sec. 12, Com. Act No. 34), specifies that the provisions of the Election Law regarding, the
a special election, insofar as said provisions are not in conflict with it, should apply to the said plebiscite (Sec. 3, Com
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 t
plebiscites. Yet the subsequent laws, namely, Com. Act Nos. 492 and 517 and Rep. Act No. 73 calling for the plebisc
constitutional amendments in 1939, 1940 and 1946, including the amendment creating the Commission on Elections,
provided that the provisions of the existing election law shall apply to such plebiscites insofar as they are not inconsis
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 t
Constitution adopted by the National Assembly on September 15, 1939, consists of 8 sections and provides that the p
amendments to the Constitution adopted in Resolution No. 39 on September 15, 1939 "shall be submitted to the Filip
for approval or disapproval at a general election to be held throughout the Philippines on Tuesday, October 24, 1939
amendments to said Constitution proposed in "Res. No. 38, adopted on the same date, shall be submitted at followin
local officials," (Sec. 1, Com. Act No. 492) that the said amendments shall be published in English and Spanish in thr
consecutive issues of the Official Gazette at least ten (10) days prior to the elections; that copies thereof shall be pos
than October 20, 1939 (Sec. 2, Com. Act 492); that the election shall be conducted according to provisions of the Ele
insofar as the same may be applicable; that within thirty (30) days after the election, Speaker of the National Assemb
request the President to call a special session of the Assembly for the purpose of canvassing the returns and certify t
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:
plebiscite on the constitutional amendments providing bicameral Congress, re-election of the President and Vice-Pre
the creation of a Commission on Elections shall be held at a general election on June 18, 1940 (Sec. 1); that said am
shall be published in three consecutive issues of the Official Gazette in English and Spanish at least 20 days prior to
and posted in every local government office building and polling place not later than May 18, 1940 (Sec. 2); that the e
be conducted in conformity with the Election Code insofar as the same may be applicable (Sec. 3) that copies of the
be forwarded to the Secretary of National Assembly and the Secretary of Interior (Sec. 7); that the National Assembly
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 sec
provides that the Amendment "shall be submitted to the people, for approval or disapproval, at a general election wh
held on March 11, 1947, in accordance with the provisions of this Act" (Sec. 1, R.A. No. 73); that the said amendmen
be published in English and Spanish in three consecutive issues of the Official Gazette at least 20 days prior to the e
copies of the same shall be posted in a conspicuous place and in every polling place not later than February 11, 194
R.A. No. 73); that the provisions of Com. Act No. 357 (Election Code) and Com. Act No. 657 creating the Commissio
Elections, shall apply to the election insofar as they are not inconsistent with this Act (Sec. 3, R.A. No. 73); and that w
days after the election, the Senate and House of Representatives shall hold a joint session to canvass the returns an
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
automatic application of the election law; and even at that, not all the provisions of the election law were made applic
because the various laws aforecited contain several provisions which are inconsistent with the provisions of the Revis
Code (Com. Act No. 357). Moreover, it should be noted that the period for the publication of the copies of the propose
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,
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 nee
Congress to expressly provide therefor in the election laws enacted after the inauguration of the Commonwealth gove
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 Stat
Constitutions of the American Union (with few exceptions), Article XV does not state that only qualified electors can v
plebiscite. As above-intimated, most of the Constitutions of the various states of the United States provide for very de
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 J
1967 and superseded Republic Act No. 2370, expanded the membership of the barrio assembly to include citizens w
least 18 years of age, whether literate or not, provided they are also residents of the barrio for at least 6 months (Sec
3590).

Sec. 4. The barrio assembly. — The barrio assembly shall consist of all persons who are resid
barrio for at least six months, eighteen years of age or over, citizens of the Republic of the Ph
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 cou
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-Tent
members of the barrio assembly.

No meeting of the barrio assembly shall take place unless notice is given one week prior to th
except in matters involving public safety or security in which case notice within a reasonable t
sufficient. The barrio captain, or in his absence, the councilman acting as barrio captain, or an
member selected during the meeting, shall act as presiding officer at all meetings of the barrio
The barrio secretary or in his absence, any member designated by the presiding officer to act
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, i
necessary that at least one-fifth of the members of the barrio assembly be present to constitut
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 follo

a. To recommend to the barrio council the adoption of measures for the welfar
barrio;

b. To decide on the holding of a plebiscite as provided for in Section 6 of this A

c. To act on budgetary and supplemental appropriations and special tax ordina

submitted for its approval by the barrio council; and

d. To hear the annual report council concerning the activities and finances of t
assembly.

Sec. 6. Plebiscite. — A plebiscite may be held in the barrio when authorized by a majority vote
members present in the barrio assembly, there being a quorum, or when called by at least fou
of the barrio council; Provided, however, That no plebiscite shall be held until after thirty days
approval by either body, and such plebiscite has been given the widest publicity in the barrio,
date, time, and place thereof, the questions or issues to be decided, action to be taken by the
such other information relevant to the holding of the plebiscite.

All duly registered barrio assembly members qualified to vote may vote in the plebiscite. Votin
 procedures may be made either in writing as in regular election, and/or declaration by the vote
board of election tellers. The board of election tellers shall be the same board envisioned by s
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 plebi
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 as
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
age or over, able to read and write, who has been a resident of the barrio during the six month
immediately preceding the election, duly registered in the list of voters kept by the barrio secre
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
imprisonment, within two years after service of his sentence;

b. Any person who has violated his allegiance to the Republic of the Philippine

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
of any member of the barrio council or on a budgetary, supplemental appropriation, or special ordinances, a valid act
requires "a majority vote of all of the barrio assembly members registered in the list of the barrio secretary" (par. 5, Se
No. 3590). Such plebiscite may be authorized by a majority vote of the members present in the barrio assembly, ther
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
residents of the barrio during the 6 months immediately preceding the election and duly registered in the list of voters
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 ... eithe
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 v
plebiscite," cannot sustain the position of petitioners in G.R. No. L-36165 that only those who are 21 years of age and
who possess all other qualifications of a voter under Section 10 of R.A. No. 3590, can vote on the plebiscites referred
Section 6; because paragraph 3 of Section 6 does not expressly limit the voting to those with the qualifications under
as said Section 6 does not distinguish between those who are 21 or above on the one hand and those 18 or above b
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 lo
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 i
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
whether literate or not. Republic Act No. 3590 could simply have restated Section 4 of Republic Act No. 2370, the old
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 participa
enactment of Republic Act No. 3590 and should have known the intendment of Congress in expanding the membersh
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 a
electors for barrio plebiscites, this prerogative can also be exercised by the Chief Executive as delegate of the Consti
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
overwhelmingly ratified by the people through the Citizens' Assemblies in a referendum conducted from January 10 to
should be accorded the presumption of correctness; because the same was based on the certification by the Secreta
Department of Local Government and Community Development who tabulated the results of the referendum all over
The accuracy of such tabulation and certification by the said Department Secretary should likewise be presumed; bec
done in the regular performance of his official functions aside from the fact that the act of the Department Secretary, a
ego of the President, is presumptively the act of the President himself unless the latter disapproves or reprobates the
(Villena vs. Secretary of Interior, 67 Phil. 451 ). The truth of the certification by the Department Secretary and the Chi
on the results of the referendum, is further strengthened by the affidavits and certifications of Governor Isidro Rodrigu
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
to the 1935 Constitution, the 1940 amendments establishing the bicameral Congress, creating the Commission on El
providing for two consecutive terms for the President, and the 1947 parity amendment, cannot be invoked; because t
amendments were proposed by the National Assembly as expressly authorized by Article V of the 1935 Constitution
woman suffrage and as a constituent assembly in all the other amendments aforementioned and therefore as such, C
had also the authority to prescribe the procedure for the submission of the proposed amendments to the 1935 Consti

In the cases at bar, the 1973 Constitution was proposed by an independent Constitutional Convention, which as here
discussed, has the equal power to prescribe the modality for the submission of the 1973 Constitution to the people fo
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 fo
extrapolation of the Citizens' Assemblies in all the other provinces, cities and municipalities in all the other provinces,
municipalities, and the affirmative votes in the Citizens' Assemblies resulting from such extrapolation would still const
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 Communit
Development that in Rizal there were 1,126,000 Yes votes and 100,310 No votes, the certification of Governor Isidro
of Rizal, shows only 614,157 Yes votes against 292,530 No votes. In Cavite province, there were 249,882 Yes votes
12,269 No votes as disclosed in Annex 1-A of respondents' Compliance (the certification by the Department of Local
and Community Development), while the alleged certification of Governor Lino Bocalan of Cavite shows only 126,163
and 5,577 No votes. If such a ratio is extended by way of extrapolation to the other provinces, cities and towns of 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 certificati
March 16, 1973, he states that since the declaration of martial law and up to the present time, he has been under hou
his residence in Urdaneta Village, Makati, Rizal; that he never participated in the conduct of the Citizens' Assemblies
10 15, 1973 in the province of Cavite; that the acting chairman and coordinator of the Citizens' Assemblies at that tim
Governor Dominador Camerino; and that he was shown a letter for his signature during the conduct of the Citizens' A
which he did not sign but which he referred to Vice-Governor Camerino (Annex 1-Rejoinder of the Sol. Gen. dated M
1973).

Mayor Pablo Cuneta likewise executed an affidavit dated March 16, 1973 stating that on January 15, 1973, he cause
preparation of a letter addressed to Secretary Jose Roño of the Department of Local Government and Community De
showing the results of the referendum in Pasay City; that on the same day, there were still in any Citizens' Assemblie
referendum in Pasay City, for which reason he did not send the aforesaid letter pending submittal of the other results
said Citizens' Assemblies; and that in the afternoon of January 15, 1973, he indorsed the complete certificate of resul
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
stating that a certain Atty. Delia Sutton of the Salonga Law Office asked him for the results of the referendum; that he
her that he had in his possession unsigned copies of such results which may not be considered official as they had th
knowledge whether the original thereof had been signed by the mayor; and that in spite of his advice that said unsign
were not official, she requested him if she could give her the unofficial copies thereof, which he gave in good faith (An
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 Pet
Notes in L-36165). The fact that a certain Mrs. Remedio Gutierrez, wife of alleged barrio treasurer Faustino Gutierrez
South Triangle, Quezon City, states that "as far as we know, there has been no Citizens' Assembly meeting in our Ar
particularly in January of this year," does not necessarily mean that there was no such meeting in said barrio; for she
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
there was no meeting at all in the other barrios of Quezon City. The barrio captain or the secretary of the barrio assem
have been a credible witness.

Councilor Eduardo T. Paredes, chairman of the Secretariat of Quezon City Ratification and Coordinating Council, cer
March 12, 1973 that as such chairman he was in charge of the compilation and tabulation of the results of the referen
the Citizens' Assemblies in Quezon City based on the results submitted to the Secretariat by the different Citizens' As
but many results of the referendum were submitted direct to the national agencies having to do with such activity and
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 Presid
January 15, 1973 informing him of the results of the referendum in Rizal, in compliance with the instruction of the Nat
Secretariat to submit such letter 2 or 3 days from January 10 to show the trend of voting in the Citizens' Assemblies;
figures 614,157 and 292,530 mentioned in said letter were based on the certificates of results in his possession as of
1973, which results were made the basis of the computation of the percentage of voting trend in the province; that his
never intended to show the final or complete result in the referendum in the province as said referendum was then sti
from January 14-17, 1973, for which reason the said letter merely stated that it was only a "summary result"; and that
January 15, 1973, he sent to the National Secretariat all the certificates of results in 26 municipalities of Rizal for final
(Annex 3-Rejoinder of the Sol. Gen.; emphasis supplied).

Lydia M. Encarnacion, acting chief of the Records Section, Department of Local Government and Community Develo
issued a certificate dated March 16, 1973 that she was shown xerox copies of unsigned letters allegedly coming from
Lino Bocalan dated January 15, 1973 and marked "Rejoinder Annex Cavite" addressed to the President of the Philipp
through the Secretary of the Department of Local Government and Community Development and another unsigned le
reportedly from Mayor Pablo Cuneta dated January 15, 1973 and marked "Rejoinder Annex Pasay City" addressed to
Secretary of the Department of Local Government and Community Development; that both xerox copies of the unsign
contain figures showing the results of the referendum of the Citizens' Assemblies in those areas; and that the said let
not received by her office and that her records do not show any such documents received by her office (Annex 2-Rejo
Sol. Gen.).
Thus it would seem that petitioners in L-36165 have attempted to deceive this Court by representing said unsigned le
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
summary report of Governor Rodriguez of Rizal as well as those contained in the alleged report of Governor Lino Boc
Cavite who repudiated the same as not having been signed by him for he was then under house arrest, on the one ha
number of votes certified by the Department of Local Government and Community Development, on the other, to the
even assuming the correctness of the figures insisted on by counsel for petitioners in L-36165, if they were extrapolat
applied to the other provinces and cities of the country, the Yes votes would still be overwhelmingly greater than the N
applies equally to the alleged discrepancy between the figures contained in the certification of the Secretary of the De
Local Government and Community Development and the figures furnished to counsel for petitioners in L-36165 conc
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 fav
plebiscite to be held later than those against, only serve to emphasize that there was freedom of voting among the m
the Citizens' Assemblies all over the country during the referendum from January 10 to 15, 1973 (Annex-6 Camarines
Rejoinder of Petitioners in L-36165). If there was no such freedom of choice, those who wanted a plebiscite would no
those against holding such plebiscite.

The letter of Governor Felix O. Alfelor, Sr. dated January 1973 confirms the "strong manifestation of approval of the n
Constitution by almost 97% by the members of the Citizens' Assemblies in Camarines Sur" (Annex-Camarines Sur to
of Petitioners in L-36165).

The report of Governor Efren B. Pascual of Bataan shows that the members of the Citizens' Assemblies voted overw
favor of the new Constitution despite the fact that the second set of questions including the question "Do you approve
Constitution?" was received only on January 10. Provincial Governor Pascual stated that "orderly conduct and favora
of the referendum" were due not only to the coordinated efforts and cooperation of all teachers and government empl
area but also to the enthusiastic participation by the people, showing "their preference and readiness to accept this n
of government to people consultation in shaping up government policies." (Annex-Bataan to Rejoinder of Petitioners i

As heretofore stated, it is not necessary that voters ratifying the new Constitution are registered in the book of voters;
that they are electors voting on the new Constitution (Bott vs. Wurts, 40 A 740 [1898]; 43 A 744, 881 [1899]; 45 LRA
fact that the number of actual voters in the referendum in certain localities may exceed the number of voters actually
for the 1971 elections, can only mean that the excess represents the qualified voters who are not yet registered inclu
who are at least 15 years of age and the illiterates. Although ex-convicts may have voted also in the referendum, som
might have been granted absolute pardon or were sentenced to less than one year imprisonment to qualify them to v
201, 1971 Rev. Election Code). At any rate, the ex-convicts constitute a negligible number, discounting which would n
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 lette
March 13, 1973 that he does not "feel authorized by the proper authorities to confirm or deny the data" concerning th
participants, the Yes votes and No votes in the referendum on the new Constitution among the members of the Citize
Assemblies in Caloocan City, does not necessarily give rise to the inference that Mayor Samson of Caloocan City is b
intimidated, having been recently released from detention; because in the same letter of Mayor Samson, he suggeste
counsel for petitioners in L-36165 that he can secure "the true and legitimate results of the referendum" from the Offic
President (Annex Caloocan-B to Rejoinder of Petitioners in L-36165). Why did not learned and eminent counsel heed
suggestion?

Counsel for petitioners in L-36165, to sustain their position, relies heavily on the computation of the estimated turnove
Citizens' Assemblies referendum on January 10 to 15, 1973 by a certain Professor Benjamin R. Salonga, of the Mapu
of Technology, ostensibly a close relative of former Senator Jovito R. Salonga, eminent counsel for petitioners in L-36
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
the Bureau of Census and Statistics, in his letter dated March 16, 1973 address to the Secretary of the Department o
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-yea
(1972) will have to be estimated in order to give a 101.9% estimate of the percentage participa
"15-20 year old plus total number of qualified voters" which does not deem to answer the prob
computation apparently fails to account for some 5.6 million persons "21 years old and over" w
not registered voters (COMELEC), but who might be qualified to participate at the Citizen's As

2) The official population projection of this office (medium assumption) for "15 year olds and o
January 1, 1973 is 22.506 million. If total number of participants at the Citizens' Assembly Ref
held on January 10-15, 1973 was 16.702 million, participation rate will therefore be the ratio o
figure to the former which gives 74.2%.

3) 1 cannot also understand c-2 "Solution to Problem 11." The "difference or implied number o
year olds" of 5,039,906 would represent really not only all 15-year olds and over who participa
Citizens' Assembly but might not have been registered voters at the time, assuming that all th
11,661,909 registered voted at Citizens' Assembly. Hence, the "estimate percentage participa
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 gro
was estimated to be 4.721 million as of January 1, 1973 by the population of "15 years old and
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 a
dead. It cannot therefore be assumed that all of them participated at the Citizens' Assembly. It
therefore be inferred that "a total number of persons 15 and over unqualified/disqualified to vo
more than 10,548,197 and hence the "difference or implied number of registered voters that p
will be less than 6,153,618.

I have reservations on whether an "appropriate number of qualified voters that supposedly vot
be meaningfully estimated.

5) The last remark will therefore make the ratio (a) [Solution to Problem] more than 1.71 and t
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 pr
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

If the registered electors as of the election of November 8, 1971 numbered 11,661,909, the difference between 16,70
participated in the referendum and the registered electors of 11,661,909 for the November 8, 1971 elections, is 5,040
may include not only the 15-year olds and above but below 21 but also the qualified electors who were not registered
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
votes as against about 3,000,000 votes for his rival LP Senator Sergio Osmeña, Jr., garnering a majority of from abou
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
not vote in favor of the 1973 Constitution during the referendum from January 10 to 15, 1973. It should also be stress
many of the partisans of the President in the 1969 Presidential elections, have several members in their families and
who are qualified to participate in the referendum because they are 15 years or above including illiterates, which fact
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
fear to disagree with the President and Commander-in-Chief of the Armed Forces of the Philippines and therefore ca
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 in
Even without martial law, the penal, civil or administrative sanction provided for the violation of ordinarily engenders f
individual which persuades the individual to comply with or obey the law. But before martial law was proclaimed, man
individuals fear such sanctions of the law because of lack of effective equal enforcement or implementation thereof —
compartmentalized justice and extraneous pressures and influences frustrated the firm and just enforcement of the la
fear that is generated by martial law is merely the fear of immediate execution and swift enforcement of the law and t
immediate infliction of the punishment or sanction prescribed by the law whenever it is transgressed during the period
law. This is not the fear that affects the voters' freedom of choice or freedom to vote for or against the 1973 Constituti
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
laws. But the 1935 Constitution does not require secret voting. We search in vain for such guarantee or prescription i
organic law. The Commission on Elections under the 1940 Amendment, embodied as Article X is merely mandated to
"free, orderly and honest election." Congress, under its plenary law-making authority, could have validly prescribed in
law open voting in the election of public officers, without trenching upon the Constitution. Any objection to such a stat
concerns its wisdom or propriety, not its legality or constitutionality. Secret balloting was demanded by partisan strife
for elective officials. Partisanship based on party or personal loyalties does not generally obtain in a plebiscite on pro
constitutional amendments or on a new Constitution. We have seen even before and during martial law that voting in
government agencies or private organizations is usually done openly. This is specially true in sessions of Congress, p
boards, city councils, municipal boards and barrio councils when voting on national or local issues, not on personalitie

Then again, open voting was not a universal phenomenon in the Citizens' Assemblies. It might have been true in cert
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 w
by acclamation presided over by its former president, petitioner Eduardo Monteclaro in L-36236 (see Bulletin Today,
3, 1973 issue). There can be no more hardboiled group of persons than newspapermen, who cannot say that voting a
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
Constitution. They will not deny that there are those who favor the same, even among the 400,000 teachers among w
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 drive
driver, bus driver, pedestrian, salesman, or salesgirl — does not want the new Constitution, or the reforms provided f

(8) Petitioners likewise claim that there was no sufficient publicity given to the new Constitution. This is quite inaccura
even before the election in November, 1970 of delegates to the Constitutional Convention, the proposed reforms wer
discussed in various forums and through the press as well as other media of information. Then after the Constitutiona
Convention convened in June, 1971, specific reforms advanced by the delegates were discussed both in committee h
well as in the tri-media — the press, radio and television. Printed materials on the proposed reforms were circulated b
proponents. From June, 1971 to November 29, 1972, reforms were openly discussed and debated except for a few d
the proclamation of martial law on September 21, 1972. From the time the Constitutional Convention reconvened in O
1972 until January 7, 1973, the provisions of the new Constitution were debated and discussed in forums sponsored
organizations universities and debated over the radio and on television. The Philippines is a literate country, second o
Japan in the Far East, and more literate perhaps than many of mid-western and southern states of the American Unio
Spain. Many residents in about 1,500 towns and 33,000 barrios of the country have radios. Even the illiterates listene
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, 19
"Otto Lang, Hollywood producer director (Tora, Tora, Tora) went around the country doing a 30-minute documentary
Philippines for American television stated that what impressed him most in his travel throughout the country was the g
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, M
Secretary of the United States Senate, who conducted a personal survey of the country as delegate of Senator Mike
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
Marcos has been prompt and sure-footed in using the power of presidential decree under mar
this purpose. He has zeroed in on areas which have been widely recognized as prime sources
nation's difficulties — land tenancy, official corruption, tax evasion and abuse of oligarchic eco
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 alternative
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 popul
like the reforms stipulated in the new Constitution, as well as the decrees, orders and circulars issued to implement th
should be recalled, as hereinbefore stated, that all these reforms were the subject of discussion both in the committee
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 thereo
the media of information before the proclamation of martial law on September 21, 1972. This is the reason why the C
Convention, after spending close to P30 million during the period from June 1, 1971 to November 29, 1972, found it e
accelerate their proceedings in November, 1972 because all views that could possibly be said on the proposed provis
1973 Constitution were already expressed and circulated. The 1973 Constitution may contain some unwise provision
objection to such unwise or vague provisions, as heretofore stated, refers to the wisdom of the aforesaid provisions, w
is not for this Court to decide; otherwise We will be substituting Our judgment for the judgment of the Constitutional C
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 w
legislative powers, is sustained by the ruling in the 1949 case of Kuroda vs. Jalandoni, et al. (83 Phil. 171, 177-178) w
reiterates the 1945 case of Yamashita vs. Styer (75 Phil. 563, 571-72). The trial of General Kuroda was after the surr
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 Preside
Philippines has acted in conformity with the generally accepted principles and policies of inter
which are part of our Constitution.

The promulgation of said executive order is an exercise by the President of his powers as Com
Chief of all our armed forces, as upheld by this Court in the case of Yamashita vs. Styver (L-1
Gaz., 664) when we said —

"War is not ended simply because hostilities have ceased. After cessation of a
hostilities, incidents of war may remain pending which should be disposed of a
war. "An important incident to a conduct of war is the adoption measures by th
command not only to repel and defeat the enemies but to seize and subject to
measures those enemies who in their attempt to thwart or impede our military
violated the law of war." (Ex parte Quirin, 317 U.S., 1; 63 Sup. Ct., 2.) Indeed,
to create a military commission for the trial and punishment of war criminals is
of waging war. And, in the language of a writer, a military commission "has jur
long as the technical state of war continues. This includes the period of an arm
military occupation, up to the effective date of treaty of peace, and may extend
treaty agreement." (Cowles, Trial of War Criminals by Military Tribunals, Amer
Association Journal, June, 1944).

Consequently, the President as Commander-in-Chief is fully empowered to consummate this

aspect of war, namely the trial and punishment of war criminals, through the issuance and enf
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 conc
opinion in Duncan vs. Kahanamoku (327 U.S. 304 [1946]), he defined martial law as "the exercise of the power which
the executive branch of the government to preserve order and insure the public safety in times of emergency, when o
branches of the government are unable to function, or their functioning would itself threaten the public safety." (Emph
supplied). There is an implied recognition in the aforesaid definition of martial law that even in places where the court
function, such operation of the courts may be affected by martial law should their "functioning ... threaten the public s
possible that the courts, in asserting their authority to pass upon questions which may adversely affect the conduct of
campaign against rebels, secessionists, dissidents as well as subversives, martial law may restrict such judicial funct
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 dictatorsh
no other purposes than the preservation of the independence of the state, the maintenance of
constitutional order, and the defense of the political and social liberties of the people. It is impo
recognize the true and limited ends of any practical application of the principle of constitutiona
dictatorship. Perhaps the matter may be most clearly stated in this way: the government of a f
proceeding on its way and meeting the usual problems of peace and normal times within the l
framework of its established constitutional order. The functions of government are parceled ou
number of mutually independent offices and institutions; the power to exercise those functions
circumscribed by well-established laws, customs, and constitutional prescriptions; and the peo
whom this government was instituted are in possession of a lengthy catalogue of economic, p
social rights which their leaders recognize as inherent and inalienable. A severe crisis arises —
country is invaded by a hostile power, or a dissident segment of the citizenry revolts, or the im
world-wide depression threatens to bring the nation's economy in ruins. The government mee
by assuming more powers and respecting fewer rights. The result is a regime which can act a
 and even dictatorially in the swift adaption of measures designed to save the state and its peo
destructive effects of the particular crisis. And the narrow duty to be pursued by this strong go
this constitutional dictatorship? Simply this and nothing more: to end the crisis and restore no
The government assumes no power and abridges no right unless plainly indispensable to that
extends no further in time than the attainment of that end; and it makes no alteration in the po
and economic structure of the nation which cannot be eradicated with the restoration of norma
short, the aim of constitutional dictatorship is the complete restoration of the status quo ante b
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 t
all institutions of government, and the principle of constitutional dictatorship remains eternally
matter how often and seriously it may have been violated in practice. (Constitutional Dictators
ed., by Clinton L. Rossiter, p. 7; emphasis supplied.)

Finally, Rossiter expressly recognizes that during martial law, the Chief Executive exercises legislative power, whethe
temporary or permanent character, thus:

The measures adopted in the prosecution of a constitutional dictatorship should never be perm
character or effect. Emergency powers are strictly conditioned by their purpose and this purpo
restoration of normal conditions. The actions directed to this end should therefore be provision
example, measures of a legislative nature which work a lasting change in the structure of the
constitute permanent derogations from existing law should not be adopted under an emergen
act, at least not without the positively registered approval of the legislature. Permanent laws, w
adopted in regular or irregular times, are for parliaments to enact. By this same token, the dec
sentences of extraordinary courts should be reviewed by the regular courts after the terminatio
crisis.

But what if a radical act of permanent character, one working lasting changes in the political a
fabric, is indispensable to the successful prosecution of the particular constitutional dictatorsh
answer can be: it must be resolutely taken and openly acknowledged. President Lincoln found
necessary to proceed to the revolutionary step of emancipation in aid of his conservative purp
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
the positive approval of the people or of their representatives in the legislature. (P. 303, emph
supplied).

From the foregoing citations, under martial law occasioned by severe crisis generated by revolution, insurrection or e
depression or dislocation, the government exercises more powers and respects fewer rights in order "to end the crisis
restore normal times." The government can assume additional powers indispensable to the attainment of that end —
complete restoration of peace. In our particular case, eradication of the causes that incited rebellion and subversion a
secession, is the sine qua non to the complete restoration of normalcy. Exercise of legislative power by the President
Commander in Chief, upon his proclamation of martial law, is justified because, as he professes, it is directed towards
institution of radical reforms essential to the elimination of the causes of rebellious, insurgent or subversive conspirac
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 th
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?" T
dilemma that vexed President Lincoln during the American Civil War, when without express authority in the Constituti
laws of the United States, he suspended one basic human freedom — the privilege of the writ of habeas corpus — in
preserve with permanence the American Union, the Federal Constitution of the United States and all the civil liberties
American people. This is the same dilemma that presently confronts the Chief Executive of the Republic of the Philipp
more than the Courts and Congress, must, by express constitutional mandate, secure the safety of our Republic and
as well as lives of the people against open rebellion, insidious subversion secession. The Chief Executive announced
that in choosing to proclaim martial law, the power expressly vested in him by the 1935 Constitution (Sec. 10[2], Art. V
Constitution) to insure our national and individual survival in peace and freedom, he is in effect waging a peaceful, de
revolution from the center against the violent revolution and subversion being mounted by the economic oligarchs of
right, who resist reforms to maintain their economic hegemony, and the communist rebels a Maoist oriented secessio
extreme left who demand swift institution of reforms. In the exercise of his constitutional and statutory powers, to save
and to protect the citizenry against actual and threatened assaults from insurgents, secessionists and subversives, do
concepts and principles, no matter how revered they may be by jurisprudence and time, should not be regarded as p
commands; otherwise the dead hand of the past will regulate and control the security and happiness of the living pres
contrary view would be to deny the self-evident proposition that constitutions and laws are mere instruments for the w
peace, security and prosperity of the country and its citizenry. The law as a means of social control is not static but dy
Paraphrasing Mr. Justice Frankfurter, the Constitution is neither a printed finality nor the imprisonment of the past, bu
enfolding of the future. In the vein of Mr. Justice Holmes, the meaning of the words of the Constitution is not to be det
merely opening a dictionary. Its terms must be construed in the context of the realities in the life of a nation it is intend
Because experience may teach one generation to doubt the validity and efficacy of the concepts embodied in the exis
Constitution and persuade another generation to abandon them entirely, heed should be paid to the wise counsel of s
learned jurists that in the resolution of constitutional questions — like those posed before Us — the blending of idealis
practical wisdom or progressive legal realism should be applied (see Alexander M. Bickel, the Supreme Court and the
Progress, 1970 ed., pp. 19-21). To Justice Frankfurter, law is "a vital agency for human betterment" and constitutiona
applied politics using the word in its noble sense." (Frankfurter, Law and Politics, 1939 ed., pp. 3 & 6; emphasis supp
Brandeis gave utterance to the truth that "Our Constitution is not a straight jacket. It is a living organism. As such, it is
growth — or expansion and adaptation to new conditions. Growth implies changes, political, economic and social." (B
Papers, Harvard Law School; emphasis supplied). Harvard Professor Thomas Reed Powell emphasizes "practical wi
"the logic of constitutional law is the common sense of the Supreme Court." (Powell, the Validity of State Legislation,
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 o
well as man-made institutions are not immutable. Civilized men organize themselves into a State only for the purpose
their supreme interest — their welfare. To achieve such end, they created an agency known as the government. From
savage era thru ancient times, the Middle Ages, the Dark Ages and the Renaissance to this era of sophisticated elect
nuclear weaponry, states and governments have mutated in their search for the magic instrument for their well-being
and error then as it is still now. Political philosophies and constitutional concepts, forms and kinds of government, had
adopted, overturned, discarded, re-adopted or modified to suit the needs of a given society at a particular given epoc
true of constitutions and laws because they are not "the infallible instruments of a manifest destiny." No matter how w
law to be stable, it cannot stand still. As Mr. Justice Holmes aptly observed, every "constitution is an experiment as a
experiment," (Abrahms vs. U.S., 250 US 616, 631) for "the life of the law is not logic, but experience." In the pontifica
Mr. Justice Benjamin Nathan Cardozo, "so long as society is inconstant, there can be no constancy in law," and "ther
change whether we will it or not." As Justice Jose P. Laurel was wont to say, "We cannot, Canute-like, command the
progress to halt."

Thus, political scientists and jurists no longer exalt with vehemence a "government that governs least." Adherents the
poetic dictum of Alexander Pope: "For forms of government let fools contest; whatever is best administered is best." (
Pope, 1931 Cambridge ed., p. 750). In between, the shades vary from direct democracy, representative democracy,
states, socialist democracy, mitigated socialism, to outright communism which degenerated in some countries into to
or authoritarianism.

Hence, even the scholar, who advances academic opinions unrelated to factual situations in the seclusion of his ivory
must perforce submit to the inexorable law of change in his views, concepts, methods and techniques when brought
actual arena of conflict as a public functionary — face to face with the practical problems of state, government and pu
administration. And so it is that some learned jurists, in the resolution of constitutional issues that immediately affect t
liberties and fortunes of the citizens and the nation, recommend the blending of idealism with practical wisdom which
thinkers prefer to identify as progressive legal realism. The national leader, who wields the powers of government, mu
to innovate if he must govern effectively to serve the supreme interests of the people. This is especially true in times
crises where the need for a leader with vision, imagination, capacity for decision and courageous action is greater, to
the unity of people, to promote their well-being, and to insure the safety and stability of the Republic. When the metho
rebellion and subversion have become covert, subtle and insidious, there should be a recognition of the correspondin
on the part of the Commander-in-Chief of the Armed Forces to utilize all the available techniques to suppress the per
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 forme
of the United States, who personifies the progressive liberal, spoke the truth when he said that some men "ascribe m
preceding age a wisdom more than human, and suppose what they did to be beyond amendment. ... But I know also
and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more
as new discoveries are made, new truths disclosed and manners and opinions change, with the change of circumstan
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 adeq
fairly appraised within the present ambience, charged as it is with so much tension and emotion, if not partisan passio
analytical, objective historians will write the final verdict in the same way that they pronounced judgment on Presiden
Lincoln who suspended the privilege of the writ of habeas corpus without any constitutional or statutory authority ther
President Franklin Delano Roosevelt who approved the proclamation of martial law in 1941 by the governor of Hawai
the Hawaiian territory. President Lincoln not only emancipated the Negro slaves in America, but also saved the Fede
of the United States from disintegration by his suspension of the privilege of the writ of habeas corpus, which power t
American Constitution and Congress did not then expressly vest in him. No one can deny that the successful defense
preservation of the territorial integrity of the United States was due in part, if not to a great extent, to the proclamation
law over the territory of Hawaii — main bastion of the outer periphery or the outpost of the American defense perimet
Pacific — which protected the United States mainland not only from actual invasion but also from aerial or naval bom
by the enemy. Parenthetically, the impartial observer cannot accurately conclude that the American Supreme Court a
courage in its decision in the cases of Ex parte Milligan and Duncan vs. Kahanamoku (filed on May 10, 1865 argued
to 13, 1866, decided on April 3, 1866, and opinion delivered on December 17, 1866) after the lifting of the proclamatio
suspending the privilege of the writ of habeas corpus, long after the Civil War and the Second World ended respectiv
9 or 26, 18-65 (Vol. 1, Encyclopedia Britannica, 1969 ed., pp. 730, 742) and on September 2, 1945 (Vol. 23, Encyclop
Britannica, 1969 ed., p. 799). Was the delay on the part of the American Supreme Court in deciding these cases aga
position of the United States President — in suspending the privilege of the writ of habeas corpus in one case and ap
proclamation of martial law in the other — deliberate as an act of judicial statesmanship and recognition on their part
adverse court ruling during the period of such a grave crisis might jeopardize the survival of the Federal Republic of t
States in its life-and-death struggle against an organized and well armed rebellion within its own borders and against
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
Philippines even on the assumption that the 1935 Constitution still subsists; because pursuant to the doctrine of sepa
powers under the 1935 Constitution, the processes of this Court cannot legally reach a coordinate branch of the gove
its head. This is a problem that is addressed to the Senate itself for resolution; for it is purely an internal problem of th
a majority of the senators can convene, they can elect a new Senate President and a new Senate President Pro Tem
they have no quorum, those present can order the arrest of the absent members (Sec. 10[2], Art. VI, 1935 Constitutio
fails, then there is no remedy except an appeal to the people. The dictum ubi jus, ubi remedium, is not absolute and c
does not justify the invocation of the power of this Court to compel action on the part of a co-equal body or its leaders
was emphasized with sufficient clarity by this Court in the 1949 case of Avelino vs. Cuenco (83 Phil. 17, 22,24), with w
distinguished counsels for the petitioners in L-36164 and L-36165 are familiar. We stress that the doctrine of separati
powers and the political nature of the controversy such as this, preclude the interposition of the Judiciary to nullify an
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 mo
a magic formula which should be disregarded by this Court, forgetting that this magic formula constitutes an essentia
constitutional fabric of our government, which, together with other basic constitutional precepts, conserves the unity o
people, strengthens the structure of the government and assures the continued stability of the country against the for
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 depen
place of session; for the Constitution does not designate the place of such a meeting. Section 9 of Article VI imposes
Congress to convene in regular session every year on the 4th Monday of January, unless a different date is fixed by l
special session called by the President. As former Senator Arturo Tolentino, counsel for respondents Puyat and Roy
stated, the duty to convene is addressed to all members of Congress, not merely to its presiding officers. The fact tha
of Congress are padlocked, will not prevent the senators — especially the petitioners in L-36165 — if they are minded
from meeting elsewhere — at the Sunken Gardens, at the Luneta Independence Grandstand, in any of the big hotels
in their own houses, or at the Araneta Coliseum, which is owned by the father-in-law of petitioner Gerardo Roxas in L

However, a session by the Senate alone would be purely an exercise in futility, for it cannot validly meet without the lo
(Sec. 10[5], Art. VI, 1935 Constitution). Hence, this petition by five former senators for mandamus in L-36165 is usele

And as pointed out by former Senator Arturo Tolentino, counsel for respondents Puyat and Roy, mandamus will lie on
a law imposing on the respondents the duty to convene the body. The rule imposing such a duty invoked by petitione
36165 is purely an internal rule of the Senate; it is not a law because it is not enacted by both Houses and approved
President.

The Constitutional provision on the convening of Congress, is addressed to the individual members of the legislative
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 Con
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
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 unco
The proposed Constitution is an act of the Constitutional Convention, which is co-equal and coordinate with as well a
independent of either Congress or the Chief Executive. Hence, its final act, the 1973 Constitution, must have the sam
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
of Article VIII of the 1935 Constitution in relation to Section 9 of the Judiciary Act or Republic Act No. 296, as amende
be ten (10) under Section 2(2) of Article X of the 1973 Constitution. Should the required vote of eight (8) or ten (10), a
may be, for the declaration of invalidity or unconstitutionality be not achieved, the 1973 Constitution must be deemed
in force and operative.

ARTICLE OF FAITH

WE yield to no man as devotees of human rights and civil liberties. Like Thomas Jefferson, We swear "eternal hostilit
any form of tyranny over the mind of man" as well as towards bigotry and intolerance, which are anathema to a free s
human rights and civil liberties under a democratic or republican state are never absolute and never immune to restri
essential to the common weal. A civilized society cannot long endure without peace and order, the maintenance of w
primary function of the government. Neither can civilized society survive without the natural right to defend itself again
dangers that may destroy its life, whether in the form of invasion from without or rebellion and subversion from within.
first law of nature and ranks second to none in the hierarchy of all values, whether human or governmental. Every citi
prides himself in being a member or a civilized society under an established government, impliedly submits to certain
on his freedom for the general welfare and the preservation of the State itself, even as he reserves to himself certain
constitute limitations on the powers of government. But when there is an inevitable clash between an exertion of gove
authority and the assertion of individual freedom, the exercise of which freedom imperils the State and the civilized so
which the individual belongs, there can be no alternative but to submit to the superior right of the government to defen
preserve the State. In the language of Mr. Justice Holmes — often invoked by herein petitioners — "when it comes to
involving its (state life, the ordinary rights of individuals must yield to what he (the President) deems the necessities o
moment. Public danger warrants the substitution of executive process for judicial process. (See Keely vs. Sanders, 9
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 ob
although it was disputed, that the same is true of temporary detention to prevent apprehended harm." (Moyer vs. Pea
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 sho
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,
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
institution of the needed reforms. The people have been victimized by such bargaining and dilly-dallying. To vert a ter
blood bath and the breakdown of the Republic, the incumbent President proclaimed martial law to save the Republic
overrun by communists, secessionists and rebels by effecting the desired reforms in order to eradicate the evils that p
society, which evils have been employed by the communists, the rebels and secessionists to exhort the citizenry to ri
the government. By eliminating the evils, the enemies of the Republic will be decimated. How many of the petitioners
counsels have been utilizing the rebels, secessionists and communists for their own personal or political purposes an
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 o
they should be willing to give the incumbent Chief Executive a chance to implement the desired reforms. The incumb
President assured the nation that he will govern within the framework of the Constitution and if at any time, before no
restored, the people thru their Citizens' Assemblies, cease to believe in his leadership, he will step down voluntarily fr
Presidency. But if, as apprehended by the petitioners, he abuses and brutalizes the people, then to the battlements w
to man the ramparts against tyranny. This, it is believed, he knows only too well; because he is aware that he who rid
will eventually end inside the tiger's stomach. He who toys with revolution will be swallowed by that same revolution.
replete with examples of libertarians who turned tyrants and were burned at stake or beheaded or hanged or guillotin
very people whom they at first championed and later deceived. The most bloody of such mass executions by the wra
wronged people, was the decapitation by guillotine of about 15,000 Frenchmen including the leaders of the French re
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 sign
November 30, 1972; in L-36165, to compel respondents Gil Puyat and Jose J. Roy, President and President Pro-Tem
respectively, of the Senate under the 1935 Constitution, to convene the Senate in regular session which should have
January 22, 1973; to nullify Proclamation No. 1102 of the President, issued on January 17, 1973, which declared the
of the Constitution on November 30, 1972, by the Filipino people, through the barangays or Citizens Assemblies esta
under Presidential Decree No. 86 issued on December 31, 1972, which were empowered under Presidential Decree
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 Ma
September 21, 1972.

2. The Convention was not empowered to incorporate certain provisions in the 1972 Constitution because they are hi
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 th
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 o

The petitions were not given due course immediately but were referred to the Solicitor General as counsel for the res
comment, with three members of the Court, including the undersigned, voting to dismiss them outright. The comment
considered motions to dismiss which were set for hearing and extensively argued. Thereafter both parties submitted
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 an
judicial determination?

2. Was the new Constitution of November 30, 1972, ratified in accordance with the amending process prescribed by A
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 main
Court should abstain from assuming jurisdiction, but, instead, as an act of judicial statesmanship, should dismiss the
resolving whether or not the question presented is political, joint discussion of issues Nos. 1, 3 and 4 is necessary so
at a logical conclusion. For after the acceptance of a new Constitution and acquiescence therein by the people by pu
practical operation, any question regarding its validity should be foreclosed and all debates on whether it was duly or
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 a
forth in the majority and dissenting opinions in the Plebiscite cases decided on January 22, 1973, and need not be re
here.

Petitioners seek to set at naught Proclamation No. 1102 and Presidential Decrees Nos. 86 and 86-A, claiming that th
of the new Constitution pursuant to the said decrees is invalid and of no effect. Presidential Decree No. 86 organized
barangays or Citizens Assemblies composed of all citizens at least fifteen years of age, and through these assemblie
proposed 1972 Constitution was submitted to the people for ratification. Proclamation No. 1102 of the President anno
declared the result of the referendum or plebiscite conducted through the Citizens Assemblies, and that 14,976,561 m
thereof voted for the ratification of the new Constitution and 743,869 voted against it. Petitioners assail these two acts
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 sou
invalidated is the new Constitution itself — the very framework of the present Government since January 17, 1973. T
obvious. The Presidential decrees set up the means for the ratification and acceptance of the new Constitution and P
No. 1102 simply announced the result of the referendum or plebiscite by the people through the Citizens Assemblies.
Government under the new Constitution has been running on its tracks normally and apparently without obstruction in
organized resistance capable of jeopardizing its existence and disrupting its operation. Ultimately the issue is whethe
Constitution may be set aside by this Court. But has it the power and authority to assume such a stupendous task wh
result of such invalidation would be to subject this nation to divisive controversies that may totally destroy the social o
the Government under the new Constitution has been admirably protecting and promoting under Martial Law? That th
Constitution has taken deep root and the people are happy and contended with it is a living reality which the most art
critics of the new order cannot deny. 95 out of 108 members of the House of Representatives have opted to serve in
National Assembly provided for under the new Constitution. 15 out of 24 Senators have done likewise. The members
Congress did not meet anymore last January 22, 1973, not because they were really prevented from so doing but be
serious effort on their parts to assert their offices under the 1935 Constitution. In brief, the Legislative Department und
Constitution is a thing of the past. The Executive Department has been fully reorganized; the appointments of key exe
officers including those of the Armed Forces were extended and they took an oath to support and defend the new Co
The courts, except the Supreme Court by reason of these cases, have administered justice under the new constitutio
government offices have dealt with the public and performed their functions according to the new Constitution and law
promulgated thereunder.

If the real purpose of the petitions is to set aside the new Constitution, how can this Court justify its assumption of juri
when no power has ... conferred upon it the jurisdiction to declare the Constitution or any part thereof null and void? I
height of absurdity and impudence for a court to wage open war against the organic act to which it owes its existence
situation in which this Court finds itself does not permit it to pass upon the question whether or not the new Constituti
entered into force and has superseded the 1935 Constitution. If it declares that the present Constitution has not been
ratified, it has to uphold the 1935 Constitution as still the prevailing organic law. The result would be too anomalous to
for then this Court would have to declare that it is governed by one Constitution or the 1935 Constitution, and the legi
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
no other choice but to uphold the new Constitution as against any other one? In the circumstances it would be bereft
attributes as the matter would then be not meet for judicial determination, but one addressed to the sovereign power
people who have already spoken and delivered their mandate by accepting the fundamental law on which the govern
Republic is now functioning. To deny that the new Constitution has been accepted and actually is in operation would
the face of reason and pounding one's bare head against a veritable stone wall or a heavily reinforced concrete, or si
"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 p
thereto by the organization of the government provided therein and observance of its prescriptions by public officers c
thereunder, is indicative of approval. Courts should be slow in nullifying a Constitution claimed to have been adopted
accordance with constitutional or statutory directives [Miller vs. Johnson, 92 Ky. 589; 189 S.W. 522; Taylor vs Commo
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 th
law. Great interests have already arisen under it; important rights exist by virtue of it; persons
convicted of the highest crimes known to the law, according to its provisions; the political pow
government has in many ways recognized it; and, under such circumstances, it is our duty to
regard it as a valid constitution, and now the organic law of our state. We need not consider th
the amendments made after the convention reassembled. If the making of them was in exces
power, yet as the entire instrument has been recognized as valid in the manner suggested, it
equally an abuse of power by the judiciary, and violative of the rights of the people, — who ca
properly should remedy the matter, if not to their liking, — if it were to declare the instrument o
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 n
constitution, and not an amendment, because the judicial power presupposes an established
and if the authority of that government is annulled and overthrown, the power of its courts is a
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 ce
court, and it would be incapable of pronouncing a judicial decision upon the question before it
decides at all, it must necessarily affirm the existence of the government under which it exerci
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 enforcin
execution, and appointing judges to expound and administer them. The acceptance of the jud
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
if a State court should enter upon the inquiry proposed in this case, and should come to concl
the government under which it acted had been put aside and displaced by an opposing gover
would cease to be a court, and be incapable of pronouncing a judicial decision upon the ques
undertook to try. If it decides at all as a court, it necessarily affirms the existence and authority
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 Consti
no state with which we maintain diplomatic relations has withdrawn its recognition of our government. (For particulars
executive acts done under the new Constitution, see pages 22-25 of the Comments of the Solicitor General, dated Fe
1973.)

Certainly the invalidation of Proclamation No. 1102 and Presidential Decrees Nos. 86 and 86-A by this Court would s
plain political meddling which is described by the United States Supreme Court as "entering a political thicket" in Cole
Green, 328 U.S. p. 549. At this juncture it would be the part of wisdom for this Court to adopt the proper attitude towa
upheavals and realize that the question before Us is political and not fit for judicial determination. For a political quest
entrusted to the people for judgment in their sovereign capacity (Tañada vs. Cuenco, G.R. No. L-10520, Feb. 28,196
1101), or to a co-equal and coordinate branch of the Government (Vera vs. Arellano, 77 Phil. 192; Mabanag vs. Lope
Phil. 1; Alejandrino vs. Quezon, 46 Phil. 35; Cabili vs. Francisco, G.R. No. 4638, May 8, 1931). A case involves a poli
question when there would be "the impossibility of undertaking independent resolutions without expressing a lack of r
to coordinate branches of government", or when there is "the potentiality of embarrassment from multifarious pronoun
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
in that vast range of legal problems often strongly entangled in popular feeling on which this Court must pronounce",
harken to the following admonition of Justice Frankfurter in his dissent in Baker vs. Carr, 369 U.S. 186; 82 S. Ct. 691;
663:

The Court's authority — possessed neither of the purse nor the sword — ultimately rests on s
public confidence in its moral sanction. Such feeling must be nourished by the Court's comple
detachment, in fact and appearance, from political entanglements and abstention from injectin
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 n
plenitude of its efficacy and vigor. We are now living under its aegis and protection and only the cynics will deny this.
should not in the least attempt to act as a super-legislature or a super-board of canvassers and sow confusion and di
among our people by pontificating there was no valid ratification of the new Constitution. The sober realization of its p
and delicate function and its consciousness of the limitations on its competence, especially situations like this, are mo
keeping with the preservation of our democratic tradition than the blatant declamations of those who wish the Court to
their brand of activism and would not mind plunging it into the whirlpool of passion and emotion in an effort to capture
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 Constit
Convention of 1971 had been ratified in accordance with the provisions of Article XV of the 1935 Constitution. In the p
cases, which were decided by this Court on January 22, 1973 , I held the view that this issue could be properly resolv
1

Court, and that it was in the public interest that this Court should declare then whether or not the proposed Constitutio
validly ratified. The majority of this Court, however, was of the view that the issue was not squarely raised in those ca
the Court, as a body, did make any categorical pronouncement on the question of whether or not the Constitution pro
the 1971 Convention was validly ratified. I was the only one who expressed the opinion that the proposed Constitutio
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 Const
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 mention
that issue is a political question that cannot be decided by this Court. This contention by the Solicitor General is unten
political question relates to "those questions which under the Constitution are to be decided by the people in their sov
capacity or in regard to which full discretionary authority has been delegated to the legislative, or to the executive, bra
government.  The courts have the power to determine whether the acts of the executive are authorized by the Constit
2

the laws whenever they are brought before the court in a judicial proceeding. The judicial department of the governm
exercises a sort of controlling, or rather restraining, power over the two other departments of the government. Each o
departments, within its proper constitutional sphere, acts independently of the other, and restraint is only placed on o
department when that sphere is actually transcended. While a court may not restrain the executive from committing a
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
declare a law enacted by the legislature to be unconstitutional.  It is a settled doctrine that every officer under a const
3

government must act according to law and subject to its restrictions, and every departure therefrom, or disregard ther
subject him to the restraining and controlling power of the people, acting through the agency of the judiciary. It must b
remembered that the people act through the courts, as well as through the executive or the legislature. One departme
representative as the other, and judiciary is the department which is charged with the special duty of determining the
which the law places upon all official actions  . In the case of Gonzales v. Commission on Elections , this Court ruled
4 5

issue as to whether or not a resolution of Congress acting as a constituent assembly violates the Constitution is not a
question and is therefore subject to judicial review. In the case of Avelino v. Cuenco , this Court held that the exceptio
6

that courts will not interfere with a political question affecting another department is when such political question invol
issue as to the construction and interpretation of the provision of the constitution. And so, it has been held that the qu
whether a constitution shall be amended or not is a political question which is not in the power of the court to decide,
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
United States — where, after all, our constitutional system has been patterned to a large extent — made me arrive at
considered view that it is in the power of this Court, as the ultimate interpreter of the Constitution, to determine the va
proposal, the submission, and the ratification of any change in the Constitution. Ratification or non-ratification of a con
amendment is a vital element in the procedure to amend the constitution, and I believe that the Court can inquire into
on, the question of whether or not an amendment to the constitution, as in the present cases, has been ratified in acc
with the requirements prescribed in the Constitution that was amended. And so, in the cases now before Us, I believe
question of whether or not the Constitution proposed by the 1971 Constitutional Convention had been validly ratified
justiciable question.

The Chief Justice, in his opinion, has discussed lengthily the subject on whether or not, the cases, before Us involve
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 va
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 d
accordance with the provisions of Section 1, Article XV of the 1935 Constitution of the Philippi
reads:

"Section 1. The Congress in joint session assembled by a vote of three fourths

Members of the Senate and of the House of Representatives voting separately
propose amendments to the Constitution or call a convention for that purpose.
amendments shall be valid as part of this Constitution when approved by a ma
votes cast at an election at which the amendments are submitted to the people
ratification."

It is in consonance with the abovequoted provision of the 1935 Constitution that on March 16,
Congress of the Philippines Resolution No. 2 calling a convention to propose amendments to
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 c

part of the Constitution when approved by a majority of the votes cast in an ele
which they are submitted to the people for their ratification pursuant to Article X
Constitution.

It follows that from the very resolution of the Congress of the Philippines which called for the 1
Constitutional Convention, there was a clear mandate that the amendments proposed by the 1
Convention, in order to be valid and considered part of the Constitution, must be approved by
the votes cast in an election at which they are submitted to the people for the ratification as pr
the Constitution.

This Court, in the case of Tolentino vs. Commission Elections, L-35140, October 16, 1971 (41
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 Con
the Philippines. This Convention has not been called by the people directly as
of a revolutionary convention which drafts the first Constitution of an entirely n
government born of either a war of liberation from a mother country or of revol
against an existing government or of a bloodless seizure of power a la coup d'
such kind of conventions, it is absolutely true that the convention is completely
restraint and omnipotent all wise, and it as to such conventions that the remark
Delegate Manuel Roxas of the Constitutional Convention of 1934 quoted by S
Pelaez refer. No amount of rationalization can belie the fact that the current co
came into being only because it was called by a resolution of a joint session of
acting as a constituent assembly by authority of Section 1, Article XV of the pr
Constitution ... ."

x x x           x x x          x x x

"As to matters not related to its internal operation and the performance of its a
mission to propose amendments to the Constitution, the Convention and its of
members are all subject to all the provisions of the existing Constitution. Now
even as to its latter task of proposing amendments to the Constitution, it is sub
provisions of Section 1 of Article XV."

In Proclamation No. 1102, issued on January 17, 1973, the President of the Philippines certifie
result of the voting before the barangays (Citizens Assemblies) 14,976,561 members of the ba
voted for the adoption of the proposed Constitution, as against 743,869 who voted for its rejec
the basis of the overwhelming majority of the votes cast by the members of all the barangays
the Philippines, the President proclaimed that the Constitution proposed by the 1971 Convent
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
XV of the Constitution of 1935 were not complied with. It is not necessary that evidence be pro
before this Court to show that no elections were held in accordance with the provisions of the
Code. Proclamation No. 1102 unequivocally states that the proposed Constitution of 1972 wa
upon by the barangays. It is very clear, therefore, that the voting held in these barangays is no
election contemplated in the provisions of Section 1, Article XV, of the 1935 Constitution. The
contemplated in said constitutional provision is an election held in accordance with the provisi
election law, where only the qualified and registered voters of the country would cast their vote
official ballots prepared for the purpose are used, where the voters would prepare their ballots
inside the voting booths in the polling places established in the different election precincts thro
country, where the election is conducted by election inspectors duly appointed in accordance
election law, where the votes are canvassed and reported in a manner provided for in the elec
was this kind of election that was held on May 14, 1935, when the Constitution of 1935 was ra
April 30, 1937, when the amendment to the Constitution providing for Women's Suffrage was
June 18, 1940, when the 1940 Amendments to the Constitution were ratified; on March 11, 19
the Parity Amendment to the Constitution was ratified; and on November 14, 1967 when the a
to the Constitution to increase the number of Members of the House of Representatives and t
Members of Congress to run in the elections for Delegates to the Constitutional Convention of
rejected.

I cannot see any valid reason why the practice or procedure in the past, in implementing the c
provision requiring the holding, of an election to ratify or reject an amendment to the Constitut
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
1972 Constitution thru a voting in the barangays and make said result the basis for proclaimin
ratification of the proposed constitution. It is very clear, to me, that Proclamation No. 1102 was
complete disregard or in violation, of the provisions of Section 1 of Article X of the 1935 Const

Proclamation No. 1102 mentions, furthermore, that on the question as to whether or not the p
still like a plebiscite to be called to ratify the new Constitution, 14,298,814 members of the bar
answered that there was no need for a plebiscite but that the vote of the barangays should be
a vote in a plebiscite. It would thus appear that the barangays assumed the power to determin
plebiscite as ordained in the Constitution be held or not. Indeed, the provision of Section 1, Ar
the Constitution was completely disregarded.

The affirmative votes cast in the barangays are not the votes contemplated in Section 1 of Art
the 1935 Constitution. The votes contemplated in said constitutional provision are votes obtain
the election processes as provided by law.

"An election is the embodiment of the popular will, the expression of the sover
of the people. In common parlance, an election is the act of casting and receiv
ballots, counting them, and making the return." (Hontiveros vs. Altavas, 24 Ph

"Election" implies a choice by an electoral body at the time and substantially in

and with the safeguards provided by law with respect to some question or issu
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 p

matters submitted to them — the election of officers, national, state, county, to
the passing on various other questions submitted for their determination." (29
citing Iowa-Illinois Gas & Elec. Co. v. City of Bettendorf, 41 N.W. 2d 1, 5, 241 I

"Election" is expression of choice by voters of body politic. (Ginsburg v. Giles,

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 req
as have been set by the legislature." (People ex rel. Rago v. Lipsky, 63 N.E. 2
III. App. 63; Rothfels v. Southworth, 356 P. 2d 612, 11 Utah 2d 169 in 29 C.J.S
(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 ple
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 v
regular or special election or in any plebiscite, he must be registered in the permanent list of v
city, municipality or municipal district in which he resides: Provided, that no person shall regist
than once without first applying for cancellation of his previous registration." (Emphasis suppli
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 ass
are 15 years of age or over. Under the provision of Section I of Article V of the 1935 Constituti
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 ins
done by the raising of hands by the persons indiscriminately gathered to participate in the voti
even children below 15 years of age were included. This is a matter of common observation, o
common knowledge, which the Court may take judicial notice of. To consider the votes in the
as expressive of the popular will and use them as the basis in declaring whether a Constitutio
or rejected is to resort to a voting by demonstrations, which is would mean the rule of the crow
only one degree higher than the rule by the mob. Certainly, so important a question as to whe
Constitution, which is the supreme law of the land, should be ratified or not, must not be decid
simply gathering people and asking them to raise their hands in answer to the question of whe
vote for or against a proposed Constitution. The election as provided by law should be strictly
determining the will of the sovereign people in a democracy. In our Republic, the will of the pe
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
but the will of the people must be expressed in a manner as the law and the demands a well-o
society require. The rule of law must prevail even over the apparent will of the majority of the p
that will had not been expressed, or obtained, in accordance with the law. Under the rule of la
questions must be decided in accordance with the Constitution and the law. This is specially t
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 propose
Constitution of 1972 had been validly ratified, or not:

"When it is said that "the people" have the right to alter or amend the constituti
not be understood that term necessarily includes all the inhabitants of the state
question of the adoption or rejection of a proposed new constitution or constitu
amendment must be answered a vote, the determination of it rests with those
existing constitution, are accorded the right of suffrage. But the qualified electo
understood in this, as in many other cases, as representing those who have no
to participate in the ballot. If a constitution should be abrogated and a new one
by the whole mass of people in a state acting through representatives not chos
"people" in political sense of the term, but by the general body of the populace
movement would be extra-legal." (BIack's Constitutional Law, Second Edition,

"The theory of our political system is that the ultimate sovereignty is in the peo
whom springs all legitimate authority. The people of the Union created a nation
constitution, and conferred upon it powers of sovereignty on certain subjects, a
people of each State created a State government, to exercise the remaining p
sovereignty so far as they were disposed to allow them to be exercised at all. B
constitution which they establish, they not only tie up the hands of their official
but their own hands as well; and neither the officers of the State, nor the whole
an aggregate body, are at liberty to take action in opposition to this fundament
(Cooley's Constitutional Limitations, 8th Edition, Vol. I, p. 81 cited in Graham v
So. 2d. 761, 782).

"The theory that a favorable vote by the electorate, however unanimous, on a

amend a constitution, may cure, render innocuous, all or any antecedent failur
observe commands of that Constitution in respect of the formulation or submis
proposed amendments thereto, does not prevail in Alabama, where the doctrin
stated theory was denied, in obvious effect, by the pronouncement 60 years a
wholesome constitutional principles in Collier v. Frierson, supra, as quoted in t
opinion, ante. The people themselves are bound by the Constitution; and, bein
are powerless, whatever their numbers, to change or thwart its mandates, exc
the peaceful means of a constitutional convention, or of an amendment accord
mode therein prescribed, or through the exertion of the original right of revoluti
Constitution may be set aside by revolution, but it can only be amended in the
provides," said Hobson, C.J., in McCreary v. Speer, 156 Ky. 783, 791, 162 S.W
(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 a
by the Constitution, is not sufficient to make a change in that instrument. Whet
proposed amendment has been legally adopted is a judicial question, for the c
uphold and enforce the Constitution as written until it is amended in the way w
provides for." Wood v. Tooker, 15 Mont. 8, 37 Pac 840, 25 L.R.A. 560; McCon
State, 106 Minn. 409, 119 N.W. 408; Oakland Paving Company v. Hilton, 69 C
Pac. 3; Utter v. Mosely, 16 Idaho 274, 100 Pac. 1958, 133 Am. St. Rep. 94, 18
723. (McCreary v. Speer, 162 S.W. 99, 104).

"Provisions of a constitution regulating its own amendment, ... are not merely d
are mandatory; and a strict observance of every substantial mandatory; and a
observance of every substantial requirement is essential to the validity of the p
amendment. These provisions are as binding on the people as on the legislatu
former are powerless by vote of acceptance to give legal sanction to an amend
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 r
the Court's action in declaring the proposed constitutional amendment void. Th
statement is grossly and manifestly inaccurate. If confusion and chaos should
not be due to the action of the Court but will be the result of the failure of the d
resolution to observe, follow and obey the plain essential provisions of the Con
Furthermore, to say that, the Court disregards its sworn duty to enforce the Co
 chaos and confusion will result, is an inherently weak argument in favor of the
constitutionality of the proposed amendment. It is obvious that, if the Court we
countenance the violations of the sacramental provisions Constitution, those w
thereafter desire to violate it disregard its clear mandatory provisions would re
scheme of involving and confusing the affairs of the State then simply tell the C
was powerless to exercise one of its primary functions by rendering the proper
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
because the requirements of the law were not complied with. In the case of Monsale v. Nico, 8
Monsale and Nico were both candidates for the office of Municipal Mayor of Miagao, Iloilo, in t
of November 11, 1947. Monsale had duly filed his certificate of candidacy before the expiratio
period for the filing of the same. However, on October 10, 1947, after the period for the filing o
certificate of candidacy, Monsale withdrew his certificate of candidacy. But on November 7, 19
attempted to revive his certificate of candidacy by withdrawing the withdrawal of certificate of c
The Commission on Elections, November 8, 1947, ruled that Monsale could no longer be a ca
Monsale nevertheless proceeded with his candidacy. The boards of inspectors in Miagao, how
not count the votes cast for Monsale upon the ground that the votes cast for him were stray vo
because he was considered as having no certificate of candidacy. On the other hand, the boa
inspectors credited Nico with 2,291 votes, and Nico was proclaimed elected. Monsale filed a p
against the election of Nico in the Court of First Instance of Iloilo. In the count of the ballots du
proceedings in the trial court, it appeared that Monsale had obtained 2,877 votes while Nico o
2,276 votes, or a margin of 601 votes in favor of Monsale. The Court of First Instance of Iloilo
election protest in favor of Monsale. Upon appeal by Nico, this Court reversed the decision of
court. This Court declared that because Monsale withdrew his certificate of candidacy, his atte
revive it by withdrawing his withdrawal of his certificate of candidacy did not restore the effecti
his certificate of candidacy, and this Court declared Nico the winner in spite of the fact that Mo
obtained more votes than he.

We have cited this Monsale case to show that the will of the majority of the voters would not b
effect, as declared by this Court, if certain legal requirements have not been complied with in
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 (
is not the election that is provided for in the 1935 Constitution for the ratification of the amendm
Constitution, the affirmative votes cast in those assemblies can not be made the basis for dec
ratification of the proposed 1972 Constitution, in spite of the fact that it was reported that 14,9
members of the citizens assemblies voted for the adoption as against 743,869 for the rejection
the votes thus obtained were not in accordance with the provisions of Section 1 of Article XV o
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
as provided in Presidential Decree No. 73, is that there is no freedom on the part of the people
their right of choice because of the existence of martial law in our country. The same ground h
regards to the voting of the barangays on January 10 to 15, 1973. More so, because by Gene
No. 20, issued on January 7, 1973, the President of the Philippines ordered "that the provision
3 of Presidential Decree No. 73 in so far as they allow free public discussion of the proposed c
as well as my order of December 17, 1972 temporarily suspending the effects of Proclamation
for the purpose of free and open debate on the proposed constitution, be suspended in the me
is, therefore, my view that voting in the barangays on January 10, 1973 was not free, and so t
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 s
invalid, and should not be given effect. The Constitution of 1972 proposed by the 1971 Consti
Convention should be considered as not yet ratified by the people of this Republic, and so it s
given force and effect.

It is urged by the Solicitor General, however, that the voting in the citizens assemblies was a substantial compliance w
provisions of Article XV of the 1935 Constitution. The Solicitor General maintains that the primary thrust of the provisi
XV of the 1935 Constitution is that "to be valid, amendments must gain the approval of the majority recognition of the
postulate that sovereign resides in the people." It is not disputed that in a democratic sovereignty resides in the peopl
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, in Section 2 of Article VII of the 1935 Constitution, it is provided
8

President shall hold his office during a term of four years and, together with the Vice-President chosen for the same t
be elected by direct vote of the people..." Certainly under that constitutional provision, the "people" who elect directly
President and the Vice-President are no other than the persons who, under the provisions of the same Constitution, a
the right to vote. In like manner the provision in Section 1 of Article II of the 1935 Constitution which says "Sovereignt
the people and all government authority emanates from them", the "people" who exercise the sovereign power are no
the persons who have the right to vote under the Constitution. In the case of Garchitorena vs. Crescini , this Court, sp
9

through Mr. Justice Johnson, said, "In democracies, the people, combined, represent the sovereign power of the Stat
sovereign authority is expressed through the ballot, of the qualified voters, in duly appointed elections held from time
means of which they choose their officials for definite fixed periods, and to whom they entrust, for the time being, as t
representatives, the exercise of the powers of government." In the case of Moya v. Del Fierro,   this Court, speaking
10

Justice Laurel, said, "As long as popular government is an end to be achieved and safeguarded, suffrage, whatever m
modality and form devised, must continue to be the means by which the great reservoir of power must be emptied int
receptacular agencies wrought by the people through their Constitution in the interest of good government and the co
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."
case of Abanil v. Justice of the Peace of Bacolod,   this Court said: "In the scheme of our present republican governm
11

the people are allowed to have a voice therein through the instrumentality of suffrage to be availed of by those posse
certain prescribed qualifications. The people, in clothing a citizen with the elective franchise for the purpose of securin
consistent and perpetual administration of the government they ordain, charge him with the performance of a duty in
of a public trust, and in that respect constitute him a representative of the whole people. This duty requires that the pr
bestowed exclusively for the benefit of the citizen or class of citizens professing it, but in good faith and with an intellig
the general benefit and welfare of the state. (U.S. v. Cruikshauk, 92 U.S. 588)..." There is no question, therefore, that
talk of sovereign people, what is meant are the people who act through the duly qualified and registered voters who v
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 ter
as used in the Provisions of Section 4 of the Philippine Independence Act of the Congress of the United States, popu
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
provisions of this act, it shall be submitted to the people of the Philippine Islands for their ratifi
rejection at an election to he held within months after the date of such certification, on a date t
by the Philippine Legislature at which election, the qualified voters of the Philippine Islands sh
opportunity to vote directly or against the proposed constitution and ordinances append there
election shall be held in such manner as may prescribed by the Philippine Legislature to which
of the election shall be made. The Philippine Legislature shall certify the result to the Governo
the Philippine Islands, together with a statement of the votes cast, and a copy of said constitu
ordinances. If a majority of the votes cast shall be for the constitution, such vote shall be deem
 expression of the will of the people of the Philippine Independence, and the Governor-Genera
within thirty days after receipt of the certification from the Philippine Legislature, issue a procla
the election of officers of the government of the Commonwealth of the Philippine Islands provi
the Constitution...

It can safely be said, therefore, that when the framers of the 1935 Constitution used, the word "election" in Section I A
the 1935 Constitution they had no other idea in mind except the elections that were periodically held in the Philippine
choice of public officials prior to the drafting of the 1935 Constitution, and also the "election" mentioned in the Indepen
at which "the qualified voters of the Philippine Islands shall have an opportunity to vote directly for or against the prop
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
the term "election" was understood, and practiced, when the 1935 Constitution as drafted. The alleged referendum in
assemblies — participated in by persons aged 15 years or more, regardless of whether they were qualified voters or
by raising their hands, and the results of the voting reported by the barrio or ward captain, to the municipal mayor, wh
submitted the report to the provincial Governor, and the latter forwarding the reports to the Department of Local Gove
without the intervention of the Commission on Elections which is the constitutional body which has exclusive charge o
enforcement and administration of all laws, relative to the conduct of elections — was not only a non-substantial com
the provisions of Section 1 of Article XV of the 1935 Constitution but a downright violation of said constitutional provis
be indulging in sophistry to maintain that the voting in the citizens assemblies amounted to a substantial compliance w
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 Conv
not ratified in accordance with the provisions of Section 1 of Article XV of the 1935 Constitution, the fact is that after t
of the Philippines had issued Proclamation No. 1102 declaring that the said proposed Constitution "has been ratified
overwhelming majority of all the votes cast by the members of all the barangays (citizens assemblies) throughout the
and had thereby come into effect" the people have accepted the new Constitution. What appears to me, however, is t
practically it is only the officials and employees under the executive department of the Government who have been p
their duties apparently in observance of the provisions of the new Constitution. It could not be otherwise, because the
of the Philippines, who is the head of the executive department, had proclaimed that the new Constitution had come i
and his office had taken the steps to implement the provisions of the new Constitution. True it is, that some 92 memb
House of Representatives and 15 members of the Senate, of the Congress of the Philippines had expressed their op
in the interim National Assembly that is provided for in Section 2 of Article XVII of the proposed Constitution. It must b
however, that of the 15 senators who expressed their option to serve in the interim National Assembly only one them
oath of office; and of the 92 members of the House of Representatives who opted to serve in the interim National Ass
22 took their oath of office. The fact that only one Senator out of 24, and only 22 Representative out of 110, took their
office, is an indication that only a small portion of the members of Congress had manifested the acceptance of the ne
Constitution. It is in the taking of the oath of office where the affiant says that he swears to "support and defend the C
that the acceptance of the Constitution is made manifest. I agree with counsel petitioners in L-36165 (Gerardo Roxas
Alejandro Melchor, et al.) when he said that the members of Congress who opted to serve in the interim National Ass
only ex abundante cautela, or by way of a precaution, making sure, that in the event the new Constitution becomes d
effective and the interim National Assembly convened, they can participate in legislative work in the capacity as duly
representatives of the people, which otherwise they could not do if they did not manifest their option to serve, and tha
to be made within 30 day from January 17, 1973, the date when Proclamation No. 110 was issued. Of course, if the p
Constitution does not become effective, they continue to be members of Congress under the 1935 Constitution. Let it
considered that the members of the House of Representatives were elected in 1969 to serve a term which will yet exp
December 31, 1973. Whereas, of the Senators who opted to serve in the interim National Assembly, the term of som
will yet expire on December 31, 1973, some on December 31, 1975, and the rest on December 31, 1977. Let if be no
Senators did not opt to serve in the interim National Assembly, and 18 members of the House of Representatives als
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 reporte
affirmative votes in the citizens assemblies as a true and correct expression by the people of their approval, or accep
proposed Constitution. I have my serious doubts regarding the freedom of the people to express their views regarding
proposed Constitution during the voting in the citizens assemblies, and I have also my serious doubts regarding the t
and accuracy of the reports of the voting in the citizens assemblies. This doubt has been engendered in my mind afte
examination and study of the records of these cases, particularly with respect to the reports of the voting in the citizen
assemblies. Perhaps, it may be said that the people, or the inhabitants of this country, have acquiesced to the new C
in the sense that they have continued to live peacefully and orderly under the government that has been existing sinc
17, 1973 when it was proclaimed that the new Constitution came into effect. But what could the people do? In the sam
the people have lived under martial law since September 23, 1972, they also have to live under the government as it
and as it has existed since the declaration of martial law on September 21, 1972, regardless of what Constitution is o
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 ne
state in this opinion. I cannot agree, therefore, with my worthy colleagues in the Court who hold the view that the peo
accepted the new Constitution, and that because the people have accepted it, the new Constitution should be consid
force, regardless of the fact that it was not ratified in accordance with the provisions of Section 1 of Article XV of the 1
Constitution.

It is my honest view that the Constitution proposed by the 1971 Constitutional Convention has not come into effect. I
however, that the proposed Constitution is invalid. To me, the validity of the proposed Constitution is not in issue in th
before Us. What the petitioners assail is not the validity of the proposed Constitution but the validity of Presidential Pr
No. 1102 which declares the proposed Constitution as having been ratified and has come into effect. It being my con
that the ratification of the proposed Constitution, as proclaimed in Proclamation No. 1102, is not in accordance with th
provisions of Section 1 of Article XV, of the 1935 Constitution, I hold that Proclamation No. 1102 is invalid and should
given force and effect. Their proposed Constitution, therefore, should be considered as not yet validly ratified, and so
force. The proposed Constitution may still be submitted to a plebiscite in conformity with Section 1 of Article XV of the
Constitution. Incidentally, I must state that the Constitution is still in force, and this Court is still functioning under the 1
Constitution.

I sincerely believe that the proposed Constitution may still be submitted to the people in an election or plebiscite held
accordance with the provisions of Section 1 of Article XV of the 1935 Constitution. In fact, as we have adverted to in t
this was the mandate of Congress when, on March 16, 1967, it passed Resolution No. 2 calling a convention to propo
amendments to the 1935 Constitution. The Court may take judicial notice of the fact that the President of the Philippin
reassured the nation that the government of our Republic since the declaration of martial law is not a revolutionary go
and that he has been acting all the way in consonance with his powers under the Constitution. The people of this Rep
reason to be happy because, according to the President, we still have a constitutional government. It being my view t
1935 Constitution is still in force, I believe Congress may still convene and pass a law calling for an election at which
Constitution proposed by the 1971 Constitutional Convention will be submitted to the people their ratification or reject
plebiscite called pursuant to Section 1 of Article XV of the 1935 Constitution is an assurance to our people that we sti
our country the Rule of Law and that the democratic system of government that has been implanted in our country by
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 democra
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
Constitution had not been complied with, We will be opening the gates for a similar disregard of the Constitution in th
What I mean is that if this Court now declares that a new Constitution is now in force because the members of the cit
assemblies had approved the said new Constitution, although that approval was not in accordance with the procedur
requirements prescribed in the 1935 Constitution, it can happen again in some future time that some amendments to
Constitution may be adopted, even in a manner contrary to the existing Constitution and the law, and then said propo
amendment is submitted to the people in any manner and what will matter is that a basis is claimed that there was ap
the people. There will not be stability in our constitutional system, and necessarily no stability in our government. As a
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 asse
clear violation of the 1935 Constitution, what I say in this opinion is simply an endeavor on my part to be true to my oa
to defend and support the 1935 Constitution. I am inspired by what the great jurist and statesman, Jose P. Laurel, sa

Let our judges be as it were the vestal keepers of the purity and sanctity of our Constitution, a
protection and vindication of popular rights will be safe and secure in their reverential guardian

I only wish to help prevent, if I can, democracy and the liberties of our people from vanishing in our land, because, as
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 b
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
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
distant future as that posed by these petitions. For while the specific substantive issue is the validity of Presidential P
No. 1102, an adverse judgment may be fraught with consequences that, to say the least, are far-reaching in its implic
stressed by respondents, "what petitioners really seek to invalidate is the new Constitution."  Strict accuracy would of
1

qualify such statement that what is in dispute, as noted in the opinion of the Chief Justice, goes only as far as the vali
ratification. It could very well be though that the ultimate outcome is not confined within such limit, and this is not to de
under its aegis, there have been marked gains in the social and economic sphere, but given the premise of continuity
under a fundamental law, which itself explicitly recognizes the need for change and the process for bringing it about, 2

me that the more appropriate course is this Court to give heed to the plea of petitioners that the most serious attentio
their submission that the challenged executive act fails to meet the test of constitutionality. Under the circumstances,
and with due respect for the opinion of my brethren, I must perforce dissent. It would follow therefore that the legal po
by the Chief Justice as set forth with his usual lucidity and thoroughness has, on the whole, my concurrence, subject,
to reservations insofar as it contains views and nuances to which I have in the past expressed doubts. Nonetheless, I
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 g
utterances of eternal verities, but certainly it is more than just a keen but passive observer of the contemporary scene
virtue of its role under the separation of powers concept, involved not necessarily as a participant in the formation of g
policy, but as an arbiter of its legality. Even then, there is realism in what Lerner did say about the American Supreme
"the focal point of a set of dynamic forces which [could play] havoc with the landmarks of the American state and dete
power configuration of the day."  That is why there is this caveat. In the United States as here, the exercise of the pow
3

judicial review is conditioned on the necessity that the decision of a case or controversy before it so requires. To repe
Justices of the highest tribunal are not, as Justice Frankfurter made clear, "architects of policy. They can nullify the po
others, they are incapable of fashioning their own solutions for social problems."  Nonetheless, as was stressed by Pr
4

Black  and Murphy,  a Supreme Court by the conclusion it reaches and the decision it renders does not merely check
5 6

coordinate branches, but also by its approval stamps with legitimacy the action taken. Thus in affirming constitutional
the political departments could seek the aid of the judiciary. For the assent it gives to what has been done conduces
support in a regime where the rule of law holds sway. In discharging such a role, this Court must necessarily take in a
only what the exigent needs of the present demand but what may lie ahead in the unexplored and unknown vistas of
must guard against the pitfall of lack of understanding of the dominant forces at work to seek a better life for all, espe
suffering from the pangs of poverty and disease, by a blind determination to adhere to the status quo. It would be trag
clear case of its being recreant to its trust, if the suspicion can with reason be entertained that its approach amounts m
militant vigilantism that is violently opposed to any form of social change. It follows then that it does not suffice that re
had only to what passes for scholarship in the law that could be marred by inapplicable erudition and narrow legalism
due recognition, such factors, however, I cannot, for reasons to be set more lengthily and in the light of the opinion of
Justice, reach the same result as the majority of my brethren. For, in the last analysis, it is my firm conviction that the
of judicial review speaks too clearly for the point to be missed that official action, even with due allowance made for th
faith that invariably inspires the step taken, has to face the gauntlet of a court suit whenever there is a proper case wi
appropriate parties.

1. Respondents are acting in the soundest constitutional tradition when, at the outset, they would seek a dismissal of
petitions. For them, the question raised is political and thus beyond the jurisdiction of this Court. Such an approach ca
indicted for unorthodoxy. It is implicit in the concept of the rule of law that rights belong to the people and the governm
possesses powers only. Essentially then, unless such an authority may either be predicated on express or implied gr
Constitution or the statutes, an exercise thereof cannot survive an inquiry as to its validity. Respondents through Solic
General Mendoza would deny our competence to proceed further. It is their view, vigorously pressed and plausibly as
since what is involved is not merely the effectivity of an amendment but the actual coming into effect of a new constitu
matter is not justiciable. The immediate reaction is that such a contention is to be tested in the light of the fundamenta
separation of powers that it is not only the function but the solemn duty of the judiciary to determine what the law is a
it in cases and controversies that call for decision.  Since the Constitution pre-eminently occupies the highest rung in
7

hierarchy of legal norms, it is in the judiciary, ultimately this Tribunal, that such a responsibility is vested. With the 193
Constitution containing, as above noted, an explicit article on the subject of amendments, it would follow that the pres
be indulged in is that the question of whether there has been deference to its terms is for this Court to pass upon. Wh
the Gonzales,  Tolentino  and Planas   cases speak unequivocally to that effect. Nor is it a valid objection to this conc
8 9 10

what was involved in those cases was the legality of the submission and not ratification, for from the very language o
controlling article, the two vital steps are proposal and ratification, which as pointed out in Dillon v. Gloss,   "cannot b
11

unrelated acts, but as succeeding steps in a single endeavor."   Once an aspect thereof is viewed as judicial, there w
12

justification for considering the rest as devoid of that character. It would be for me then an indefensible retreat, derivin
justification from circumstances of weight and gravity, if this Court were to accede to what is sought by respondents a
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 ter
13

made applicable to controversies clearly non-judicial and therefore beyond its jurisdiction or to an issue involved in a
appropriately subject to its cognizance, as to which there has been a prior legislative or executive determination to wh
deference must be paid. It has likewise been employed loosely to characterize a suit where the party proceeded agai
President or Congress, or any branch thereof. If to be delimited with accuracy, "political questions" should refer to suc
under the Constitution be decided by the people in their sovereign capacity or in regard to full discretionary authority
either in the President or Congress. It is thus beyond the competence of the judiciary to pass upon. Unless clearly fal
the formulation, the decision reached by the political branches whether in the form of a congressional act or an execu
could be tested in court. Where private rights are affected, the judiciary has no choice but to look into its validity. It is
lost sight of that such a power comes into play if there be an appropriate proceeding that may be filed only after each
branch has acted. Even when the Presidency or Congress possesses plenary powers, its improvident exercise or the
thereof, if shown, may give rise to a justiciable controversy. For the constitutional grant of authority is usually unrestric
are limits to what may be done and how it is to be accomplished. Necessarily then, the courts in the proper exercise o
review could inquire into the question of whether or not either of the two coordinate branches has adhered to what is
by the Constitution. The question thus posed is judicial rather than political."   The view entertained by Professor Dod
14

dissimilar. For him such a term "is employed to designate certain types of functions committed to the political organs
government (the legislative and executive departments, or either of them) and not subject to judicial investigation."   A 15

thorough study of American judicial decisions, both federal and state, he could conclude: "The field of judicial nonenfo
important, but is not large when contrasted with the whole body of written constitutional texts. The exceptions from ju
enforceability fall primarily within the field of public or governmental interests."   Nor was Professor Weston's formula
16

different. As was expressed by him: "Judicial questions, in what may be thought the more useful sense, are those wh
sovereign has set to be decided in the courts. Political questions, similarly, are those which the sovereign has entrust
so-called political departments of government or has reserved to be settled by its own extra-governmental action."   W 17

appears undeniable then both from the standpoint of Philippine as well as American decisions is the care and circum
required before the conclusion is warranted that the matter at issue is beyond judicial cognizance, a political question
raised.

2. The submission of respondents on this subject of political question, admittedly one of complexity and importance, d
be pursued further. They would derive much aid and comfort from the writings of both Professor Bickel   of Yale and
18

Freund   of Harvard, both of whom in turn are unabashed admirers of Justice Brandeis. Whatever be the merit inhere
19

lack of enthusiasm for a more active and positive role that must be played by the United States Supreme Court in con
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 Am
sovereignty, there has sprung a tradition of what has been aptly termed as judicial activism. Such an approach could
the valedictory address before the 1935 Constitutional Convention of Claro M. Recto. He spoke of the trust reposed i
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 wou
appear that even then this Court was expected not to assume an attitude of timidity and hesitancy when a constitution
is posed. There was the assumption of course that it would face up to such a task, without regard to political consider
with no thought except that of discharging its trust. Witness these words Justice Laurel in an early landmark case, Pe
Vera,   decided in 1937: "If it is ever necessary for us to make vehement affirmance during this formative period of po
21

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 pop
unafraid of criticism in the accomplishment of our sworn duty as we see it and as we understand it."   The hope of co
22

that such assertion of independence impartiality was not mere rhetoric. That is a matter more appropriately left to oth
determine. It suffices to stake that what elicits approval on the part of our people of a judiciary ever alert to inquire int
breaches of the fundamental law is the realization that to do so is merely to do what is expected of it and that thereby
invasion of spheres appropriately belonging to the political branches. For it needs to be kept in kind always that it can
when there is a suit with proper parties before it, wherein rights appropriate for judicial enforcement are sought to be
Then, too, it does not approach constitutional questions with dogmatism or apodictic certainty nor view them from the
cliffs of perfection. This is not to say though that it is satisfied with an empiricism untroubled by the search for jural co
and rational coherence. A balance has to be struck. So juridical realism requires. Once allowance made that for all its
circumspection this Court manned by human beings fettered by fallibility, nonetheless earnestly and sincerely striving
the public acceptance of its vigorous pursuit of the task of assuring that the Constitution be obeyed is easy to underst
not in the past shirked its responsibility to ascertain whether there has been compliance with and fidelity to constitutio
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 jurisdiction, even in the face
23 24

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
able associates presents the whole picture. On the question of judicial review, it is not a case of black and white; ther
shaded areas. It goes too far, in my view, if the perspective is one of dissatisfaction, with its overtones of distrust. Thi
expression of disapproval has not escaped Dean Rostow of Yale, who began one of his most celebrated legal essays
Democratic Character of Judicial Review, thus: "A theme of uneasiness, and even of guilt, colors the literature about
review. Many of those who have talked, lectured, and written about the Constitution have been troubled by a sense th
review is undemocratic."   He went on to state: "Judicial review, they have urged, is an undemocratic shoot on an oth
25

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 review, to be exercised by s
26

the government, is implicit in the conception of a written constitution delegating limited powers. A written constitution
promote discord rather than order in society if there were no accepted authority to construe it, at the least in case of c
action by different branches of government or of constitutionally unauthorized governmental action against individuals
limitation and separation of powers, if they are to survive, require a procedure for independent mediation and constru
reconcile the inevitable disputes over the boundaries of constitutional power which arise in the process of governmen
than that, he took pains to emphasize: "Whether another method of enforcing the Constitution could have been devis
answer is that no such method developed. The argument over the constitutionality of judicial review has long since be
by history. The power and duty of the Supreme Court to declare statutes or executive action unconstitutional in appro
is part of the living Constitution. 'The course of constitutional history,' Mr. Justice Frankfurter recently remarked, 'has
responsibilities upon the Supreme Court which it would be "stultification" for it to evade.' "   Nor is it only Dean Rostow
28

point Frankfurter, reputed to belong to the same school of thought opposed to judicial activism, if not its leading advo
his long stay in the United States Supreme Court, as one fully cognizant of the stigma that attaches to a tribunal whic
to meet the demands of judicial review. There is a statement of similar importance from Professor Mason: "In Stein v.
York Frankfurter remarked, somewhat self-consciously perhaps, that the 'duty of deference cannot be allowed imperc
slide into abdication.' "   Professor Konefsky, like Dean Rostow, could not accept characterization of judicial review a
29

undemocratic. Thus his study of Holmes and Brandeis, the following appears: "When it is said that judicial review is a
undemocratic feature of our political system, it ought also to be remembered that architects of that system did not equ
constitutional government with unbridled majority rule. Out of their concern for political stability and security for private
they designed a structure whose keystone was to consist of barriers to the untrammeled exercise of power by any gro
perceived no contradiction between effective government and constitutional checks. To James Madison, who may leg
regarded as the philosopher of the Constitution, the scheme of mutual restraints was the best answer to what he view
chief problem in erecting a system of free representative government: 'In framing a government which is to be admini
men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the
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 w
eminent authorities on the subject evince at the most fears that the American Supreme Court might overstep the bou
to the judiciary? It cannot be a denial of the fitness of such competence being vested in judges and of their being call
fulfill such a trust whenever appropriate to the decision of a case before them. That is why it has been correctly maint
notwithstanding the absence of any explicit provision in the fundamental law of the United States Constitution, that di
American constitutional historian, Professor Corwin, could rightfully state that judicial review "is simply incidental to th
courts to interpret the law, of which the Constitution is part, in connection with the decision of cases."   This is not to d
31

there are those who would place the blame or the credit, depending upon one's predilection, on Marshall's epochal op
in Marbury v. Madison.   Curtis belonged to that persuasion. As he put it: "The problem was given no answer by the C
32

A hole was left where the Court might drive in the peg of judicial supremacy, if it could. And that is what John Marsha
any rate there was something in the soil of American juristic thought resulting in this tree of judicial power so precario
by Marshall striking deep roots and showing wonderful vitality and hardiness. It now dominates the American legal sc
Through it, Chief Justice Hughes, before occupying that exalted position, could state in a lecture: "We are under a Co
but the Constitution is what the judges say it is ... ."   The above statement is more than just an aphorism that lends it
34

inclusion in judicial anthologies or bar association speeches. It could and did provoke from Justice Jackson, an expon
judicial restraint school of thought, this meaningful query: "The Constitution nowhere provides that it shall be what the
it is. How, did it come about that the statement not only could be but could become current as the most understandab
comprehensive summary of American Constitutional law?"   It is no wonder that Professor Haines could pithily and su
35

sum up the place of the highest American tribunal in the scheme of things in this wise: "The Supreme Court of the Un
has come to be regarded as the unique feature of the American governmental system."   Let me not be misunderstoo
36

here no attempt to close one's eyes to a discernible tendency on the part of some distinguished faculty minds to look
what for them may be inadvisable extension of judicial authority. For such indeed is the case as reflected in two leadi
recent vintage, Baker v. Carr,   decided in 1962 and Powell v. MacCormack,   in 1969, both noted in the opinion of th
37 38

Justice. The former disregarded the warning of Justice Frankfurter in Colegrove v. Green 39 about the American Sup
declining jurisdiction on the question of apportionment as to do so would cut very deep into the very being of Congres
him, the judiciary "ought not to enter this political thicket." Baker has since then been followed; it has spawned a host
cases.   Powell, on the question of the power of a legislative body to exclude from its ranks a person whose qualificat
41

uncontested, for many the very staple of what is essentially political, certainly goes even further than the authoritative
decision of Vera v. Avelino,   It does look then that even in the United States, the plea for judicial self-restraint, even
42

voice by those competent in the field of constitutional law, has fallen on deaf ears. There is in the comments of respo
excerpt from Professor Freund quoting from one of his essays appearing in a volume published in 1968. It is not with
to note that in another paper, also included therein, he was less than assertive about the necessity for self-restraint a
apparently mindful of the claims of judicial activism. Thus: "First of all, the Court has a responsibility to maintain the c
order, the distribution of public power, and the limitations on that power."   As for Professor Bickel, it has been said th
43

counsel for the New York Times in the famous Vietnam papers case,   he was less than insistent on the American Su
44

Court exercising judicial self-restraint. There are signs that the contending forces on such question, for some an uneq
are now quiescent. The fervor that characterized the expression of their respective points of view appears to have be
minimized. Not that it is to be expected that it will entirely disappear, considering how dearly cherished are, for each g
convictions, prejudices one might even say, entertained. At least what once was fitly characterized as the booming gu
rhetoric, coming from both directions, have been muted. Of late, scholarly disputations have been centered on the sta
should govern the exercise of the power of judicial review. In his celebrated Holmes lecture in 1959 at the Harvard La
Professor Wechsler advocated as basis for decision what he termed neutral principles of constitutional law.   It has b 45

a plethora of law review articles, the reaction ranging from guarded conformity to caustic criticism.   There was, to be
46

clear call to a court in effect abandoning the responsibility incumbent on it to keep governmental agencies within cons
channels. The matter has been put in temperate terms by Professor Frank thus: "When allowance has been made fo
it nevertheless seems to me that the doctrine of political questions ought to be very sharply confined to where the fun
reasons justify it and that in a give involving its expansion there should be careful consideration also of the social con
which may militate against it. The doctrine has a certain specious charm because of its nice intellectualism and becau
fine deference it permits to expertise, to secret knowledge, and to the prerogatives of others. It should not be allowed
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 sig
judicial review in the United States. I cannot resist the conclusion then that the views advanced on this subject by dis
counsel for petitioners, with Senators Lorenzo M. Tañada and Jovito Salonga at the van, rather than the advocacy of
Solicitor-General, possess the greater weight and carry persuasion. So much then for the invocation of the political qu
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 Proclam
1102 manifests fidelity to the explicit terms of Article XV. There is, of course, the view not offensive to reason that a s
realities should temper the rigidity of devotion to the strict letter of the text to allow deference to its spirit to control. W
recognition of its force in constitutional litigation,   if my reading of the events and the process that led to such proclam
48

clearly set forth in the opinion of the Chief Justice, is not inaccurate, then it cannot be confidently asserted that there
compliance. It would be to rely on conjectural assumptions that did founder on the rock of the undisputed facts. Any o
conclusion would, for me, require an interpretation that borders on the strained. So it has to be if one does not lose si
the article on amendments is phrased. A word, to paraphrase Justice Holmes may not be a crystal, transparent and u
but it is not, to borrow from Learned Hand, that eminent jurist, a rubber band either. It would be unwarranted in my vie
assert that the requirements of the 1935 Constitution have been met. There are American decisions,   and they are n
49

number, which require that there be obedience to the literal terms of the applicable provision. It is understandable wh
be thus. If the Constitution is the supreme law, then its mandate must be fulfilled. No evasion is tolerated. Submission
commands can be shown only if each and every word is given meaning rather than ignored or disregarded. This is no
that a recognition conclusive effect attached to the electorate manifesting its will to vote affirmatively on the amendme
proposed poses an obstacle to the judiciary being insistent on the utmost regularity. Briefly stated, substantial compli
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 Cou
upon to give meaning and perspective to what could be considered words of vague generality, pregnant with uncerta
whatever obscurity it possesses is illumined when the light of the previous legislation is thrown on it. In the first Comm
Act,   submitting to the Filipino people for approval or disapproval certain amendments to the original ordinance appe
51

1935 Constitution, it was made that the election for such purpose was to "be conducted in conformity with the provisio
Election Code insofar as the same may be applicable."   Then came the statute,   calling for the plebiscite on the thre
52 53

amendments providing for the plebiscite on the three 1930 amendments providing for a bicameral Congress or a Sen
House of Representatives to take the place of a unicameral National Assembly,   reducing the term of the President t
54

but allowing his re-election with the limitation that he cannot serve more than eight consecutive years,   and creating
55
independent Commission on Elections.   Again, it was expressly provided that the election "shall be conducted in con
56

the provisions of the Election Code in so far as the same may be applicable."   The approval of the present parity am
57

was by virtue of a Republic Act   which specifically made applicable the then Election Code.   There is a similar provi
58 59

legislation,   which in cotemplation of the 1971 Constitutional Convention, saw to it that there be an increase in the m
60

of the House of Representatives a maximum of one hundred eighty and assured the eligibility of senators and repres
become members of such constituent body without forfeiting their seats, as proposed amendments to be voted on in
elections.   That is the consistent course of interpretation followed by the legislative branch. It is most persuasive, if n
61

controlling. The restraints thus imposed would set limits to the Presidential action taken, even on the assumption that
agent of the Constitutional Convention or under his martial law prerogatives, he was not devoid of power to specify th
ratification. On two vital points, who can vote and how they register their will, Article XV had been given a definitive co
That is why I fail to see sufficient justification for this Court affixing the imprimatur of its approval on the mode employ
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. Ind
of the lack of validity of the ratification of the new Constitution, if it be accepted by the people, in whom sovereignty re
according to the Constitution,   then this Court cannot refuse to yield assent to such a political decision of the utmost
62

conclusive in its effect. Such a fundamental principle is meaningless if it does not imply, to follow Laski, that the natio
whole constitutes the "single center of ultimate reference," necessarily the possessor of that "power that is able to res
disputes by saying the last word."   If the origins of the democratic polity enshrined in the 1935 Constitution with the d
63

that the Philippines is a republican state could be traced back to Athens and to Rome, it is no doubt true, as McIver p
that only with the recognition of the nation as the separate political unit in public law is there the juridical recognition o
composing it "as the source of political authority."   From them, as Corwin did stress, emanate "the highest possible e
64

of human will,"   which is supreme and must be obeyed. To avoid any confusion and in the interest of clarity, it should
65

expressed in the manner ordained by law. Even if such is not the case, however, once it is manifested, it is to be acce
final and authoritative. The government which is merely an agency to register its commands has no choice but to sub
officials must act accordingly. No agency is exempt such a duty, not even this Court. In that sense, the lack of regular
method employed to register its wishes is fatal in its consequences. Once the fact of acceptance by people of a new
law is made evident, the judiciary is left with no choice but to accord it recognition. The obligation to render it obeisan
the courts as well.

There are American State decisions that enunciate such a doctrine. While certainly not controlling, they are not entire
persuasive significance. In Miller v. Johnson,   decided in 1892, it was set forth in the opinion of Chief Justice Holt tha
66

1890, an act was passed in Kentucky, providing for the calling of a convention for the purpose of framing a new cons
the election of delegates. It provided that before any form of constitution made by them should become operative, it s
submitted to the vote of the state and ratified by a majority of those voting. The constitution then in force authorized th
legislature, the preliminary steps having been taken, to call a convention "for the purpose of readopting, amending, or
it contained no provision giving the legislature the power to require a submission of its work to a vote of the people. T
convention met in September, 1890. By April, 1891, it completed a draft of a constitution, submitted it to a popular vo
adjourned until September following. When the convention reassembled, the delegates made numerous changes in i
As thus amended, it was promulgated by the convention of September 28, 1891, as the new constitution. An action w
to challenge its validity. It failed in the lower court. In affirming such judgment dismissing the action, Chief Justice Hol
a set of men, not selected by the people according to the forms of law, were to formulate an instrument and declare it
constitution, it would undoubtedly be the duty of the courts to declare its work a nullity. This would be revolution, and
courts of the existing government must resist until they are overturned by power, and a new government established.
convention, however, was the offspring of law. The instrument which we are asked to declare invalid as a constitution
made and promulgated according to the forms of law. It is a matter of current history that both the executive and legis
branches of the government have recognized its validity as a constitution, and are now daily doing so. ... While the ju
should protect the rights of the people with great care and jealousy, because this is its duty, and also because; in time
popular excitement, it is usually their last resort, yet it should at the same time be careful not to overstep the proper b
power, as being perhaps equally dangerous; and especially where such momentous results might follow as would be
instance, if the power of the judiciary permitted, and its duty requires, the overthrow of the work of the convention."    67

Commonwealth,   a 1903 decision, it was contended that the Virginia Constitution reclaimed in 1902 is invalid as it w
68
and promulgated by the convention without being submitted for ratification or rejection by the people. The Court rejec
view. As stated in the opinion of Justice Harrison: "The Constitution of 1902 was ordained and proclaimed by a conve
called by direct vote of the people of the state to revise and amend the Constitution of 1869. The result of the work of
convention has been recognized, accepted, and acted upon as the only valid Constitution of the state by the Governo
swearing fidelity to it and proclaiming it, as directed thereby; by the Legislature in its formal official act adopting a join
July 15, 1902, recognizing the Constitution ordained by the convention which assembled in the city of Richmond on th
of June, 1901, as the Constitution of Virginia; by the individual oaths of members to support it, and by enforcing its pr
and the people in their primary capacity by peacefully accepting it and acquiescing in it, by registering as voters unde
extent of thousands throughout the state, and by voting, under its provisions, at a general election for their representa
Congress of the United States. The Constitution having been thus acknowledged and accepted by the office administ
government and by the people of the state, and there being no government in existence under the Constitution of 186
or denying its validity, we have no difficulty in holding that the Constitution in question, which went into effect at noon
day of July, 1902, is the only rightful, valid, and existing Constitution of this state, and that to it all the citizens of Virgin
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 h
accepted by the Filipino people. What is more, so it has been argued, it is not merely a case of its being implied. Thro
Citizens Assemblies, there was a plebiscite with the result as indicated in Proclamation No. 1102. From the standpoin
respondents then, they could allege that there was more than just mere acquiescence by the sovereign people. Its wi
expressed formally and unmistakably. It may be added that there was nothing inherently objectionable in the informal
followed in ascertaining its preference. Nor is the fact that Filipinos of both sexes above the age of fifteen were given
opportunity to vote to be deplored. The greater the base of mass participation, the more there is fealty to the democra
It does logically follow likewise that such circumstances being conceded, then no justifiable question may be raised. T
to respect what had thus received the people's sanction. That is not for me though whole of it. Further scrutiny even t
entirely foreclosed. There is still an aspect that is judicial, an inquiry may be had as to whether such indeed was the r
is no more than what the courts do in election cases. There are other factors to bear in mind. The fact that the Presid
certified is well-nigh conclusive. There is in addition the evidence flowing from the conditions of peace and stability. T
appears to be conformity to the existing order of things. The daily course of events yields such a conclusion. What is
officials under the 1935 Constitution, including practically all Representatives and a majority of the Senators, have sig
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 t
during a period of martial law. It would have been different had there been that freedom of debate with the least interf
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.
a clear-cut decision either way. One could be certain as to the fact of the acceptance of the new or of adherence to th
is not to deny that votes are cast by individuals with their personal concerns uppermost in mind, worried about their im
needs and captive to their existing moods. That is inherent in any human institution, much more so in a democratic po
it open to any valid objection because in the final analysis the state exists for the individuals who in their collectivity co
Whatever be their views, they are entitled to respect. It is difficult for me, however, at this stage to feel secure in the c
that they did utilize the occasion afforded to give expression to what was really in their hearts. This is not to imply tha
could not be dispelled by evidence to the contrary. If the petitions be dismissed however, then such opportunity is for

5. With the foregoing legal principles in mind, I find myself unable to join the ranks of my esteemed brethren who vote
dismissal of these petitions. I cannot yield an affirmative response to the plea of respondents to consider the matter c
proceedings terminated once and for all. It is not an easy decision to reach. It has occasioned deep thought and cons
soul-searching. For there are countervailing considerations that exert a compulsion not easy to resist. It can be asser
truth, especially in the field of social and economic rights, that with the revised Constitution, there is an auspicious be
further progress. Then too it could resolve what appeared to be the deepening contradictions of political life, reducing
governmental authority to near impotence and imparting a sense of disillusionment in democratic processes. It is not
say therefore that there had indeed been the revision of a fundamental law to vitalize the very values out of which dem
grows. It is one which has all the earmarks of being responsive to the dominant needs of the times. It represents an o
cognizant of the tensions of a turbulent era that is the present. That is why for some what was done represented an a
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
are being further considered, the least interference, with the executive department. The President in the discharge of
functions is entitled to obedience. He remains commander-in-chief with all the constitutional powers it implies. Public
go about their accustomed tasks in accordance with the revised Constitution. They can pursue even the tenor of their
are free to act according to its tenets. That was so these past few weeks, even petitions were filed. There was not at
any thought of any restraining order. So it was before. That is how things are expected to remain even if the motions
were not granted. It might be asked though, suppose the petitions should prevail? What then? Even so, the decision
need not be executory right away. Such a disposition of a case before this Court is not novel. That was how it was do
Emergency Powers Act controversy.   Once compliance is had with the requirements of Article XV of the 1935 Const
70

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 stan
actuality. What is more, it may give the impression of reliance on what may, for the practical man of affairs, be no mo
gossamer distinctions and sterile refinements unrelated to events. That may be so, but I find it impossible to transcen
me are the implications of traditional constitutionalism. This is not to assert that an occupant of the bench is bound to
undeviating rigidity doctrines which may have served their day. He could at times even look upon them as mere scrib
sands to be washed away by the advancing tides of the present. The introduction of novel concepts may be carried o
though. As Cardozo put the matter: "The judge, even when he is free, is still not wholly free. He is not to innovate at p
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
consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to ex
discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to "the primordial ne
order in the social life." Wide enough in all conscience is the field of discretion that remains."   Moreover what made i
71

this Court to apply settled principles, which for me have not lost their validity, is traceable to the fact that the revised C
was made to take effect immediately upon ratification. If a period of time were allowed to elapse precisely to enable th
power to be exercised, no complication would have arisen. Likewise, had there been only one or two amendments, n
problem would be before us. That is why I do not see sufficient justification for the orthodoxies of constitutional law no
operate.

Even with full realization then that the approach pursued is not all that it ought to have been and the process of reaso
without its shortcomings, the basic premises of a constitutional democracy, as I understand them and as set forth in t
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 b
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
by the members of all the Barangays (Citizens Assemblies) throughout the Philippines, and has thereby come into ef

More specifically, the issue submitted is whether the purported ratification of the proposed Constitution by means of t
Assemblies has substantially complied with the mandate of Article XV of the existing Constitution of 1935 that duly pr
amendments thereto, in toto or parts thereof, "shall be valid as part of this Constitution when approved by a majority 
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
by the 1971 Constitutional Convention may be said also to have substantially complied with its own mandate that "(T)
Constitution shall take immediately upon its ratification by a majority of the votes cast in a plebiscite called for the pur
except as herein provided, shall supersede the Constitution of Nineteen hundred and thirty-five and all amendments t

Respondents contend that "(A)lthough apparently what is sought to be annulled is Proclamatio

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 "politic
character" and that "what is sought to be invalidated is not an act of the President but of the p

— "(T)he fact of approval of the new Constitution by an overwhelming majority of the votes ca

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 un
law. ... Alternatively, or contemporaneously, he did so as "agent" of the Constitutional Conven

— "alleged defects, such as absence of secret voting, enfranchisement of persons less than 2

years, non supervision (by) the Comelec are matters not required by Article XV of the 1935 C
(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 rati
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 pop
direct participation of the citizenry ... ."
3

To test the validity of respondents' submittal that the Court, in annulling Proclamation No. 1102 would really be "invali
new Constitution", the terms and premises of the issues have to be defined.

— Respondents themselves assert that "Proclamation No. 1102 ... is plainly merely declarato
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
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

Constitution, dealing with the procedure or manner of amending the fundamental law are bind
the Convention and the other departments of the government. It must be added that ... they ar
less binding upon the people." 7

— In the same Tolentino case, this Court further proclaimed that "as long as any amendment
formulated and submitted under the aegis of the present Charter, any proposal for such amen
which is not in conformity with the letter, spirit and intent of the Charter for effecting amendme
receive the sanction of this Court." 8

— As continues to be held by a majority of this Court, proposed amendments to the Constituti

 be ratified in only one way, that is, in an election or plebiscite held in accordance with law and
in only by qualified and duly registered voters"  and under the supervision of the Commission
9

Elections. 10

— Hence, if the Court declares Proclamation 1102 null and void because on its face, the purp
ratification of the proposed Constitution has not faithfully nor substantially observed nor comp
mandatory requirements of Article XV of the (1935) Constitution, it would not be "invalidating"
proposed new Constitution but would be simply declaring that the announced fact of ratificatio
means of the Citizens Assemblies referendums does not pass the constitutional test and that
proposed new Constitution has not constitutionally come into existence.

— Since Proclamation 1102 is acknowledged by respondent to be "plainly merely declaratory"

disputed fact of ratification, they cannot assume the very fact to be established and beg the is
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 immediate
effect upon the issuance on January 17, 1973 of Proclamation 1102 and the question of whether "confusion and diso
government affairs would (not) result" from a judicial declaration of nullity of the purported ratification is raised by the
General on behalf of respondents.

A comparable precedent of great crisis proportions is found in the Emergency Powers cases,   wherein the Court in i
11

Resolution of September 16, 1949 after judgment was initially not obtained on August 26, 1949 for lack of the require
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 inoperativ
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 o
"issued in good faith and with the best of intentions by three successive Presidents, and some of them may have alre
produced extensive effects on the life of the nation" — in the same manner as may have arisen under the bona fide a
President now in the honest belief that the 1972 Constitution had been validly ratified by means of the Citizens Assem
referendums — and indicated the proper course and solution therefor, which were duly abided by and confusion and
well as harm to public interest and innocent parties thereby avoided as follows:

Upon the other hand, while I believe that the emergency powers had ceased in June 1945, I a
prepared to hold that all executive orders issued thereafter under Commonwealth Act No. 671
se null and void. It must be borne in mind that these executive orders had been issued in good
with the best of intentions by three successive Presidents, and some of them may have alread
extensive effects in the life of the nation. We have, for instance, Executive Order No. 73, issue
November 12, 1945, appropriating the sum of P6,750,000 for public works; Executive Order N
issued on January 7, 1946, amending a previous order regarding the organization of the Supr
Executive Order No. 89, issued on January 1, 1946, reorganizing Courts of First Instance; Exe
Order No. 184, issued on November 19, 1948, controlling rice and palay to combat hunger; an
executive orders appropriating funds for other purposes. The consequences of a blanket nullif
these executive orders will be unquestionably serious and harmful. And I hold that before null
them, other important circumstances should be inquired into, as for instance, whether or not th
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 litig
facto officers; acts and contracts of parties acting in good faith; etc. It is my opinion that each
order must be viewed in the light of its peculiar circumstances, and, if necessary and possible
precautionary measures should be taken to avoid harm to public interest and innocent parties
Initially, then Chief Justice Moran voted with a majority of the Court to grant the Araneta and Guerrero petitions holdin
void the executive orders on rentals and export control but to defer judgment on the Rodriguez and Barredo petitions
declarations of nullity of the executive orders appropriating the 1949-1950 fiscal year budget for the government and
for the holding of the 1949 national elections. After rehearsing, he further voted to also declare null and void the last t
executive orders appropriating funds for the 1949 budget and elections, completing the "sufficient majority" of six aga
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 g
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 executive orders in question appears remote and uncertain, I am compelled to, and do he
my unqualified concurrence in the decision penned by Mr. Justice Tuason declaring that these
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 posit
compliance with the Constitution by the other branches of the Government, which is our prime
all these cases, would be effected, and indefinite deferment will produce the opposite result be
would legitimize a prolonged or permanent evasion of our organic law. Executive orders which
opinion, repugnant to the Constitution, would be given permanent life, opening the way or pra
may undermine our constitutional structure.

The harmful consequences which, as I envisioned in my concurring opinion, would come to pa

the said executive orders be immediately declared null and void are still real. They have not d
by reason of the fact that a special session of Congress is not now forthcoming. However, the
now lies in the hands of the Chief Executive and of Congress, for the Constitution vests in the
power to call a special session should the need for one arise, and in the latter, the power to pa
appropriations act.

That Congress may again fail to pass a valid appropriations act is a remote possibility, for und
circumstances it fully realizes its great responsibility of saving the nation from breaking down;
furthermore, the President in the exercise of his constitutional powers may, if he so desires, co
Congress to remain in special session till it approves the legislative measures most needed by
country.

Democracy is on trial in the Philippines, and surely it will emerge victorious as a permanent w
this country, if each of the great branches of the Government, within its own allocated sphere,
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 m
firm and strong, hard as the best of steel, so as to insure its growth and development along so
stable and vigorous democracy.  14

The late Justice Pedro Tuason who penned the initial majority judgment (declaring null and void the rental and export
executive orders) likewise observed that "(T)he truth is that under our concept of constitutional government, in times o
perils more than in normal circumstances 'the various branches, executive, legislative, and judicial,' given the ability t
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
the President's public manifestation of adherence to constitutional processes and of working within the proper constit
framework as per his press conference of January 20,1973, wherein he stated that "(T)he Supreme Court is the final
the Constitution. It can and will probably determine the validity of this Constitution. I did not want to talk about this bec
actually there is a case pending before the Supreme Court. But suffice it to say that I recognize the power of the Supr
With respect to appointments, the matter falls under a general provision which authorizes the Prime Minister to appoi
members to the Supreme Court. Until the matter of the new Constitution is decided, I have no intention of utilizing tha

Thus, it is that as in an analogous situation wherein the state Supreme Court of Mississippi held that the questions of
submission of the proposed constitutional amendment of the State Constitution providing for an elective, instead of an
judiciary and whether the proposition was in fact adopted, were justifiable and not political questions, we may echo th
therein of Chief Justice Whitfield that "(W)e do not seek a jurisdiction not imposed upon us by the Constitution. We co
we would, escape the exercise of that jurisdiction which the Constitution has imposed upon us. In the particular instan
we are now acting, our duty to know what the Constitution of the state is, and in accordance with our oaths to suppor
maintain it in its integrity, imposed on us a most difficult and embarrassing duty, one which we have not sought, but o
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 c
maintaining a firm and strict — perhaps, even rigid — stand that the Constitution is a "superior paramount law, uncha
ordinary means" save in the particular mode and manner prescribed therein by the people, who, in Cooley's words, s
(not only) the hands of their official agencies, but their own hands as well"   in the exercise of their sovereign will or a
18

flexible stand that would consider compliance with the constitutional article on the amending process as merely direct
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
otherwise exclusively "by approval by a majority of the votes cast an election at which the amendments are submitted
people for their ratification",   participated in only by qualified and duly registered voters twenty-one years of age or o
19

duly supervised by the Commission on Elections,   in accordance with the cited mandatory constitutional requiremen
21

The alternative choice of a liberal stand would permit a disregard of said requirements on the theory urged by respon
"the procedure outlined in Article XV was not intended to be exclusive of other procedures especially one which conte
popular and direct participation of the citizenry",   that the constitutional age and literacy requirements and other statu
22

safeguards for ascertaining the will of the majority of the people may likewise be changed as "suggested, if not presc
people (through the Citizens Assemblies) themselves",   and that the Comelec is constitutionally "mandated to overs
23

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  2

Supreme Court's power of judicial review and to declare void laws repugnant to the Constitution, there is no middle g
between these two alternatives. As Marshall expounded it: "(T)he Constitution is either a superior paramount law, unc
by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, alterable when the legislature
to alter it. If the former part of the alternative be true, then a legislative act, contrary to the Constitution, is not law; if th
be true, then written constitutions are absurd attempts on the part of a people, to limit a power, in its own nature, illim

As was to be restated by Justice Jose P. Laurel a century and a third later in the 1936 landmark case of Angara vs. E
Commission,   "(T)he Constitution sets forth in no uncertain language the restrictions and limitations upon governmen
26

and agencies. If these restrictions and limitations are transcended it would be inconceivable if the Constitution had no
for a mechanism by which to direct the course of government along constitutional channels, for then the distribution o
would be mere verbiage, the bill of rights mere expressions of sentiment, and the principles of good government mere
apothegms. Certainly, the limitations of good government and restrictions embodied in our Constitution are real as th
be in any living Constitution."

Justice Laurel pointed out that in contrast to the United States Constitution, the Philippine Constitution as "a definition
powers of government" placed upon the judiciary the great burden of "determining the nature, scope and extent of su
and stressed that "when the judiciary mediates to allocate constitutional boundaries, it does not assert any superiority
other departments ... but only asserts the solemn and sacred obligation entrusted to it by the Constitution to determin
claims of authority under the Constitution and to establish for the parties in an actual controversy the rights which the
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,"
27

never forget that it is a constitution we are expounding," — termed by Justice Frankfurter as "the single most importa
in the literature of constitutional law — most important because most comprehensive and comprehending."   This end
29

concept to my mind permeated to this Court's exposition and rationale in the hallmark case of Tolentino, wherein we
contentions on the Convention's behalf "that the issue ... is a political question and that the Convention being a legisla
the highest order is sovereign, and as such, its acts impugned by petitioner are beyond the control of Congress and t
Courts." 30

This Court therein made its unequivocal choice of strictly requiring faithful (which really includes substantial) complia
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
Constitutional Convention's Organic Resolution No. 1 proposing to amend Article V, section 1 of the Constitution by lo
voting age to 18 years (vice 21 years) 30a "without prejudice to other amendments that will be proposed in the future
portions of the amended section", this Court stated that "the constitutional provision in question (as proposed) presen
which may be resolved in favor of respondents and intervenors. We do not believe such doubt can exist only because
that the end sought to be achieved is to be desired. Paraphrasing no less than the President of Constitutional Conven
1934, Claro M. Recto, let those who would put aside, invoking grounds at best controversial, any mandate of the fund
law purportedly in order to attain some laudable objective bear in mind that someday somehow others with purported
laudable objectives may take advantage of the precedent and continue the destruction of the Constitution, making tho
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 missio
propose amendments to the Constitution, the Convention and its officers and members are al
all the provisions of the existing Constitution. Now We hold that even as to its latter task of pro
amendments to the Constitution, it is subject to the provisions of Section 1 of Article XV. This
because it is plain to Us that the framers of the Constitution took care that the process of ame
same should not be undertaken with the same ease and facility in changing an ordinary legisl
Constitution making is the most valued power, second to none, of the people in a constitutiona
democracy such as the one our founding fathers have chosen for this nation, and which we of
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 cou
those subject to its sovereignty, every degree of care is taken in preparing and drafting it. A co
worthy of the people for deliberation and study. It is obvious that correspondingly, any amendm
Constitution is of no less importance than the whole Constitution itself, and perforce must be c
and prepared with as much care and deliberation. From the very nature of things, the drafters
original constitution, as already observed earlier, operate without any limitations, restraints or
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 t
their handiwork is not lightly treated and as easily mutilated or changed, not only for reasons p
personal but more importantly, because written constitutions are supposed to be designed so
for some time, if not for ages, or for, at least, as long as they can be adopted to the needs and
 of the people, hence, they must be insulated against precipitate and hasty actions motivated b
less passing political moods or fancies. Thus, as a rule, the original constitutions carry with the
limitations and conditions, more or less stringent, made so by the people themselves, in regar
process of their amendment. And when such limitations or conditions are so incorporated in th
constitution, it does not lie in the delegates of any subsequent convention to claim that they m
and disregard such conditions because they are powerful and omnipotent as their original cou

3. This Court in Tolentino likewise formally adopted the doctrine of proper submission first advanced in Gonzales vs.
thus:

We are certain no one can deny that in order that a plebiscite for the ratification of an amendm
Constitution may be validly held, it must provide the voter not only sufficient time but ample ba
an intelligent appraisal of the nature of amendment per se as well as its relation to the other p
Constitution with which it has to form a harmonious whole. In the context of the present state o
where the Convention hardly started considering the merits of hundreds, if not thousands, pro
amend the existing Constitution, to present to people any single proposal or a few of them can
with this requirement. We are of the opinion that the present Constitution does not contemplat
1 of Article XV a plebiscite or "election" wherein the people are in the dark as to frame of refer
can base their judgment on. We reject the rationalization that the present Constitution is a pos
of reference, for the simple reason that intervenors themselves are stating the sole purpose o
proposed amendment is to enable the eighteen year olds to take part in the election for the ra
the Constitution to be drafted by the Convention. In brief, under the proposed plebiscite, there
the language of Justice Sanchez, speaking for the six members of the Court in Gonzales, sup
proper submission.' "  34

4. Four other members of the Court   in a separate concurrence in Tolentino, expressed their "essential agreement" w
35

Sanchez' separate opinion in Gonzales on the need for "fair submission (and) intelligent rejection" as "minimum requ
that must be met in order that there can be a proper submission to the people of a proposed constitutional amendme

... amendments must be fairly laid before the people for their blessing or spurning. The people
be mere rubber stamps. They are not to vote blindly. They must be afforded ample opportunit
over the original provisions, compare them with the proposed amendments, and try to reach a
as the dictates of their conscience suggest, free from the incubus of extraneous or possibly in
influences. We believe the word "submitted" can only mean that the government, within its ma
capabilities, should strain every effort to inform every citizen of the provisions to be amended,
proposed amendments and the meaning, nature and effects thereof. By this, we are not to be
as saying that, if one citizen or 100 citizens or 1,000 citizens cannot be reached, then there is
submission within the meaning of the word as intended by the framers of the Constitution. Wh
Constitution in effect directs is that the government, in submitting an amendment for ratificatio
put every instrumentality or agency within its structural framework to enlighten the people, edu
with respect to their act of ratification or rejection. For as we have earlier stated, one thing is s
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 inten
Article XV, section 1 of the Constitution, in this wise:

A number of doubts or misgivings could conceivably and logically assail the average voter. W
the voting age be lowered at all, in the first place? Why should the new voting age be precisel
and not 19 or 20? And why not 17? Or even 16 or 15? Is the 18-year old as mature as the 21-
that there is no need of an educational qualification to entitle him to vote? In this age of permis
and dissent, can the 18-year old be relied upon to vote with judiciousness when the 21-year o
 past elections, has not performed so well? If the proposed amendment is voted down by the p
the Constitutional Convention insist on the said amendment? Why is there an unseemly haste
of the Constitutional Convention in having this particular proposed amendment ratified at this
time? Do some of the members of the Convention have future political plans which they want
subserve by the approval this year of this amendment? If this amendment is approved, does i
mean that the 18-year old should not also shoulder the moral and legal responsibilities of the
Will he be required to compulsory military service under the colors? Will the contractual conse
reduced to 18 years? If I vote against the amendment, will I not be unfair to my own child who
years old, come 1973?

The above are just samplings from here, there and everywhere — from a domain (of searchin
the bounds of which are not immediately ascertainable. Surely, many more questions can be
already long litany. And the answers cannot except as the questions are debated fully, ponder
purposefully, and accorded undivided attention.

Scanning the contemporary scene, we say that the people are not, and by election time will no
be, sufficiently informed of the meaning, nature and effects of the proposed constitutional ame
They have not been afforded ample time to deliberate thereon conscientiously. They have bee
effectively distracted from a full and dispassionate consideration of the merits and demerits of
proposed amendment by their traditional pervasive involvement in local elections and politics.
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 o
the sovereign people to express their decision on the proposed amendments" as "anachronistic in the real constitutio
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 'Filipi
imploring the aid of Divine Providence.' Section 1 of Article XV is nothing than a part of the Co
thus ordained by the people. Hence, in construing said section, We must read it as if the peop
'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.' ... Accor
real issue here cannot be whether or not the amending process delineated by the present Con
may be disregarded in favor of allowing the sovereign people to express their decision on the
amendments, if only because it is evident that the very idea of departing from the fundamenta
is anachronistic in the realm of constitutionalism and repugnant to the essence of the rule of la
is whether or not the provisional nature of the proposed amendment and the manner of its sub
the people for ratification or rejection conform with the mandate of the people themselves in s
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
of these perspectives, if the Court were to allow itself in deciding this case to be carried astray by considerations othe
the imperatives of the rule of law and of the applicable provisions of the Constitution. Needless to say, in a larger me
when it binds other departments of the government or any other official or entity, the Constitution imposes upon the C
sacred duty to give meaning and vigor to the Constitution, by interpreting and construing its provisions in appropriate
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 reconsid
succinctly restated this Court's position on the fundamentals, as follows:
— On the premature submission of a partial amendment proposal, with a "temporary provision
tentative character": — "... a partial amendment would deprive the voters of the context which
necessary for them to make a reasonably intelligent appraisal of the issue submitted for their
or rejection. ... Then, too, the submission to a plebiscite of a partial amendment, without a def
of reference, is fraught with possibilities which may jeopardize the social fabric. For one thing,
door to wild speculations. It offers ample opportunities for overzealous leaders and members
political camps to unduly exaggerate the pros and cons of the partial amendment proposed. In
apt to breed false hopes and create wrong impressions. As a consequence, it is bound to und
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 incomplet
although inconsistent with the letter and spirit of the Constitution: "The view, has, also, advanc
foregoing considerations are not decisive on the issue before Us, inasmuch as the people are
and the partial amendment involved in this case is being submitted to them. The issue before
whether or not said partial amendment may be validly submitted to the people for ratification "
plebiscite coincide with the local elections in November 1971," and this particular issue will no
submitted to the people. What is more, the Constitution does not permit its submission to the
question sought to be settled in the scheduled plebiscite is whether or not the people are in fa
reduction of the voting age.

— On a "political" rather than "legalistic" approach: "Is this approach to the problem too "legal
term has possible connotations. It may mean strict adherence to the law, which in the case at
the Supreme Law of the land. On point, suffice it to say that, in compliance with the specific m
Supreme Law, the members of the Supreme Court taken the requisite "oath to support and de
Constitution." ... Then, again, the term "legalistic" may be used to suggest inversely that the so
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 re
will of the people, specially the youth. This course of action favors, in effect, adoption of a poli
approach, inasmuch as the advisability of the amendment and an appraisal of the people's fee
thereon political matters. In fact, apart from the obvious message of the mass media, and, at
pulpit, the Court has been literally bombarded with scores of handwritten letters, almost all of
the penmanship and the signature of girls, as well as letterhead of some sectarian educationa
institutions, generally stating that the writer is 18 years of age and urging that she or he be allo
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 polit
questions beyond our province. In fact, respondents and the intervenors originally maintained
have no jurisdiction to entertain the petition herein, upon the ground that the issue therein rais
political one. Aside from the absence of authority to pass upon political question, it is obviousl
and unwise for the bench to develop into such questions owing to the danger of getting involv
politics, more likely of a partisan nature, and, hence, of impairing the image and the usefulnes
of justice as objective and impartial arbiters of justiciable controversies.

Then, too, the suggested course of action, if adopted, would constitute a grievous disservice t
and the very Convention itself. Indeed, the latter and the Constitution it is in the process of dra
essentially for the Rule of Law. However, as the Supreme Law of the land, a Constitution wou
worthy of its name, and the Convention called upon to draft it would be engaged in a futile und
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 e
overlooked a circumvention of said tenets and provisions, because of the good intention with w
 Resolution No. 1 is animated, the Court would thereby become the Judge of the good or bad
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
statesmanship in deciding the present case. Indeed, "politics" is the word commonly used to e
compromise, even with principles, for the sake of political expediency or the advancement of t
power of a given political party. Upon the other hand, statesmanship is the expression usually
to refer to high politics or politics on the highest level. In any event, politics, political approach,
expediency and statesmanship are generally associated, and often identified, with the dictum
end justifies the means." I earnestly hope that the administration of justice in this country and
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 pro
amendment lowering the voting age to the plebiscite on November 8, 1971 is to enable the youth 18 to 20 years who
more than three (3) million of our population to participate in the ratification of the new Constitution in so far as "to allo
people who would be governed by the Constitution to be given a say on what kind of Constitution they will have" is a
end, ... those urging the vitality and importance of the proposed constitutional amendment and its approval ahead of t
complete and final draft of the Constitution must seek a valid solution to achieve it in a manner sanctioned by the ame
process ordained by our people in the present Constitution"   — so that there may be "submitted, not piece-meal, but
41

complete and final amendments as an integrated whole (integrated either with the subsisting Constitution or with the
proposed Constitution)..."

9. The universal validity of the vital constitutional precepts and principles above-enunciated can hardly be gainsaid. I
the attempted distinction of restricting their application to proposals for amendments of particular provisions of the Co
and not to so-called entirely new Constitutions. Amendments to an existing Constitution presumably may be only of c
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 c
and prepared with as much care and deliberation", it would appeal that the reverse would equally be true; which is to
the adoption of a whole new Constitution would be of no less importance than any particular amendment and therefo
necessary care and deliberation as well as the mandatory restrictions and safeguards in the amending process ordai
people themselves so that "they (may) be insulated against precipitate and hasty actions motivated by more or less p
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 a majority of the votes cast at an election at which the (duly proposed) amendments are submitted to the people fo
ratification."

The people ordained in Article V, section 1 that only those thereby enfranchised and granted the right of suffrage may
"will of the body politic", viz, qualified literate voters twenty one years of age or over with one year's residence in the m
where they have registered.

The people, not as yet satisfied, further provided by amendment duly approved in 1940 in accordance with Article XV
creation of an independent Commission on Elections with "exclusive charge" for the purpose of "insuring free, orderly
elections" and ascertaining the true will of the electorate — and more, as ruled by this Court in Tolentino, in the case
constitutional amendments, insuring proper submission to the electorate of such proposals.  42

2. A Massachussets case   with a constitutional system and provisions analogous to ours, best defined the uses of th
43

term "people" as a body politic and "people" in the political sense who are synonymous with the qualified voters grant
to vote by the existing Constitution and who therefore are "the sole organs through which the will of the body politic ca
expressed."

It was pointed out therein that "(T)he word 'people' may have somewhat varying significations dependent upon the co
which it is used. In some connections in the Constitution it is confined to citizens and means the same as citizens. It e
aliens. It includes men, women and children. It comprehends not only the sane, competent, law-abiding and educated
those who are wholly or in part dependents and charges upon society by reason of immaturity, mental or moral defici
of the common essentials of education. All these persons are secured fundamental guarantees of the Constitution in
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 comm
"social compact ... for the common good" and in another sense of "people" in a "practical sense" for "political purpose
therein fittingly stated that in this sense, "people" comprises many who, by reason of want of years, of capacity or of t
educational requirements of Article 20 of the amendments of the Constitution, can have no voice in any government a
are entitled to all the immunities and protection established by the Constitution. 'People' in this aspect is coextensive 
the body politic. But it is obvious that 'people' cannot be used with this broad meaning of political signification. The 'pe
connection means that part of the entire body of inhabitants who under the Constitution are intrusted with the exercis
sovereign power and the conduct of government. The 'people' in the Constitution in a practical sense means those w
existing Constitution possess the right to exercise the elective franchise and who, while that instrument remains in for
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 govern
national and state, have been limited by constitutions, and they have themselves thereby set bounds to their own pow
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
election at which the amendments are submitted to the people for their ratification", it seems obvious as above-stated
"people" as therein used must be considered synonymous with "qualified voters" as enfranchised under Article V, sec
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 im
statutes to ascertain and record the will of the people in free, orderly and honest elections supervised by the Comelec
imperative that there be strict adherence to the constitutional requirements laid down for the process of amending 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: "
6. Plebiscite. — A plebiscite may be held in the barrio when authorized by a majority vote of the members present in
assembly, there being a quorum, or when called by at least four members of the barrio council: Provided, however, T
plebiscite shall be held until after thirty days from its approval by either body, and such plebiscite has been given the
publicity in the barrio, stating the date, time and place thereof, the questions or issues to be decided, action to be take
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 member
to vote may vote in the plebiscite. Voting procedures may be made either in writing as in regular elections, and/or dec
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 o
member of the barrio council. A plebiscite shall be called to approve any budgetary, supplemental appropriations or s
ordinances" and the required majority vote is specified: "(F)or taking action on any of the above enumerated measure
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 qualif
49

Article V, section 1 of the Constitution and provide that "(S)EC. 10. Qualifications of Voters and Candidates. — Every
the Philippines, twenty one years of age or over, able to read and write, who has been a resident of the barrio during
months immediately preceding the election, duly registered in the list of voters by the barrio secretary, who is not othe
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 constitu
articles have not been complied with and that no election or plebiscite for ratification as therein provided as well as in
of Article XVII of the proposed Constitution itself   has been called or held, there cannot be said to have been a valid
51

2. Petitioners raised serious questions as to the veracity and genuineness of the reports or certificates of results purp
showing unaccountable discrepancies in seven figures in just five provinces   between the reports as certified by the
52

of Local Governments and the reports as directly submitted by the provincial and city executives, which latter reports
respondents disclaimed inter alia as not final and complete or as not signed;   whether the reported votes of approva
53

proposed Constitution conditioned upon the non-convening of the interim National Assembly provided in Article XVII,
thereof,   may be considered as valid; the allegedly huge and uniform votes reported; and many others.
54

3. These questions only serve to justify and show the basic validity of the universal principle governing written constit
proposed amendments thereto or in replacement thereof may be ratified only in the particular mode or manner prescr
by the people. Under Article XV, section 1 of our Constitution, amendments thereto may be ratified only in the one wa
provided, i.e. in an election or plebiscite held in accordance with law and duly supervised by the Commission on Elec
which is participated in only by qualified and duly registered voters. In this manner, the safeguards provided by the el
generally assure the true ascertainment of the results of the vote and interested parties would have an opportunity to
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 Proclama
itself which shows on its face, as already stated, that the mandatory amending process required by the (1935) Consti
not observed, the cases at bar need not reach the stage of answering the host of questions, raised by petitioners aga
procedure observed by the Citizens Assemblies and the reported referendum results — since the purported ratificatio
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 November 22, 1973, and "as agent of the Convention the Pre
55

devise other forms of plebiscite to determine the will of the majority vis-a-vis the ratification of the proposed Constituti

The minutes of November 22, 1972, of the Convention, however, do not at all support this contention. On the contrary
minutes fully show that the Convention's proposal and "agency" was that the President issue a decree precisely callin
a plebiscite for the ratification of the proposed new Constitution on an appropriate date, under the charge of the Com
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, t
resolution portion of which read as follows:

"RESOLVED, AS IT IS HEREBY RESOLVED, that the 1971 Constitutional Co

propose to President Ferdinand E. Marcos that a decree be issued calling a pl
the ratification of the proposed New Constitution on such appropriate date as h
 determine and providing for the necessary funds therefor, and that copies of th
resolution as approved in plenary session be transmitted to the President of th
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
November 1972 according to the Convention's timetable, it would be necessary to lay the grou
the appropriate agencies of the government to undertake the necessary preparation for the pl

xxx xxx xxx

12.2 Interpellating, Delegate Pimentel (V.) contended that the resolution was unnecessary bec
section 15, Article XVII on the Transitory Provision, which had already been approved on seco
third readings, provided that the new constitution should be ratified in a plebiscite called for th
by the incumbent President. Delegate Duavit replied that the provision referred to did not inclu
the appropriation of funds for the plebiscite and that, moreover, the resolution was intended to
formal notice to the President and the Commission on Elections to initiate the necessary prep

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 signif
the new charter. Delegate Duavit agreed, adding that this was precisely why the resolution wa
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 o
adoption of the new Constitution would not suffice considering that under Section 15 of the Tr
Provisions, the President would be duty-bound to call a plebiscite for its ratification. Delegate
replied in the negative, adding that the resolution was necessary to serve notice to the proper
to prepare everything necessary for the plebiscite.

12.6 In reply to Delegate Britanico, Delegate Duavit stated that the mechanics for the holding
the plebiscite would be laid down by the Commission on Elections in coordination with the Pre

12.7 Delegate Catan inquired if such mechanics for the plebiscite could include a partial lifting
law in order to allow the people to assemble peaceably to discuss the new Constitution. Deleg
suggested that the Committee on Plebiscite and Ratification could coordinate with the COMEL
matter.

12.8 Delegate Guzman moved for the previous question. The Chair declared that there was o
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
in view of the provision of section 15, Article XVII on the Transitory Provisions. Delegate Duav
disagreed, pointing out that the said provision did not provide for the funds necessary for the p

13. Delegate Ozamiz then moved to close the debate and proceed to the period of amendmen

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
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 h

I, therefore, vote to deny respondents' motion to dismiss and to give due course to the petitions.

Promulgated: Ju

ANTONIO, J., concurring:

In conformity with my reservation, I shall discuss the grounds for my concurrence.

It is my view that to preserve the independence of the State, the maintenance of the existing constitutional order and
of the political and social liberties of the people, in times of a grave emergency, when the legislative branch of the gov
unable to function or its functioning would itself threaten the public safety, the Chief Executive may promulgate meas
legislative in character, for the successful prosecution of such objectives. For the "President's power as Commander-
been transformed from a simple power of military command to a vast reservoir of indeterminate powers in time of em
In other words, the principal canons of constitutional interpretation are ... set aside so far as concerns both the scope
national power and the capacity of the President to gather unto himself all constitutionally available powers in order th
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 po
government in a constitutional democracy entails the concentration of governmental power. "The more complete the
of powers in a constitutional system, the more difficult, and yet the more necessary" according to Rossiter, "will be the
time of crisis... The power of the state in crisis must not only be concentrated and expanded, it must be freed from the
system of constitutional and legal limitations. One of the basic features of emergency powers is the release of the gov
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 perso
Chief Executive. "Energy in the executive," according to Hamilton, "is essential to the protection of the community aga
attacks ... to the protection of property against those irregular and high-handed combinations which sometimes interru
ordinary course of justice; to the security of liberty against the enterprises and assaults of ambition, of faction, and of
(The Federalist, Number 70). "The entire strength of the nation", said Justice Brewer in the Debs case (158 U.S. 564;
1092), "may be used to enforce in any part of the land the full and free exercise of all national powers and the securit
entrusted by the constitution to its care." The marshalling and employment of the "strength of the nation" are matters
discretion of the Chief Executive. The President's powers in time of emergency defy precise definition since their exte
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 Pres
the Executive power, with the added specific grant of power under the "Commander-in-Chief" clause of the constitutio
contours of such powers have been shaped more by a long line of historical precedents of Presidential action in times
rather than judicial interpretation. Lincoln wedded his powers under the "commander-in-chief" clause with his duty "to
that the laws be faithfully executed," to justify the series of extraordinary measures which he took — the calling of vo
military service, the augmentation of the regular army and navy, the payment of two million dollars from unappropriate
the Treasury to persons unauthorized to receive it, the closing of the Post Office to "treasonable correspondence", the
of southern ports, the suspension of the writ of habeas corpus, the arrest and detention of persons "who were repres
him" as being engaged in or contemplating "treasonable practices" — all this for the most part without the least statu
authorization. Those actions were justified by the imperatives of his logic, that the President may, in an emergency th
him to require it, partially suspend the constitution. Thus his famous question: "Are all laws but one to be unexecuted
Government itself go to pieces lest that one be violated?" The actions of Lincoln "assert for the President", according
"an initiative of indefinite scope and legislative in effect in meeting the domestic aspects of a war emergency." (Corwi
President: Office & Powers, p. 280 [1948]). The facts of the civil war have shown conclusively that in meeting the dom
problems as a consequence of a great war, an indefinite power must be attributed to the President to take emergency
The concept of "emergency" under which the Chief Executive exercised extraordinary powers underwent correlative e
during the first and second World Wars. From its narrow concept as an "emergency" in time of war during the Civil W
World War I, the concept has been expanded in World War II to include the "emergency" preceding the war and even
"The Second World War" observed Corwin and Koenig, was the First World War writ large, and the quasi-legislative p
Franklin Roosevelt as "Commander-in-Chief in wartime"... burgeoned correspondingly. The precedents were there to
most of them from the First World War, but they proliferated amazingly. What is more, Roosevelt took his first step to
some fifteen months before our entrance into shooting war. This step occurred in September, 1940, when he handed
so-called overage destroyers to Great Britain. The truth is, they were not overage, but had been recently reconditione
recommissioned. ... Actually, what President Roosevelt did was to take over for the nonce Congress's power to dispo
property of the United States (Article IV, Section 3) and to repeal at least two statutes." (Corwin & Koenig, The Presid
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 W
on the basis of his powers under the "Commander-in-Chief" clause created "offices" which were copied in lavish scale
President Roosevelt in World War II. In April 1942, thirty-five "executive agencies" were purely of Presidential creation
7, 1941 on the basis of his powers as "Commander-in-Chief", he issued an executive order seizing the North America
plant of Inglewood, California, where production stopped as a consequence of a strike. This was justified by the gove
the exercise of presidential power growing out of the "duty constitutionally and inherently resting upon the President t
civil and military as well as his moral authority to keep the defense efforts of the United States a going concern" as we
obtain supplies for which Congress has appropriated money, and which it has directed the President to obtain." On a
justification, other plants and industries were taken over by the government. It is true that in Youngstown Sheet & Tub
Sawyer (343 U.S. 579; 72 S. Ct. 863; 96 L. Ed. 1153, [1952]), the Supreme Court of the United States did not sustain
that the President could, as the Nation's Chief Executive and Commander-in-Chief of the armed forces, validly order
of most of the country's steel mills. The Court however did not face the naked question of the President's power to se
plants in the absence of any congressional enactment or expressions of policy. The majority of the Court found that th
legislative occupation of the field made untenable the President's claim of authority to seize the plants as an exercise
executive power or as Commander-in-Chief. Justice Clark, in his concurrence to the main opinion of the Court, explic
that the President does possess, in the absence of restrictive legislation, a residual or resultant power above or in con
of his granted powers, to deal with emergencies that he regards as threatening the national security. The same view
with vague qualification by Justices Frankfurter and Jackson, two of the concurring Justices. The three dissenting Jus
speaking through Chief Justice Vinson, apparently went further by quoting with approval a passage extracted from th
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 c
sustained the power of the President to order withdrawals from the public domain not only without Congressional san
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 Pres
times of a grave crisis does not possess a residual power above or in consequence of his granted powers, to deal wit
emergencies that he regards as threatening the national security. The lesson of the Steel Seizure case, according to
Koenig, "Unquestionably ... tends to supplement presidential emergency power to adopt temporary remedial legislatio
Congress has been, in the judgment of the President, unduly remiss in taking cognizance of and acting on a given sit
(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
prerogative as described by John Locke, of a power to wit, to fill needed gaps in the law, or even to supersede it so fa
requisite to realize the fundamental law of nature and government, namely, that as much as may be all the members
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 po
Presidential Decree Nos. 86 and 86-A as well as Proclamation No. 1102, since these measures were considered indi
to effect the desired reforms at the shortest time possible and hasten the restoration of normalcy? It is unavailing for p
to contend that we are not faced by an actual "shooting war" for today's concept of the emergency which justified the
those powers has of necessity been expanded to meet the exigencies of new dangers and crisis that directly threaten
nation's continued and constitutional existence. For as Corwin observed: "... today the concept of 'war' as a special ty
emergency warranting the realization of constitutional limitations tends to spread, as it were, in both directions, so tha
not only "the war before the war," but the 'war after the war.' Indeed, in the economic crisis from which the New Deal
to have issued, the nation was confronted in the opinion of the late President with an 'emergency greater than war'; a
sustaining certain of the New Deal measures the Court invoked the justification of 'emergency.' In the final result cons
practices of wartime have moulded the Constitution to greater or less extent for peacetime as well, seem likely to do s
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 op
large numbers of citizens who are engaged in violent insurrection against enforcement of its la
bent on capturing it illegally or destroying it altogether. The third crisis, one recognized particu
modern times as sanctioning emergency action by constitutional governments, is economic de
The economic troubles which plagued all the countries of the world in the early thirties involve
governmental methods of an unquestionably dictatorial character in many democracies. It was
acknowledged that an economic existence as a war or a rebellion. And these are not the only
which have justified extraordinary governmental action in nations like the United States. Fire,
drought, earthquake, riots, great strikes have all been dealt with by unusual and of dictatorial m
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 regar
tenets of free enterprise, hardships caused by the eruptions of nature cannot be mitigated lett
take its course. The Civil War, the depression of 1933 and the recent global conflict were not a
not have been successfully resolved by governments similar to those of James Buchanan, Wi
Howard Taft, or Calvin Coolidge. (Rossiter, Constitutional Dictatorship — Crisis of Governme
Modern Democracies, p. 6 [1948).

II

We are next confronted with the insistence of Petitioners that the referendum in question not having been done inacc
with the provisions of existing election laws, which only qualified voters who are allowed to participate, under the supe
the Commission on Elections, the new Constitution, should therefore be a nullity. Such an argument is predicated upo
assumption, that Article XV of the 1935 Constitution provides the method for the revision of the constitution, and auto
apply in the final approval of such proposed new Constitution the provisions of the election law and those of Article V
the old Constitution. We search in vain for any provision in the old charter specifically providing for such procedure in
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 r

the whole constitution. The act of amending a constitution, on the other hand, envisages a change of only specific pro
The intention of an act to amend is not the change of the entire constitution but only the improvement of specific parts
existing constitution of the addition of provisions deemed essential as a consequence of new constitutions or the elim
parts already considered obsolete or unresponsive to the needs of the times.  The 1973 Constitution is not a mere am
1

the 1935 Constitution. It is a completely new fundamental charter embodying new political, social and economic conc

According to an eminent authority on Political Law, "The Constitution of the Philippines and that of the United States e
provide merely for methods of amendment. They are silent on the subject of revision. But this is not a fatal omission.
nothing that can legally prevent a convention from actually revising the Constitution of the Philippines or of the United
even were such conventions called merely for the purpose of proposing and submitting amendments to the people. F
final analysis, it is the approval of the people that gives validity to any proposal of amendment or revision." (Sinco, Ph
Political Law, p. 49).

Since the 1935 Constitution does not specifically provide for the method or procedure for the revision or for the appro
constitution, should it now be held, that the people have placed such restrictions on themselves that they are not disa
exercising their right as the ultimate source of political power from changing the old constitution which, in their view, w
responsive to their needs and in adopting a new charter of government to enable them to rid themselves from the sha
traditional norms and to pursue with new dynamism the realization of their true longings and aspirations, except in the
and form provided by Congress for previous plebiscites? Was not the expansion of the base of political participation,
inclusion of the youth in the process of ratification who after all constitute the preponderant majority more in accord w
and philosophy of the constitution that political power is inherent in the people collectively? As clearly expounded by J
Makasiar, in his opinion, in all the cases cited where the Courts held that the submission of the proposed amendmen
due to the absence of substantial compliance with the procedure prescribed by the constitution, the procedure prescr
state Constitution, is so detailed, that specified the manner in which such submission shall be made, the persons qua
vote for the same, the date of election and other definite standards, from which the court could safely ascertain wheth
the submission was in accordance with the Constitution. Thus the case of In re McConaughy (119 N.E. 408) relied up
the dissenting opinions involved in the application of the provisions of the state Constitution of Minnesota which clear
prescribed in detail the procedure under which the Constitution may be amended or revised.  This is not true with our
2

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 re
the entire constitution, and if such was their intention, they could and should have so provided. Precedents were not w
The constitutions of the various states of the American Union did provide for procedures for their amendment and me
their revision.
4

Certainly We cannot, under the guise of interpretation, modify, revise, amend, remodel or rewrite the 1935 Charter. T
what the law is, or has been, is a judicial power, but to declare what the law shall be is not within Our judicial compete
authority.

Upon the other hand, since our fundamental charter has not provided the method or procedure for the revision or com
change of the Constitution, it is evident that the people have reserved such power in themselves. They decided to ex
through their legislature, but through a Convention expressly chosen for that purpose. The Convention as an indepen
sovereign body has drafted not an amendment but a completely new Constitution, which decided to submit to the peo
approval, not through an act of Congress, but by means of decrees to be promulgated by the President. In view of the
Congress to act, it was within the constitutional powers of the President, either as agent of the Constitutional Conven
under his authority under martial law, to promulgate the necessary measures for the ratification of the proposed new
The adoption the new Charter was considered as a necessary basis for all the reforms set in motion under the new s
root out the causes of unrest. The imperatives of the emergency underscored the urgency of its adoption. The people
accepting such procedure and in voting overwhelmingly for the approval of the new Constitution have, in effect, ratifie
method and procedure taken. "When the people adopt completely revised or new constitution," said the Court in Whe
Board of Trustees (37 SE 2nd 322, 326-330), "the framing or submission of the instrument is not what gives it binding
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 a
on their authority and instituted for their benefit. Thus Section 1 of Article II of the 1935 Constitution declares that: "So
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 g
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
it has been accepted and acquiesced in by the people as shown by their compliance with the decree promulgated the
their cooperation in its implementation, and is now maintained by the Government that is in undisputed authority and

Of course it is argued that acquiescence by the people can be deduced from their acts of conformity, because under
martial law the people are bound to obey and act in conformity with the orders of the President, and has absolutely no
choice. The flaw of this argument lies in its application of a mere theoretical assumption based on the experiences of
nations on an entirely different factual setting. Such an assumption flounders on the rock of reality. It is true that as a
martial law is the use of military forces to perform the functions of civil government. Some courts have viewed it as a
regime which can be imposed in emergency situations. In other words, martial rule exists when the military rises supe
civil power in the exercise of some or all the functions of government. Such is not the case in this country. The govern
functions thru its civilian officials. The supremacy of the civil over the military authority is manifest. Except for the impo
curfew hours and other restrictions required for the security of the State, the people are free to pursue their ordinary c

In short, the existing regime in this Country, does not contain the oppressive features, generally associated with a reg
Martial law in other countries. "Upon the other hand the masses of our people have accepted it, because of its manifo
blessings. The once downtrodden rice tenant has at long last been emancipated — a consummation devoutly wished
Philippine President since the 1930's. The laborer now holds his head high because his rights are amply protected an
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 S
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 ma
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
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 ha
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
United States Senate. "President Marcos has been prompt and sure-footed in using the power of presidential decree
martial law for this purpose. He has zeroed in on areas which have been widely recognized as prime sources of the n
difficulties — land tenancy, official corruption, tax evasion and abuse of oligarchic economic power. Clearly he knows
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 le
approve urgently needed reforms. He found his second term further frustrated by spread riots
uprising in Luzon and a much more serious Moslem insurrection in the southern islands from
across the Sulu archipelago to the frontier regions of Malaysia and Indonesia. Manila claims th
Maoist-coordinated.

Mr. Marcos has now in effect taken all the reins of power and makes no promise as to when h
relinquish them. But, while fettering a free press, terminating Congress and locking up some o
(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
funds. New roads have been started. The educational system is undergoing revision, a corrup
diminished. In non-communist Asia it is virtually impossible to wholly end it and this disagreea
 phenomenon still reaches very high.

Mr. Marcos, an imaginative, gifted man, hopes to reshape society by creating an agrarian mid
replace the archaic sharecropper-absentee landlord relationship. He is even pushing for a birt
program with the tacit acceptance of the Catholic Church. He has started labor reforms and in
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 petitioner

The new Constitution is considered effective "if the norms created in conformity with it are by and large applied and o
soon as the old Constitution loses its effectiveness and the new Constitution has become effective, the acts that appe
subjective meaning of creating or applying legal norms are no longer interpreted by presupposing the old basic norm,
presupposing the new one. The statutes issued under the old Constitution and not taken over are no longer regarded
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, w
assailed is not merely the validity of Proclamation No. 1102 of the President, which is merely declaratory of the fact o
or ratification, but the legitimacy of the government. It is addressed more to the framework and political character of th
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 ju
expound and administer them. If it decides at all as a court, it necessarily affirms the existence and authority of the go
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 Cour
existence is affected by such change is, in the words of Mr. Melville Fuller Weston, "precluded from passing upon the
change by a logical difficulty which is not to be surmounted."  Such change in the organic law relates to the existence
5

point in the Court's "chain of title" to its authority and "does not relate merely to a question of the horizontal distributio
powers."  It involves in essence a matter which "the sovereign has entrusted to the so-called political departments of
6

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 C
consistently recognized," said Justice Frankfurter, in his illuminating dissent in Baker v. Carr, 369 U.S. 186, 7 L. Ed. 2
726, 727), "a class of controversies which do not lend themselves to judicial standards and judicial remedies. To clas
various instances as "political questions" is rather a form of stating this conclusion than revealing of analysis ... The c
matter is that courts are not fit instruments of decision where what is essentially at stake is the composition of those l
contests of policy traditionally fought out in non-judicial forums, by which governments and the actions of government
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 o
"wrong" views of the Constitution. It is one of attitudes and values. For there is scarcely any principle, authority or inte
which has not been countered by the opposite. At bottom, it is the degree of one's faith — in the nation's leadership a
maturity of judgment of our people.

IN VIEW OF THE FOREGOING, the dismissal of these five cases, and the conclusion of this
judgment of March question becomes wholly moot except for this consideration, that, when th
individuals or as a body of individuals come to decide which king or which constitution they wi
and assert to represent, it may often be good judgment for them to follow the lead of the men
practical matter are likely to be looked to by the people as more representative of themselves
 conversely are likely to be more directly in touch with popular sentiment. If, however, the judge
strong views of their own to be able to take this course, they may follow their own leads at the
hazard. No question of law is involved. (Political Questions, 38 Harvard Law Review [1924-25
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 leg
The secretary of state shall prepare a ballot title and proposition summarizing each proposed amendment, and shall p
on the ballot for the next statewide election. If a majority of the votes cast on the proposition favor the amendment, it
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
shall place on the ballot for the next general election the question: "Shall there be a Constitutional Convention?" If a m
the votes cast on the question are in the negative, the question need not be placed on the ballot until the end of the n
period. If a majority of the votes cast on the question are in the affirmative, delegates to the convention shall be chose
next regular statewide election, unless the legislature provides for the election of the election delegates at a special e
secretary of state shall issue the call for the convention. Unless other provisions have been made by law, the call sha
as nearly as possible to the act calling the Alaska Constitutional Convention of 1955, including, but not limited to, num
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
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 Sen
Assembly, and if two-thirds of all the members elected to each of the houses shall vote in favor thereof, such propose
amendment or amendments shall be entered in their Journals, with the yeas and nays taken thereon; and it shall be t
the Legislature to submit such proposed amendment or amendments to the people in such manner, and at such time
such publication as may be deemed expedient. Should more amendments than one be submitted at the same electio
be so prepared and distinguished, by numbers or otherwise, that each can be voted on separately. If the people shall
and ratify such amendment or amendments, or any of them, by a majority of the qualified electors voting thereon suc
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 sha
necessary to revise this Constitution, they shall recommend to the electors to vote at the next general for or against a
for that purpose, and if a majority of the electors voting at such election on the proposition for a Convention shall vote
thereof, the Legislature shall, at its next session, provide by law for calling the same. The Convention shall consist of
delegates not to exceed that of both branches of the Legislature, who shall be chosen in the same manner, and have
qualifications, as Members of the Legislature. The delegates so elected shall meet within three months after their elec
place as the Legislature may direct. At a special election to be provided for by law, the Constitution that may be agre
such Convention shall be submitted to the people for their ratification or rejection, in such manner as the Convention
determine. The returns of such election shall, in such manner as the Convention shall direct, be certified to the Execu
State, who shall call to his assistance the Controller, Treasurer, and Secretary of State, and compare the returns so c
him; and it shall be the duty of the Executive to declare, by his proclamation, such Constitution, as may have been ra
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 m
elected to each house, recommend to the electors of the state, to vote at the next general election for or against a co
to revise, alter and amend this constitution; and if a majority of those voting on the question shall declare in favor of s
convention, the general assembly shall, at the next session, provide for the calling thereof. The number of members o
convention shall be twice that of the senate and they shall be elected in the same manner, at the same places, and in
districts. The general assembly shall, in the act calling the convention, designate the day, hour and place of its meetin
pay of its members and officers, and provide for the payment of the same, together with the necessary expenses of th
convention. Before proceeding, the members shall take an oath to support the constitution of the United States, and o
of Colorado, and to faithfully discharge their duties as members of the convention. The qualifications of members sha
same as of members of the senate; and vacancies occurring shall be filled in the manner provided for filling vacancie
general assembly. Said convention shall meet within three months after such election and prepare such revisions, alt
amendments to the constitution as may be deemed necessary; which shall be submitted to the electors for their ratific
rejection at an election appointed by the convention for that purpose, not less than two nor more than six months afte
adjournment thereof; and unless so submitted and approved by a majority of the electors voting at the election, no su
alteration or amendment shall take effect.

Sec. 2. Amendments to constitution; how adopted. Any amendment or amendments to this constitution may be propo
either house of the general assembly, and if the same shall be voted for by two-thirds of all the members elected to e
such proposed amendment or amendments, together with the ayes and noes of each house hereon, shall be entered
their respective journals; the proposed amendment or amendments shall be published with the laws of that session o
general assembly, and the secretary of state shall also cause the said amendment or amendments to be published in
more than one newspaper of general circulation in each county, for four successive weeks previous to the next gener
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 votin
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
separately and votes thereon cast shall be separately counted the same as though but one amendment was submitte
general assembly shall have no power to propose amendments to more than six articles of this constitution at the sam

4. Delaware (1897) — Art. XVI. Amendments and Conventions.

Sec. 1. Proposal of constitutional amendments in general assembly; procedure. Any amendment or amendments to t
Constitution may be proposed in the Senate or House of Representatives; and if the same shall be agreed to by two-
the members elected to each House, such proposed amendment or amendments shall be entered on their journals, w
yeas and nays taken thereon, and the Secretary of State shall cause such proposed amendment or amendments to b
three months before the next general election in at least three newspapers in each County in which such newspaper
published; and if in the General Assembly next after the said election such proposed amendment or amendments sha
and nay vote be agreed to by two-thirds of all the members elected to each House, the same shall thereupon become
Constitution.

Sec. 2. Constitutional conventions; procedure; compensation of delegates; quorum; powers and duties; vacancies. T
Assembly by a two-thirds vote of all the members elected to each House may from time to time provide for the submi
qualified electors of the State at the general election next thereafter the question, "Shall there be a Convention to rev
Constitution and amend the same?;" and upon such submission, if a majority of those voting on said question shall de
favor of a Convention for such purpose, the General Assembly at its next session shall provide for the election of dele
such convention at the next general election. Such Convention shall be composed of forty-one delegates, one of who
chosen from each Representative District by the qualified electors thereof, and two of whom shall be chosen from Ne
County, two from Kent County and two from Sussex County by the qualified electors thereof respectively. The delega
chosen shall convene at the Capital of the State on the first Tuesday in September next after their election. Every del
receive for his services such compensation as shall be provided by law. A majority of the Convention shall constitute
for the transaction of business. The Convention shall have the power to appoint such officers, employees and assista
may be deem necessary, and fix their compensation, and provide for the printing of its documents, journals, debates
proceedings. The Convention shall determine the rules of its proceedings, and be the judge of the elections, returns a
qualifications of its members. Whenever there shall be a vacancy in the office of delegate from any district or county b
failure to elect, ineligibility, death, resignation or otherwise, a writ of election to fill such vacancy shall be issued by the
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
ordinary session thereof called for such purpose either in the governor's original call or any amendment thereof, may
revision or amendment of any portion or portions of this Constitution. Any such revision or amendment may relate to
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 e
upon their respective journals with the yeas and nays and published in one newspaper in each county where a newsp
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 o
for approval or rejection at the next general election, provided, however, that such revision or amendment may be su
approval or rejection in a special election under the conditions described in and in the manner provided by Section 3
XVII of the Constitution. If a majority of the electors voting upon the amendment adopt such amendment the same sh
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 bo
shall determine that a revision of this Constitution is necessary, such determination shall be entered upon their respe
Journals, with yea's and nay's thereon. Notice of said action shall be published weekly in one newspaper in every cou
which a newspaper is published, for three months preceding the next general election of Representatives, and in thos
where no newspaper is published, notice shall be given by posting at the several polling precincts in such counties fo
next preceding said election. The electors at said election may vote for or against the revision in question. If a majorit
electors so voting be in favor of revision, the Legislature chosen at such election shall provide by law for a Conventio
the Constitution, said Convention to be held within six months after the passage of such law. The Convention shall co
number equal to the membership of the House of Representatives, and shall be apportioned among the several coun
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 i
branch of the legislature, and if the same shall be agreed to by two-thirds of all the members of each of the two house
separately, such proposed amendment or amendments shall, with the yeas and nays thereon, be entered on their jou
shall be the duty of the legislature to submit such amendment or amendments to the electors of the state at the next g
election, and cause the same to be published without delay for at least six consecutive weeks, prior to said election, i
than one newspaper of the general circulation published in each county; and if a majority of the electors shall ratify th
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 l
shall deem it necessary to call a convention to revise or amend this Constitution, they shall recommend to the elector
the next general election, for or against a convention, and if a majority of all the electors voting at said election shall h
for a convention, the legislature shall at the next session provide by law for calling the same; and such convention sh
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 ea
year thereafter, and also at such times as the General Assembly may, by law, provide, the question, "Shall there be a
to revise the Constitution, and amend the same?" shall be decided by the electors qualified to vote for members of th
Assembly; and in case a majority of the electors so qualified, voting at such election, for and against such proposition
decide in favor of a Convention for such purpose, the General Assembly, at its next session, shall provide by law for t
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
constitution may be proposed in the senate or house of representatives. If the same shall be agreed to by 2/3 of the m
elected to each house, such amendment or amendments shall be entered on the journals, respectively, with the yeas
taken thereon; and the same shall be submitted to the electors at the next spring or autumn election thereafter, as the
shall direct; and, if a majority of the electors qualified to vote for members of the legislature voting thereon shall ratify
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 s
year thereafter and at such times as may be provided by law, the question of a General Revision of the Constitution s
submitted to the Electors qualified to vote for members of the Legislature. In case a majority of the Electors voting on
question shall decide in favor of a Convention for such purpose, at an Election to be held not later than four months a
Proposal shall have been certified as approved, the Electors of each House of Representatives District as then organ
Elect One Delegate for each Electors of each Senatorial District as then organized shall Elect One Delegate for each
Senator to which the District is entitled. The Delegates so elected shall convene at the Capital City on the First Tuesd
October next succeeding such election, and shall continue their sessions until the business of the convention shall be
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
unless by the assent of a majority of all the delegates elected to the convention, the yeas and nays being entered on
Any proposed constitution or amendments adopted by such convention shall be submitted to the qualified electors in
provided by such convention on the first Monday in April following the final adjournment of the convention; but, in cas
of at least 90 days shall not intervene between such final adjournment and the date of such election. Upon the approv
constitution or amendments by a majority of the qualified electors voting thereon such constitution or amendments sh
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 o
houses of the legislature shall deem it necessary to alter or amend this Constitution, they may proposed such alterati
or amendments, which proposed amendments shall be published with the laws which have been passed at the same
and said amendments shall be submitted to the people for their approval or rejection at any general election, and if it
appear, in a manner to be provided by law, that a majority of all the electors voting at said election shall have voted fo
ratified such alterations or amendments, the same shall be valid to all intents and purposes as a part of this Constitut
more alterations or amendments shall be submitted at the same time, it shall be so regulated that the voters shall vot
against each separately.

Sec. 2. Revision of constitution. Whenever two-thirds of the members elected to each branch of the legislature shall t
necessary to call a convention to revise this Constitution, they shall recommend to the electors to vote at the next gen
election for members of the legislature, for or against a convention; and if a majority of all the electors voting at said e
have voted for a convention, the legislature shall, at their next session, provide by law for calling the same. The conve
consist of as many members as the House of Representatives, who shall be chosen in the same manner, and shall m
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 consti
submit any revision thereof by said convention to the people of the State of Minnesota for their approval or rejection a
general election held not less than 90 days after the adoption of such revision, and, if it shall appear in the manner p
law that three-fifths of all the electors voting on the question shall have voted for and ratified such revision, the same
constitute a new constitution of the State of Minnesota. Without such submission and ratification, said revision shall b
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 propose
Senate or Assembly; and if the same shall be agreed to by a Majority of all the members elected to each of the two h
proposed amendment or amendments shall be entered on their respective journals, with the Yeas and Nays taken th
referred to the Legislature then next to be chosen, and shall be published for three months next preceding the time of
such choice. And if in the Legislature next chosen as aforesaid, such proposed amendment or amendments shall be
by a majority of all the members elected to each house, then it shall be the duty of the Legislature to submit such pro
amendment or amendments to the people, in such manner and at such time as the Legislature shall prescribe; and if
shall approve and ratify such amendment or amendments by a majority of the electors qualified to vote for members
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 M
elected to each house, shall determine that it is necessary to cause a revision of this entire Constitution they shall rec
the electors at the next election for Members of the Legislature, to vote for or against a convention, and if it shall appe
majority of the electors voting at such election, shall have voted in favor of calling a Convention, the Legislature shall,
session provide by law for calling a Convention to be holden within six months after the passage of such law, and suc
Convention shall consist of a number of Members not less that of both branches of the legislature. In determining wha
majority of the electors voting such election, reference shall be had to the highest number of vote cast at such electio
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 town
places in this state, in warning the first annual meetings for the choice of senators, after the expiration of seven years
adoption of this constitution, as amended, to insert expressly in the warrant this purpose, among the others for the me
wit, to take the sense of the qualified voters on the subject of a revision of the constitution; and, the meeting being wa
accordingly, and not otherwise, the moderator shall take the sense of the qualified voters present as to the necessity
revision; and a return of the number of votes for and against such necessity, shall be made by the clerk sealed up, an
to the general court at their then next session; and if, it shall appear to the general court by such return, that the sens
people of the state has taken, and that, in the opinion of the majority of the qualified voters in the state, present and v
meetings, there is a necessity for a revision of the constitution, it shall be the duty of the general court to call a conve
purpose, otherwise the general court shall direct the sense of the people to be taken, and then proceed in the manne
mentioned. The delegates to be chosen in the same manner, and proportioned, as the representatives to the general
provided that no alterations shall be made in this constitution, before the same shall be laid before the towns and unin
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 Constitu

proposed in either branch of the Legislature, and if the same shall be agreed to by a majority of all the members elec
of the two houses, such proposed amendment or amendments shall, with yeas and nays thereon, be entered in their
and referred by the Secretary of State to the people for their approval or rejection, at the next regular general election
when the Legislature, by a two-thirds vote of each house, shall order a special election for that purpose. If a majority
the electors voting at such election shall vote in favor of any amendment thereto, it shall thereby become a part of thi
Constitution.

If two or more amendments are proposed they shall be submitted in such manner that electors may vote for or agains
separately.

No proposal for the amendment or alteration of this Constitution which is submitted to the voters shall embrace more
general subject and the voters shall vote separately for or against each proposal submitted; provided, however, that i
submission of proposals for the amendment of this Constitution by articles, which embrace one general subject, each
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 L
propose alterations, revisions, or amendments to this Constitution, or to propose a new Constitution, unless the law p
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 elec
State at a general or special election and be approved by a majority of the electors voting thereon, before the same s
effective Provided, That the question of such proposed convention shall be submitted to the people at least once in e
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 ei
of the legislative assembly, and if the same shall be agreed to by a majority of all the members elected to each of the
houses, such proposed amendment or amendments shall, with the yeas and nays thereon, be entered in their journa
referred by the secretary of state to the people for their approval or rejection, at the next regular election, except whe
legislative assembly shall order a special election for that purpose. If a majority of the electors voting on any such am
shall vote in favor thereof, it shall thereby become a part of this Constitution. The votes for and against such amendm
or amendments, severally, whether proposed by the legislative assembly or by initiative petition, shall be canvassed b
secretary of state in the presence of the governor, and if it shall appear to the governor that the majority of the votes c
election on said amendment, or amendments, severally, are cast in favor thereof, it shall be his duty forthwith after su
by his proclamation, to declare the said amendment, or amendments, severally, having received said majority of vote
been adopted by the people of Oregon as part of the Constitution thereof, and the same shall be in effect as a part of
Constitution from the date of such proclamation. When two or more amendments shall be submitted in the manner af
the voters of this state at the same election, they shall be so submitted that each amendment shall be voted on separ
convention shall be called to amend or propose amendments to this Constitution, or to propose a new Constitution, u
law providing for such convention shall first be approved by the people on a referendum vote at a regular general ele
article shall not be construed to impair the right of the people to amend this Constitution by vote upon an initiative pet
therefor.

Sec. 2. Method of revising constitution. (1) In addition to the power to amend this Constitution granted by section 1, A
and section 1 of this Article, a revision of all or part of this Constitution may be proposed in either house of the Legisl
Assembly and, if the proposed revision is agreed to by at least two-thirds of all the members of each house, the propo
revision shall, with the yeas and nays thereon, be entered in their journals and referred by the Secretary of State to th
their approval or rejection, notwithstanding section 1, Article IV of this Constitution, at the next regular state-wide prim
election, except when the Legislative Assembly orders a special election for that purpose. A proposed revision may d
more than one subject and shall be voted upon as one question. The votes for and against the proposed revision sha
canvassed by the Secretary of State in the presence of the Governor and, if it appears to the Governor that the major
votes cast in the election on the proposed revision are in favor of the proposed revision, he shall, promptly following t
declare, by his proclamation, that the proposed revision has received a majority of votes and has been adopted by th
the Constitution of the State of Oregon, as the case may be. The revision shall be in effect as the Constitution or as a
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 eith
the Legislature, and if two-thirds of all the members elected of the two houses, shall vote in favor thereof, such propo
amendment or amendments shall be entered on their respective journals with the yeas and nays taken thereon; and
Legislature shall cause the same to be published in at least one newspaper in every county of the State, where a new
published, for two months immediately preceding the next general election, at which time the said amendment or ame
shall be submitted to the electors of the State, for their approval or rejection, and if a majority of the electors voting th
approve the same, such amendment or amendments shall become part of this Constitution. If two or more amendme
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 th
Legislature, shall deem it necessary to call a convention to revise or amend this Constitution, they shall recommend
electors to vote at the next general election, for or against a convention, and, if a majority of all the electors, voting at
election, shall vote for a convention. The Legislature, at its next session, shall provide by law for calling the same. Th
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 b
the legislature, and, if the same shall be agreed to by two-thirds of all the members of the two houses, voting separat
proposed amendment or amendments shall, with the yeas and nays thereon, be entered on their journals, and it shal
of the legislature to submit such amendment or amendments to the electors of the state at the next general election,
one newspaper of general circulation, published in each county, and if a majority of the electors shall ratify the same,
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 ele
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 le
shall deem it necessary to call a convention to revise or amend this constitution, they shall recommend to the elector
the next general election for or against a convention, and if a majority of all the electors voting at such election shall h
for a convention, the legislature shall at the next session provide by a law for calling the same; and such convention s
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 submitte
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 withdra
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 Electi
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. 96
McAdams v. Henley, 273 S.W. 355; Egbert v. City of Dunseith, 74 N.D. 1, 168 A.L.R. 621, 24
907; State ex rel. Landis, Atty. Gen. v. Thompson, 163 So. Rep. 270; St. Louis Brewing Assoc
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,
1968; Fernandez v. P. Cuerva & Co., L-21114, Nov. 25, 1967; Gonzales v. Commission on El
28224, Nov. 29, 1967; Bara Lidasan v. COMELEC, L-28089, Oct. 25, 1967; Mun. of San Juan
NAWASA, L-22047, Aug. 31, 1967; Mun. of San Joaquin v. Siva, L-19870, Mar. 18, 1967; Pel
Auditor General, L-23825, Dec. 24, 1965; Philippine Constitution Association v. Gimenez, L-2
18, 1965; Mun. of La Carlota v. NAWASA, L-20232, Sept. 30, 1964; Guevara v. Inocentes, L-2
15, 1966; Gillera v. Fernandez, L-20741, Jan. 31, 1964; Siguiente v. Secretary of Justice, L-20
29, 1963; Mun. of Naguilian v. NAWASA, L-18540, Nov. 29, 1963; Herrera v. Liwag, L-20079,
1963; Aytona v. Castillo, L-19313, Jan. 19, 1962; La Mallorca, etc. v. Ramos, et al., L-15476,
1961; Tan v. De Leon, et al., L-15254, Sept. 16, 1961; Macias v. Commission on Elections, L-
Sept. 14, 1961; Philippine Tobacco Flue-Curing & Redrying Corp. v. Sabugo, et al., L-16017,
1961; Miller v. Mardo, L-15138, July 31, 1961; Cu Bu Liong v. Estrella, et al., L-14212, July 31
Pampanga Sugar Development Co., Inc. v. Fuentes, et al., L-14738, July 31, 1961; Earnshaw
Honolulu Iron Works v. Mardo, et al., L-14759, July 31, 1961; Liwanag v. Central Azucarera D
L-15372, July 31, 1961; Lecura v. Regional Office No. 3, etc., L-15582, July 31, 1961; Pitogo
Trading Co., et al., L-15693, July 31, 1961; Pascual v. Sec. of Public Works and Communicat
10405, Dec. 29, 1960; Corominas, Jr. v. Labor Standards Commission, L-14837, June 30, 196
Baguio v. NAWASA, L-12032, Aug. 31, 1959; City of Cebu v. NAWASA, L-12892, April 20,196
v. Civil Service Board of Appeals, 101 Phil. 490, Rutter v. Esteban, 93 Phil. 68; Araneta v. Din
Phil. 368; Borromeo v. Mariano, 41 Phil. 322.

18 G.R. Nos. L-35925, L-35929, L-35940, L-35941, L-35942, L-35948, L-35953, L-35961,
L-35965 and L-35979, decided on January 22, 1973..

19 L-33964, Teodosio Lansang, et al. v. Brigadier-General Eduardo M. Garcia; L-33965, Roge

Arienda v. Secretary of National Defense, et al.; L-33973, Luzvimindo David v. Gen. Eduardo
al.; L-33962, Felicidad G. Prudente v. General Manuel Yan, et al.; L-34004, Domingo E. de La
Brigadier-General Eduardo M. Garcia; L-34013, Reynaldo Rimando v. Brig. Gen. Eduardo M.
34039, Carlos C. Rabago v. Brig. Gen. Eduardo Garcia, et al.; L-34265, Antolin Oreta, Jr. v. G
Eduardo Garcia, et al.; and L-34339, Gary B. Olivar, et al. v. Gen. Eduardo Garcia, et al.

20 5 Phil. 87.

21 91 Phil. 882.

22 G.R. Nos. L-28196 and L-28224, Nov. 9, 1967.

23 78 Phil. 1.

24 Supra.

25 In re McConaughy, 119 N.W. 408, 417.

26 103 Phil. 1051, 1067.

27 119 N.W. 408, 411, 417.

28 92 Ky. 589,18 S.W. 522, 523.

29 Citing Koehler v. Hill, 60 Iowa 543, 14 N.W. Rep. 738, and 15 N.W. Rep. 609; State v. Tufl
391, 12 Pac. Rep. 835.

30 Angara v. Electoral Commission, 63 Phil. 139, 157. Emphasis ours.

31 12 L. ed. 581 (1849).

32 Luther v. Borden, supra, p. 598. Emphasis ours.

33 In re McConaughy, supra, p. 416. Emphasis ours.

34 369 U.S. 186, 7 L. ed. 2d. 663, 82 S. Ct. 691 (March 26, 1962).

35 395 U.S. 486, 23 L. ed. 2d. 491, 89 S. Ct. 1944 (1969).

36 In re McConaughy, 119 N.W. 408, 415. Emphasis ours. The observation as to the uniformi
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.

39 Emphasis ours.

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 o
a foreign power, twenty-one years of age or over, who shall have been a resident of the Philip
one year and of the municipality in which he shall offer to vote for six months next preceding t
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 o
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 fo
purposes for a period not less than one year prior to the date of the election, or who annually
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, h
sentenced by final judgment to suffer not less than eighteen months of imprisonment, such dis
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
sworn statement to the satisfaction of the board of inspectors at any of its two meetings for reg
and revision, that they are incapacitated preparing their ballots due to permanent physical disa
present themselves at the hour of voting as incapacitated, irrespective whether such incapacit
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. V
procedures may be made either in writing as in regular elections, and/or declaration by the vo
board of election tellers. The board of election tellers shall be the same board envisioned by s
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; Ellin
(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 con
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 conferr
by the constitution itself."

Since suffrage, according to Webster, is a voice given not only in the choice of a man for an o
but, also, in deciding a controverted question, it follows, considering the said ruling in Alcantar
constitutional qualifications for voters apply equally to voters in elections to public office and to
plebiscite.

Similarly, the Revised Election Code provides in its section 2 that all elections of public officer
people and all votings in connection with plebiscites shall be conducted in conformity with the
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 otherw
disqualified by law, twenty-one years of age or over, able to read and write, who shall have re
Philippines for one year and in the city, municipality or municipal district wherein he proposes
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 le
year, such disability not having been removed by plenary pardon: Provided, however, That an
disqualified to vote under this paragraph shall automatically reacquire the right to vote upon e
ten years after service of sentence unless during such period, he shall have been sentenced b
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 violat
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 impris
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.
Phil. 258.

54 Baldauf v. Gunson, 8 P. 2d. 265. See, also, Martin v. McGarr, 117 P. 323, Glenn v. Gnau,
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

of procedure. Two members of the Commission shall constitute a quorum. The concurrence o
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
necessary for the efficient performance of its functions and duties, all of whom shall be appoin
Commission in accordance with the Civil Service Law and rules.
"The executive officer of the Commission, under the direction of the Chairman, shall, have cha
administrative business of the Commission, shall have the power to administer oaths in conne
all matters involving the business of the Commission, and shall perform such, other duties as
required of him by the Commission.

"SEC. 6. Power of the Commission to Investigate and to Hear Controversy and Issue Subpoe
Commission or any of the members thereof shall, in compliance with the requirement of due p
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 investiga
hearing pending before it, and delegate such power to any officer of the Commission who sha
member of the Philippine Bar. In case of failure of a witness to attend, the Commission, upon
service of the subpoenae to said witness, may issue a warrant to arrest the witness land bring
the Commission or officer before whom his attendance is required. The Commission shall hav
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 decide
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
supervision any of its final decisions, orders, instructions or rulings.

"Any decision, order or ruling of the Commission on election controversies may be reviewed b
Supreme Court by writ of a certiorari in accordance with the Rules of Court or such applicable
may enacted.

"Any violation of any final executory decision, order or ruling of the Commission shall constitut
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. En
L-35540, Soliven, et al. v. Secretary of National Defense, et al.; L-35546, Aquino, Jr., et al. v.
et al.; L-35547, Garcia II v. Hon. Enrile, et al.; L-35567 Doronila, et al. v. Secretary of National
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 bara
(citizens assemblies) have so far been established, the people would like to decide themselve
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 e
the views of the people on important national issues;

"WHEREAS, such barangays (citizens assemblies) desire that they be given legal status and
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 referend
certain specified questions such as the ratification of the new Constitution, continuance of ma
convening of Congress on January 22, 1973, and the elections in November 1973 pursuant to
Constitution.

"NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of t

vested in me by the Constitution as Commander-in-Chief of all Armed Forces of the Philippine
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
December 31, 1972, shall constitute the base for citizen participation in governmental affairs a
collective views shall be considered in the formulation of national policies or programs and, wh
practicable, shall be translated into concrete and specific decision;

"2. Such barangays (citizens assemblies) shall consider vital national issues now confronting
like the holding of the plebiscite on the new Constitution, the continuation of martial rule, the c
Congress on January 22, 1973, and the holding of elections in November 1973, and others in
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 re
on important national issues, including those specified in paragraph 2 hereof, and submit the r
thereof to the Department of Local Governments and Community Development immediately th
pursuant to the express will of the people as reflected in the reports gathered from the many t
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
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. Bry
N.W. 121; State ex rel. Shriver v. Hayes, 76 N.E. 2d. 869; Smith v. Bangham, 76 p 2d. 1022. M
Brast, 117 S.E. 875; Head v. Wood, 107 So. 854; State ex rel. Watson v. Pigg, 46 N.E. 2d. 23

71 See cases cited in the preceding footnote. See, also, Tiegs v. Patterson, 318 P. 2d. 588; S
Brown v. St. Joseph Circuit Court, 95 N.E. 2d. 632; Williamson v. State Election Board, 431 P
Baker v. Conway, 108 So. 18; Cohoon v. Swain, 5 S.E. 2d. 1; State ex rel. Mitchell v. Walcott,
762; Doyle v. Ries, 285 N.W. 480; Grossglaus v. Board of Elections of Stark County, 88 N.E.
Walker v. Hughes, 36 A. 2d. 47; Reese v. Dempsey, 152 P. 2d. 157; Dodd v. Gower, 62 S.W.
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
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, 5
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
v. Inocentes, L-25577, March 15, 1966.

82 Which, in some respects, is regarded as an organ of the Administration, and the news item
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
dissenting opinion when the Court denied a motion for reconsideration, and voted in favor of t
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
submission of which to a plebiscite was declared invalid by this Court in Tolentino vs. COMEL
became a reality of an even more far-reaching import — since fifteen-year olds were included
Citizens Assemblies.
* According to the Solicitor General 92 Congressmen and 15 Senators (both numbers constitu
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. Come
L-35929, January 22, 1973; Gerardo Roxas, etc., et al. vs. Comelec, et al., L-35940, January
Eddie B. Monteclaro vs. Comelec, et al., L-35941, January 22, 1973; Sedfrey A. Ordoñez, et a
National Treasurer of the Philippines, et al., L-35942, January 22, 1973; Vidal Tan, et al., vs. C
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;
Gonzales vs. Comelec, et al., L-35965, January 22, 1973 and Ernesto Hidalgo vs. Comelec, e
35979, January 22, 1973.

2 Executive Agreements are not included in the corresponding provision of the 1935 Constitut

3 It Must be recalled that in the Tolentino case, the Constitutional Convention intended to sub
amendment which was to form part of the Constitution still being prepared by it separately from
the other parts of such constitution still unfinished, and We held that a piece-meal submission
improper. We had no occasion to express any view as to how a whole new Constitution may b

* In 1880, he also wrote his "Constitutional Law." Judge Cooley, who was born in Attica, New
1824, died in 1898. Judge Cooley was also professor and later dean of the Law Department o
University of Michigan and Justice of the State Supreme Court of Michigan from 1864 to 1885
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. Commissio

Elections, L-35929; Gerardo Roxas, etc., et al. v. Commission on Elections, et al., L-35940; E
Monteclaro v. The Commission on Elections, et al., Sedfrey A. Ordoñez, et al. v. The National
of Philippines, et al., L-35942; Vidal Tan, et al. v. Commission on Elections, et al., L-35948; Jo
Diokno, et al. v. The Commission on Elections, L-35953; Jacinto Jimenez v. Commission on E
al., L-35961; Raul M. Gonzales v. The Honorable Commission on Elections, et al., L-35965; E
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. Se
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
fourths of all the members of the Senate and of the House of Representatives voting separate
propose amendments to this Constitution or call a convention for that purpose. Such amendm
be valid as part of this Constitution when approved by a majority of the votes cast at an electio
the amendments are submitted to the people for their ratification." Art. XV, Section 1.

3 Lerner, Ideas are Weapons, 426 (1939). Earlier, in this collection of essays, Lerner made th
entirely-inaccurate observation: "No governmental institution that consists of a group of legal t
appointed for life can ever hope to cope with, much less solve, the exigent problems of our po
231. He was referring of course to the Supreme Court of the United States.

4 Frankfurter, Mr. Justice Holmes and the Supreme Court, 25-26 (1938).

5 Black, The People and the Court (1960).

6 Murphy, Elements of Judicial Strategy (1964).

7 Cf. Angara v. Electoral Commission, 63 Phil. 139 (1936); Tañada v. Cuenco, 103 Phil. 1051
Vera v. Arca, L-25721, May 26, 1969, 28 SCRA 351.

8 Gonzales v. Commission on Elections, L-28196, Nov. 9, 1967, 21 SCRA 774.

9 Tolentino v. Commission on Elections, L-24150, Oct. 16, 1971, 41 SCRA 702.

10 Planas v. Commission on Elections, L-35925, Jan. 25, 1973.

11 256 US 368 (1921).

12 Ibid, 374-375.

13 L-33964, Dec. 11, 1971, 42 SCRA 448.

14 Ibid, 504-505.

15 Dodd, Judicially Nonenforceable Provisions of Constitutions, in I Selected Essays on Cons

Law 355, 387 (1938).

16 Ibid, 395.

I7 Weston, Political Questions, I Selected Essays an Constitutional Law 418, 422 (1938)..

18 Cf. Bickel, The Least Dangerous Branch (1962).

19 Cf. Freund, On Understanding the Supreme Court (1950). Also his The Supreme Court of
States (1962).

20 Laurel, S., VII Proceedings of the Philippine Constitutional Convention (1934-1935), Appen

21 65 Phil. 56 (1937).

22 Ibid, 96.

23 63 Phil. 139 (1936).

24 L-35925, January 22, 1973.

25 Rostow, The Democratic Character of Judicial Review in Selected Essays on Constitutiona

1962, 1, 2 (1963).

26 Ibid.

27 Ibid, 3.

28 Ibid, 3-4. The decision of Justice Frankfurter referred to is that of Rochin v. People of Califo
US 165 (1952).

29 Mason, The Supreme Court from Taft to Warren, 154 (1967). The words of Justice Frankfu
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 Poli
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

52, 11 L ed 2d 512, 84 S Ct (1964); Reynolds v. Sims, 377 US 533, 12 L ed 2d 506, 84 S Ct 1
WMCA v. Lomenzo, 377 US 633, 12 L ed 2d 568, 84 S Ct. (1964); Maryland Committee v. Ta
US 656, 12 L ed 2d 595, 84 S Ct. 1442 (1964); Davis v. Mann, 377 US 678, 12 L ed 2d 609, 8
1453 (1964); Roman v. Sincock, 377 US 695, 12 L ed 2d 620, 84 S.Ct. 1462 (1964); Lucas v.
General Assembly, 377 US 713, L ed 2d 632, 84 S Ct. 1472 (1964); Fortson v. Dorsey, 379 u
ed 2d 401, 85 S Ct. 498 (1965); Burns v. Richardson, 384 US 73, 16 L ed 2d 376, 86 S Ct. 12
Sailors v. Kent Board of Education, 387 US 105, 18 L ed 2d 650, 87 S Ct. 1549 (1967); Dusch
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
first essay in his Principles, Politics and Fundamental Law.

46 The principal articles are: Pollak, Constitutional Adjudication: Relative or Absolute Neutralit
Pub. L. 48 (1962); Rostow, American Legal Realism and the Sense of Profession, 34 Rocky M
123, 136-46 (1962); Henkin, Some Reflections on Current Constitutional Controversy, 109 U.
637 (1961); Henson, A Criticism of Criticism: In re Meaning, 29 Fordham L. Rev. 553 (1961); M
Note on the Criticism of Supreme Court Decisions, 10 J. Pub. L. 139 (1961), Wright, The Supr
Cannot be Neutral, 40 Texas L. Rev. 599 (1961); Arnold, Professor Hart's Theology, 73 Harv.
1298 (1960); Black, The Lawfulness of the Segration Decisions, 69 Yale L. J. 421 (1960); Gris
Time and Attitudes: Professor art and Judge Arnold, 74 Harv. L. Rev. 81 (1960); Karst, Legisla
in Constitutional Litigation, 1960 Supreme Court Rev. 75; Miller and Howell The Myth of Neutr
Constitutional Adjudication, 27U. Chi. L. Rev. 661 (1960); Mueller & Schwartz, The Principle o
Principles, 7 U.C.L.A.L. Rev. 571 (1960); Hart, Forward, The Time Chart of the Justices, 73 H
84 (1959); Pollak, Racial Domination and Judicial Integrity: A Reply to Professor Wechsler, 10
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. Toll
Ark. 545 (1871); Koehler v. Hill, 60 Iowa 543, 14 NW 738 (1883); McMillan v. Blattner, 67 Iowa
NW 245 (1885); State v. Davis, 2D Neb. 220, 19 Pac. 894 (1888); State v. Tooker, 15 Mont. 8
840 (1894); Russie v. Brazzell, 128 Mo. 93, 30 SW 526 (1895); State v. Powell, 77 Miss. 543,
(1900); State v. Brookhart, 113 Iowa 250, 84 NW 1064 (1901); In re Denny, 156 Ind. 104, 59 N
(1901); Utter v. Moseley, 16 Idaho 274, 100 P. 1058 (1909); Willis v. Kalbach, 109 Va. 475, 64
(1909); People ex rel. Swift v. Luce, 74 Misc. Rep. 551, 133 US 9 (1912); McCreary v. Speer,
783, 162 SW 99 (1914); State v. Donald, 160 Wis. 21, 151 NW 331 (1915); State v. Marcus, 1
354, 152 NW 419 (1915); State v. Campbell, 94 Ohio St. 403, 115 NE 29 (1916); In re Opinion
Justices, 226 Mars. 607, 115 NE 921 (1917); Scott v. Vouchan, 202 Mich. 692, 168 NW 709 (
Hooper v. State, 89 So. 593, 206 Ala. 371 (1921); Switzer v. State, 103 Ohio St. 306, 133 NE
Johnson v. Craft, 87 So. 375, 205 Ala. 386 (1921); In re Opinion of the Justices, 237 Mars. 58
202 (1921); Power v. Robertson, 130 Miss. 188, 93 So. 769 (1922); Hamilton v. Deland, 191 N
221 Mich. 541 (1923); In re Initiative Petition, 89 Okl. 124, 214 P. 186 (1923); Armstrong v. Ki
207, 126 A. 263 (1924); McAdams v. Henley, 169 Ark. 97, 273 SW 355 (1925); Heinitsh v. Flo
434, 126 SE 336 (1925); State v. Zimmerman, 187 Wis. 180, 204 NW 803 (1925); Brown v. C
York, 125 Misc. Rep. 1, 210 NYS 786 (1926); State ex rel. Bahns v. City of New Orleans, 163
718 (1927); Duncan v. Record Pub. Co., 145 SC 196, 143 SE 31 (1928); Lane v. Lukens, 48 I
283 P. 532 (1929); School Dist. of City of Pontiac v. City of Pontiac, 262 Mich. 338, 247 NW 4
Collier v. Gray, 116 Fla. 845, 157 So. 40 (1934); In re Opinion to Governor, 55 R.I. 56, 178 A.
State ex rel Landis v. Thompson, 120 Fla. 860,163 So. 270 (1935); Tausig v. Lawrence, 328 P
A. 235 (1938); Downs v. City of Bromingham, 240 Ala. 177, 198 So. 231 (1940); Graham v. Jo
La. 507, 3 So. 2d 761 (1941); Pearson v. Taylor, 159 Fla. 775, 32 So. 2d 826 (1947); Palmer
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,
(1889); State v. Grey, 21 Nev. 378, 32 Pac. 190 (1893); Nesbit v. People, 19 Colo. 441, 36 Pa
(1894); Hays v. Hays, 5 Idaho 154, 47 P. 732 (1897); Lovett v. Ferguson, 10 SD 44, 71 NW 7
Russell v. Grey, 164 Mo. 69, 63 SW 849 (1901); Gabbert v. Chicago, R.I. Ry. Co. 171 Mo. 84
(1902); People v. Sours, 31 Colo. 369, 102 74 P. 167 (1903); People v. Loomis, 135 Mich. 55
262 (1904); West v. State, 50 Fla. 154, 39 So. 412 (1905); State v. Winnett, 78 Neb. 379, 110
(1907); Farrell v. Port of Columbia, 50 Or. 169, 93 P. 254 (1908); In re Mcconaughy, 106 Minn
NW 408 (1909); Fletcher v. Gifford, 20 Idaho 18, 115 P. 824 (1911); Hammond v. Clark, 136 G
SE 479 (1911), Crawford v. Gilchrist, 64 Fla. 41, 59 So. 963 (1912); Cudihee v. Phelps, 76 Wa
136 P. 367 (1913); State v. Fairley, 76 Wash. 332, 136 P. 374 (1913); Tabor v. City of Walla W
Wash. 579, 137 P. 1040 (1914); State v. Alderson, 49 Mont. 387, 142 P. 210 (1914); Ramsey
Persinger, 43 Okl. 41,141 P. 13 (1914); Cress v. Estes, 43 Okl. 213 P. 411 (1914); Cooney v.
Ga. 647, 83 SE 537 (1914); Hildreth v. Taylor, 117 Ark. 465, 175 SW 40 (1915); Jones v. McD
Ala. 230, 75 So. 988 (1917); State v. Wetz, 40 N.D. 299, 168 NW 835 (1918); Ex Parte Ming,
472, 181 P. 319 (1919); Lee V. Price, 54 Utah, 474, 181 P. 948 (1919), Erwin v. Nolan, 280 M
SW 752 (1922); Boyd v. Olcott, 102 Or. 327, 202 P. 431 (1921); Thompson v. Livingston, 116
107 SE 581 (1921); Thrailkill v. Smith, 106 Ohio St. 1, 138 NE 532 (1922); Brawner v. Curran,
586, 119 A. 250 (1922); Fahey v. Hackmann, 291 Mo. 351 SW 752 (1922); Goolsby v. Stephe
529, 117 SE 439 (1923); Manos v. State, 98 Tax. Cr. 87, 263 SW 310 (1924); State v. Zimme
Wis. 180, 208 NW 803 (1925); Taylor v. King, 284 Pa. 235, 130 A. 407 (1925); Board of Liquid
State Debt of Louisiana v. Whitney-Central Trust and Savings Bank, 168 La. 560, 122 So. 850
State v. Cline, 118 Neb. 150, 224 NW 6 (1929); California Teacher's Ass'n. v. Collins, 1 Cal. 2
2d 134 (1934); Collier v. Gray, 116 Fla. 845, 157 So. 40 (1934); State ex rel. v. State Bldg. Co
Smith, 335 Mo. 840, 74 SW 2d 27 (1934); Mayer v. Adams, 182 Ga. 524, 186 SE 420 (1936);
State ex rel. Mobile County, 233 Ala. 287, 171 So. 504 (1937); Swanson v. State, 132 Neb. 82
264 (1937); Stonns v. Heck, 238 Ala. 196, 190 So. 78 (1939); Graham v. Jones, 198 La. 507,
761 (1941); In re Initiative Petition No. 224, 197 Okl. 432, 172 P. 2d 324 (1946); City of Jackso
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 Commis
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 Num
Hundred and fifty-seven, otherwise known as the Election Code, and Commonwealth Number
hundred and fifty-seven, entitled "An Act to Reorganize the Commission on Elections," is so fa
are not inconsistent herewith, are hereby made applicable to the election provided for in this A

60 Republic Act 4913 (1967).

61 Section 3 of Republic Act 4913 reads thus: "The provisions of Republic Act Numbered One
eighty, as amended, insofar as they are not inconsistent herewith, are made applicable to the
provided for in this Act." It is to be remembered that in the plebiscite held, the two proposals la
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
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
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) a
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; emphas

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
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 t
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
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 beyon
as formulated in this decision, may, we trust, also serve to answer the vehement plea that for
Nation, the President should retain his extraordinary powers as long as turmoil and other ills d
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

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
retained the "permissive" language of section 1, Art. V. Thus, the proposed amendment read
Suffrage may be exercised by (male) citizens of the Philippines not otherwise disqualified by l
(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 a
prohibited its submittal at the 1971 elections for lack of proper submission since it did not "pro
voter ... ample basis for an intelligent appraisal of the amendment. "Dec. of October 16, 1971,
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
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
judgment to suffer one year or more of imprisonment "within two years after service" or who h
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 an
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 h
seventy six thousand five hundred sixty one (14,976,561) members of all the Barangays voted
adoption of the proposed Constitution, as against seven hundred forty-three thousand eight hu
nine (743,869) who voted for its rejection; but a majority of those who approved the new Cons
conditioned their votes on the demand that the interim National Assembly provided in its Tran
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 no
the same with favor, since the constitutional point (that the Comelec has exclusive charge of t
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

et. al. in the plebiscite case L-359042, par. 12 of petition and admitted in par. 4 of answer of th
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 y
changed, repaired and altered house, or do you have a new house? Some of the material con
the old house may be used again, some of the rooms may be constructed the same, but this d
alter the fact that you have altogether another or a new house. We conclude that the instrume
contained in Ga. L. 1945, pp. 8 to 89, inclusive, is not an amendment to the constitution of 187
the contrary it is a completely revised or new Constitution." (Wheeler v. Board of Trustees, 37
322, 327).

"Every proposal which affects a change in a Constitution or adds or takes away from it is an "a
while a "revision" implies a re-examination and statement of the Constitution, or some part of
corrected or improved form." (Const. Secs. 196, 197, Staples v. Gilmer, 33 S.E. 2d 49, 53 183

"Amendment" and "revision" of constitution are separate procedures each having a substantia
application not mere alternative procedures in the same field." (McFadden v. Jordan, 196 P. 2
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, Nevad
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 acti
pursuant to any provision of the constitution itself; and by revision, which implies action pursua
procedural provision in the constitution. This distinction is concerned with the quare and not w
the quantum of change. It may be significant, however, that the alleged alteration does or doe
purport to affect the existence of the court itself. In the nature of things, a revolutionary charge
admit judicial power as such to determine the fact of its occurrence. If revolutionary constitutio
court differently constituted from the pre-revolutionary court, neither tribunal is confronted with
substantial problem, for neither can deny the act by which it was created without denying the f
creation. Thus the Supreme Court in Luther v. Borden (supra) uses language substantially pa
what has been indicated above as logical explanation of the Duke of York's case. For the cou
serious judicial consideration to such a question would present "the singular spectacle of a co
a court to declare that we are not a court." (Brittle v. People, 2 Neb. 198, 214 [1873].) And eve
alleged new constitution purports to leave intact the former court and to permit its work to go o
hiatus, the decision which the judges must make is still an individual choice to be made by the
matter of practical politics. Two commissions are being held out to them, and if they will act as
they must assess under which commission they are acting. To put the matter another way, it m
that in the first case above — of two constitutions purporting to establish two different courts, 
who were judges under the old regime and the men who are called to be judges under the new
to decide as individuals what they are to do; and it may be that they choose at grave peril with
factional outcome still uncertain. And, although it is equally obvious, the situation is logically id
where the same men are nominated to constitute the court under both the old and new constit
time when the alleged change is occurring — if it is — peaceably and against a placid popula
background. Men under such circumstances may write most praiseworthily principles of states
upon sovereignty and, its nature modes of action, and upon the bases of government, to justif
between the two commissions. They can assert their choice in the course of purported judicia
they cannot decide as a court, for the decision, once made, by a retroactive hypothesis exclud
assumption of controversiality in the premises..

"Where the alleged change occurs not through revolutionary measures but through what has b
revision, these logical difficulties disappear in one aspect, but become far more embarrassing
Where the alteration purports to be made along the lines of a procedural method laid down in
constitution, there is a standard which the court can apply and, by so doing, it can perceive jud
whether or not the change has followed the prescribed lines. If it has, there is no difficulty in p
as a matter of law its accomplishment. Only one exception is possible, namely, the ease wher
alteration purports at once to abolish the court or to depose its personnel. Then, although ther
a question of law to be decided, it may be wondered who there is to decide it. Suppose, howe
mode of change has failed in some way to conform to a directory provision of the amending cl
constitution; is the court to declare the attempt at alteration unsuccessful? It would seem as a
law that it must do so; and yet what is the situation if the proponents of the change say, "It is t
measure failed under the amending clause, but as a revolutionary measure it was a success a
upon its recognition." Clearly the members of the court are now more badly than ever entangle
logical difficulties which attend a purported judicial pronouncement upon the achievement or n
achievement of revolutionary change. For the temptation will be great to treat the matter as a
question. The times are peaceful. The changes probably do no affect the tenure of many offic
branch of the government. The popular inertia is likely to allow the court successfully to assum
question to be one of law. The path of fallacy is not too strikingly fallacious to the uncritical ob
may lead to just results. The judges' personal inclinations will be to show deference to the exp
popular sentiment which has been given. And yet, if they declare the change in force, they are
making a personal declaration that they believe the change to be the directly expressed will of
sovereign, which will they assert to be law, but the fact of existence of which will — and this is
decision — is not ascertainable in the given case by any legal means. It is submitted that this
that the conclusions offered in the discussion of revolutionary change are true, also, whether
the quantum of change involved be vast or almost negligible.

"The net result of the preceding discussion is this: that in almost the whole field of problems w
the Duke of York's case and the American constitutional amendment cases present, the court
is precluded from passing upon the fact of change by a logical difficulty which is not to be surm
follows that there is no room for considering whether the court ought graciously and deferentia
to the executive or legislative for a decision that a change has or has not taken place.

6 & 7 Ibid. pp. 301, 305.

APPENDIX TO OPINION.

@ The inclusion in the Appendix of provisions for Amendment and Revision in State Constitut
adopted after 1935, is only to stress the fact that the distinction between Amendment and Rev
Constitution, which existed at the time of the adoption of the 1935 Constitution, has continued
 present.

The Lawphil Project - Arellano Law Foundation

Republic of the Philippines

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 A
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
PERALTA AND LORENZO M. TAÑADA, petitioners,
vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF FINANCE , THE SECRETARY OF JUSTICE, THE SECRE
LAND REFORM, THE SECRETARY OF NATIONAL DEFENSE, THE AUDITOR GENERAL, THE BUDGET COMM
THE CHAIRMAN OF PRESIDENTIAL COMMISSION ON REORGANIZATION, THE TREASURER OF THE PHILIP
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,
EVA ESTRADA-KALAW, petitioners,
vs.
ALEJANDRO MELCHOR, in his capacity as Executive Secretary; JUAN PONCE ENRILE, in his capacity as Se
National Defense; General ROMEO ESPINO, in his capacity as Chief of Staff of the Armed Forces of the Philip
TANCIO E. CASTAÑEDA, in his capacity as Secretary General Services; Senator GIL J. PUYAT, in his capacit
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

EDDIE B. MONTECLARO, [personally and in his capacity as President of the National Press Club of the
Philippines], petitioner,
vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF PUBLIC INFORMATION, THE AUDITOR GENERAL, THE
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,
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 o
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 amende
Resolution No. 4 of said body, adopted on June 17, 1969, calling a Convention to propose am
to the Constitution of the Philippines. Said Resolution No. 2, as amended, was implemented b
Act No. 6132, approved on August 24, 1970, pursuant to the provisions of which the election o
to said Convention was held on November 10, 1970, and the 1971 Constitutional Convention
perform its functions on June 1, 1971. While the Convention was in session on September 21
President issued Proclamation No. 1081 placing the entire Philippines under Martial Law. On
29, 1972, the Convention approved its Proposed Constitution of the Republic of the Philippine
day, November 30, 1972, the President of the Philippines issued Presidential Decree No. 73,
to the Filipino people for ratification or rejection the Constitution of the Republic of the Philippi
proposed by the 1971 Constitutional Convention, and appropriating funds therefor," as well as
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-35
against the Commission on Elections, the Treasurer of the Philippines and the Auditor Genera
said "respondents or their agents from implementing Presidential Decree No. 73, in any mann
further orders of the Court," upon the grounds, inter alia, that said Presidential Decree "has no
effect as law because the calling ... of such plebiscite, the setting of guidelines for the conduct
same, the prescription of the ballots to be used and the question to be answered by the voters
appropriation of public funds for the purpose, are, by the Constitution, lodged exclusively in Co
and "there is no proper submission to the people of said Proposed Constitution set for Januar
there being no freedom of speech, press and assembly, and there being no sufficient time to i
people of the contents thereof."

Substantially identical actions were filed, on December 8, 1972, by Pablo C. Sanidad against
Commission on Elections (Case G.R. No. L- 35929) on December 11, 1972, by Gerardo Roxa
against the Commission on Elections, the Director of Printing, the National Treasurer and the
General (Case G.R. L-35940), by Eddie B. Monteclaro against the Commission on Elections a
Treasurer of the Philippines (Case G.R. No. L-35941), and by Sedfrey Ordoñez, et al. against
National Treasurer and the Commission on Elections (Case G.R. No. L-35942); on December
by Vidal Tan, et al., against the Commission on Elections, the Treasurer of the Philippines, the
General and the Director of Printing (Case G.R. No. L-35948) and by Jose W. Diokno and Ben
Aquino against the Commission on Elections (Case G.R. No. L-35953); on December 14, 197
Jacinto Jimenez against the Commission on Elections, the Auditor General, the Treasurer of t
Philippines and the Director of the Bureau of Printing (Case G.R. No. L-35961), and by Raul M
against the Commission on Elections, the Budget Commissioner, the National Treasurer and
General (Case G.R. No. L-35965); and on December 16, 1972, by Ernesto C. Hidalgo against
Commission on Elections, the Secretary of Education, the National Treasurer and the Auditor
(Case G.R. No. L-35979).

In all these cases, except the last (G.R. No. L-35979), the respondents were required to file th
"not later than 12:00 (o'clock) noon of Saturday, December 16, 1972." Said cases were, also,
hearing and partly heard on Monday, December 18, 1972, at 9:30 a.m. The hearing was conti
December 19, 1972. By agreement of the parties, the aforementioned last case — G.R. No. L
was, also, heard, jointly with the others, on December 19, 1972. At the conclusion of the heari
date, the parties in all of the aforementioned cases were given a short period of time within wh
submit their notes on the points they desire to stress." Said notes were filed on different dates
December 21, 1972, and January 4, 1973.

Meanwhile, or on December 17, 1972, the President had issued an order temporarily suspend
effects of Proclamation No. 1081, for the purpose of free and open debate on the Proposed C
On December 23, the President announced the postponement of the plebiscite for the ratificat
rejection of the Proposed Constitution. No formal action to this effect was taken until January
when General Order No. 20 was issued, directing "that the plebiscite scheduled to be held on
1978, be postponed until further notice." Said General Order No. 20, moreover, "suspended in
meantime" the "order of December 17, 1972, temporarily suspending the effects of Proclamat
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 Cou
it fit to refrain, for the time being, from deciding the aforementioned cases, for neither the date
conditions under which said plebiscite would be held were known or announced officially. The
Congress was, pursuant to the 1935 Constitution, scheduled to meet in regular session on Ja
1973, and since the main objection to Presidential Decree No. 73 was that the President does
the legislative authority to call a plebiscite and appropriate funds therefor, which Congress unq
could do, particularly in view of the formal postponement of the plebiscite by the President —
after consultation with, among others, the leaders of Congress and the Commission on Electio
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, pref
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 or
so-called Citizens Assemblies, to be consulted on certain public questions [Bulletin Today, Ja
1973];

"7. That thereafter it was later announced that "the Assemblies will be asked if they favor or op

[1] The New Society;

[2] Reforms instituted under Martial Law;

[3] The holding of a plebiscite on the proposed new Constitution and when (the
new dates given following the postponement of the plebiscite from the original
January 15 are February 19 and March 5);

[4] The opening of the regular session slated on January 22 in accordance wit
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 aske
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?
Today, January 5, 1973].

"9. That the voting by the so-called Citizens Assemblies was announced to take place during t
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 fo
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 governmen
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
called Citizens Assemblies: —

[1] Do you approve of the citizens assemblies as the base of popular governm
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
provisions of the 1935 Constitution?

[5] If the elections would not be held, when do you want the next elections to b

[6] Do you want martial law to continue? [Bulletin Today, January 11, 1973; em
supplied]

"12. That according to reports, the returns with respect to the six (6) additional questions quot
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",
reads: —

COMMENTS ON

QUESTION No. 1

In order to broaden the base of citizens' participation in govern

QUESTION No. 2

But we do not want the Ad Interim Assembly to be convoked. Or if it is to be co

all, it should not be done so until after at least seven (7) years from the approv
New Constitution by the Citizens Assemblies.

QUESTION No. 3

The vote of the Citizens Assemblies should already be considered the plebisci
New Constitution.

If the Citizens Assemblies approve of the New Constitution, then the new Con
 should be deemed ratified.

QUESTION No. 4

We are sick and tired of too frequent elections. We are fed up with politics, of s
debates and so much expenses.

QUESTION No. 5

Probably a period of at least seven (7) years moratorium on elections will be e

stability to be established in the country, for reforms to take root and normalcy

QUESTION No. 6

We want President Marcos to continue with Martial Law. We want him to exerc
powers with more authority. We want him to be strong and firm so that he can
all his reform programs and establish normalcy in the country. If all other meas
we want President Marcos to declare a revolutionary government along the lin
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
Constitution.

If the Citizens Assemblies approve of the New Constitution, then the new Con
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
announced that the limited freedom of debate on the proposed Constitution was being withdra
the proclamation of martial law and the orders and decrees issued thereunder would thencefo
be enforced [Daily Express, January 8, 1973];

15. That petitioners have reason to fear, and therefore state, that the question added in the la
questions to be asked to the Citizens Assemblies, namely: —

Do you approve of the New Con

—

in relation to the question following it: —

Do you still want a plebiscite to be called to rati

Constitution?" —

would be an attempt to by-pass and short-circuit this Honorable Court before which the questi
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
questions just referred to will be reported then this Honorable Court and the entire nation will b
confronted with a fait accompli which has been attained in a highly unconstitutional and undem
manner;

"17. That the fait accompli would consist in the supposed expression of the people approving
proposed Constitution;

"18. That, if such event would happen, then the case before this Honorable Court could, to all
purposes, become moot because, petitioners fear, and they therefore allege, that on the basis
supposed expression of the will of the people through the Citizens Assemblies, it would be an
that the proposed Constitution, with all its defects, both congenital and otherwise, has been ra

"19. That, in such a situation the Philippines will be facing a real crisis and there is likelihood o
if not chaos, because then, the people and their officials will not know which Constitution is in

"20. That the crisis mentioned above can only be avoided if this Honorable Court will immedia
and announce its decision on the present petition;

"21. That with the withdrawal by the President of the limited freedom of discussion on the prop
Constitution which was given to the people pursuant to Sec. 3 of Presidential Decree No. 73,
opposition of respondents to petitioners' prayer at the plebiscite be prohibited has now collaps
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
"Gerardo Roxas, et al. v. Commission on Elections, et al.," and L-35942, "Sedfrey A. Ordoñez
The National Treasurer, et al."

The next day, January 13, 1973, which was a Saturday, the Court issued a resolution requirin
respondents in said three (3) cases to comment on said "urgent motion" and "manifestation," "
than Tuesday noon, January 16, 1973." Prior thereto, or on January 15, 1973, shortly before n
petitioners in said Case G.R. No. L-35948 riled a "supplemental motion for issuance of restrai
and inclusion of additional respondents," praying —

"... that a restraining order be issued enjoining and restraining respondent Com
Elections, as well as the Department of Local Governments and its head, Secr
Roño; the Department of Agrarian Reforms and its head, Secretary Conrado E
National Ratification Coordinating Committee and its Chairman, Guillermo de V
deputies, subordinates and substitutes, and all other officials and persons who
assigned such task, from collecting, certifying, and announcing and reporting t
President or other officials concerned, the so-called Citizens' Assemblies refer
results allegedly obtained when they were supposed to have met during the pe
comprised between January 10 and January 15, 1973, on the two questions q
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 Honor
issue a restraining order enjoining herein respondents, particularly respondent Commission on
as well as the Department of Local Governments and its head, Secretary Jose Roño; the Dep
Agrarian Reforms and its head, Secretary Conrado Estrella; the National Ratification Coordina
Committee and its Chairman, Guillermo de Vega; and their deputies, subordinates and/or sub
from collecting, certifying, announcing and reporting to the President the supposed Citizens' A
referendum results allegedly obtained when they were supposed to have met during the perio
January 10 and January 15, 1973, particularly on the two questions quoted in paragraph 1 of
Supplemental Urgent Motion;

"4. That the proceedings of the so-called Citizens' Assemblies are illegal, null and void particu
as such proceedings are being made the basis of a supposed consensus for the ratification of
proposed Constitution because: —

[a] The elections contemplated in the Constitution, Article XV, at which the pro
constitutional amendments are to be submitted for ratification, are elections at
qualified and duly registered voters are permitted to vote, whereas, the so call
Assemblies were participated in by persons 15 years of age and older, regardl
qualifications or lack thereof, as prescribed in the Election Code;

[b] Elections or plebiscites for the ratification of constitutional amendments con

in Article XV of the Constitution have provisions for the secrecy of choice and
which is one of the safeguards of freedom of action, but votes in the Citizens' A
were open and were cast by raising hands;

[c] The Election Code makes ample provisions for free, orderly and honest ele
such provisions are a minimum requirement for elections or plebiscites for the
of constitutional amendments, but there were no similar provisions to guide an
proceedings of the so called Citizens' Assemblies;

[d] It is seriously to be doubted that, for lack of material time, more than a hand
called Citizens' Assemblies have been actually formed, because the mechanic
organization were still being discussed a day or so before the day they were s
begin functioning: —

"Provincial governors and city and municipal mayors had been

with barrio captains and community leaders since last Monday
1973) to thresh out the mechanics in the formation of the Citize
Assemblies and the topics for discussion." [Bulletin Today, Jan
1973]

"It should be recalled that the Citizens' Assemblies were ordered formed only at the beginning
[Daily Express, January 1, 1973], and considering the lack of experience of the local organize
assemblies, as well as the absence of sufficient guidelines for organization, it is too much to b
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 of
government agencies mentioned in paragraph 3 of this Supplemental Urgent Motion could no
completed because, as noted in the Urgent Motion of January 12, 1973, the submission of the
Constitution to the Citizens' Assemblies was not made known to the public until January 11, 1
that as it may, the said additional officials and agencies may be properly included in the petitio
because: —

[a] The herein petitioners have prayed in their petition for the annulment not on
Presidential Decree No. 73, but also of "any similar decree, proclamation, orde
instruction.

so that Presidential Decree No. 86, insofar at least as it attempts to submit the proposed Cons
plebiscite by the so-called Citizens' Assemblies, is properly in issue in this case, and those wh
implement, or carry out the said Presidential Decree No. 86. and the instructions incidental the
fall within the scope of this petition;

[b] In their petition, petitioners sought the issuance of a writ of preliminary injun
restraining not only the respondents named in the petition but also their "agen
implementing not only Presidential Decree No. 73, but also "any other similar d
order, instruction, or proclamation in relation to the holding of a plebiscite on J
1973 for the purpose of submitting to the Filipino people for their ratification or
the 1972 Draft or proposed Constitution approved by the Constitutional Conve
November 30, 1972"; and finally,

[c] Petitioners prayed for such other relief which may be just and equitable. [p.
Petition].

"Therefore, viewing the case from all angles, the officials and government agencies mentioned
paragraph 3 of this Supplemental Urgent Motion, can lawfully be reached by the processes of
Honorable Court by reason of this petition, considering, furthermore, that the Commission on
has under our laws the power, among others, of: —

(a) Direct and immediate supervision and control over national, provincial, city
and municipal district officials required by law to perform duties relative to the
elections on matters pertaining to the enforcement of the provisions of this Cod
[Election Code of 1971, Sec. 3].

"6. That unless the petition at bar is decided immediately and the Commission on Elections, to
the officials and government agencies mentioned in paragraph 3 of this Supplemental Urgent
restrained or enjoined from collecting, certifying, reporting or announcing to the President the
the alleged voting of the so-called Citizens' Assemblies, irreparable damage will be caused to
Republic of the Philippines, the Filipino people, the cause of freedom an democracy, and the p
herein because:

[a] After the result of the supposed voting on the questions mentioned in parag
hereof shall have been announced, a conflict will arise between those who ma
the 1935 Constitution is still in force, on the one hand, and those who will main
has been superseded by the proposed Constitution, on the other, thereby crea
confusion, if not chaos;

[b] Even the jurisdiction of this Court will be subject to serious attack because
advocates of the theory that the proposed Constitution has been ratified by rea
announcement of the results of the proceedings of the so-called Citizens' Asse
argue that, General Order No. 3, which shall also be deemed ratified pursuant
Transitory Provisions of the proposed Constitution, has placed Presidential De
 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 respond
case G.R. No. L-35948 to file "file an answer to the said motion not later than 4 P.M., Tuesday
16, 1973," and setting the motion for hearing "on January 17, 1973, at 9:30 a.m." While the ca
being heard, on the date last mentioned, at noontime, the Secretary of Justice called on the w
opinion and said that, upon instructions of the President, he (the Secretary of Justice) was del
him (the writer) a copy of Proclamation No. 1102, which had just been signed by the Presiden
Thereupon, the writer returned to the Session Hall and announced to the Court, the parties in
35948 — inasmuch as the hearing in connection therewith was still going on — and the public
present that the President had, according to information conveyed by the Secretary of Justice
said Proclamation No. 1102, earlier that morning. Thereupon, the writer read Proclamation No
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 C

subject to ratification by the Filipino people;

"WHEREAS, Citizens Assemblies were created in barrios, in municipalities and in districts/wa

chartered cities pursuant to Presidential Decree No. 86, dated December 31, 1972, composed
persons who are residents of the barrio, district or ward for at least six months, fifteen years o
over, citizens of the Philippines and who are registered in the list of Citizen Assembly member
the barrio, district or ward secretary;

"WHEREAS, the said Citizens Assemblies were established precisely to broaden the base of
participation in the democratic process and to afford ample opportunity for the citizenry to exp
views on important national issues;

"WHEREAS, responding to the clamor of the people and pursuant to Presidential Decree No.
January 5, 1973, the following questions were posed before the Citizens Assemblies or Baran
you approve of the New Constitution? Do you still want a plebiscite to be called to ratify the ne
Constitution?

"WHEREAS, fourteen million nine hundred seventy-six thousand five hundred sixty-one (14,97
members of all the Barangays (Citizens Assemblies) voted for the adoption of the proposed C
as against seven hundred forty-three thousand eight hundred sixty-nine (743,869) who voted
rejection; while on the question as to whether or not the people would still like a plebiscite to b
ratify the new Constitution, fourteen million two hundred ninety-eight thousand eight hundred f
(14,298,814) answered that there was no need for a plebiscite and that the vote of the Barang
(Citizens Assemblies) should be considered as a vote in a plebiscite;

"WHEREAS, since the referendum results show that more than ninety-five (95) per cent of the
of the Barangays (Citizens Assemblies) are in favor of the new Constitution, the Katipunan ng
Barangay has strongly recommended that the new Constitution should already be deemed rat
 Filipino people;

"NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of t

in me vested by the Constitution, do hereby certify and proclaim that the Constitution propose
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 A
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
Philippines to be affixed.

"Done in the City of Manila, this 17th day of January, in the year of Our Lord, nineteen hundre
seventy-three.

(Sgd.) FERDINA
MARCOS
"President of the

"By the President:

"ALEJANDRO MELCHOR
"Executive Secretary"

Such is the background of the cases submitted determination. After admitting some of the alle
made in the petition in L-35948 and denying the other allegations thereof, respondents therein
their answer thereto, by way affirmative defenses: 1) that the "questions raised" in said petitio
political in character"; 2) that "the Constitutional Convention acted freely and had plenary auth
propose not only amendments but a Constitution which would supersede the present Constitu
"the President's call for a plebiscite and the appropriation of funds for this purpose are valid"; 4
"there is not an improper submission" and "there can be a plebiscite under Martial Law"; and 5
"argument that the Proposed Constitution is vague and incomplete, makes an unconstitutiona
of power, includes a referendum on the proclamation of Martial Law and purports to exercise j
power" is "not relevant and ... without merit." Identical defenses were set up in the other cases
consideration.

Immediately after the hearing held on January 17, 1973, or since the afternoon of that date, th
of the Court have been deliberating on the aforementioned cases and, after extensive discuss
merits thereof, have deemed it best that each Member write his own views thereon and that th
Chief Justice should state the result or the votes thus cast on the points in issue. Hence, the in
views of my brethren in the Court are set forth in the opinions attached hereto, except that, ins
writing their separate opinions, some Members have preferred to merely concur in the opinion
our colleagues.

Then the writer of said decision expressed his own opinion on the issues involved therein, after which he recapitulate
of the Members of the Court, as follows:

1. There is unanimity on the justiciable nature of the issue on the legality of Presidential Decre

2. On the validity of the decree itself, Justices Makalintal, Castro, Fernando, Teehankee, Esgu
myself, or six (6) Members of the Court, are of the opinion that the issue has become moot an
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 o
incorporate therein the provisions contested by the petitioners in L-35948, Justices Makalintal
Teehankee and Esguerra opine that the issue has become moot and academic. Justices Fern
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
to continue in the performance of its functions despite the proclamation of Martial Law. In effe
Barredo, Makasiar and Antonio hold the same view.

5. On the question whether the proclamation of Martial Law affected the proper submission of
proposed Constitution to a plebiscite, insofar as the freedom essential therefor is concerned, J
Fernando is of the opinion that there is a repugnancy between the election contemplated unde
the 1935 Constitution and the existence of Martial Law, and would, therefore, grant the petitio
they not moot and academic. Justices Barredo, Antonio and Esguerra are of the opinion that i
involves questions of fact which cannot be predetermined, and that Martial Law per se does n
necessarily preclude the factual possibility of adequate freedom, for the purposes contemplate

6. On Presidential Proclamation No. 1102, the following views were expressed:

a. Justices Makalintal, Castro, Fernando, Teehankee, Makasiar, Esguerra and

of the opinion that the question of validity of said Proclamation has not been p
raised before the Court, which, accordingly, should not pass upon such questi

b. Justice Barredo holds that the issue on the constitutionality of Proclamation

has been submitted to and should be determined by the Court, and that the "p
ratification of the Proposed Constitution ... based on the referendum among C
Assemblies falls short of being in strict conformity with the requirements of Art
the 1935 Constitution," but that such unfortunate drawback notwithstanding, "c
all other related relevant circumstances, ... the new Constitution is legally reco
and should be recognized as legitimately in force."

c. Justice Zaldivar maintains unqualifiedly that the Proposed Constitution has n

ratified in accordance with Article XV of the 1935 Constitution, and that, accord
no force and effect whatsoever.

d. Justice Antonio feels "that the Court is not competent to act" on the issue w
Proposed Constitution has been ratified by the people or not, "in the absence
judicially discoverable and manageable standards," since the issue "poses a q
fact.

7. On the question whether or not these cases should be dismissed, Justices Makalintal, Cast
Makasiar, Antonio and Esguerra voted in the affirmative, for the reasons set forth in their resp
opinions. Justices Fernando, Teehankee, and the writer similarly voted, except as regards Ca
35948 as to which they voted to grant to the petitioners therein a reasonable period of time wi
file appropriate pleadings should they wish to contest the legality of Presidential Proclamation
Justice Zaldivar favors the granting of said period to the petitioners in said Case No. L-35948
aforementioned purpose, but he believes, in effect, that the Court should go farther and decid
 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) membe
1

dissenting,  with respect to G.R. No. L-35948, only and another member  dissenting, as regards all of the cases dismi
2 3

same, without special pronouncement as to costs.

The Present Cases

Prior thereto, or on January 20, 1973, Josue Javellana filed Case G.R. No. L-36142 against the Executive Secretary
Secretaries of National Defense, Justice and Finance, to restrain said respondents "and their subordinates or agents
implementing any of the provisions of the propose Constitution not found in the present Constitution" — referring to th
The petition therein, filed by Josue Javellana, as a "Filipino citizen, and a qualified and registered voter" and as "a cla
himself, and in behalf of all citizens and voters similarly situated," was amended on or about January 24, 1973. After
substance the facts set forth in the decision in the plebiscite cases, Javellana alleged that the President had announc
immediate implementation of the New Constitution, thru his Cabinet, respondents including," and that the latter "are a
without, or in excess of jurisdiction in implementing the said proposed Constitution" upon the ground: "that the Presid
Commander-in-Chief of the Armed Forces of the Philippines, is without authority to create the Citizens Assemblies"; t
same "are without power to approve the proposed Constitution ..."; "that the President is without power to proclaim th
by the Filipino people of the proposed Constitution"; and "that the election held to ratify the proposed Constitution wa
election, hence null and void."

Similar actions were filed, on January 23, 1973, by Vidal Tan, J. Antonio Araneta, Alejandro Roces, Manuel Crudo, A
Miranda, Emilio de Peralta and Lorenzo M. Tañada, against the Executive Secretary, the Secretaries of Finance, Jus
Reform, and National Defense, the Auditor General, the Budget Commissioner, the Chairman of the Presidential Com
Reorganization, the Treasurer of the Philippines, the Commission on Elections and the Commissioner of Civil Service
February 3, 1973, by Eddie Monteclaro, personally and as President of the National Press Club of the Philippines, ag
Executive Secretary, the Secretary of Public Information, the Auditor General, the Budget Commissioner and the Nat
Treasurer  and on February 12, 1973, by Napoleon V. Dilag, Alfredo Salapantan, Jr., Leonardo Asodisen, Jr. and Rau
5

Gonzales,  against the Executive Secretary, the Secretary of National Defense, the Budget Commissioner and the Au
6

General.

Likewise, on January 23, 1973, Gerardo Roxas, Ambrosio Padilla, Jovito R. Salonga, Salvador H. Laurel,  Ramon V.
7

and Eva Estrada-Kalaw, the first as "duly elected Senator and Minority Floor Leader of the Senate," and others as "du
members" thereof, filed Case G.R. No. L-36165, against the Executive Secretary, the Secretary National Defense, th
Staff of the Armed Forces of the Philippines, the Secretary of General Services, the President and the President Pro
the Senate. In their petition — as amended on January 26, 1973 — petitioners Gerardo Roxas, et al. allege, inter alia
term of office of three of the aforementioned petitioners  would expire on December 31, 1975, and that of the others  o
8 9

December 31, 1977; that pursuant to our 1935 Constitution, "which is still in force Congress of the Philippines "must c
its 8th Session on Monday, January 22, 1973, at 10:00 A.M., which is regular customary hour of its opening session";
said day, from 10:00 A.M. up to the afternoon," said petitioner "along with their other colleagues, were unlawfully prev
using the Senate Session Hall, the same having been closed by the authorities in physical possession and control the
Building"; that "(a)t about 5:00 to 6:00 P.M. the said day, the premises of the entire Legislative Building were ordered
the same authorities, and no one was allowed to enter and have access to said premises"; that "(r)espondent Senate
Gil J. Puyat and, in his absence, respondent President Pro Tempore Jose Roy we asked by petitioning Senators to p
duties under the law and the Rules of the Senate, but unlawfully refrained and continue to refrain from doing so"; that
petitioners ready and willing to perform their duties as duly elected members of the Senate of the Philippines," but res
Secretary of National Defense, Executive Secretary and Chief of Staff, "through their agents and representatives, are
petitioners from performing their duties as duly elected Senators of the Philippines"; that "the Senate premise in the C
the Philippines Building ... are occupied by and are under the physical control of the elements military organizations u
direction of said respondents"; that, as per "official reports, the Department of General Services ... is now the civilian
custody of the premises of the Legislative Building"; that respondents "have unlawfully excluded and prevented, and
so exclude and prevent" the petitioners "from the performance of their sworn duties, invoking the alleged approval of
(1973) Constitution of the Philippines by action of the so-called Citizens' Assemblies on January 10, 1973 to January
as stated in and by virtue of Proclamation No. 1102 signed and issued by the President of the Philippines"; that "the a
creation of the Citizens' Assemblies as instrumentalities for the ratification of the Constitution of the Republic of the P
inherently illegal and palpably unconstitutional; that respondents Senate President and Senate President Pro Tempor
unlawfully refrained and continue to refrain from and/or unlawfully neglected and continue to neglect the performance
duties and functions as such officers under the law and the Rules of the Senate" quoted in the petition; that because
supervening the institution of the plebiscite cases, to which reference has been made in the preceding pages, the Su
dismissed said cases on January 22, 1973, by a majority vote, upon the ground that the petitions therein had become
academic; that the alleged ratification of the 1972 (1973) Constitution "is illegal, unconstitutional and void and ... can
superseded and revoked the 1935 Constitution," for the reasons specified in the petition as amended; that, by acting
the respondents and their "agents, representatives and subordinates ...have excluded the petitioners from an office to
they "are lawfully entitled"; that "respondents Gil J. Puyat and Jose Roy have unlawfully refrained from convening the
its 8th session, assuming general jurisdiction over the Session Hall and the premises of the Senate and ... continue s
up to this time and ... a writ of mandamus is warranted in order to compel them to comply with the duties and function
specifically enjoined by law"; and that "against the above mentioned unlawful acts of the respondents, the petitioners
appeal nor other speedy and adequate remedy in the ordinary course of law except by invoking the equitable remedie
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 prelim
mandatory injunction be issued ordering respondents Executive Secretary, the Secretary of National Defense, the Ch
of the Armed Forces of the Philippines, and the ... Secretary of General Service, as well as all their agents, represent
subordinates to vacate the premises of the Senate of the Philippines and to deliver physical possession of the same t
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
and mandamus, as prayed for against above-mentioned respondents, and making the writ injunction permanent; and
of mandamus be issued against the respondents Gil J. Puyat and Jose Roy directing them to comply with their duties
functions as President and President Pro Tempore, respectively, of the Senate of Philippines, as provided by law and
of the Senate."

Required to comment on the above-mentioned petitions and/or amended petitions, respondents filed, with the leave C
had and obtained, a consolidated comment on said petitions and/or amended petitions, alleging that the same ought
been dismissed outright; controverting petitioners' allegations concerning the alleged lack impairment of the freedom
Constitution Convention to approve the proposed Constitution, its alleged lack of authority to incorporate certain cont
provisions thereof, the alleged lack of authority of the President to create and establish Citizens' Assemblies "for the p
submitting to them the matter of ratification of the new Constitution," the alleged "improper or inadequate submiss of
proposed constitution," the "procedure for ratification adopted ... through the Citizens Assemblies"; a maintaining that
Court is without jurisdiction to act on these petitions"; 2) the questions raised therein are "political in character and the
nonjusticiable"; 3) "there substantial compliance with Article XV of the 1 Constitution"; 4) "(t)he Constitution was prope
submitted the people in a free, orderly and honest election; 5) "Proclamation No. 1102, certifying the results of the ele
conclusive upon the courts"; and 6) "(t)he amending process outlined in Article XV of the 1935 Constitution is not exc
other modes of amendment."

Respondents Puyat and Roy, in said Case G.R. No. L-36165, filed their separate comment therein, alleging that "(t)h
matter" of said case "is a highly political question which, under the circumstances, this ...Court would not be in a posit
upon judicially," and that, in view of the opinions expressed by three members of this Court in its decision in the plebi
in effect upholding the validity of Proclamation No. 1102, "further proceedings in this case may only be an academic e
futility."

On February 5, 1973, the Court issued a resolution requiring respondents in L-36236 to comment on the petition ther
than Saturday, February 10, 1973, and setting the case for hearing on February 12, 1973, at 9:30 a.m. By resolution
February 7, 1973, this Court resolved to consider the comments of the respondents in cases G.R. Nos. L-36142, L-36
36165, as motions to dismiss the petitions therein, and to set said cases for hearing on the same date and time as L-
that date, the parties in G.R. No. L-36283   agreed that the same be, likewise, heard, as it was, in fact, heard jointly w
10

aforementioned cases G.R. Nos. L-36142, L-36164, L-36165 and L-36236. The hearing, which began on February 12
shortly after 9:30 a.m., was continued not only that afternoon, but, also, on February 13, 14, 15 and 16, morning and
after which the parties were granted up to February 24, 1973, noon, within which to submit their notes of oral argume
additional arguments, as well as the documents required of them or whose presentation was reserved by them. The s
resolution granted the parties until March 1, 1973, to reply to the notes filed by their respective opponents. Counsel fo
petitioners in G.R. Nos. L-36164 and L-36165 filed their aforementioned notes on February 24, 1973, on which date t
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
Counsel for the petitioners, likewise, moved and were granted an extension of time, to expire on March 10, 1973, with
file, as they did, their notes in reply to those submitted by the Solicitor General on March 3, 1973. On March 21, 1973
in L-36165 filed a "Manifestation a Supplemental Rejoinder," whereas the Office of the Solicitor General submitted in
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
thereof on his colleagues, and this they did. Subsequently, the Court discussed said opinions and votes were cast the
individual opinions are appended hereto.

Accordingly, the writer will first express his person opinion on the issues before the Court. After the exposition his afo
opinion, the writer will make, concurrently with his colleagues in the Court, a resume of summary of the votes cast by
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,
Solicitor General, is predicated upon the fact that, in Our decision in the plebiscite cases, Mr. Justice Barredo had exp
view that the 1935 Constitution had "pro tanto passed into history" and "been legitimately supplanted by the Constitut
force by virtue of Proclamation No. 1102 ..."; that Mr. Justice Antonio did not feel "that this Court competent to act" in
"in the absence of any judicially discoverable and manageable standards" and because "the access to relevant inform
insufficient to assure the correct determination of the issue," apart from the circumstance that "the new constitution ha
promulgated and great interests have already arisen under it" and that the political organ of the Government has reco
provisions; whereas, Mr. Justice Esguerra had postulated that "(w)ithout any competent evidence ... about the circum
attending the holding" of the "referendum or plebiscite" thru the Citizens' Assemblies, he "cannot say that it was not la
and that, accordingly, he assumed "that what the proclamation (No. 1102) says on its face is true and until overcome
satisfactory evidence" he could not "subscribe to the claim that such plebiscite was not held accordingly"; and that he
"as a fait accompli that the Constitution adopted (by the 1971 Constitutional Convention) on November 30, 1972, has
ratified.

Counsel for respondents Gil J. Puyat and Jose Roy goes on to say that, under these circumstances, "it seems remote
improbable that the necessary eight (8) votes under the 1935 Constitution, and much less the ten (10) votes required
(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 heari
cases, that he was and is willing to be convinced that his aforementioned opinion in the plebiscite cases should be re
and changed. In effect, he thus declared that he had an open mind in connection with the cases at bar, and that in de
same he would not necessarily adhere to said opinion if the petitioners herein succeeded in convincing him that their
be sustained.

Secondly, counsel for the aforesaid respondents had apparently assumed that, under the 1935 Constitution, eight (8)
necessary to declare invalid the contested Proclamation No. 1102. I do not believe that this assumption is borne out b
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 Su
Court in banc, and no treaty or law may be declared unconstitutional without the concurrence
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 de
or law" unconstitutional. Construing said provision, in a resolution dated September 16, 1949, then Chief Justice Mora
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 J
nullify a rule or regulation or an executive order issued by the President. It is very significant th
previous drafts of section 10, Article VIII of the Constitution, "executive order" and "regulation"
included among those that required for their nullification the vote of two-thirds of all the memb
Court. But "executive order" and "regulation" were later deleted from the final draft (Aruego, T
of the Philippine Constitution, Vol. I, pp. 495, 496), and thus a mere majority of six members o
is enough to nullify them.  11

The distinction is not without reasonable foundation. The two thirds vote (eight [8] votes) requirement, indeed, was m
only to treaty and law, because, in these cases, the participation of the two other departments of the government — t
Executive and the Legislative — is present, which circumstance is absent in the case of rules, regulations and execut
Indeed, a law (statute) passed by Congress is subject to the approval or veto of the President, whose disapproval can
overridden except by the vote of two-thirds (2/3) of all members of each House of Congress.   A treaty is entered into
12

President with the concurrence of the Senate,   which is not required in the case of rules, regulations or executive ord
13

are exclusive acts of the President. Hence, to nullify the same, a lesser number of votes is necessary in the Supreme
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 w
force to executive proclamation, like said Proclamation No. 1102, inasmuch as the authority to issue the same is gove
section 63 of the Revised Administrative Code, which provides:

Administrative acts and commands of the (Governor-General) President of the Philippines tou
organization or mode of operation of the Government or rearranging or readjusting any of the
divisions, parts or ports of the (Philippine Islands) Philippines and all acts and commands gov
general performance of duties by public employees or disposing of issues of general concern
made effective in executive orders.

Executive orders fixing the dates when specific laws, resolutions, or orders are to have or cea
effect and any information concerning matters of public moment determined by law, resolution
executive orders, may be promulgated in an executive proclamation, with all the force of an ex
order. 14

In fact, while executive order embody administrative acts or commands of the President, executive proclamations are
informative and declaratory in character, and so does counsel for respondents Gil J. Puyat and Jose Roy maintain in
L-36165.   As consequence, an executive proclamation has no more than "the force of an executive order," so that, f
15

Supreme Court to declare such proclamation unconstitutional, under the 1935 Constitution, the same number of vote
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 C
in the determination of the question whether or not it is now in force, it is obvious that such question depends upon w
not the said new Constitution has been ratified in accordance with the requirements of the 1935 Constitution, upon th
of which said Constitutional Convention was called and approved the proposed Constitution. It is well settled that the
ratification of an amendment to the Constitution should be settled by applying the provisions of the Constitution in forc
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-justiciabl

The Solicitor General maintains in his comment the affirmative view and this is his main defense. In support thereof, h
that "petitioners would have this Court declare as invalid the New Constitution of the Republic" from which — he claim
Court now derives its authority"; that "nearly 15 million of our body politic from the age of 15 years have mandated thi
Constitution to be the New Constitution and the prospect of unsettling acts done in reliance on it caution against inter
the power of judicial review"; that "in the case of the New Constitution, the government has been recognized in accor
the New Constitution"; that "the country's foreign relations are now being conducted in accordance with the new char
"foreign governments have taken note of it"; that the "plebiscite cases" are "not precedents for holding questions rega
proposal and ratification justiciable"; and that "to abstain from judgment on the ultimate issue of constitutionality is no
duty."

At the outset, it is obvious to me that We are not being asked to "declare" the new Constitution invalid. What petitione
is the theory that it has been validly ratified by the people, especially that they have done so in accordance with Artic
1935 Constitution. The petitioners maintain that the conclusion reached by the Chief Executive in the dispositive porti
Proclamation No. 1102 is not borne out by the whereases preceding the same, as the predicates from which said con
drawn; that the plebiscite or "election" required in said Article XV has not been held; that the Chief Executive has no a
under the 1935 Constitution, to dispense with said election or plebiscite; that the proceedings before the Citizens' Ass
not constitute and may not be considered as such plebiscite; that the facts of record abundantly show that the aforem
Assemblies could not have been held throughout the Philippines from January 10 to January 15, 1973; and that, in an
proceedings in said Assemblies are null and void as an alleged ratification of the new Constitution proposed by the 19
Constitutional Convention, not only because of the circumstances under which said Assemblies had been created an
also, because persons disqualified to vote under Article V of the Constitution were allowed to participate therein, beca
provisions of our Election Code were not observed in said Assemblies, because the same were not held under the su
the Commission on Elections, in violation of section 2 of Article X of the 1935 Constitution, and because the existence
Law and General Order No. 20, withdrawing or suspending the limited freedom to discuss the merits and demerits of
proposed Constitution, impaired the people's freedom in voting thereon, particularly a viva voce, as it was done in ma
instances, as well as their ability to have a reasonable knowledge of the contents of the document on which they wer
called upon to express their views.

Referring now more specifically to the issue on whether the new Constitution proposed by the 1971 Constitutional Co
has been ratified in accordance with the provisions of Article XV of the 1935 Constitution is a political question or not,
hesitate to state that the answer must be in the negative. Indeed, such is the position taken by this Court, 17 in an en
decisions, too long to leave any room for possible doubt that said issue is inherently and essentially justiciable. Such,
been the consistent position of the courts of the United States of America, whose decisions have a persuasive effect
jurisdiction, our constitutional system in the 1935 Constitution being patterned after that of the United States. Besides
plausible reason has, to my mind, been advanced to warrant a departure from said position, consistently with the form
government established under said Constitution..

Thus, in the aforementioned plebiscite cases,   We rejected the theory of the respondents therein that the question w
18

Presidential Decree No. 73 calling a plebiscite to be held on January 15, 1973, for the ratification or rejection of the p
new Constitution, was valid or not, was not a proper subject of judicial inquiry because, they claimed, it partook of a p
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 constitutional
19

of the factual bases of the Presidential proclamation suspending the privilege of the writ of habeas corpus on August
despite the opposite view taken by this Court in Barcelona v. Baker   and Montenegro v. Castañeda,   insofar as it ad
20 21

the former case, which view We, accordingly, abandoned and refused to apply. For the same reason, We did not app
expressly modified, in Gonzales v. Commission on Elections,   the political-question theory adopted in Mabanag v. Lo
22

Vito.   Hence, respondents herein urge Us to reconsider the action thus taken by the Court and to revert to and follow
23

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 politica
theory advanced in said habeas corpus and plebiscite cases, which were carefully considered by this Court and foun
legally unsound and constitutionally untenable. As a consequence, Our decision in the aforementioned habeas corpu
partakes of the nature and effect of a stare decisis, which gained added weight by its virtual reiteration in the plebiscit

The reason why the issue under consideration and other issues of similar character are justiciable, not political, is pla
simple. One of the principal bases of the non-justiciability of so-called political questions is the principle of separation
— characteristic of the Presidential system of government — the functions of which are classified or divided, by reaso
nature, into three (3) categories, namely: 1) those involving the making of laws, which are allocated to the legislative
2) those concerned mainly with the enforcement of such laws and of judicial decisions applying and/or interpreting the
which belong to the executive department; and 3) those dealing with the settlement of disputes, controversies or conf
involving rights, duties or prerogatives that are legally demandable and enforceable, which are apportioned to courts
Within its own sphere — but only within such sphere — each department is supreme and independent of the others,
devoid of authority, not only to encroach upon the powers or field of action assigned to any of the other departments,
inquire into or pass upon the advisability or wisdom of the acts performed, measures taken or decisions made by the
departments — provided that such acts, measures or decisions are within the area allocated thereto by the Constituti

This principle of separation of powers under the presidential system goes hand in hand with the system of checks an
under which each department is vested by the Fundamental Law with some powers to forestall, restrain or arrest a po
actual misuse or abuse of powers by the other departments. Hence, the appointing power of the Executive, his pardo
his veto power, his authority to call the Legislature or Congress to special sessions and even to prescribe or limit the
objects of legislation that may be taken up in such sessions, etc. Conversely, Congress or an agency or arm thereof —
the commission on Appointments — may approve or disapprove some appointments made by the President. It, also,
power of appropriation, to "define, prescribe, and apportion the jurisdiction of the various courts," as well as that of im
Upon the other hand, under the judicial power vested by the Constitution, the "Supreme Court and ... such inferior co
be established by law," may settle or decide with finality, not only justiciable controversies between private individuals
but, also, disputes or conflicts between a private individual or entity, on the one hand, and an officer or branch of the
on the other, or between two (2) officers or branches of service, when the latter officer or branch is charged with actin
jurisdiction or in excess thereof or in violation of law. And so, when a power vested in said officer or branch of the gov
is absolute or unqualified, the acts in the exercise of such power are said to be political in nature, and, consequently,
justiciable or beyond judicial review. Otherwise, courts of justice would be arrogating upon themselves a power confe
Constitution upon another branch of the service to the exclusion of the others. Hence, in Tañada v. Cuenco,   this Co26

with approval from In re McConaughy,   the following:

27

"At the threshold of the case we are met with the assertion that the questions involved are pol
not judicial. If this is correct, the court has no jurisdiction as the certificate of the state canvass
would then be final, regardless of the actual vote upon the amendment. The question thus rais
 fundamental one; but it has been so often decided contrary to the view contended for by the A
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 
which is to be exercised by the people in their primary political capacity, or that it has been sp
delegated to some other department or particular officer of the government, with discretionary
act. See State vs. Cunningham, 81 Wis. 497, N.W. 724, 15 L.R.A. 561; In re Gunn, 50 Kan. 15
470, 948, 19 L.R.A. 519; Green vs. Mills, 69 Fed. 852, 16 C.C.A. 516, 30 L.R.A. 90; Fletcher v
Tuttle 151 Ill. 41, 37 N.E. 683, 25 L.R.A. 143, 42 Am. St. Rep. 220. Thus the Legislature may
discretion determine whether it will pass law or submit a proposed constitutional amendment t
people. The courts have no judicial control over such matters, not merely because they involv
questions, but because they are matters which the people have by the Constitution delegated
Legislature. The Governor may exercise the powers delegated him, free from judicial control, 
he observes the laws act within the limits of the power conferred. His discretionary acts canno
controllable, not primarily because they are of a politics nature, but because the Constitution a
have placed the particular matter under his control. But every officer under constitutional gove
must act accordingly to law and subject its restrictions, and every departure therefrom or disre
thereof must subject him to that restraining and controlling power of the people, acting through
agency of the judiciary; for it must be remembered that the people act through courts, as well
the executive or the Legislature. One department is just as representative as the other, and th
is the department which is charged with the special duty of determining the limitations which th
places upon all official action. The recognition of this principle, unknown except in Great Britai
America, is necessary, to "the end that the government may be one of laws and not of men" —
which Webster said were the greatest contained in any written constitutional document." (Emp
supplied.)

and, in an attempt to describe the nature of a political question in terms, it was hoped, understandable to the laymen,
that "... the term "political question" connotes, in legal parlance, what it means in ordinary parlance, namely, a questio
in matters concerning the government of a State, as a body politic. "In other words, in the language of Corpus Juris S
(supra), it refers to "those questions which, under the Constitution, are to be decided by the people in their sovereign
in regard to which full discretionary authority has been delegated to the Legislature or executive branch of the govern
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
qualifications or conditions have been met, or the limitations respected, is justiciable or non-political, the crux of the p
being one of legality or validity of the contested act, not its wisdom. Otherwise, said qualifications, conditions or limita
particularly those prescribed or imposed by the Constitution — would be set at naught. What is more, the judicial inqu
such issue and the settlement thereof are the main functions of courts of justice under the Presidential form of govern
adopted in our 1935 Constitution, and the system of checks and balances, one of its basic predicates. As a conseque
have neither the authority nor the discretion to decline passing upon said issue, but are under the ineluctable obligatio
particularly more exacting and peremptory by our oath, as members of the highest Court of the land, to support and d
Constitution — to settle it. This explains why, in Miller v. Johnson,   it was held that courts have a "duty, rather than a
28

determine whether another branch of the government has "kept within constitutional limits." Not satisfied with this pos
court went farther and stressed that, if the Constitution provides how it may be amended — as it is in our 1935 Const
"then, unless the manner is followed, the judiciary as the interpreter of that constitution, will declare the amendment in
fact, this very Court — speaking through Justice Laurel, an outstanding authority on Philippine Constitutional Law, as
of the highly respected and foremost leaders of the Convention that drafted the 1935 Constitution — declared, as ear
15, 1936, that "(i)n times of social disquietude or political excitement, the great landmarks of the Constitution are apt
forgotten or marred, if not entirely obliterated. In cases of conflict, the judicial department is the only constitutional org
can be called upon to determine the proper allocation of powers between the several departments" of the governmen

The Solicitor General has invoked Luther v. Borden   in support of his stand that the issue under consideration is non
31

in nature. Neither the factual background of that case nor the action taken therein by the Federal Supreme Court has
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
for having forcibly entered into Luther's house, in Rhode Island, sometime in 1842. The defendants who were in the m
service of said former colony of England, alleged in their defense that they had acted in obedience to the commands
superior officer, because Luther and others were engaged in a conspiracy to overthrow the government by force and
had been placed by competent authority under Martial Law. Such authority was the charter government of Rhode Isla
time of the Declaration of Independence, for — unlike other states which adopted a new Constitution upon secession
England — Rhode Island retained its form of government under a British Charter, making only such alterations, by ac
Legislature, as were necessary to adapt it to its subsequent condition as an independent state. It was under this form
government when Rhode Island joined other American states in the Declaration of Independence and, by subsequen
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
Legislature having failed to bring about the desired effect, meetings were held and associations formed — by those w
belonged to this segment of the population — which eventually resulted in a convention called for the drafting of a ne
Constitution to be submitted to the people for their adoption or rejection. The convention was not authorized by any la
existing government. The delegates to such convention framed a new Constitution which was submitted to the people
return of the votes cast by them, the convention declared that said Constitution had been adopted and ratified by a m
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 val
proceedings. This notwithstanding, one Thomas W. Dorr, who had been elected governor under the new Constitution
rebels, prepared to assert authority by force of arms, and many citizens assembled to support him. Thereupon, the ch
government passed an Act declaring the state under Martial Law and adopted measures to repel the threatened attac
subdue the rebels. This was the state of affairs when the defendants, who were in the military service of the charter g
and were to arrest Luther, for engaging in the support of the rebel government — which was never able to exercise a
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 gove
Eventually, a new constitution was drafted by a convention held under the authority of the charter government, and th
was adopted and ratified by the people. "(T)he times and places at which the votes were to be given, the persons wh
receive and return them, and the qualifications of the voters having all been previously authorized and provided for by
passed by the charter government," the latter formally surrendered all of its powers to the new government, establish
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
of the state arsenal in Providence, but he was repulsed, and, after an "assemblage of some hundreds of armed men
command at Chepatchet in the June following, which dispersed upon approach of the troops of the old government, n
effort was made to establish" his government. "... until the Constitution of 1843" — adopted under the auspices of the
government — "went into operation, the charter government continued to assert its authority and exercise its powers
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 th
which the Circuit Court rejected, apart from rendering judgment for the defendants, the plaintiff took the case for revie
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
Thomas W. Dorr took place after the constitution of 1843 went into operation. The judges who
that case held their authority under that constitution and it is admitted on all hands that it was
the people of the State, and is the lawful and established government. It is the decision, there
State court, whose judicial authority to decide upon the constitution and laws of Rhode Island
questioned by either party to this controversy, although the government under which it acted w
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 que
relates, altogether, to the constitution and laws of that State, and the well settled rule in this co
the courts of the United States adopt and follow the decisions of the State courts in questions
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 depa
this rule, and disregarded and overruled the decisions of the courts of Rhode Island? Undoub
courts of the United States have certain powers under the Constitution and laws of the United
which do not belong to the State courts. But the power of determining that a State governmen
lawfully established, which the courts of the State disown and repudiate, is not one of them. U
question the courts of the United States are bound to follow the decisions of the State tribunal
therefore regard the charter government as the lawful and established government during the
contest. 32

It is thus apparent that the context within which the case of Luther v. Borden was decided is basically and fundament
from that of the cases at bar. To begin with, the case did not involve a federal question, but one purely municipal in n
Hence, the Federal Supreme Court was "bound to follow the decisions of the State tribunals" of Rhode Island upholdi
constitution adopted under the authority of the charter government. Whatever else was said in that case constitutes, t
an obiter dictum. Besides, no decision analogous to that rendered by the State Court of Rhode Island exists in the ca
Secondly, the states of the Union have a measure of internal sovereignty upon which the Federal Government may n
encroach, whereas ours is a unitary form of government, under which our local governments derive their authority fro
national government. Again, unlike our 1935 Constitution, the charter or organic law of Rhode Island contained no pr
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 recognitio
of constitution, and there is a fundamental difference between these two (2) types of recognition, the first being gener
conceded to be a political question, whereas the nature of the latter depends upon a number of factors, one of them b
whether the new Constitution has been adopted in the manner prescribed in the Constitution in force at the time of th
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 Gover
established under the 1935 Constitution is the very same government whose Executive Department has urged the ad
the new or revised Constitution proposed by the 1971 Constitutional Convention and now alleges that it has been rati
people.

In short, the views expressed by the Federal Supreme Court in Luther v. Borden, decided in 1849, on matters other t
referring to its power to review decisions of a state court concerning the constitution and government of that state, no
Federal Constitution or Government, are manifestly neither, controlling, nor even persuasive in the present cases, ha
the Federal Supreme Court admitted — no authority whatsoever to pass upon such matters or to review decisions of
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
power to determine questions of a political character. It is interesting historically, but it has not
slightest application to the case at bar. When carefully analyzed, it appears that it merely dete
 the federal courts will accept as final and controlling a decision of the highest court of a state
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 apportioning the seats in the G
34

Assembly among the counties of the State, upon the theory that the legislation violated the equal protection clause. A
court dismissed the case upon the ground, among others, that the issue was a political one, but, after a painstaking r
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
to another branch of government, or whether the action of that branch exceeds whatever authority has been committ
delicate exercise in constitutional interpretation, and is a responsibility of this Court as ultimate interpreter of the Cons

Similarly, in Powell v. McCormack,   the same Court, speaking through then Chief Justice Warren, reversed a decisio
35

Court of Appeals of New York affirming that of a Federal District Court, dismissing Powell's action for a declaratory ju
declaring thereunder that he — whose qualifications were uncontested — had been unlawfully excluded from the 90t
of the U.S. Said dismissal was predicated upon the ground, inter alia, that the issue was political, but the Federal Sup
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
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 amendmen
properly adopted according to the requirements of an existing Constitution is a judicial questio
can be little doubt that the consensus of judicial opinion is to the effect that it is the absolute d
judiciary to determine whether the Constitution has been amended in the manner required by
Constitution, unless a special tribunal has been created to determine the question; and even t
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
amendment, it is clear to my mind that the question whether or not the revised Constitution drafted by the 1971 Cons
Convention has been ratified in accordance with said Art. XV is a justiciable one and non-political in nature, and that
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' " —
allegedly involves a political question — "a bona fide controversy as to whether some action denominated "political" e
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 th
Assemblies" through which, respondents maintain, the proposed new Constitution has been ratified; that said Assem
without power to approve the proposed Constitution"; 3) that the President "is without power to proclaim the ratificatio
Filipino people of the proposed Constitution"; and 4) that "the election held (in the Citizens' Assemblies) to ratify the p
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
President "has no power to call a plebiscite for the ratification or rejection" of the proposed new Constitution or "to ap
funds for the holding of the said plebiscite"; 2) that the proposed new or revised Constitution "is vague and incomplete
as "contains provisions which are beyond the powers of the 1971 Convention to enact," thereby rendering it "unfit for
submission the people;" 3) that "(t)he period of time between November 1972 when the 1972 draft was approved and
11-15, 1973," when the Citizens' Assemblies supposedly ratified said draft, "was too short, worse still, there was prac
time for the Citizens' Assemblies to discuss the merits of the Constitution which the majority of them have not read a
never knew would be submitted to them ratification until they were asked the question — "do you approve of the New
Constitution?" during the said days of the voting"; and that "(t)here was altogether no freedom discussion and no opp
concentrate on the matter submitted to them when the 1972 draft was supposedly submitted to the Citizens' Assembl
ratification."

Petitioner in L-36236 added, as arguments in support of the negative view, that : 1) "(w)ith a government-controlled p
can never be a fair and proper submission of the proposed Constitution to the people"; and 2) Proclamation No. 1102
void "(i)nasmuch as the ratification process" prescribed "in the 1935 Constitution was not followed."

Besides adopting substantially some of the grounds relied upon by the petitioners in the above-mentioned cases, the
in L-36283 argue that "(t)he creation of the Citizens' Assemblies as the vehicle for the ratification of the Constitution w
deception upon the people since the President announced the postponement of the January 15, 1973 plebiscite to ei
February 19 or March 5, 1973."  38

The reasons adduced by the petitioners in L-36165 in favor of the negative view have already been set forth earlier in
opinion. Hence, it is unnecessary to reproduce them here. So it is, with respect to the positions taken in L-36165 by c
therein respondents Gil J. Puyat and Jose Roy — although more will be said later about them — and by the Solicitor
behalf of the other respondents in that case and the respondents in the other cases.

1. What is the procedure prescribed by the 1935 Constitution for its amendment?

Under section 1 of Art. XV of said Constitution, three (3) steps are essential, namely:

1. That the amendments to the Constitution be proposed either by Congress or by a convention called for that purpos
vote of three-fourths of all the Members of the Senate and the House of Representatives voting separately," but "in jo
assembled";

2. That such amendments be "submitted to the people for their ratification" at an "election"; and

3. That such amendments be "approved by a majority of the votes cast" in said election.

Compliance with the first requirement is virtually conceded, although the petitioners in L-36164 question the authority
Constitutional Convention to incorporate certain provisions into the draft of the new or revised Constitution. The main
these five (5) cases hinges, therefore, on whether or not the last two (2) requirements have been complied with.

2. Has the contested draft of the new or revised Constitution been submitted to the people for their ratification conform
XV of the Constitution?

In this connection, other provisions of the 1935 Constitution concerning "elections" must, also, be taken into account,
section I of Art. V and Art. X of said Constitution. The former reads:

Section 1. Suffrage may be exercised by male citizens of the Philippines not otherwise disqua
who are twenty-one years of age or over and are able to read and write, and who shall have r
the Philippines for one year and in the municipality wherein they propose to vote for at least si
preceding the election. The National Assembly shall extend the right of suffrage to women, if i
 plebiscite which shall be held for that purpose within two years after the adoption of this Cons
less than three hundred thousand women possessing the necessary qualifications shall vote a
on the question.

Sections 1 and 2 of Art. X of the Constitution ordain in part:

Section 1. There shall be an independent Commission on Elections composed of a Chairman

other Members to be appointed by the President with the consent of the Commission on Appo
who shall hold office for a term of nine years and may not be reappointed. ...

xxx xxx xxx

Sec. 2. The Commission on Elections shall have exclusive charge of the enforcement and adm
of all laws relative to the conduct of elections and shall exercise all other functions which may
conferred upon it by law. It shall decide, save those involving the right to vote, all administrativ
questions, affecting elections, including the determination of the number and location of pollin
and the appointment of election inspectors and of other election officials. All law enforcement
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,
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
that no other persons than "citizens of the Philippines not otherwise disqualified by law, who are twenty-one years of
and are able to read and write, and who shall have resided in the Philippines for one year and in the municipality whe
propose to vote for at least six months preceding the election," may exercise the right of suffrage in the Philippines. U
other hand, the Solicitor General contends that said provision merely guarantees the right of suffrage to persons pos
aforementioned qualifications and none of the disqualifications, prescribed by law, and that said right may be vested
competent authorities in persons lacking some or all of the aforementioned qualifications, and possessing some of th
disqualifications. In support of this view, he invokes the permissive nature of the language — "(s)uffrage may be exer
used in section 1 of Art. V of the Constitution, and the provisions of the Revised Barrio Charter, Republic Act No. 359
particularly sections 4 and 6 thereof, providing that citizens of the Philippines "eighteen years of age or over," who are
in the list of barrio assembly members, shall be members thereof and may participate as such in the plebiscites presc
said Act.

I cannot accept the Solicitor General's theory. Art. V of the Constitution declares who may exercise the right of suffra
those lacking the qualifications therein prescribed may not exercise such right. This view is borne out by the records
Constitutional Convention that drafted the 1935 Constitution. Indeed, section 1 of Art. V of the 1935 Constitution was
based on the report of the committee on suffrage of the Convention that drafted said Constitution which report was, in
"strongly influenced by the election laws then in force in the Philippines ... ."   " Said committee had recommended: 1
40

right of suffrage should exercised only by male citizens of the Philippines." 2) "That should be limited to those who co
and write." 3) "That the duty to vote should be made obligatory." It appears that the first recommendation was discuss
extensively in the Convention, and that, by way of compromise, it was eventually agreed to include, in section 1 of Ar
Constitution, the second sentence thereof imposing upon the National Assembly established by the original Constitut
instead of the bicameral Congress subsequently created by amendment said Constitution — the duty to "extend the r
suffrage women, if in a plebiscite to, be held for that purpose within two years after the adoption of this Constitution, n
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 rejec
Convention.   This accounts, in my opinion, for the permissive language used in the first sentence of said Art. V. Des
42

debates on the age qualification — amendment having been proposed to reduce the same to 18 or 20, which were re
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
one of the Delegates to said Convention — "readily approved in the Convention without any dissenting vote," althoug
some debate on whether the Fundamental Law should specify the language or dialect that the voter could read and w
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 b
a grant or conferment of a right to persons possessing the qualifications and none of the disqualifications therein men
which in turn, constitute a limitation of or restriction to said right, and cannot, accordingly, be dispensed with, except b
constitutional amendment. Obviously, every such constitutional grant or conferment of a right is necessarily a negatio
authority of Congress or of any other branch of the Government to deny said right to the subject of the grant — and, i
only, may the same partake of the nature of a guarantee. But, this does not imply not even remotely, that the Fundam
allows Congress or anybody else to vest in those lacking the qualifications and having the disqualifications mentioned
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 th
Constitution was "strongly influenced by the election laws then in force in the Philippines." Our first Election Law was
passed on January 9, 1907, which was partly amended by Acts 1669, 1709, 1726 and 1768, and incorporated into th
Administrative Code of 1916 — Act 2657 — as chapter 20 thereof, and then in the Administrative Code of 1917 — Ac
as chapter 18 thereof, which, in turn, was amended by Act 3387, approved on December 3, 1927. Sections 431 and 4
Code of 1917, prescribing, respectively, the qualifications for and disqualifications from voting, are quoted below.   In
44

legislative acts, the provisions concerning the qualifications of voters partook of the nature of a grant or recognition o
suffrage, and, hence, of a denial thereof to those who lacked the requisite qualification and possessed any of the stat
disqualifications. In short, the history of section 1, Art. V of the Constitution, shows beyond doubt than the same confe
guaranteed — the authority to persons having the qualifications prescribed therein and none of disqualifications to be
ordinary laws and, necessary implication, denied such right to those lacking any said qualifications, or having any of t
aforementioned disqualifications.

This view is further bolstered by the fact that the 1971 Constitutional Convention sought the submission to a plebiscit
"partial amendment" to said section 1 of Art. V of the 1935 Constitution, by reducing the voting age from twenty-one (
eighteen (18) years, which, however, did not materialize on account of the decision of this Court in Tolentino v. Comm
Elections,   granting the writs, of prohibition and injunction therein applied for, upon the ground that, under the Consti
45

the amendments adopted by the Convention should be submitted in "an election" or a single election, not separately
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 ratificati
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 contem
construction that, under the 1935 Constitution, persons below twenty-one (21) years of age could not exercise the rig
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 p
is, to say the least, a debatable one. Indeed, there seems to be a conflict between the last paragraph of said section
Act No. 3590,   pursuant to which the "majority vote of all the barrio assembly members" (which include all barrio res
46

years of age or over, duly registered in the list of barrio assembly members) is necessary for the approval, in an asse
plebiscite, of "any budgetary, supplemental appropriations or special tax ordinances," whereas, according to the para
preceding the penultimate one of said section,   "(a)ll duly registered barrio assembly members qualified to vote" — w
47
pursuant to section 10 of the same Act, must be citizens "of the Philippines, twenty-one years of age or over, able to
write," and residents the barrio "during the six months immediately preceding election, duly registered in the list of vo
otherwise disqualified ..." — just like the provisions of present and past election codes of the Philippines and Art. V of
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, no
because this interpretation is in accord with Art. V the Constitution, but, also, because provisions of a Constitution —
of a written and rigid one, like ours generally accorded a mandatory status — unless the intention to the contrary is m
which is not so as regards said Art. V — for otherwise they would not have been considered sufficiently important to b
in the Fundamental Law of the land.   Besides, it would be illogical, if not absurd, believe that Republic Act No. 3590
48

the most important measures for which it demands — in addition to favorable action of the barrio council — the appro
of barrio assembly through a plebiscite, lesser qualifications than those prescribed in dealing with ordinary measures
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 
elections of public officers, not to plebiscites for the ratification of amendments to the Fundamental Law or revision th
an entirely new Constitution, and permit the legislature to require lesser qualifications for such ratification, notwithstan
fact that the object thereof much more important — if not fundamental, such as the basic changes introduced in the d
revised Constitution adopted by the 1971 Constitutional Convention, which a intended to be in force permanently, or,
many decades, and to affect the way of life of the nation — and, accordingly, demands greater experience and matur
part of the electorate than that required for the election of public officers,   whose average term ranges from 2 to 6 ye
49

It is admitted that persons 15 years of age or over, but below 21 years, regardless of whether or not they possessed
qualifications laid down in both the Constitution and the present Election Code,   and of whether or not they are disqu
50

under the provisions of said Constitution and Code,   or those of Republic Act No. 3590,   have participated and vote
51 52

Citizens' Assemblies that have allegedly ratified the new or revised Constitution drafted by the 1971 Constitutional Co

In fact, according to the latest official data, the total number of registered voters 21 years of age or over in the entire P
available in January 1973, was less than 12 million. Yet, Proclamation No. 1102 states that 14,976,56 "members of a
Barangays (Citizens Assemblies) voted for the adoption of the proposed Constitution, as against ... 743,869 who vote
rejection," whereas, on the question whether or not the people still wanted a plebiscite to be called to ratify the new C
"... 14,298,814 answered that there was no need for a plebiscite and that the vote of the Barangays (Citizens Assemb
be considered as a vote in a plebiscite." In other words, it is conceded that the number of people who allegedly voted
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 su
pages — were fundamentally irregular, in that persons lacking the qualifications prescribed in section 1 of Art. V of th
Constitution were allowed to vote in said Assemblies. And, since there is no means by which the invalid votes of thos
21 years of age can be separated or segregated from those of the qualified voters, the proceedings in the Citizens' A
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
with reasonable certainty the true vote," as where "it is impossible to separate the legal votes from the illegal or spurio

In Usman v. Commission on Elections, et al.,   We held:

55

Several circumstances, defying exact description and dependent mainly on the factual milieu
particular controversy, have the effect of destroying the integrity and authenticity of disputed e
returns and of avoiding their prima facie value and character. If satisfactorily proven, although
summary proceeding, such circumstances as alleged by the affected or interested parties, sta
election returns with the indelible mark of falsity and irregularity, and, consequently, of unrelia
 justify their exclusion from the canvass.

Then, too, the 1935 Constitution requires "a majority of the votes cast" for a proposed amendment to the Fundamenta
"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, 6
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
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 th
the measure proposed.  58

In short, said Art. XV envisages — with the term "votes cast" — choices made on ballots — not orally or by raising —
persons taking part in plebiscites. This is but natural and logical, for, since the early years of the American regime, we
adopted the Australian Ballot System, with its major characteristics, namely, uniform official ballots prepared and furn
Government and secrecy in the voting, with the advantage of keeping records that permit judicial inquiry, when neces
the accuracy of the election returns. And the 1935 Constitution has been consistently interpreted in all plebiscites for
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
Indeed, section 1 provides that "(t)here shall be an independent Commission on Elections ... ." The point to be stress
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 depend
either Congress or the Judiciary? The answer must be the negative, because the functions of the Commission — "en
and administration" of election laws — are neither legislative nor judicial in nature, and, hence, beyond the field alloca
either Congress or courts of justice. Said functions are by their nature essentially executive, for which reason, the Co
would be under the "control" of the President, pursuant to section 10, paragraph (1) of Art. VII of the Constitution, if A
did not explicitly declare that it (the Commission) is an "independent" body. In other words, in amending the original 1
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 org
laws in the Philippines were enforced by the then Department of the Interior, through its Executive Bureau, one of the
under the supervision and control of said Department. The same — like other departments of the Executive Branch o
Government — was, in turn, under the control of the Chief Executive, before the adoption of the 1935 Constitution, an
— until the abolition of said Department, sometime ago — under the control of the President of the Philippines, since
effectivity of said Fundamental Law. Under the provisions thereof, the Executive could so use his power of control ov
Department of the Interior and its Executive Bureau as to place the minority party at such a great, if not decisive, disa
as to deprive it, in effect, of the opportunity to defeat the political party in power, and, hence, to enable the same to pe
itself therein. To forestall this possibility, the original 1935 Constitution was amended by the establishment of the Com
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 — nin
except those first appointed   — the longest under the Constitution, second only to that of the Auditor General  ; by p
59 60

they may not be removed from office except by impeachment, placing them, in this respect, on the same plane as the
the Vice-President, the Justices of the Supreme Court and the Auditor General; that they may not be reappointed; tha
salaries, "shall be neither increased nor diminished during their term of office"; that the decisions the Commission "sh
subject to review by the Supreme Court" only  ; that "(n)o pardon, parole, or suspension sentence for the violation of
61

law may be granted without the favorable recommendation of the Commission" ; and, that its chairman and members
62

during the continuance in office, engage in the practice of any profession or intervene, directly or indirectly, in the ma
control of any private enterprise which in anyway may affected by the functions of their office; nor shall they, directly o
be financially interested in any contract with the Government or any subdivision or instrumentality thereof."   Thus, th
63

the amendment to the original Constitution of 1935 endeavored to do everything possible protect and insure the indep
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 s
have exclusive charge of the enforcement and administration all laws relative to the conduct of elections," apart from
"functions which may be conferred upon it by law." It further provides that the Commission "shall decide, save those i
right to vote, all administrative question affecting elections, including the determination of the number and location of
places, and the appointment of election inspectors and of other election officials." And, to forests possible conflicts or
between the Commission, on one hand, and the other offices or agencies of the executive department, on the other,
2 postulates that "(a)ll law enforcement agencies and instrumentalities of the Government, when so required by the C
shall act as its deputies for the purpose of insuring free, orderly, and honest elections." Not satisfied with this, it decla
effect, that "(t)he decisions, orders, and ruling of the Commission" shall not be subject to review, except by the Supre

In accordance with the letter and spirit of said Art. X of the Constitution, Rep. Act No. 6388, otherwise known as the E
Code of 1971, implements the constitutional powers of the Commission on Elections and grants additional powers the
of which are enumerated in sections 5 and 6 of said Act, quoted below.   Moreover, said Act contains, inter alia, deta
64

provisions regulating contributions and other (corrupt) practices; the establishment of election precincts; the designat
arrangement of polling places, including voting booths, to protect the secrecy of the ballot; formation of lists of voters,
identification and registration of voters, the proceedings therefor, as well as for the inclusion in, or exclusion or cance
said list and the publication thereof; the establishment of municipal, provincial and files of registered voters; the comp
appointment of board of election inspectors; the particulars of the official ballots to be used and the precautions to be
insure authenticity thereof; the procedure for the casting of votes; the counting of votes by boards of inspectors; the r
appreciation of ballots and the preparation and disposition of election returns; the constitution and operation of munic
provincials and national boards of canvassers; the presentation of the political parties and/or their candidates in each
precinct; the proclamation of the results, including, in the case of election of public officers, election contests; and the
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 hon
election," as envisaged in section 2 of Art. X of the Constitution. Yet, none of the foregoing constitutional and statutor
was followed by the so-called Barangays or Citizens' Assemblies. And no reasons have been given, or even sought t
therefor. In many, if not most, instances, the election were held a viva voce, thus depriving the electorate of the right
secretly — one of the most, fundamental and critical features of our election laws from time immemorial — particularl
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 the requirements of the law pe
65

thereto, it was held that the "election officers" involved "cannot be too strongly condemned" therefor and that if they "c
dispense with such requirement ... they could with equal propriety dispense with all of them, including the one that the
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 Constitutio
Convention, or on December 1, 1972, Presidential Decree No. 73 (on the validity of which — which was contested in
plebiscite cases, as well as in the 1972 habeas corpus cases   — We need not, in the case of bar, express any opini
66

issued, calling a plebiscite, to be held on January 15, 1973, at which the proposed Constitution would be submitted to
for ratification or rejection; directing the publication of said proposed Constitution; and declaring, inter alia, that "(t)he
the Election Code of 1971, insofar as they are not inconsistent" with said decree — excepting those "regarding right a
obligations of political parties and candidates" — "shall apply to the conduct of the plebiscite." Indeed, section 2 of sa
Code of 1971 provides that "(a)ll elections of public officers except barrio officials and plebiscites shall be conducted
manner provided by this Code." General Order No. 20, dated January 7, 1973, postponing until further notice, "the ple
scheduled to be held on January 15, 1973," said nothing about the procedure to be followed in plebiscite to take plac
notice, and no other order or decree has been brought to Our attention, expressly or impliedly repealing the provision
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 De
insofar as they allow free public discussion of proposed Constitution ... temporarily suspending effects of Proclamatio
for the purposes of free open dabate on the proposed Constitution ... ." This specific mention of the portions of the de
orders or instructions suspended by General Order No. 20 necessarily implies that all other portions of said decrees,
instructions — and, hence, the provisions of Presidential Decree No. 73 outlining the procedure to be followed in the
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 dec
67

alia, that the collective views expressed in the Citizens' Assemblies "shall be considered in the formulation of nationa
programs and, wherever practicable, shall be translated into concrete and specific decision"; that such Citizens' Asse
"shall consider vital national issues ... like the holding of the plebiscite on the new Constitution ... and others in the fut
shall serve as guide or basis for action or decision by the national government"; and that the Citizens' Assemblies "sh
between January 10 and 15, 1973, a referendum on important national issues, including those specified in paragraph
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 t
constitutional supervisory power of the Commission on Elections or its participation in the proceedings in said Assem
same had been intended to constitute the "election" or Plebiscite required Art. V of the 1935 Constitution. The provisi
Decree No. 86-A directing the immediate submission of the result thereof to the Department of Local Governments C
Development is not necessarily inconsistent with, and must be subordinate to the constitutional power of the Commis
Elections to exercise its "exclusive authority over the enforcement and administration of all laws to the conduct of elec
proceedings in the Assemblies would partake of the nature of an "election" or plebiscite for the ratification or rejection
proposed Constitution.

We are told that Presidential Decree No. 86 was further amended by Presidential Decree No. 86-B, dated 1973, orde
important national issues shall from time to time; be referred to the Barangays (Citizens Assemblies) for resolution in
with Presidential Decree No. 86-A dated January 5, 1973 and that the initial referendum include the matter of ratificat
Constitution by the 1971 Constitutional Convention" and that "(t)he Secretary of the Department of Local Governmen
Community Development shall insure the implementation of this order." As in the case of Presidential Decrees Nos. 8
the foregoing directives do not necessarily exclude exercise of the powers vested by the 1935 Constitution in the Com
Elections, even if the Executive had the authority to repeal Art. X of our Fundamental Law — which he does not poss
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 o
and without complying with the provisions of the Election Code of 1971 or even of those of Presidential Decree No. 7
more, they were held under the supervision of the very officers and agencies of the Executive Department sought to b
excluded therefrom by Art. X of the 1935 Constitution. Worse still, said officers and agencies of the 1935 Constitution
favored thereby, owing to the practical indefinite extension of their respective terms of office in consequence of sectio
Transitory Provisions, found in Art. XVII of the proposed Constitution, without any elections therefor. And the procedu
mostly followed is such that there is no reasonable means of checking the accuracy of the returns files by the officers
conducted said plebiscites. This is another patent violation of Art. of the Constitution which can hardly be sanctioned.
the provisions of this article form part of the fundamental scheme set forth in the 1935 Constitution, as amended, to in
"free, orderly, and honest" expression of the people's will, the aforementioned violation thereof renders null and void t
contested proceedings or alleged plebiscite in the Citizens' Assemblies, insofar as the same are claimed to have ratif
revised Constitution proposed by the 1971 Constitutional Convention. "... (a)ll the authorities agree that the legal defin
election, as well as that which is usually and ordinarily understood by the term, is a choosing or as election by those h
right to participate (in the selection) of those who shall fill the offices, or of the adoption or rejection of any public mea
affecting the territory involved. 15 Cyc. 279; Lewis v. Boynton, 25 Colo. 486, 55 Pac. 732; Saunders v. Haynes, 13 C
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
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 co
petitioners herein. Respondents claim that said proclamation is "conclusive" upon this Court, or is, at least, entitled to
and credence, as an enrolled bill; that the proposed Constitution has been, in fact, ratified, approved or adopted by th
"overwhelming" majority of the people; that Art. XV of the 1935 Constitution has thus been "substancially" complied w
the Court refrain from passing upon the validity of Proclamation No. 1102, not only because such question is political
but, also, because should the Court invalidate the proclamation, the former would, in effect, veto the action of the peo
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
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
and every departure therefrom or disregard thereof must subject him to the restraining and co
the people, acting through the agency of the judiciary; for it must be remembered that the peo
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 spec
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 cer
Proclamation No. 1102 "that the Constitution proposed by the nineteen hundred and seventy-one (1971) Constitution
Convention has been ratified by an overwhelming majority of all of the votes cast by the members of all the Barangay
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 pr
Moreover, Art. X of the 1935 Constitution was precisely inserted to place beyond the Executive the power to supervis
exercise any authority whatsoever over "all laws relative to the conduct of elections," and, hence, whether the electio
the choice or selection of public officers or for the ratification or rejection of any proposed amendment, or revision of t
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 mun
municipal association of presidents of the citizens' assemblies for each barrio of the municipality; that the president o
municipal association formed part of a provincial or city association of presidents of such municipal associations; that
president of each one of these provincial or city associations in turn formed part of a National Association or Federati
Presidents of such Provincial or City Associations; and that one Francisco Cruz from Pasig, Rizal, as President of sai
Association or Federation, reported to the President of the Philippines, in the morning of January 17, 1973, the total r
voting in the citizens' assemblies all over the country from January 10 to January 15, 1973. The Solicitor General furt
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
Department of Local Governments and Community Development, which tabulated the results of the voting in the citiz
assemblies throughout the Philippines and then turned them over to Mr. Franciso Cruz, as President or acting Presid
National Association or Federation, whereupon Mr. Cruz, acting in a ceremonial capacity, reported said results (tabul
Department of Governments and Community Development) to the Chief Executive, who, accordingly, issued Proclam
1102.

The record shows, however, that Mr. Cruz was not even a member of any barrio council since 1972, so that he could
have been a member on January 17, 1973, of a municipal association of presidents of barrio or ward citizens' assem
less of a Provincial, City or National Association or Federation of Presidents of any such provincial or city association

Secondly, at the conclusion of the hearing of these cases February 16, 1973, and in the resolution of this Court of sam
Solicitor General was asked to submit, together with his notes on his oral argument, a true copy of aforementioned re
Cruz to the President and of "(p)roclamation, decree, instruction, order, regulation or circular, if any, creating or direct
authorizing creation, establishment or organization" of said municipal, provincial and national associations, but neithe
alleged report to the President, nor a copy of any "(p)roclamation, decree, instruction, order, regulation or circular," ha
submitted to this Court. In the absence of said report, "(p)roclamation, decree, instruction," etc., Proclamation No. 110
of any factual and legal foundation. Hence, the conclusion set forth in the dispositive portion of said Proclamation No
the effect that the proposed new or revised Constitution had been ratified by majority of the votes cast by the people,
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
Congress could not possibly be annulled or invalidated by courts of justice. Yet, such is not the case. In fact, even a r
Congress declaring that a given person has been elected President or Vice-President of the Philippines as provided i
Constitution,   is not conclusive upon the courts. It is no more than prima facie evidence of what is attested to by said
69

resolution.   If assailed directly in appropriate proceedings, such as an election protest, if and when authorized by law
70

the Philippines, the Court may receive evidence and declare, in accordance therewith, who was duly elected to the of
involved.   If prior to the creation of the Presidential Electoral Tribunal, no such protest could be filed, it was not beca
71

resolution of Congress declaring who had been elected President or Vice-President was conclusive upon courts of ju
because there was no law permitting the filing of such protest and declaring what court or body would hear and decid
So, too, a declaration to the effect that a given amendment to the Constitution or revised or new Constitution has bee
a majority of the votes cast therefor, may be duly assailed in court and be the object of judicial inquiry, in direct proce
therefor — such as the cases at bar — and the issue raised therein may and should be decided in accordance with th
presented.

The case of In re McConaughy   is squarely in point. "As the Constitution stood from the organization of the state" —
72

Minnessota — "all taxes were required to be raised under the system known as the 'general property tax.' Dissatisfac
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 unifo
same class of subjects. This proposed amendment was submitted at the general election held in November, 1906, an
time it was certified by the state canvassing board and proclaimed by the Governor as having been legally adopted. A
the assumption that the amendment had become a part of the Constitution, the Legislature enacted statutes providing
Tax Commission and a mortgage registry tax, and the latter statute, upon the same theory, was held constitutional" b
Court. "The district court found that the amendment had no in fact been adopted, and on this appeal" the Supreme C
"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
tabulate the reports received from the various county board and add up and certify the results. State v. Mason, 45 Wa
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 boar
final" — and there is no such law in the cases at bar. "... The correctness of the conclusion of the state board rests up
correctness of the returns made by the county boards and it is inconceivable that it was intended that this statement
should be final and conclusive regardless of the actual facts. The proclamation of the Governor adds nothing in the w
conclusiveness to the legal effect of the action of the canvassing board. Its purpose is to formally notify the people 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 the canvassing board, in order
73

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 t
even a certification by the Commission in support of the alleged results of the citizens' assemblies relied upon in Proc
No. 1102 — apart from the fact that on January 17, 1973 neither the alleged president of the Federation of Provincia
Barangays nor the Department of Local Governments had certified to the President the alleged result of the citizens'
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 top
or revised Constitution proposed by the 1971 Constitutional Convention was not ratified in accordance with the provis
1935 Constitution. In fact, it has not even been, ratified in accordance with said proposed Constitution, the minimum
requirement therein for the exercise of the right of suffrage being eighteen (18) years, apart from the fact that Art. VI o
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
plebiscite called for the ratification of an amendment or revision of the first Constitution or the effectivity of the propos
Constitution, and the phrase "votes cast" has been construed to mean "votes made in writing not orally, as it was in m
Citizens' Assemblies.  75

Even counsel for Gil J. Puyat and Jose Roy, as respondents in L-36165, asserts openly that Art. XV of the Constitutio
been complied with, and since the alleged substantial compliance with the requirements thereof partakes of the natur
defense set up by the other respondents in these cases, the burden of proving such defense — which, if true, should
their peculiar knowledge — is clearly on such respondents. Accordingly, if despite the extensive notes and document
by the parties herein, the members of the Court do not know or are not prepared to say whether or not the majority of
or of those who took part in the Citizens' Assemblies have assented to the proposed Constitution, the logical step wo
give due course to these cases, require the respondents to file their answers, and the plaintiffs their reply, and, therea
receive the pertinent evidence and then proceed to the determination of the issues raised thereby. Otherwise, we wo
placing upon the petitioners the burden of disproving a defense set up by the respondents, who have not so far estab
truth of such defense.

Even more important, and decisive, than the foregoing is the circumstance that there is ample reason to believe that
most, of the people did not know that the Citizens' Assemblies were, at the time they were held, plebiscites for the rat
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 suspend
effects of Proclamation No. 1081, for the purpose of free and open debate on the Proposed C
On December 23, the President announced the postponement of the plebiscite for the ratificat
rejection of the Proposed Constitution. No formal action to this effect was taken until January
when General Order No. 20 was issued, directing "that the plebiscite scheduled to be held on
 1973, be postponed until further notice." Said General Order No. 20, moreover, "suspended in
meantime" the "order of December 17, 1972, temporarily suspending the effects of Proclamat
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 Cou
it fit to refrain, for the time being, from deciding the aforementioned cases, for neither the date
conditions under which said plebiscite would be held were known or announced officially. The
Congress was, pursuant to the 1935 Constitution, scheduled to meet in regular session on Ja
1973, and since the main objection to Presidential Decree No. 73 was that the President does
the legislative authority to call a plebiscite and appropriate funds therefor, which Congress unq
could do, particularly in view of the formal postponement of the plebiscite by the President —
after consultation with, among others, the leaders of Congress and the Commission on Electio
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 aft
hearing of said cases   — the President announced the postponement of the plebiscite scheduled by Presidential De
76

to be held on January 15, 1973, after consultation with the Commission on Elections and the leaders of Congress, ow
doubts on the sufficiency of the time available to translate the proposed Constitution into some local dialects and to c
some pre-electoral requirements, as well as to afford the people a reasonable opportunity to be posted on the conten
implications of said transcendental document. On January 7, 1973, General Order No. 20 was issued formally, postp
plebiscite "until further notice." How can said postponement be reconciled with the theory that the proceedings in the
Assemblies scheduled to be held from January 10 to January 15, 1973, were "plebiscites," in effect, accelerated, acc
theory of the Solicitor General, for the ratification of the proposed Constitution? If said Assemblies were meant to be t
plebiscites or elections envisaged in Art. XV of the Constitution, what, then, was the "plebiscite" postponed by Genera
20? Under these circumstances, it was only reasonable for the people who attended such assemblies to believe that
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 To
January 10, 1973; emphasis an additional question.]

[6] Do you approve of the citizens assemblies as the base of popular government to decide is
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
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 propos
Constitution or of a proposed amendment thereto. Secondly, neither is the language of question No. 7 — "Do you app
new Constitution?" One approves "of" the act of another which does not need such approval for the effectivity of said
the first person, however, finds to be good, wise satisfactory. The approval of the majority of the votes cast in plebisc
however, essential for an amendment to the Constitution to be valid as part thereof. Thirdly, if the proceedings in the
Assemblies constituted a plebiscite question No. 8 would have been unnecessary and improper, regardless of wheth
No. 7 were answered affirmatively or negatively. If the majority of the answers to question No. 7 were in the affirmativ
proposed Constitution would have become effective and no other plebiscite could be held thereafter in connection the
even if the majority of the answers to question No. 8 were, also, in the affirmative. If the majority of the answers to qu
were in the negative, neither may another plebiscite be held, even if the majority of the answers to question No. 8 we
affirmative. In either case, not more than one plebiscite could be held for the ratification or rejection of the proposed C
In short, the insertion of said two (2) questions — apart from the other questions adverted to above — indicates stron
proceedings therein did not partake of the nature of a plebiscite or election for the ratification or rejection of the propo
Constitution.

Indeed, I can not, in good conscience, declare that the proposed Constitution has been approved or adopted by the p
citizens' assemblies all over the Philippines, when it is, to my mind, a matter of judicial knowledge that there have bee
citizens' assemblies in many parts of Manila and suburbs, not to say, also, in other parts of the Philippines. In a letter
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 referendu
eleven questions you wanted our people consulted on and the Summary of Results thereof fo
municipality and for the whole province.

xxx xxx xxx

... Our initial plans and preparations, however, dealt only on the original five questions. Conse
when we received an instruction on January 10 to change the questions, we urgently suspend
scheduled Citizens Assembly meetings on that day and called all Mayors, Chiefs of Offices an
government officials to another conference to discuss with them the new set of guidelines and
to be used.

On January 11, ... another instruction from the top was received to include the original five que
among those to be discussed and asked in the Citizens' Assembly meetings. With this latest o
again had to make modifications in our instructions to all those managing and supervising the
the Citizens' Assembly meetings throughout the province. ... Aside from the coordinators we h
Office of the Governor, the splendid cooperation and support extended by almost all governm
and employees in the province, particularly of the Department of Education, PC and PACD pe
provided us with enough hands to trouble shoot and implement sudden changes in the instruc
anytime and anywhere needed. ...

... As to our people, in general, their enthusiastic participation showed their preference and re
accept this new method of government to people consultation in shaping up government polic

Thus, as late as January 10, 1973, the Bataan officials had to suspend "all scheduled Citizens' Assembly meetings ..
all available officials "... to discuss with them the new set of guidelines and materials to be used ... ." Then, "on Janua
another instruction from the top was received to include the original five questions among those be discussed and as
Citizens' Assembly meetings. With this latest order, we again had to make modifications in our instructions to all thos
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 
in shaping up government policies."

This communication manifestly shows: 1) that, as late a January 11, 1973, the Bataan officials had still to discuss —
operation — means and ways to carry out the changing instructions from the top on how to organize the citizens' ass
what to do therein and even what questions or topics to propound or touch in said assemblies; 2) that the assemblies
involve no more than consultations or dialogues between people and government — not decisions be made by the p
3) that said consultations were aimed only at "shaping up government policies" and, hence could not, and did not, pa
nature of a plebiscite for the ratification or rejection of a proposed amendment of a new or revised Constitution for the
not entail the formulation of a policy of the Government, but the making of decision by the people on the new way of
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 e
imagine the predicament of the local officials and people in the remote barrios in northern and southern Luzon, in the
region, in the Visayan Islands and Mindanao. In fact, several members of the Court, including those of their immediat
and their household, although duly registered voters in the area of Greater Manila, were not even notified that citizen
assemblies would be held in the places where their respective residences were located. In the Prohibition and Amend
case,   attention was called to the "duty cast upon the court of taking judicial cognizance of anything affecting the exi
77

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
in Baker v. Carr,   that "a court is not at liberty to shut its eyes to an obvious mistake, when the validity of the law dep
78

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 otherwis
the negative.

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 th
Constitution drafted by the 1971 Constitutional Convention; that the political department of the Government has recog
revised Constitution; that our foreign relations are being conducted under such new or revised Constitution; that the L
Department has recognized the same; and that the people, in general, have, by their acts or omissions, indicated the
thereto.

As regards the so-called political organs of the Government, gather that respondents refer mainly to the offices under
Executive Department. In a sense, the latter performs some functions which, from a constitutional viewpoint, are polit
nature, such as in recognizing a new state or government, in accepting diplomatic representatives accredited to our G
and even in devising administrative means and ways to better carry into effect. Acts of Congress which define the go
objectives thereof, but are either imprecise or silent on the particular measures to be resorted to in order to achieve th
goals or delegate the power to do so, expressly or impliedly, to the Executive. This, notwithstanding, the political orga
government that purports to be republican is essentially the Congress or Legislative Department. Whatever may be th
allocated to the Executive Department — specially under a written, rigid Constitution with a republican system of Gov
ours — the role of that Department is inherently, basically and fundamentally executive in nature — to "take care that
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
Proclamation No. 1102, connote a recognition thereof o an acquiescence thereto. Whether they recognized the propo
Constitution or acquiesce thereto or not is something that cannot legally, much less necessarily or even normally, be
from their acts in accordance therewith, because the are bound to obey and act in conformity with the orders of the P
under whose "control" they are, pursuant to the 1935 Constitution. They have absolutely no other choice, specially in
Proclamation No. 1081 placing the Philippines under Martial Law. Besides, by virtue of the very decrees, orders and
issued by the President thereafter, he had assumed all powers of Government — although some question his authori
— and, consequently, there is hardly anything he has done since the issuance of Proclamation No. 1102, on January
declaring that the Constitution proposed by the 1971 Constitutional Convention has been ratified by the overwhelming
the people — that he could not do under the authority he claimed to have under Martial Law, since September 21, 19
the power of supervision over inferior courts and its personnel, which said proposed Constitution would place under t
Court, and which the President has not ostensibly exercised, except as to some minor routine matters, which the Dep
Justice has continued to handle, this Court having preferred to maintain the status quo in connection therewith pendi
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. Rec
normally connotes the acknowledgment by a party of the acts of another. Accordingly, when a subordinate officer or o
Government complies with the commands of a superior officer or office, under whose supervision and control he or it
former merely obeys the latter. Strictly speaking, and from a legal and constitutional viewpoint, there is no act of reco
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 in support of the theory of t
80

acquiescence — involved a constitution ordained in 1902 and "proclaimed by a convention duly called by a direct vot
people of the state to revise and amend the Constitution of 1869. The result of the work of that Convention has been
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 ord
Convention ...";

3. The "individual oaths of its members to support it, and by its having been engaged for nearly a year, in legislating u
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 unde
extent of thousands throughout the State, and by voting, under its provisions, at a general election for their represent
Congress of the United States."

Note that the New Constitution of Virginia, drafted by a convention whose members were elected directly by the peop
was not submitted to the people for ratification or rejection thereof. But, it was recognized, not by the convention itsel
by other sectors of the Government, namely, the Governor; the Legislature — not merely by individual acts of its mem
by formal joint resolution of its two (2) chambers; by the judiciary; and by the people, in the various ways specified ab
is more, there was no martial law. In the present cases, none of the foregoing acts of acquiescence was present. Wo
there is martial law, the strict enforcement of which was announced shortly before the alleged citizens' assemblies. T
in the Taylor case, the effectivity of the contested amendment was not contested judicially until about one (1) year aft
amendment had been put into operation in all branches of the Government, and complied with by the people who pa
the elections held pursuant to the provisions of the new Constitution. In the cases under consideration, the legality of
Decree No. 73 calling a plebiscite to be held on January 15, 1973, was impugned as early as December 7, 1972, or f
weeks before the scheduled plebiscite, whereas the validity of Proclamation No. 1102 declaring on January 17, 1973
proposed Constitution had been ratified — despite General Order No. 20, issued on January 7, 1972, formally and of
suspending the plebiscite until further notice — was impugned as early as January 20, 1973, when L-36142 was filed
(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 th
revised Constitution, by filing written statements opting to serve in the Ad Interim Assembly established in the Transit
Provisions of said Constitution. Individual acts of recognition by members of our legislature, as well as of other colleg
under the government, are invalid as acts of said legislature or bodies, unless its members have performed said acts
duly assembled, or unless the law provides otherwise, and there is no such law in the Philippines. This is a well-estab
principle of Administrative Law and of the Law of Public Officers, and no plausible reason has been adduced to warra
departure therefrom.  81

Indeed, if the members of Congress were generally agreeable to the proposed Constitution, why did it become neces
padlock its premises to prevent its meeting in session on January 22, 1973, and thereafter as provided in the 1935 C
It is true that, theoretically, the members of Congress, if bent on discharging their functions under said Constitution, c
met in any other place, the building in which they perform their duties being immaterial to the legality of their official a
force of this argument is, however, offset or dissipated by the fact that, on or about December 27, 1972, immediately
conference between the Executive, on the one hand, and members of Congress, on the other, some of whom expres
wish to meet in session on January 22, 1973, as provided in the 1935 Constitution, a Daily Express columnist (Primiti
attributed to Presidential Assistant Guillermo de Vega a statement to the effect that "'certain members of the Senate a
missing the point in issue' when they reportedly insisted on taking up first the question of convening Congress." The D
Express of that date,   likewise, headlined, on its front page, a "Senatorial Plot Against 'Martial Law Government' Disc
82

Then, in its issue of December 29, 1972, the same paper imputed to the Executive an appeal "to diverse groups invo
a conspiracy to undermine" his powers" under martial law to desist from provoking a constitutional crisis ... which ma
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 o
any member of Congress who thought of organizing, holding or taking part in a session of Congress, not to get the im
that he could hardly do so without inviting or risking the application of Martial Law to him. Under these conditions, I do
justified in holding that the failure of the members of Congress to meet since January 22, 1973, was due to their reco
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
I prepared to declare that the people's inaction as regards Proclamation No. 1102, and their compliance with a numbe
Presidential orders, decrees and/or instructions — some or many of which have admittedly had salutary effects — iss
subsequently thereto amounts, constitutes or attests to a ratification, adoption or approval of said Proclamation No. 1
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 who comply with the orders of the party
83

weapon does not detract from the intimidation that Martial Law necessarily connotes. It may reflect the good, reasona
wholesome attitude of the person who has the gun, either pointed at others, without pulling the trigger, or merely kept
holster, but not without warning that he may or would use it if he deemed it necessary. Still, the intimidation is there, a
or obedience of the people, under these conditions, is not necessarily an act of conformity or acquiescence. This is s
when we consider that the masses are, by and large, unfamiliar with the parliamentary system, the new form of gover
introduced in the proposed Constitution, with the particularity that it is not even identical to that existing in England an
parts of the world, and that even experienced lawyers and social scientists find it difficult to grasp the full implications
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 do
certified to the President — for his action under the Constitution — by the Senate President and the Speaker of the H
Representatives, and attested to by the Secretary of the Senate and the Secretary of the House of Representatives,
legislative measures approved by the two Houses of Congress. The argument of the Solicitor General is, roughly, this
enrolled bill is entitled to full faith and credence and, to this extent, it is conclusive upon the President and the judicial
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 o
Congress, the so-called enrolled bill were certified by, say, the President of the Association of Sugar Planters and/or
the Philippines, and the measure in question were a proposed legislation concerning Sugar Plantations and Mills spo
said Association, which even prepared the draft of said legislation, as well as lobbied actually for its approval, for whic
the officers of the Association, particularly, its aforementioned president — whose honesty and integrity are unquestio
were present at the deliberations in Congress when the same approved the proposed legislation, would the enrolled b
apply thereto? Surely, the answer would have to be in the negative. Why? Simply, because said Association Presiden
absolutely no official authority to perform in connection therewith, and, hence, his certification is legally, as good as n

Similarly, a certification, if any, of the Secretary of the Department of Local Governments and Community Developme
tabulated results of the voting in the Citizens Assemblies allegedly held all over the Philippines — and the records do
that any such certification, to the President of the Philippines or to the President Federation or National Association o
of Provincial Associations of presidents of municipal association presidents of barrio or ward assemblies of citizens —
legally and constitutionally, be worth the paper on which it is written. Why? Because said Department Secretary is no
designated by law to superintend plebiscites or elections held for the ratification or rejection of a proposed amendmen
revision of the Constitution and, hence, to tabulate the results thereof. Worse still, it is the department which, accordin
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 United States that courts "wi
84

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 Con

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.
connection, it should be noted that the Court has not decided whether or not to give due course to the petitions herein
require the respondents to answer thereto. Instead, it has required the respondents to comment on the respective pe
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
issue raised, the necessity of deciding the same with utmost dispatch, and the main defense set up by respondents h
namely, the alleged political nature of said issue, placing the same, according to respondents, beyond the ambit of ju
and determination. If this defense was sustained, the cases could readily be dismissed; but, owing to the importance
questions involved, a reasoned resolution was demanded by public interest. At the same time, respondents had caut
against a judicial inquiry into the merits of the issues posed on account of the magnitude of the evil consequences, it
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
owing to the issuance of Proclamation No. 1102 subsequently to the filing of said cases, although before the rendition
judgment therein. Still one of the members of the Court (Justice Zaldivar) was of the opinion that the aforementioned
should be settled in said cases, and he, accordingly, filed an opinion passing upon the merits thereof. On the other ha
(3) members of the Court — Justices Barredo, Antonio and Esguerra — filed separate opinions favorable to the respo
the plebiscite cases, Justice Barredo holding "that the 1935 Constitution has pro tanto passed into history and has be
legitimately supplanted by the Constitution in force by virtue of Proclamation 1102."   When the petitions at bar were
86

same three (3) members of the Court, consequently, voted for the dismissal of said petitions. The majority of the mem
Court did not share, however, either view, believing that the main question that arose before the rendition of said judg
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 dis
question. Thus, apart from hearing the parties in oral argument for five (5) consecutive days — morning and afternoo
of exactly 26 hours and 31 minutes — the respective counsel filed extensive notes on their or arguments, as well as o
additional arguments as they wished to submit, and reply notes or memoranda, in addition to rejoinders thereto, aside
sizeable number of document in support of their respective contentions, or as required by the Court. The arguments,
written, submitted have been so extensive and exhaustive, and the documents filed in support thereof so numerous a
that, for all intents and purposes, the situation is as if — disregarding forms — the petitions had been given due cours
cases had been submitted for decision.

Accordingly, the majority of the members of the Court believe that they should express their views on the aforementio
as if the same were being decided on the merits, and they have done so in their individual opinion attached hereto. H
resume of the votes cast and the tenor of the resolution, in the last pages hereof, despite the fact that technically the
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, Pr
President Pro Tempore respectively of the Senate, it being settled in our jurisdiction, based upon the theory of separa
powers, that the judiciary will not issue such writ to the head of a co-equal department, like the aforementioned office
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-36
36283, my vote is that the petitions therein should be given due course, there being more than prima facie showing th
proposed Constitution has not been ratified in accordance with Article XV of the 1935 Constitution, either strictly, sub
has been acquiesced in by the people or majority thereof; that said proposed Constitution is not in force and effect; a
1935 Constitution is still the Fundamental Law of the Land, without prejudice to the submission of said proposed Con
the people at a plebiscite for its ratification or rejection in accordance with Articles V, X and XV of the 1935 Constitutio
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 "
statesmanship," whatever may be the meaning of such phrase. I am aware of this possibility, if not probability; but "ju
statesmanship," though consistent with Rule of Law, cannot prevail over the latter. Among consistent ends or consist
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
accomplish under the old dispensation. But, in and for the judiciary, statesmanship should not prevail over the Rule o
Indeed, the primacy of the law or of the Rule of Law and faithful adherence thereto are basic, fundamental and essen
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
hereto, the writer will now make, with the concurrence of his colleagues, a resume or summary of the votes cast by e

It should be stated that by virtue of the various approaches and views expressed during the deliberations, it was agre
synthesize the basic issues at bar in broad general terms in five questions for purposes of taking the votes. It was fur
of course that each member of the Court would expound in his individual opinion and/or concurrence his own approa
stated issues and deal with them and state (or not) his opinion thereon singly or jointly and with such priority, qualifica
modifications as he may deem proper, as well as discuss thereon other related issues which he may consider vital an
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 s
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 op
and/or concurrences, are as follows:

1. On the first issue involving the political-question doctrine Justices Makalintal, Zaldivar, Castro, Fernando, Teehank
myself, or six (6) members of the Court, hold that the issue of the validity of Proclamation No. 1102 presents a justicia
non-political question. Justices Makalintal and Castro did not vote squarely on this question, but, only inferentially, in
discussion of the second question. Justice Barredo qualified his vote, stating that "inasmuch as it is claimed there has
approval by the people, the Court may inquire into the question of whether or not there has actually been such an app
in the affirmative, the Court should keep hands-off out of respect to the people's will, but, in negative, the Court may d
from both factual and legal angles whether or not Article XV of the 1935 Constitution been complied with." Justices M
Antonio, Esguerra, or three (3) members of the Court hold that the issue is political and "beyond the ambit of judicial i

2. On the second question of validity of the ratification, Justices Makalintal, Zaldivar, Castro, Fernando, Teehankee a
or six (6) members of the Court also hold that the Constitution proposed by the 1971 Constitutional Convention was n
ratified in accordance with Article XV, section 1 of the 1935 Constitution, which provides only one way for ratification,
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 p
Article XV, I still maintain that in the light of traditional concepts regarding the meaning and intent of said Article, the r
in the Citizens' Assemblies, specially in the manner the votes therein were cast, reported and canvassed, falls short o
requirements thereof. In view, however, of the fact that I have no means of refusing to recognize as a judge that factu
was voting and that the majority of the votes were for considering as approved the 1973 Constitution without the nece
usual form of plebiscite followed in past ratifications, I am constrained to hold that, in the political sense, if not in the o
legal sense, the people may be deemed to have cast their favorable votes in the belief that in doing so they did the pa
of them by Article XV, hence, it may be said that in its political aspect, which is what counts most, after all, said Article
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 bee
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 majo
been reached by the Court.

Four (4) of its members, namely, Justices Barredo, Makasiar, Antonio and Esguerra hold that "the people have alread
the 1973 Constitution."

Two (2) members of the Court, namely, Justice Zaldivar and myself hold that there can be no free expression, and th
even been no expression, by the people qualified to vote all over the Philippines, of their acceptance or repudiation o
proposed Constitution under Martial Law. Justice Fernando states that "(I)f it is conceded that the doctrine stated in s
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 s
doctrine calls for application in view of the shortness of time that has elapsed and the difficulty of ascertaining what is
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
and Castro are joined by Justice Teehankee in their statement that "Under a regime of martial law, with the free expre
opinions through the usual media vehicle restricted, (they) have no means of knowing, to the point of judicial certainty
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, Makas
and Esguerra voted to DISMISS the petition. Justice Makalintal and Castro so voted on the strength of their view that
effectivity of the said Constitution, in the final analysis, is the basic and ultimate question posed by these cases to res
considerations other than judicial, an therefore beyond the competence of this Court,   are relevant and unavoidable.
90

Four (4) members of the Court, namely, Justices Zaldivar, Fernando, Teehankee and myself voted to deny responde
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 ho
in force by virtue of the people's acceptance thereof;

Four (4) members of the Court, namely, Justices Makalintal, Castro, Fernando and Teehanke
vote thereon on the premise stated in their votes on the third question that they could not state
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
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 a
Esguerra with the four (4) dissenting votes of the Chief Justice and Justices Zaldivar, Fernando and Teehankee, all th
aforementioned cases are hereby dismissed. This being the vote of the majority, there is no further judicial obstacle t
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
of the proposal, submission, or ratification of constitutional amendments. It has been judicially determined whether a
amendment received the constitutional majority of votes (Dayton v. St. Paul, 22 Minn. 400; Rice v. Palmer, 78 Ark. 43
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;
422; Tecumseh National Bank V. Saunders, 51 Neb. 801, 71 N.W. 779; Green v. State Board, 5 Idaho, 130, 47 Pac.
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
amendment is a single amendment, within the constitutional requirement that every amendment must be separately s
(State v. Powell, 77 Miss. 543, 27 South. 927; Gabbert v. Chicago, etc., R. Co., 171 Mo. 84, 70 S.W. 891; State v. Tim
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
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
[Neb.] 110 N.W. 1113, 10 L.R.A. [N.S.] 149); whether the failure to enter the resolution of submission upon the legisla
journals invalidates the amendment (Koehler v. Hill, 60 Iowa, 543,14 N.W. 738,15 N.W. 609; Oakland Paving Co. v. H
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. T
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
v. Attorney General [Mich.] 112 N.W. 127); whether the method of submission sufficient (Lovett v. Ferguson,, 10 S.D.
N.W. 765; Russell v. Croy, 164 Mo. 69, 63 S.W. 849); whether the publication of the amendment or of a notice relativ
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); whethe
submission may be well by resolution as by a legislative act approved by the executive (Com. v. Griest, 196 Pa. 396,
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. 8
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 amendmen
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 o
question whether an amendment to the Constitution has been carried involves the exercise of political, and not judicia
this be so, it follows that the promulgation of any purported amendment by the executive or any executive departmen
and that the action cannot be questioned by the judiciary; but, with reference to the conditions precedent to submittin
proposed amendment to a vote of the people, it has been repeatedly held, by courts of the highest respectability, that
the power of the judiciary to inquire into the question, even in a collateral proceeding. ... It is to be noted that under se
article 20 of the Constitution of the state no amendment can become a part of the Constitution until ratified by a vote
people. One prerequisite is equally as essential as the other. The amendment must first receive the requisite majority
Legislature, and afterwards be adopted by the requisite vote. ... It is the fact of a majority vote which makes the amen
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 impo
Constitution or statutes. In re State v. McBride, 4 Mo. 303, 29 Am. Dec. 636, it was held that the General Assembly, u
power granted by the Constitution, could change the Constitution only in the manner prescribed by it, and that it was
the court to determine whether all prerequisites had been complied with. In Collier v. Frierson, 24 Ala. 100, it was hel
Constitution can be changes only by the people in convention or in a mode described by the Constitution itself, and th
latter mode is adopted every requisite of the Constitution must be observed. 'It has been said," says the court, "that c
are to be done, certain requisitions are to be observed, before a change can be effected; but to what purpose are the
required, or these requisitions enjoined, if the Legislature or any other department of the government can dispense w
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 mad
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 a
and form a new one, at any time, without any political restriction, except the Constitution of the United States, but if th
undertake to add an amendment, by the authority of legislation to a Constitution already in existence, they can do it o
method pointed out by the Constitution to which the amendment is added. The power to amend a Constitution by legi
action does not confer the power to break it, any more than it confers the power to legislate on any other subject cont
prohibitions.' So, in State v. Timme, 54 Wis. 318, 11 N.W. 785, it was held that no amendments can be made to the C
of the state without a compliance with the provisions thereof, both in the passage of such amendment by the Legislat
manner of submitting it to the people. The courts have not all agreed as to the strictness of compliance which should

"In the Prohibition and Amendment Case, 24 Kan. 700, the court determined judicially whether an amendment to the
had been legally adopted. After approving the statement quoted from Collier v. Frierson, supra, that 'we entertain no
to change the Constitution in an other mode than by a convention, every requisite which is demanded by the instrume
must be observed, and the omission of any one is fatal to the amendment,' the court held that, 'as substance of right
and more potent than methods of form,' there had been substantial compliance with the constitutional requirement tha
proposed amendment to the Constitution must be entered at length on the legislative journal. It appears that the joint
making submission simply provided that a proposition should be submitted to the electors at the general election of 1
not declare that the machinery of the general election law should control, or that any particular officers or board would
count, or canvass the votes cast. But the existing election machinery was adequate, and the votes were received, co
canvassed, and the result declared as fully as though it had been in terms so ordered. These methods had been follo
adoption of previous amendments, and was held that, conceding the irregularity of the proceedings the Legislature an
doubtful scope of the provisions for the election, yet in view of the very uncertainty of such provision the past legislati
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
view of the duty cast upon the court taking judicial knowledge of anything affecting the existence and validity of any la
of the Constitution, it must be adjudged that the proposed amendment became part of the Constitution. The effect wa
that a provision of the Constitution requiring the proposed amendment to be entered in full on the journals was directo
mandatory. This liberal view was approved in State v. Winnett (Neb.) 110 N. 1113, 10 L.R.A. (N.S.) 149, and People
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 r
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 b
premises which are without any sound foundation, and rests merely on assumption.' See, also, the well-considered c
of Kadderly v. Portland, 44 Or. 118, 74 Pac. 710, 75 Pac. 222. All these cases concede the jurisdiction of the court to
whether, in submitting a proposed amendment to the people, the Legislature legally observed the constitutional provi
the manner of procedure. In Livermore v. Waite, 102 Cal. 113, 36 Pac. 424, 25 L.R.A. 312, the court, at the instance
and a taxpayer, restrained the Secretary of State from taking steps to submit to the people a proposed amendment to
Constitution agreed to by the Legislature on the ground that the Legislature had not acted in conformity with the Cons
that the proposed amendment was of such a character that it could not properly become a part of the Constitution. Th
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
legislative journals, as required by the Constitution, and it was held that this was a material variance in both form and
from the constitutional requirements, and that the amendment did not, therefore, become a part of the Constitution. A
claim that the question was political, and not judicial, it was said that, while it is not competent for courts to inquire int
of the Constitution and the form of government under which they themselves exist, and from which they derive their p
yet, where the existing Constitution prescribes a method for its own amendment, an amendment thereto, to be valid,
adopted in strict conformity to that method; and it is the duty of the courts in a proper case, when an amendment doe
to their own power or functions, to inquire whether, in the adoption of the amendment, the provisions of the existing C
have been observed, and, if not, to declare the amendment invalid and of no force. This case was followed in State v
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 legall
was treated as a judicial question. By the Constitution a proposed amendment was required to be approved by Legis
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 peop
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 Le
adopted separately 8 out of 17 amendments adopted by the first Legislature, it would have adopted the 17, or any of
they had been voted upon the second in the form adopted by the first body. The substance of the contention was tha
not been a concurrence of the two Legislatures on the same amendments, according to the letter and spirit of the Co
The court held that the power of the Legislature in submitting amendments could not be distinguished from the power
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 Con
could not be submitted to the people at any other than a general election; but, as the amendment under consideration
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 le
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 content
amendments had been improperly submitted and adopted by a majority of the qualified voters voting at election, as r
the Constitution. The law did direct how the result of the election should be determined. The Legislature by joint resol
that the election had been duly held throughout the state, and, as it appeared from the returns made to the Secretary
that 21,169 votes were cast in favor of, and 8,643 votes against, the amendment, it resolved 'that said amendment be
hereby is, inserted into the Constitution of the state of Mississippi as a part of the Constitution.' In fact, the amendme
was not submitted in the manner prescribed by the Constitution, and it did not receive a majority of all the qualified vo
at the election. It was argued that the rules prescribed by the Constitution "are all for the guidance of the Legislature,
the very nature of the thing the Legislature must be the exclusive judge of all questions to be measured or determined
rules. Whether the question be political, and certainly a legislative one, or judicial, to be determined by the courts, this
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
the qualified electors. The qualified electors answer back to the Legislature. "If it shall appear" to the Legislature that
has been answered in the affirmative, the amendment is inserted and made a part of the Constitution. The Governor
courts have no authority to speak at any stage of the proceedings between the sovereign and the Legislature, and wh
matter is thus concluded it is closed, and the judiciary is as powerless to interfere as the executive.' But it was held th
question whether the proposition submitted to the voters constituted one, or more than one, amendment, whether the
was according to the requirements of the Constitution, and whether the proposition was in fact adopted, were all judic
political, questions. 'We do not,' said Chief Justice Whitfield, 'seek a jurisdiction not imposed upon us by the Constitut
could not, if we would, escape the exercise of that jurisdiction which the Constitution has imposed upon us. In the par
instance in which we are now acting, our duty to know what the Constitution of the state is, and in accordance with ou
support and maintain it in its integrity, imposed on us a most difficult and embarrassing duty, one which we have not s
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 dep
the government to determine whether the legislative department or its officers had observed the constitutional injunct
attempting to amend the Constitution, and to annul their acts if they had not done so. The case is an interesting and w
considered one. The Constitution provided the manner in which proposed amendments should be submitted to the pe
did not provide a method for canvassing the votes. The Legislature having agreed to certain proposed amendments,
act for submitting the same to the people. This statute provided for the transmission to the Secretary of State of certif
showing the result of the voting throughout the state, and made it the duty of the Governor at the designated time sum
or more Senators, who, with the Governor, should constitute a board of state canvassers to canvass and estimate the
and against each amendment. This board was to determine and declare which of the proposed amendments had bee
and to deliver a statement of the results to the Secretary of State, and "any proposed amendment, which by said cert
determination of the board of canvassers shall appear to have received in its favor the majority of all the votes cast in
for and against said proposed amendment, shall from the time of filing such certificate be and become an amendmen
part of the Constitution of the state; and it shall be the duty of the Governor of the state forthwith, after such a determ
issue a proclamation declaring which of the said proposed amendments have been adopted by the people." This boa
required to file a statement of the result of the election, and the Governor to issue his proclamation declaring that the
had been adopted and become a part of the Constitution. At the instance of a taxpayer the Supreme Court allowed a
of certiorari to remove into the court for review the statement of the results of the election made by the canvassing bo
order that it might be judicially determined whether on the facts shown in that statement the board had legally determ
the proposed amendment had been adopted. The Supreme Court decided that the concurrence of the board of state
and the executive department of the government in their respective official functions placed the subject-matter beyon
cognizance of the judicial department of the state. The Court of Appeals, after a full review of the authorities, reverse
decision, and held that the questions were of a judicial nature, and properly determinable by the court on their merits.
Dixon, after stating the facts, said: 'It thus becomes manifest that there was present in the Supreme Court, and is now
this court, every element tending to maintain jurisdiction over the subject-matter, unless it be true, as insisted, that the
department of the government has not the right to consider whether the legislative department and its agencies have
constitutional injunctions in attempting to amend the Constitution, and to annul their acts in case that they have not do
such a proposition is not true seems to be indicated by the whole history of jurisprudence in this country.' The court, a
considering the case on the merits, held that the proper conclusion had been drawn therefrom, and that the amendm
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 o
Representatives the power to determine whether an amendment had been adopted, and that the question was politic
judicial, the court observed: "The argument has often been made in similar cases to the courts, and it is found in man
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 publicat
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 (C
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 197
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 freed
debate has always been limited to the leadership in political, economic and social fields, and that it is now necessary
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
Constitution, do hereby order that important national issues shall from time to time be referred to the Barangays (Citiz
Assemblies) for resolution in accordance with Presidential Decree No. 86-A dated January 5, 1973 an that the initial r
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
Order.

Done in the City of Manila, this 7th day of January in the year of Our Lord, nineteen hundred and seventy-three.

(SGD.) FERDINAND E. MARCO

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 ca
petitions to justify their being given due course. Considering on the one hand the urgency of the matter and on the oth
transcendental importance, which suggested the need for hearing the side of the respondents before that preliminary
was resolved, We required them to submit their comments on the petitions. After the comments were filed We consid
as motions to dismiss so that they could be orally argued. As it turned out, the hearing lasted five days, morning and
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 Presiden
January 17, 1973 (Proclamation No. 1102) was not an act of ratification, let alone a valid one, of the proposed Consti
because it was not in accordance with the existing Constitution (of 1935) and the Election Code of 1971. Other groun
relied upon by the petitioners in support of their basic proposition, but to our mind they are merely subordinate and pe

Article XV, Section 1, of the 1935 Constitution provides that amendments (proposed either by Congress in joint sessi
Convention called by it for the purpose) "shall be valid part of this Constitution when approved by a majority of votes c
an election at which the amendments submitted to the people for their ratification." At the time Constitution was appro
Constitutional Convention on February 8, 1935, and ratified in a plebiscite held on following May 14, the word "electio
already a definite meaning in our law and jurisprudence. It was not a vague and amorphous concept, but a procedure
by statute ascertaining the people's choices among candidates for public offices, or their will on important matters sub
the pursuant to law, for approval. It was in this sense that word was used by the framers in Article XV (also in Articles
and in accordance with such procedure that plebiscites were held to ratify the very same Constitution in 1935 as well
subsequent amendments thereto, thus: in 1939 (Ordinance appended to the Constitution); 1940 (establishment of a b
legislature; eligibility of the President and the Vice President for re election; creation of the Commission of Elections);
(Parity Amendment); and 1967 (increase in membership of the House of Representatives and eligibility of members o
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 plebi
be conducted in the manner provided by this Code." This is a statutory requirement designed, as were the other elect
previously in force, to carry out the constitutional mandate relative to the exercise of the right suffrage, and with speci
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. Sec
requires that qualified voters be registered in a permanent list, the qualifications being those set forth in Article V, Sec
the 1935 Constitution on the basis of age (21), literacy and residence. These qualifications are reiterated in Section 1
Election Code. Section 102 enumerates the classes of persons disqualified to vote. Succeeding sections prescribe th
paraphernalia to be used, the procedure for registering voters, the records, of registration and the custody thereof, th
description and printing of official ballots, the actual casting of votes and their subsequent counting by the boards of i
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 co

(1) This draft was prepared and approved by a Convention which had been convened pursuant to Resolution No. 2 p
Congress on March 16, 1967, which provides:

Sec. 7. The amendments proposed by the Convention shall be valid and considered part of th
Constitution when approved by a majority of the votes cast in an election at which they are su
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
in a plebiscite called for the purpose and, except as herein provided, shall supersede the Con
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
Constitution.

(3) After the draft Constitution was approved by the Constitutional Convention on November 30, 1972 the said body a
Resolution No. 5843, proposing "to President Ferdinand E. Marcos that a decree be issued calling a plebiscite for the
of the proposed New Constitution on such appropriate date as he shall determine and providing for the necessary fun
therefor." Pursuant to said Resolution the President issued Decree No. 73 on the same day, calling a plebiscite to be
January 15, 1973, at which the proposed Constitution "shall be submitted to the people for ratification or rejection." Th
had eighteen (18) sections in all, prescribing in detail the different steps to be taken to carry out the process of ratifica
as: (a) publication of the proposed Constitution in English and Pilipino; (b) freedom of information and discussion; (c)
of voters: (d) appointment of boards of election inspectors and designation of watchers in each precinct; (e) printing o
ballots; (f) manner of voting to insure freedom and secrecy thereof; (g) canvass of plebiscite returns; and (h) in gener
compliance with the provisions of the Election Code of 1971, with the Commission on Elections exercising its constitu
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 C
since then to the 1971 Constitutional Convention — amendments to the Constitution should be ratified in only one wa
an election or plebiscite held in accordance with law and participated in only by qualified and duly registered voters. I
concerned was this Court with the importance and indispensability of complying with the mandate of the (1935) Cons
this respect that in the recent case of Tolentino vs. Commission on Elections, No. L-34150, October 16, 1971 (41 SC
resolution of the (1971) Constitutional Convention submitting a proposed amendment for ratification to a plebiscite to
November 1971 was declared null and void. The amendment sought to reduce the voting age from twenty-one to eig
and was approved by the Convention for submission to a plebiscite ahead of and separately from other amendments
or to be considered by it, so as to enable the youth to be thus enfranchised to participate in the plebiscite for the ratifi
such other amendments later. This Court held that such separate submission was violative of Article XV, Section 1, o
Constitution, which contemplated that "all the amendments to be proposed by the same Convention must be submitte
people in a single "election" or plebiscite." * Thus a grammatical construction based on a singular, instead of plural, rendition of the word "election"
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 p
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. C
but the ratification of an entire charter setting up a new form of government; and the issue has arisen not because of
construction of one word or one provision in the 1935 Constitution but because no election or plebiscite in accordanc
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
December 31, 1972, "to broaden the base of citizen participation in the democratic process and to afford ample oppo
the citizenry to express their views on important national issues." The Assemblies "shall consist of all persons who ar
of the barrio, district or ward for at least six months, fifteen years of age or over, citizens of the Philippines and who a
registered in the lists of Citizen Assembly members kept by the barrio, district or ward secretary." By Presidential Dec
A, dated January 5, 1973, the Assemblies were convened for a referendum between January 10 and 15, to "consider
national issues now confronting the country, like the holding of the plebiscite on the new Constitution, the continuation
rule, the convening of Congress on January 22, 1973, and the holding of elections in November 1973."

On January 5, 1973 the newspapers came out with a list of four questions to be submitted to the Citizens Assemblies
one being as follows: "How soon would you like plebiscite on the new Constitution to be held?" It should be noted in t
connection that the President had previously announced that he had ordered the postponement of plebiscite which he
for January 15, 1973 (Presidential Decree No. 73) for the ratification of the Constitution, and that he was considering
dates for the purpose — February 19 or March 5; that he had ordered that the registration of voters (pursuant to Decr
be extended to accommodate new voters; and that copies of the new Constitution would be distributed in eight dialec
people. (Bulletin Today, December 24, 1972.)

On January 10, 1973 it was reported that one more question would be added to the original four which were to be sub
the Citizens Assemblies. The question concerning plebiscite was reworded as follows: "Do you like the plebiscite to b
later?" The implication, it may likewise be noted, was that the Assemblies should express their views as to the plebisc
be held, not as to whether or not it should be held at all.

The next day, January 11, it was reported that six additional questions would be submitted, namely:

(1) Do you approve of the citizens assemblies as the base of popular government to decide is
national interest?

(2) Do you approve of the new Constitution?

(3) Do you want a plebiscite to be called to ratify the new Constitution?

(4) Do you want the elections to be held in November, 1973 accordance with the provisions of
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 supplie

Appended to the six additional questions above quoted were the suggested answers, thus:

COMMENTS ON

QUESTION No. 1

In order to broaden the base of citizens' participation in government.

QUESTION No. 2

But we do not want the Ad Interim Assembly to be convoked. Or if it is to be co

all, it should not be done so until after at least seven (7) years from the approv
New Constitution by the Citizens Assemblies.

QUESTION No. 3

If the Citizens Assemblies approve of the New Constitution, then the new Con
should be deemed ratified.

The vote of the Citizens Assemblies should already be considered the plebisci
New Constitution.

QUESTION No. 4

We are sick and tired of too frequent elections. We are fed up with politics, of s
debates and so much expenses.

QUESTION No. 5
 Probably a period of at least seven (7) years moratorium on elections will be e
stability to be established in the country, for reforms to take root and normalcy

QUESTION No. 6

We want President Marcos to continue with Martial Law. We want him to exerc
powers with more authority. We want him to be strong and firm so that he can
all his reform program and establish normalcy in the country. If all other measu
want President Marcos to declare a revolutionary government along the lines o
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 th
that the plebiscite should be done away with and a favorable vote by the Assemblies deemed equivalent ratification. T
done, not in the questionnaire itself, but in the suggested answer to question No. 3. Strangely, however, it was not sim
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 As
assuming that such voting was held, was not within the intendment of Article XV, Section 1, of the 1935 Constitution n
accordance with the Election Code of 1971. The referendum can by no means be considered as the plebiscite contem
Section 2 of said Code and in Article XVII, Section 16, of the draft Constitution itself, or as the election intended by Co
when it passed Resolution No. 2 on March 16, 1967 calling a Convention for the revision of the 1935 Constitution. Th
Assemblies were not limited to qualified, let alone registered voters, but included all citizens from the age of fifteen, a
regardless of whether or not they were illiterates, feeble-minded, or ex convicts  * — these being the classes of persons expressly dis
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
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, w
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 th
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 assess
results.

It has been suggested that since according to Proclamation No. 1102 the overwhelming majority of all the members o
Citizens Assemblies had voted for the adoption of the proposed Constitution there was a substantial compliance with
Section 1, of the 1935 Constitution and with the Election Code of 1971. The suggestion misses the point entirely. It is
essence of a valid exercise of the right of suffrage that not only must a majority or plurality of the voters carry the day
same must be duly ascertained in accordance with the procedure prescribed by law. In other words the very existenc
majority or plurality depends upon the manner of its ascertainment, and to conclude that it exists even if it has not bee
ascertained according to law is simply to beg the issue, or to assume the very fact to be established. Otherwise no el
plebiscite could be questioned for non-compliance with the provisions of the Election Law as long as it is certified tha
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 Preside
Proclamation No. 1102, was not in accordance with the constitutional and statutory procedure laid down for the purpo
quite resolve the questions raised in these cases. Such a finding, in our opinion, is on a matter which is essentially ju
that is, within the power of this Court to inquire into. It imports nothing more than a simple reading and application of t
provisions of the 1935 Constitution, of the Election Code and of other related laws and official acts. No question of wi
policy is involved. But from this finding it does not necessarily follow that this Court may justifiably declare that the Co
has not become effective, and for that reason give due course to these petitions or grant the writs herein prayed for. T
effectivity of the said Constitution, in the final analysis, is the basic and ultimate question posed by these cases, to re
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 rat
process adopted by the Citizens Assemblies and on that premise would have this Court grant the reliefs they seek. T
respondents represented by the Solicitor General, whose theory may be taken as the official position of the Governm
challenge the jurisdiction of this Court on the ground that the questions raised in the petitions are political and therefo
justiciable, and that in any case popular acquiescence in the new Constitution and the prospect of unsettling acts don
reliance thereon should caution against interposition of the power of judicial review. Respondents Gil J. Puyat and Jo
L-36165), in their respective capacities as President and President Pro Tempore of the Senate of the Philippines, and
their counsel, Senator Arturo Tolentino, likewise invoke the political question doctrine, but on a ground not concurred
Solicitor General, namely, that approval of the 1973 Constitution by the people was made under a revolutionary gove
the course of a successful political revolution, which was converted by act of the people to the present de jure govern
the 1973 Constitution."

Heretofore, constitutional disputes which have come before this Court for adjudication proceeded on the assumption,
by all, that the Constitution was in full force and effect, with the power and authority of the entire Government behind
task of this Court was simply to determine whether or not the particular act or statute that was being challenged contr
some rule or mandate of that Constitution. The process employed was one of interpretation and synthesis. In the cas
there is no such assumption: the Constitution (1935) has been derogated and its continued existence as well as the v
act of derogation is issue. The legal problem posed by the situation is aggravated by the fact that the political arms of
Government — the Executive Departments and the two Houses of Congress — have accepted the new Constitution
the former by organizing themselves and discharging their functions under it, and the latter by not convening on Janu
1973 or at any time thereafter, as ordained by the 1935 Constitution, and in the case of a majority of the members by
their option to serve in the Interim National Assembly in accordance with Article XVIII, Section 2, of the 1973 Constitu

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 const
sustained, the most convenient ground for the invocation of the political-question doctrine. In support of his theory, Senator Tolentino contends that after President M
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
"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 al
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 Co
Chief of the Armed Forces assumed all the powers of government — executive, legislative, and judicial; and thereafter proceeded to exercise such powers by a seri
Decrees which amounted to legislative enactments not justified under martial law and, in some instances, trenched upon the domain of the judiciary, by removing fro
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, promulgat
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 ra
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 Constitut

If indeed it be accepted that the Citizens Assemblies had ratified the 1973 Constitution and that such ratification as w
establishment of the government thereunder formed part of a revolution, albeit peaceful, then the issue of whether or
Constitution has become effective and, as necessary corollary, whether or not the government legitimately functions
instead of under the 1935 Constitution, is political and therefore non-judicial in nature. Under such a postulate what th
did in the Citizen Assemblies should be taken as an exercise of the ultimate sovereign power. If they had risen up in a
force deposed the then existing government and set up a new government in its place, there could not be the least do
their act would be political and not subject to judicial review but only to the judgment of the same body politic act, in th
just set forth, is based on realities. If a new government gains authority and dominance through force, it can be effect
challenged only by a stronger force; judicial dictum can prevail against it. We do not see that situation would be any d
far as the doctrine of judicial review is concerned, if no force had been resorted to and the people, in defiance of the e
Constitution but peacefully because of the absence of any appreciable opposition, ordained a new Constitution and s
having the government operate under it. Against such a reality there can be no adequate judicial relief; and so courts
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, cur
by the Solicitor General, who disagrees with the revolutionary government theory of Senator Tolentino. The case involved the issue of which of two opposing govern
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 unifor
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 en
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 gover
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 exis
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 orde
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 th
that the ratification of the Constitution was a revolutionary act and that the government now functioning it is the produ
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 note
Citizens Assemblies were created, according to Presidential Decree No. 86, "to broaden the base of citizen participat
democratic process and to afford ample opportunities for the citizenry to express their views on important national iss
The President announced, according to the Daily Express of January 2, 1973, that "the referendum will be in the natu
a loose consultation with the people." (3) The question, as submitted to them on the particular point at issue here, wa
a approve of the Constitution?" (4) President Marcos, in proclaiming that the Constitution had been ratified, stated as
"(S)ince the referendum results show that more than ninety-five (95) per cent of the members of the Barangays (Citiz
Assemblies) are in favor of the new Constitution, the Katipunan ng mga Barangay has strongly recommended that th
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 s
them. In fact the plebiscite planned for January 15, 1973 under Presidential Decree No. 73 had been postponed to an
date, the reasons for the postponement being, as attributed to the President in the newspapers, that "there was little t
campaign for or against ratification" (Daily Express, Dec. 22, 1972); that he would base his decision (as to the date, o
plebiscite) on the compliance by the Commission (on Elections) on the publication requirement of the new Charter an
position taken by national leaders" (Daily Express, Dec. 23, 1972); and that "the postponement would give us more ti
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 underst
referendum to be for the ratification of the Constitution, but only for the expression of their views on a consultative ba
if the expression of those views had been intended as an act of ratification (or of rejection as a logical corollary) — th
have been no need for the Katipunan ng mga Barangay to recommend that the Constitution should already be deeme
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 ha
effect. The more relevant consideration, therefore, as far as we can see, should be as to what the President had in m
convening the Citizens Assemblies, submitting the Constitution to them and proclaiming that the favorable expression
views was an act of ratification. In this respect subjective factors, which defy judicial analysis and adjudication, are ne
involved.

In positing the problem within an identifiable frame of reference we find no need to consider whether or not the regim
established by President Marcos since he declared martial law and under which the new Constitution was submitted
Citizens Assemblies was a revolutionary one. The pivotal question is rather whether or not the effectivity of the said C
by virtue of Presidential Proclamation No. 1102, upon the recommendation of the Katipunan ng mga Barangay, was i
be definite and irrevocable, regardless of non-compliance with the pertinent constitutional and statutory provisions pre
procedure for ratification. We must confess that after considering all the available evidence and all the relevant circum
have found no reasonably reliable answer to the question. On one hand we read, for instance, the following public sta
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 destiny. We have burned our bridges behind us. Let no man misunderstand the strength o
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, amon
things:

... We can, perhaps delimit the power of the people to speak on legal matters, on justiciable m
matters that may come before the experts and interpreters of the law. But we cannot disqualif
from speaking on what we and the people consider purely political matters especially those th
fundamental law of the land.

... The political questions that were presented to the people are exactly those that refer to the
government which the people want ... The implications of disregarding the people's will are too
to be even considered. For if any power in government should even dare to disregard the peo
there would be valid ground for revolt.

... Let it be known to everybody that the people have spoken and they will no longer tolerate a
to undermine the stability of their Republic; they will rise up in arms not in revolt against the R
in protection of the Republic which they have installed. It is quite clear when the people say, w
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 fo
portion is quoted:

... the times are too grave and the stakes too high for us permit the customary concessions to
democratic process to hold back our people's clear and unequivocal resolve and mandate to m
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
our citizens ... that when all other measures should fail, that the President be directed to organize and establish a Re
Government," but in the next breath added: "... if we do ratify the Constitution, how can we speak of Revolutionary Go
They cannot be compatible ..." "(I)t is my feeling," he said, "that the Citizens' Assemblies which submitted this recomm
merely sought articulate their impatience with the status quo that has brought about anarchy, confusion and misery to
masses ..." The only alternatives which the President clearly implied by the foregoing statements were the ratification
Constitution and the establishment of a revolutionary government, the latter being unnecessary, in his opinion, becau
the Constitution had been ratified. The third obvious alternative was entirely ruled out, namely, a return to the 1935 C
for it was the status quo under that Constitution that had caused "anarchy, confusion and misery." The message seem
rather than return to such status quo, he would heed the recommendation of the Citizens' Assemblies to establish a r
government, because that would be the only other way to carry out the reforms he had envisioned and initiated — ref
in all fairness and honesty, must be given credit for the improved quality of life in its many aspects, except only in the
liberties.

If there is any significance, both explicit and implicit, and certainly unmistakable, in the foregoing pronouncements, it
step taken in connection with the ratification of the Constitution was meant to be irreversible, and that nothing anyone
would make the least difference. And if this is a correct and accurate assessment of the situation, then we would say
has been brought about by political action and is now maintained by the government that is in undisputed authority an
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
Constitution. In "Today's Revolution: Democracy" he says:

I believe, therefore, in the necessity of Revolution as an instrument of individual and social ch

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 Co
of the Philippines.

xxx xxx xxx

I repeat, this is not a military takeover of civil government functions. The Government of the R
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 Republ
reform our society...

I have had to use this constitutional power in order that we may not completely lose the civil ri
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 2
the following appears:

xxx xxx xxx

Q. Now that you have gotten off the constitutional track, won't you be in seriou
you run into critical problems with your programs?

R. I have never gotten off the constitutional track. Everything I am doing is in a

with the 1935 Constitution. The only thing is that instead of 18-year-olds voting
allowed 15-year-olds the right to vote. But the 15-year-olds of today are high-s
students, if not graduates, and they are better informed than my contemporarie
age. On the matter of whether it is constitutional to proclaim martial law, it is co
because the Constitution provides for it in the event of invasion, insurrection, r
immediate danger thereof. We may quarrel about whether what we have gone
sufficient cause to proclaim martial law but at the very least there is a danger o
because so many of our soldiers have been killed. You must remember this (m
provision) was lifted from the American legislation that was the fundamental la
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 h
made reference to subjective factors on which this Court, to our mind, is in no position to pass judgment. Among them
President's own assessment of the will of the people as expressed through the Citizens Assemblies and of the import
1973 Constitution to the successful implementation of the social and economic reforms he has started or envisioned.
decide that there is no turning back, that what the people recommended through the Citizens Assemblies, as they we
to him, demand that the action he took pursuant thereto be final and irrevocable, then judicial review is out of the que

In articulating our view that the procedure of ratification that was followed was not in accordance with the 1935 Const
related statutes, we have discharged our sworn duty as we conceive it to be. The President should now perhaps deci
not already decided, whether adherence to such procedure is weighty enough a consideration, if only to dispel any cl
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, sin
submission to the Citizens Assemblies, has found acceptance among the people, such issue being related to the poli
question theory propounded by the respondents. We have not tarried on the point at all since we find no reliable basi
to form a judgment. Under a regime of martial law, with the free expression of opinions through the usual media vehic
restricted, we have no means of knowing, to the point of judicial certainty, whether the people have accepted the Con
any event, we do not find the issue decisive insofar as our vote in these cases is concerned. To interpret the Constitu
is judicial. That the Constitution should be deemed in effect because of popular acquiescence — that is political, and
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 Petitio
Counsel Lorenzo M. Tañada on January 15, 1973 in the so called Plebiscite Cases decided by this Court on January
Of course, there are amplifications of some of the grounds previously alleged and in the course of the unprecedented
hearing that was held from February 12 to 16 last, more extensive and illuminating arguments were heard by Us, but,
estimation, and with due recognition of the sincerety, brilliance and eloquence of counsels, nothing more cogent and
than what had already been previously presented by Counsel Tañada is before Us now. Accordingly, I cannot see an
why I should change the position I took in regard to the earlier cases. I reiterate, therefore, the vote I cast when these
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
history of the individual stands of the members of the Court in relation to said issues and to the final outcome of these
considering that I reserved before the filing of a more extended opinion, I will take this opportunity to explain further w
that the 1973 Constitution is already in force, if only to clarify that apart from the people's right of revolution to which I
pointed reference in my previous opinion, I can see now, after further reflection, that the vote of the people in the refe
the Citizens Assemblies held on January 10 to 15, 1973, upon the result of which Proclamation 1102 is based, may b
more importantly as a political act than as a purely legal one with the result that such vote to consider the 1973 Cons
ratified without the necessity of holding a plebiscite in the form followed in the previous ratification plebiscites in 1935
Constitution itself, 1937 of women's suffrage, 1939 of the amendments to the Ordinance Appended to the Constitutio
the re-election of the President, the bicameral legislature and the Commission on Elections, 1947 of the parity amend
1967, rejecting the proposed increase in the members of the House of Representatives and eligibility of members of C
the Constitutional Convention, may be deemed as a valid ratification substantially in compliance with the basic intent
XV of the 1935 Constitution. If indeed this explanation may be considered as a modification of my rationalization then
emphasize that my position as to the fundamental issue regarding the enforceability of the new Constitution is even fi
than ever before. As I shall elucidate anon, paramount considerations of national import have led me to the conviction
best interests of all concerned would be best served by the Supreme Court holding that the 1973 Constitution is now
necessarily as a consequence of the revolutionary concept previously suggested by me, but upon the ground that as
more than as a legal, act of the people, the result of the referendum may be construed as a compliance with the subs
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 not
revolve around the purported ratification of the Constitution of 1973 declared in Proclamation 1102 issued by the Pres
January 17, 1973.

Pursuant to a joint resolution of the Congress sitting as a constituent assembly approved on March 16, 1967, delegat
constitutional convention to propose amendments to the Constitution of 1935 were elected in accordance with the im
law, Republic Act 6132, on November 10, 1970. Known as the Constitutional Convention of 1971, the assembly bega
sessions on June 1, 1971. After encountering a lot of difficulties, due to bitter rivalries over important positions and co
and an incomprehensible fear of overconcentrating powers in their officers, the delegates went about their work in co
slow pace, and by the third quarter of 1972 had finished deliberations and second-reading voting only on an insignific
of proposals — until September 21, 1972, when the President, not altogether unexpectedly, yet abruptly, issued Proc
1081 declaring martial law throughout the country. An attempt was made to have the Convention recessed until after
martial law, and not long after the motion of Delegate Kalaw to such effect was turned down, the activities within the a
shifted to high gear. As if unmindful of the arrest and continued detention of several of its members, the convention g
swift momentum in its work, and on November 30, 1972, it approved by overwhelming vote the draft of a complete co
instead of mere specific amendments of particular portions of the Constitution of 1935. Needless to say, before martia
declared, there was full and unlimited coverage of the workings in the convention by the mass media. At the same tim
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 t
decree be issued calling a plebiscite for ratification of the proposed new Constitution on appropriate date as he shall
and providing for necessary funds therefor." Acting under this authority, December 1, 1972, the President issued Pres
Decree No. 73 submitting the draft constitution for ratification by the people at a plebiscite set for January 15, 1973. T
contained provisions more or less similar to the plebiscite laws passed by Congress relative to the past plebiscites he
connection with previous proposed amendments.

In connection with the plebiscite thus contemplated, General Order No. 17 was issued ordering and enjoining the aut
allow and encourage public and free discussions on proposed constitution. Not only this, subsequently, under date of
17, 1972, the President ordered the suspension the effects of martial law and lifted the suspension of privilege of the
of habeas corpus insofar as activities connected with the ratification of the draft constitution were concerned. These t
were not, however, to last very long. On January 7, 1973, the President, invoking information related to him that the a
public debate and discussion had opened by his previous orders was being taken advantage of by subversive elemen
the purposes for which they were issued and to foment public confusion, withdrew said orders and enjoined full and s
implementation of martial law.

In the meantime, the President had issued on December 3, 1972 Presidential Decree No. 86 creating Citizens Assem
to afford ample opportunities for the citizenry to express their views on important national issues" and one of the ques
presented to said assemblies was: "Do you like the plebiscite on the proposed Constitution to be held later" So, the s
of January 7, 1973, General Order No. 20, the President ordered, "that the plebiscite scheduled to be held January 1
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 bara
(citizens assemblies) that have so far been established, the people would like to decide for the
 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 e
the views of the people on important national issues;

WHEREAS, such barangays (citizens assemblies) desire that they be given legal status and d
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 referendu
certain specified questions such as the ratification of the new Constitution, continuance of ma
convening of Congress on January 22, 1973, and the elections in November 1973 pursuant to
Constitution.

NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of th

vested in me by the Constitution as Commander-in-Chief of all Armed Forces of the Philippine
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
December 31, 1972, shall constitute the base for citizen participation in governmental affairs a
collective views shall be considered in the formulation of national policies or programs and, wh
practicable, shall be translated into concrete and specific decision;

2. Such barangays (citizens assemblies) shall consider vital national issues now confronting th
like the holding of the plebiscite on the new Constitution, the continuation of martial rule, the c
Congress on January 22, 1973, and the holding of elections in November 1973, and others in
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 ref
important national issues, including those specified in paragraph 2 hereof, and submit results
the Department of Local Governments Community Development immediately thereafter, pursu
express will of the people as reflected in the reports gathered from the many thousands of bar
(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
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, 1
Barangays (Citizens Assemblies) have petitioned the Office of the President to submit them fo
important national issues;

WHEREAS, one of the questions persistently mentioned refers to the ratification of the Consti
 proposed by the 1971 Constitutional Convention;

WHEREAS, on the basis of the said petitions, it is evident that the people believe that the sub
the proposed Constitution to the Citizens Assemblies or Barangays should be taken as a pleb
itself in view of the fact that freedom of debate has always been limited to the leadership in po
economic and social fields, and that it is now necessary to bring this down to the level of the p
themselves through the Barangays or Citizens Assemblies;

NOW THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of th

me vested by the Constitution, do hereby order that important national issues shall from time t
referred to the Barangays (Citizens Assemblies) for resolution in accordance with Presidential
86-A dated January 5, 1973 and that the initial referendum shall include the matter of ratificati
Constitution proposed by the 1971 Constitutional Convention.

The Secretary of the Department of Local Governments and Community Development shall in
implementation of this Order.

Done in the City of Manila, this 7th day of January in the year of Our Lord, nineteen hundred a
three.

And so it was that by January 10, 1973, when the Citizens Assemblies thus created started the referendum which wa
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 is
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
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
suggestive of the answer desired. It may assumed that the said "comments" came from official sources, albeit specifi
unidentified. As petitioners point out, the most relevant of these "comments" were the following:

COMMENTS ON

xxx xxx xxx

QUESTION No. 2

But we do not want the Ad Interim Assembly to be convoke. Or if it is to be con

all, it should not be done so until after at least seven (7) years from the approv
New Constitution by the Citizens Assemblies.

QUESTION No. 3

The vote of the Citizens Assemblies should already be considered the plebisci
New Constitution.

If the Citizens Assemblies approve of the new Constitution then the new Cons
should be deemed ratified.

The Solicitor General claims, and there seems to be showing otherwise, that the results of the referendum were dete
the following manner:

Thereafter, the results of the voting were collated and sent to the Department of Local Govern
transmission of the results was made by telegram, telephone, the provincial government SSB
each province connecting all towns; the SSB communication of the PACD connecting most pr
Department of Public Information Network System; the Weather Bureau Communication Syste
connecting all provincial capitals and the National Civil Defense Network connecting all provin
The certificates of results were then flown to Manila to confirm the previous figures received b
aforementioned means of transmission. The certificates of results tallied with the previous figu
with the exception of few cases of clerical errors.

The Department adopted a system of regionalizing the receiving section of the Citizens Assem
operation at the Department wherein the identity of the barrio and the province was immediate
a staff in charge of each region. Every afternoon at 2:00 o'clock, the 11 regions submitted the
received from the field to the central committee to tabulate the returns. The last figures were t
12 midnight of January 16, 1973 and early morning of January 17, 1973 and were then comm
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 procla
reads:

PROCLAMATION NO. 1102 ANNOUNCING THE RATIFICATION BY THE FILIPINO PEOPLE

CONSTITUTION PROPOSED BY THE 1971 CONSTITUTIONAL CONVENTION.

WHEREAS, the Constitution proposed by the nineteen hundred seventy-one Constitutional Co

subject to ratification by the Filipino people;
 WHEREAS, Citizens Assemblies were created in barrios in municipalities and in districts/ward
chartered cities pursuant to Presidential Decree No. 6, dated December 31, 1972, composed
persons who are residents of the barrio, district or ward for at least six months, fifteen years o
over, citizens of the Philippines and who are registered in the list of Citizen Assembly member
the barrio, district or ward secretary;

WHEREAS, the said Citizens Assemblies were establish precisely to broaden the base of citiz
participation in the democratic process and to afford ample opportunity for the citizen to expre
views on important national issues;

WHEREAS, responding to the clamor of the people an pursuant to Presidential Decree No. 86
January 5, 1973, the following questions were posed before Citizens' Assemblies or Barangay
approve of the New Constitution? Do you still want a plebiscite to be called to ratify the new C

WHEREAS, fourteen million nine hundred seventy-six thousand five hundred sixty one (14,97
members of all the Barangays (Citizens Assemblies) voted for the adoption of the proposed C
as against seven hundred forty-three thousand eight hundred sixty nine (743,869) who voted
rejection; while on the question as to whether or not the people would still like a plebiscite to b
ratify the new Constitution fourteen million two hundred ninety-eight thousand eight hundred fo
(14,298,814) answered that there was no need for plebiscite and that the vote of the Baranga
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 m
the Barangays (Citizen Assemblies) are in favor of the New Constitution, the Katipunan ng Mg
has strongly recommended that the new Constitution should already be deemed ratified by the
people;

NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of th

me vested by the Constitution, do hereby certify and proclaim that the Constitution proposed b
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 o
Philippines to be affixed.

Done in the City of Manila, this 17th day of January, in the year of Our Lord, nineteen hundred
seventy-three.

The first attempt to question the steps just enumerated taken by the President was in the so-called Plebiscite Cases,
number, which were filed by different petitioners during the first half of December 1972.  Their common target then wa
1

Presidential Decree No. 73, but before the said cases could be decided, the series of moves tending in effect to make
and academic insofar as they referred exclusively to the said Presidential Decree began to take shape upon the issua
Presidential Decree No. 86-A, quoted above. And when Presidential Decree No. 86-B, also above quoted, was issue
six additional questions which were first publicized on January 11, 1973 were known, together with the "comments", p
sensed that a new and unorthodox procedure was being adopted to secure approval by the people of the new Consti
hence Counsel Tañada, not being satisfied with the fate of his urgent motion for early decision of the above ten cases
January 12, 1973, filed on January 15, 1973, his supplemental motion seeking the prohibition against and injunction o
proceedings going on. Principal objective was to prevent that the President be furnished the report of the results of th
referendum and thereby disable him from carrying out what petitioners were apprehensively foreseeing would be don
issuance of some kind of proclamation, order or decree, declaring that the new Constitution had been ratified. Reactin
the Court resolved on the same day, January 15, which was Monday, to consider the supplemental motion as a supp
petition and to require the respondents to answer the same the next Wednesday, January 17th, before the hour of the
the petition which set for 9:30 o'clock in the morning of that day. The details what happened that morning form part of
of facts the decision rendered by this Court in the ten cases on January 22, 1973 and need not be repeated here. Su
state no that before the hearing could be closed and while Counsel Tañada was still insisting on his prayer for prelimi
injunction or restraining order, the Secretary of Justice arrived and personally handed to the Chief Justice a copy Pro
1102 which had been issued at about 11:00 o'clock that same morning. In other words, the valiant and persistent effo
petitioners and their counsels were overtaken by adverse developments, and in the mind of the majority of the memb
Court, the cases had become academic. For my part, I took the view that even on the basis of the supplemental petit
answer thereto filed by respondents, the Court could already decide on the fundamental issue of the validity Proclam
as Justices Zaldivar, Antonio and Esguerra also believed, inasmuch as Counsel Tañada's pleading and argument ha
anticipated its issuance, but the majority felt it was not ready to resolve the matter, for lack, according them, of full ve
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 b
strongly feel needs special attention. I refer to the point raised by Counsel Arturo M. Tolentino for respondent Gil J. P
Jose Roy, who have been sued as President and President Pro Tempore of the Senate, to the effect that change in t
composition of the Supreme Court provided for the 1973 Constitution, from the 11-man tribunal under the 1935 Cons
15-man Court, makes of these cases which were filed after January 17, 1973 the date when Proclamation 1102 decla
Constitution as ratified, political nature and beyond our jurisdiction. The main consideration submitted in this connecti
inasmuch as the number votes needed for a decision of this Court has been increased from six to eight in ordinary ca
from eight to ten for the declaration of unconstitutionality of a treaty, executive agreement  or law, the Court would ha
2

resolve first as a prejudicial question whether the Court is acting in these cases as the 15-man or the 11-man Court, i
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
in issue one way or the other, and, in effect, it would be choosing between two constitutions, which is a political deter
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
necessarily preclude this Court from taking a definite stand on whether the Court is acting in these cases as the 15-M
11-man Court. I feel very strongly that the issue should not be ignored or dodged, if only to make the world know that
Supreme Court of the Philippines is never incognizant of the capacity in which it is acting, much less lacking in courag
wisdom to resolve an issue that relates directly to its own composition. What a disgrace it would be to admit that this
Court does not know, to use a common apt expression, whether it is fish or fowl. Withal, scholars and researchers wh
over our records in the future will inevitably examine minutely how each of us voted and upon what considerations we
individually acted, and, indeed, doubts may arise as to whether or not, despite the general result we might announce,
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 a
11-man Court, only six votes would suffice to declare Proclamation 1102 ineffective, and if upon analysis of our respe
opinions it should be inferable therefrom that six of us have considered the matter before the Court as justiciable and
time have found the procedure of ratification adopted in Presidential Decrees 86-A and 86-B and related orders of the
as not being in conformity with Article XV of the old Constitution, a cloud would exist as to efficacy of the dispositive p
Our decision dismiss these cases, even if we have it understood that by the vote of justices in favor of such dismissa
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 ambigu
equivocation and as a member of the Supreme Court, last thing I should knowingly countenance is uncertainty as to t
significance of any decision of the Court which is precisely being looked upon as the haven in which doubts are supp
authoritatively dispelled. Besides, from very nature of things, one thing is indubitably beyond dispute — we cannot ac
capacities of a 15-man and an 11-man Court at the same time, in like manner that it is inconceivable that the 1935 an
Constitution can be considered by Us both in force. Our inescapable duty is to make a choice between them, accordi
law and other considerations inherent to our function dictate. I cannot bear the thought that someone may someday s
Supreme Court of the Philippines once decided a case without knowing the basis of its author to act or that it was eve
judicial courage to define the same.

Accordingly, with full consciousness of my limitations but compelled by my sense of duty and propriety to straighten o
grave of issue touching on the capacity in which the Court acting in these cases, I hold that we have no alternative bu
the present situation the orthodox rule that when validity of an act or law is challenged as being repugnant constitutio
mandate, the same is allowed to have effect until the Supreme Court rules that it is unconstitutional. Stated differently
to proceed on the assumption that the new Constitution is in force and that We are acting in these cases as the 15-m
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 p
wise to defer the course of any action until after the courts have ascertained their legality, not only because if that we
rule, the functioning of government would correspondingly be undesirably hesitative and cumbersome, but more impo
because the courts must at the first instance accord due respect to the acts of the other departments, as otherwise, th
running of the government would have to depend entirely on the unanimity of opinions among all its departments, wh
possible, unless it is assumed that only the judges have the exclusive prerogative of making and enforcing the law, a
being its sole interpreter, which is contrary to all norms of juridical and political thinking. To my knowledge, there is ye
in the world that has recognized judicial supremacy as its basic governmental principle, no matter how desirable we m
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 fun
under the 1935 Constitution. It is undeniable that the whole government, including the provincial, municipal and barrio
not excluding the lower courts up to the Court of Appeals, is operating under the 1973 Constitution. Almost daily, pres
orders and decrees of the most legislative character affecting practically every aspect of governmental and private ac
as the relations between the government and the citizenry are pouring out from Malacañang under the authority of sa
Constitution. On the other hand, taxes are being exacted and penalties in connection therewith are being imposed un
orders and decrees. Obligations have been contracted and business and industrial plans have been and are being pr
pursuant to them. Displacements of public officials and employees in big numbers are going on in obedience to them
justices of the Supreme Court to constitute an island of resistance in the midst of these developments, which even un
obstinacy cannot ignore, much less impede, is unimaginable, let alone the absurd and complicated consequences su
position entails in the internal workings within the judiciary amount its different components, what with the lower court
considering such orders and decrees as forming part of the law of the land in making their orders and decisions, whe
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
feels that it cannot in the meantime consider the enforcement of the new Constitution, he can wait for its decision. Ac
truth of this assertion, it does necessarily follow that by this attitude of the President, considers the Supreme Court as
operating under the Constitution. Quite on the contrary, it is a fact that he has given instructions for the payment of th
accordance with the rate fixed in the New Constitution. Not only that, official alter ego, the Secretary of Justice, has b
this Court, since January 18, 1973, all matters related to the administrative supervision of the lower courts which by th
charter has been transferred from the Department of Justice to the Supreme Court, and as far as I know, President h
countermanded the Secretary's steps in that direction. That, on the other hand, the President has not augmented the
the Court to complete the prescribed number of fifteen is, in my appraisal, of no consequence considering that with th
of ten justices who are the Court now, there is a working quorum, and the addition of new justices cannot in anyway a
voting on the constitutional questions now before Us because, while there sufficient justices to declare by their unanim
illegality of Proclamation 1102, the votes of the justices to added would only be committed to upholding the same, sin
cannot by any standard be expected to vote against legality of the very Constitution under which they would be appoi

Moreover, what makes the premise of presumptive valid preferable and, even imperative, is that We are dealing here
whole constitution that radically modifies or alters only the form of our government from presidential parliamentary bu
constitutionally institutions vitally affecting all levels of society. It is, to mind, unrealistic to insist on that, fundamentally
Constitution is the same 1935 Constitution, with a few improvements. A cursory perusal of the former should convinc
that it is in essence a new one. While it does retain republicanism as the basic governmental tenet, the institutional ch
introduced thereby are rather radical and its social orientation is decidedly more socialistic, just as its nationalistic fea
somewhat different in certain respects. One cannot but note that the change embraces practically every part of the ol
from its preamble down to its amending and effectivity clauses, involving as they do the statement of general principle
citizenship and suffrage qualifications, the articles on the form of government, the judiciary provisions, the spelling ou
duties and responsibilities not only of citizens but also of officers of the government and the provisions on the nationa
as well as the patrimony of the nation, not to mention the distinctive features of the general provisions. What is more,
transitory provisions notably depart from traditional and orthodox views in that, in general, the powers of government
interim period are more or less concentrated in the President, to the extent that the continuation or discontinuance of
practically a one-man-rule, is even left to his discretion. Notably, the express ratification of all proclamations, orders, d
acts previously issued or done by the President, obviously meant to encompass those issued during martial law, is a
to the concept of martial law powers being implemented by President Marcos, in defiance of traditional views and pre
jurisprudence, to the effect that the Executive's power of legislation during a regime of martial law is all inclusive and
to the matters demanded by military necessity. In other words, the new constitution unlike any other constitution coun
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) Se
its Article XVII which provides that this constitution shall "supersede the Constitution of nineteen hundred and thirty-fi
amendments thereto" and (2) its transitory provisions expressly continue the effectivity of existing laws, offices and co
as the tenure of all incumbent officials, not adversely affected by it, which would have been unnecessary if the old co
were being merely amended.

The new Constitution, in its Section 10, Article XVII, provides that "(T)he incumbent members of the Judiciary (which
Chief Justice and Associate Justices of Supreme Court) may continue in office (under the constitution) until they reac
seventy years, etc." By virtue of the presumptive validity of the new charter, all of form part of the 15-man-Court provi
therein correspondingly, We have in legal contemplation, ceased in the meanwhile to be members of the 11-man-Cou
1935 Constitution. Should the Court finally decide that the Constitution is invalid, then We would automatically revert
positions in the 11-man- Court, otherwise, We would just continue to be in our membership in the 15-man-Court, unle
We cannot in conscience accept the legality of existence. On the other hand, if it is assumed that We are the 11-man
happens that Our collective decision is in favor of the new constitution, it would be problematical for any dissenting ju
consider himself as included automatically in the 15-man-Court, since that would tantamount to accepting a position h
honestly believe exists.

III

In brief, the main contention of the petitioners is that Proclamation 1102 is invalid because the ratification of the 1973
it purports to declare as having taken place as a result of the referendum above-referred to is ineffective since it cann
on the basis of the said referendum that said Constitution has been "approved by a majority of the votes cast at an el
the manner prescribed by Article XV the Constitution of 1935. More specifically, they maintain that the word "election"
Article has already acquired a definite accepted meaning out of the consistent holding in the past of ratification plebis
accordingly, no other form of ratification can be considered contemplated by the framers of the Old Constitution than
had been followed 1935, 1937, 1939, 1940, 1946 and 1967, the last three or four which were held under the supervis
Commission on Elections. Furthermore, they emphatically deny the veracity of the proclaimed results of the referendu
according to them the referendum was a farce and its results were manufactured or prefabricated, considering that M
Cruz, who is supposed to have submitted the final report to the President, which served as basis for Proclamation 11
official authority to render the same, and it is inconceivable and humanly impossible for anyone to have been able to
tabulate and canvass the 15 million votes allegedly reported within the short period of time employed. Of course, they
contend that in any event, there was no proper submission because martial law per se creates constructive duress w
deprives the voters of the complete freedom needed for the exercise of their right of choice and actually, there was ne
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
a political one which the courts are not supposed to inquire into, and, anyway, there has been a substantial complian
Article XV of the 1935 Constitution, inasmuch as, disregarding unessential matters of form, the undeniable fact is tha
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 a
the observation that in view of the lack of solemnity and regularity in the voting as well as in the manner of reporting a
canvassing conducted in connection with the referendum, I cannot say that Article XV of the Old Constitution has bee
with, albeit I held that nonetheless, the Constitution of 1973 is already in force. In order, however, to make myself cle
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 certi
through Proclamation 1102 itself that the New Constitution has been approved by a majority of the people and having
facts of general knowledge which I have judicial notice of, I am in no position to deny that the result of the referendum
President had stated. I can believe that the figures referred to in the proclamation may not accurate, but I cannot say
conscience that all of them are manufactured or prefabricated, simply because I saw with own eyes that people did a
gather and listen discussions, if brief and inadequate for those who are abreast of current events and general occurre
that they did vote. I believe I can safely say that what I have seen have also been seen by many others throughout th
and unless it can be assumed, which honestly, I do not believe to be possible, that in fact there were actually no mee
and no voting done in more places than those wherein there were such meetings and votings, I am not prepared to d
entirely the declaration that there was voting and that the majority of the votes were in favor of the New Constitution.
there were substantially less than 14 million votes of approval, the real figure, in my estimate, could still be significant
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
merely of a loose consultation and not an outright submission for purposes of ratification. I can see that at the outset,
first set of questions was released, such may have been the idea. It must not be lost sight of, however, that if the new
reports are to be believed, and I say this only because petitioners would consider the newspapers as the official gaze
administration, the last set of six questions were included precisely because the reaction to the idea of mere consulta
that the people wanted greater direct participation, thru the Citizens Assemblies, in decision-making regarding matter
national interest. Thus, looking at things more understandingly and realistically the two questions emphasized by cou
namely, (1) Do yo approve of the New Constitution? and (2) Do you want plebiscite to be called to ratify the new Con
should be considered no longer as loose consultations but as direct inquiries about the desire of the voters regarding
mentioned. Accordingly, I take it that if the majority had expressed disapproval of the new Constitution, the logical con
would have been the complete abandonment of the idea of holding any plebiscite at all. On the other hand, it is very p
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 shou
direct and expressed desire of the people to such effect in order to forestall as much as possible any serious controve
regarding the non-holding of the plebiscite required by the letter of Section 16 of Article XVII, the effectivity clause, of
Constitution. Oddly enough, the "comments" accompanying the questions do strongly suggest this view. And as it tur
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 s
the thrust of the said question does not seek an answer of fact but of opinion. It is argued that it would have been fac
worded categorically thus — Do you approve the New Constitution? The contention would have been weighty were it
unrealistic. I remember distinctly that the observation regarding the construction of the subject question was not origin
by any of the talented counsels for petitioners. It came from Mr. Justice Fred Ruiz Castro whose mastery of the Englis
can rightly be the cause of envy of even professors of English. None of the other members of the Court, as far as I ca
ever noticed how the said question is phrased, or if anyone of Us did, I am not aware that he gave it more than passin
What I mean is that if neither any of the distinguished and learned counsels nor any member of the Court understood
question otherwise than calling for a factual answer instead of a mere opinion, how could anyone expect the millions
unlettered members of the Citizens Assemblies to have noticed the point brought out by Justice Castro? Truth to tell,
not realize the difference until Justice Castro gave it emphasis. Besides, reading the question in the light of the accom
"comment" corresponding to it in particular, I am certain that any one who answered the same understood it in no oth
than a direct inquiry as to whether or not, as a matter of fact, he approves the New Constitution, and naturally, affirma
must be taken as a categorical vote of approval thereof, considering, particularly, that according to the reported resul
referendum said answer was even coupled with the request that the President defer the convening of the Interim Nat
Assembly.

It is also contended that because of this reference in answer to that question to the deferment of the convening of the
assembly, the said answer is at best a conditional approval not proper nor acceptable for purposes of ratification pleb
contention has no basis. In interest of accuracy, the additional answer proposed in pertinent "comment" reads as follo
do not want Ad Interim Assembly to be convoked etc." On the assumption that the actual answer, as reported, was of
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

As regards said "comments", it must be considered that a martial law was declared, the circumstances surrounding m
Constitution acquired a different and more meaningful aspect, namely, the formation of a new society. From the point
the President and on the basis of intelligence reports available to him, the only way to meet situation created by the s
elements was to introduce immediately effective reforms calculated to redeem the people from the depth of retrogres
stagnation caused by rampant graft and corruption in high places, influence peddling, oligarchic political practices, pr
armies, anarchy, deteriorating conditions of peace and order, the so inequalities widening the gap between the rich a
and many other deplorable long standing maladies crying for early relief and solution. Definitely, as in the case of reb
movement that threatened the Quirino Administration, the remedy was far from using bullets alone. If a constitution w
approved as an effective instrument towards the eradication of such grave problems, it had to be approved without lo
and sans the cumbersome processes that, from the realistic viewpoint, have in the past obstructed rather than hasten
progress of the people. Stated otherwise, in the context of actualities, the evident objective in having a new constitutio
establish new directions in the pursuit of the national aspirations and the carrying out of national policies. Only by bea
considerations in mind can the "comments" already referred to be properly appreciated. To others said "comments" m
as evidence of corruption of the will of those who attended the assemblies, but actually, they may also be viewed in th
light as the sample ballots commonly resorted to in the elections of officials, which no one can contend are per se me
coercion. Let us not forget that the times are abnormal, and prolonged dialogue and exchange of ideas are not gener
possible, nor practical, considering the need for faster decisions and more resolute action. After all voting on a whole
constitution is different from voting on one, two or three specific proposed amendments, the former calls for nothing m
collective view of all the provisions of the whole charter, for necessarily, one has to take the good together with the ba
rare for anyone to reject a constitution only because of a few specific objectionable features, no matter how substanti
considering the ever present possibility that after all it may be cured by subsequent amendment. Accordingly, there w
indicate to the people the paths open to them in their quest for the betterment of their conditions, and as long as it is n
that those who did not agree to the suggestions in the "comments" were actually compelled to vote against their will,
convinced that the existence of said "comments" should make any appreciable difference in the court's appraisal of th
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 dis
result of the referendum barely because of martial law per se. For one thing, many of the objectionable features of m
have not actually materialized, if only because the implementation of martial law since its inception has been general
characterized by restraint and consideration, thanks to the expressed wishes of the President that the same be made
style", which means without the rigor that has attended it in other lands and other times. Moreover, although the restr
the freedom of speech, the press and movement during martial law do have their corresponding adverse effects on th
information which should be open to a voter, in its real sense what "chills" his freedom of choice and mars his exercis
discretion is suspension of the privilege of the writ of habeas corpus. The reason is simply that a man may freely and
vote even if the needed information he possesses as to the candidates or issues being voted upon is more or less inc
but when he is subject to arrest and detention without investigation and without being informed of the cause thereof, t
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 m
It is a fact, however, borne by history and actual experience, that in the Philippines, the suspension of the privilege of
writ habeas corpus has never produced any chilling effect upon the voters, since it is known by all that only those who
the law, saving inconsequential instances, have any cause for apprehension in regard to the conduct by them of the n
activities of life. And so it is recorded that in the elections 1951 and 1971, held while the privilege of writ of habeas co
under suspension, the Filipino voters gave the then opposition parties overwhelming if not sweeping victories, in defia
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 consid
sufficient basis for declaring that the New Constitution has been ratified in accordance with the amending clause of th
Constitution. I reiterate that in point of law, I find neither strict nor substantial compliance. The foregoing discussion is
counter, if I may, certain impression regarding the general conditions obtaining during and in relation to the referendu
could have in one way or another affected the exercise of the freedom of choice and the use of discretion by the mem
Citizens Assemblies, to the end that as far as the same conditions may be relevant in my subsequent discussions of
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 pre
considered opinion is that the Court may no longer decide these cases on the basis of purely legal considerations. Fa
are non-legal but nevertheless ponderous and compelling cannot be ignored, for their relevancy is inherent in the issu
be resolved.

In my opinion in the Plebiscite Cases, I joined my colleagues in holding that the question of whether or not there was
submission under Presidential Decree No. 73 is justiciable, and I still hold that the propriety of submission under any
in any other form is constitutionally a fit subject for inquiry by the courts. The ruling in the decided cases relied upon b
petitioners are to this effect. In view, however, of the factual background of the cases at bar which include ratification
necessary for me to point out that when it comes to ratification, I am persuaded that there should be a boundary beyo
the competence of the courts no longer has any reason for being, because the other side is exclusively political territo
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 enou
indication of such acceptance in the record and in the circumstances the Court can take judicial notice of. For my par
it unnecessary to be strictly judicial in inquiring into such fact. Being personally aware, as I have already stated, that t
Assemblies did meet and vote, if irregularly and crudely, it is not for me to resort, for the purposes of these cases, to
and measure, to find out with absolute precision the veracity of the total number of votes actually cast. After all, the cl
upon a comparison of conflicting reports, cases of excess votes may be found, even if extrapolated will not, as far as
out, suffice to overcome the outcome officially announced. Rather than try to form a conclusion out of the raw evidenc
which the parties did not care to really complete, I feel safer by referring to the results announced in the proclamation
Giving substantial allowances for possible error and downright manipulation, it must not be overlooked that, after all,
been accepted and adopted by the President, based on official reports submitted to him in due course of performance
appropriate subordinate officials, elevated them to the category of an act of a coordinate department of the governme
under the principle separation of powers is clothed with presumptive correctness or at least entitled to a high degree
acceptability, until overcome by better evidence, which in these cases does not exist. In any event, considering that d
unorthodoxy of the procedure adopted and the difficulty of an accurate checking of all the figures, I am unable to conc
manageable means of acquiring information upon which to predicate a denial, I have no alternative but to rely on wha
officially declared. At this point, I would venture to express the feeling that if it were not generally conceded that there
sufficient showing of the acceptance in question by this time, there would have been already demonstrative and signi
indications of a rather widespread, if not organized resistance in one form or another. Much as they are to be given d
recognition as magnificent manifestations of loyalty and devotion to principles, I cannot accord to the filing of these ca
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 s
unequivocal pronouncements to the effect that any amendment to the Constitution of 1935, to be valid, must appear t
been made in strict conformity with the requirements of Article XV thereof. What is more, that decision asserted judici
competence to inquire into the matter of compliance or non compliance as a justiciable matter. I still believe in the cor
those views and I would even add that I sincerely feel it reflects the spirit of the said constitutional provision. Without
strain any point however, I, submit the following considerations in the context of the peculiar circumstances of the cas
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 im
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 ha
referred to is, now inviting Our attention to the exact language of Article XV and suggesting that the said Article may b
applied to proposed amendments but may hardly govern the ratification of a new Constitution. It is particularly stresse
Article specifically refers to nothing else but "amendments to this Constitution" which if ratified "shall be valid as part o
Constitution." Indeed, how can a whole new constitution be by any manner of reasoning an amendment to any other
and how can it, if ratified, form part of such other constitution? In fact, in the Tolentino case I already somehow hinted
when I made reference in the resolution denying the motion for reconsideration to the fact that Article XV must be foll
long as any amendment is formulated and submitted under the aegis of the present Charter." Said resolution even ad
is not to say that the people may not, in the exercise of their inherent revolutionary powers, amend the Constitution o
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 p
changes in any part of the same constitution itself, for the very fact that a new constitution is being adopted implies a
intent to put aside the whole of the old one, and what would be really incongrous is the idea that in such an eventualit
Constitution would subject its going into effect to any provision of the constitution it is to supersede, to use the langua
of Section 6, Article XVII, the effectivity clause, of the New Constitution. My understanding is that generally, constituti
born, they very rarely, if at all, come into being, by virtue of any provision of another constitution. 3 This must be the r
every constitution has its own effectivity clause, so that if, the Constitutional Convention had only anticipated the idea
referendum and provided for such a method to be used in the ratification of the New Constitution, I would have had s
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
and the circumstances dictating the replacement. From the very nature of things, the proposal to ordain a new constit
be viewed as the most eloquent expression of a people's resolute determination to bring about a massive change of t
order, a meaningful transformation of the old society and a responsive reformation of the contemporary institutions an
principles. Accordingly, should any question arise as to its effectivity and there is some reasonable indication that the
has already received in one way or another the sanction of the people, I would hold that the better rule is for the cour
the people's judgment, so long as they are convinced of the fact of their approval, regardless of the form by which it is
provided it be reasonably feasible and reliable. Otherwise stated, in such instances, the courts should not bother abo
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
elements, both collective and individual, of the Congress of the Philippines. Neither the Senate nor the House of Rep
has been reported to have even made any appreciable effort or attempt to convene as they were supposed to do und
Constitution of 1935 on January 22, 1973 for the regular session. It must be assumed that being composed of experie
knowledgeable and courageous members, it would not have been difficult for said parliamentary bodies to have conc
ingenious way of giving evidence of their determined adherence to the Constitution under which they were elected. F
much as I admire the efforts of the handful of senators who had their picture taken in front of the padlocked portals of
chamber, I do not feel warranted to accord such act as enough token of resistance. As counsel Tolentino has informe
there was noting to stop the senators and the congressmen to meet in any other convenient place and somehow offic
organize themselves in a way that can logically be considered as a session, even if nothing were done than to merely
and disperse. Counsel Tolentino even pointed out that if there were not enough members to form a quorum, any sma
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 presen
for mandamus have no legal and factual bases. And to top it all, quite to the contrary, the records of the Commission
Elections show that at least 15 of 24 senators and over 95 out of less than 120 members of the House of Representa
officially and in writing exercised the option given to them to join the Interim National Assembly under the New Consti
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 th
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 develo
taking place and for the sake of being the guardian of the Constitution and the defender of its integrity and supremacy
judicial power prevail against the decision of those who were duly chosen by the people to be their authorized spokes
representatives. It is not alone the physical futility of such a gesture that concerns me. More than that, there is the sta
that the Senators and the Congressmen, no less than the President, have taken the same oath of loyalty to the Cons
we, the Justices, have taken and they are, therefore, equally bound with Us to preserve and protect the Constitution.
representatives of the people, they have already opted to accept the New Constitution as the more effective instrume
fulfillment of the national destiny, I really wonder if there is even any idealistic worth in our desperately clinging by Ou
alone to Our sworn duty vis-a-vis the 1935 Constitution. Conscious of the declared objectives of the new dispensation
cognizant of the decisive steps being with the least loss of time, towards their accomplishment, cannot but feel appre
instead of serving the best interests of our people, which to me is in reality the real meaning of our oath of office, the
be standing in the way of the very thing our beloved country needs to retrieve its past glory and greatness. In other w
my conviction that what these cases demand most of all is not a decision demonstrative of our legal erudition and So
wisdom but an all rounded judgment resulting from the consideration of all relevant circumstances, principally the pol
brief, a decision more political than legal, which a court can render only by deferring to the apparent judgment of the p
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 So
General that in the legal sense, there has been at least substantial compliance with Article XV of the 1935 Constitutio
I can see is that in a political sense, the answers to the referendum questions were not given by the people as legal c
I take it that when they answered that by their signified approval of the New Constitution, they do not consider it nece
hold a plebiscite, they could not have had in mind any intent to do what was constitutionally improper. Basically accus
proceed along constitutional channels, they must have acted in the honest conviction that what was being done was
conformity with prevailing constitutional standards. We are not to assume that the sovereign people were indulging in
exercise of their supreme political right to choose the fundamental charter by which their lives, their liberties and their
shall be safeguarded. In other words, we must perforce infer that they meant their decision to count, and it behooves
render judgment herein in that context. It is my considered opinion that viewed understandingly and realistically, there
than sufficient ground to hold that, judged by such intent and, particularly, from the political standpoint, the ratification
Constitution declared in Proclamation 1102 complies substantially with Article XV of the 1935 Charter, specially when
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 constitu
substantiality of the whole article, so long as such approval is reasonably ascertained. In the last analysis, therefore,
rightly said, even if only in a broad sense, that the ratification here in question was constitutionally justified and justifia
5. Finally, if any doubt should still linger as to the legitimacy of the New Constitution on legal grounds, the same shou
dispelled by viewing the situation in the manner suggested by Counsel Tolentino and by the writer of this opinion in h
opinion, oft-referred to above, in the Plebiscite Cases — that is, as an extra constitutional exercise by the people, und
leadership of President Marcos, of their inalienable right to change their fundamental charter by any means they may
appropriate, the moment they are convinced that the existing one is no longer responsive to their fundamental, politic
social needs nor conducive to the timely attainment of their national destiny. This is not only the teaching of the Amer
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 ne
the latter may be deemed as constitutionally permissible even from the point of view of the preceding constitution. Th
may feel restrained to consider this view out of respect to the import of Tolentino vs. Comelec, supra., would be well
bear in mind that the case was decided in the context of submission, not accomplished ratification.

The language of the disputed amending clause of the 1935 Constitution should not be deemed as the be all and end
nation. More important than even the Constitution itself with all its excellent features, are the people living under it —
happiness, their posterity and their national destiny. There is nothing that cannot be sacrificed in the pursuit of these
which constitute the totality of the reasons for national existence. The sacred liberties and freedom enshrined in it and
commitment and consecration thereof to the forms of democracy we have hitherto observed are mere integral parts o
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 w
deemed as sanctioning, not only the deviations from traditional democratic concepts and principles but also the qualif
curtailment of individual liberties now being practiced, and this would amount, it is feared, to a repudiation of our oath
and defend the Constitution of 1935. This is certainly something one must gravely ponder upon. When I consider, how
the President, the Vice President, the members of both Houses of Congress, not to speak of all executive departmen
bureaus under them as well as all the lower courts, including the Court of Appeals have already accepted the New Co
as an instrument of a meaningful nationwide-all-level change in our government and society purported to make more
feasible, rather than idealistic and cumbersomely deliberative, the attainment of our national aspirations, I am led to w
whether or not we, as members of the Supreme Court are being true to our duty to our people by refusing to follow su
accept the realities of the moment, despite our being convinced of the sincerity and laudableness of their objectives,
because we feel that by the people's own act of ratifying the Constitution of 1935, they have so encased themselves
provisions and may, therefore, no longer take measures to redeem themselves from the situation brought about by th
deficiencies of the old order, unless they act in strict conformity therewith. I cannot believe that any people can be so
enchained. In any event, I consider it a God-given attribute of the people to disengage themselves, if necessary, from
covenant that would obstruct their taking what subsequently appears to them to be the better road to the promotion a
protection of their welfare. And once they have made their decision in that respect, whether sophisticatedly or crudely
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 Salo
these cases be decided on the basis of conscience. That is exactly what I am doing. But if counsel mean that only by
their petitions can this Court be worthily the bulwark of the people's faith in the government, I cannot agree, albeit my
and respect are all theirs for their zeal and tenacity, their industry and wisdom, their patriotism and devotion to princip
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
we are all animated by sincere love of country and aim exclusively at the attainment of the national destiny. Our hero
past, Rizal, Bonifacio, Aguinaldo, Antonio Luna, Mabini and so also with our patriots of the recent generations, Quezo
Roxas, Laurel and Recto, to mention only some of them, had their differences of views — and they did not hesitate to
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
provision of the Constitution or to the Constitution itself. My oath to abide by the Constitution binds me to whatever co
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 th
leading to these cases have entail will heal after the decision herein is promulgated, so that all us Filipinos may forev
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 co
amendments or of a new Constitution and that such procedure was no complied with, the validity of Presidential Proc
No. 1102 is a political, not a justiciable, issue; for it is inseparably or inextricably link with and strikes at, because it is
the validity of ratification and adoption of, as well as acquiescence of people in, the 1973 Constitution and the legitima
government organized and operating thereunder. And being political, it is beyond the ambit of judicial inquiry, tested b
definition of a political question enunciated in Tañada, et. al. vs. Cuenco, et al. (103 Phil. 1051), aside from the fact th
will not do violence to rights vested under the new Constitution, to international commitments forged pursuant thereto
decisions rendered by the judicial as well as quasi-judicial tribunals organized and functioning or whose jurisdiction h
altered by the 1973 Constitution and the government established thereunder, and will dissipate any confusion in the m
citizenry, who have been obeying the mandates of the new Constitution, as well as exercising the rights and performi
obligations defined by the new Constitution, and decrees and orders issued in implementation of the same and coope
the administration in the renovation of our social, economic and political system as re-structured by the 1973 Constitu
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 ques
which, under the Constitution, is "to be decided by the people in their sovereign capacity, or in regard to which full dis
authority had been delegated to the Legislature or Executive branch of the government." (Tañada, et al. vs. Cuenco,
al., supra).

Article XV of the 1935 Constitution provides: "Such amendments shall be valid as part of this Constitution when appro
majority of the votes cast at an election at which the amendments are submitted to the people for ratification." Under
the 1935 Constitution, the power to propose constitutional amendments is vested in Congress or in a constitutional co
while the power to ratify or reject such proposed amendments or new Constitution is reserved by the sovereign peopl
nullification of Proclamation No. 1102 would inevitably render inoperative the 1973 Constitution, which is in fact the e
prayer of the petitioners in G.R. No. L-36164. Regardless of the modality of submission or ratification or adoption — e
deviates from or violates the procedure delineated therefore by the old Constitution — once the new Constitution is ra
adopted and/or acquiesced in by the people or ratified even by a body or agency not duly authorized therefor but is s
adopted or recognized by the people and by the other official organs and functionaries of the government established
a new Constitution, this Court is precluded from inquiring into the validity of such ratification, adoption or acquiescenc
consequent effectivity of the new Constitution. This is as it should be in a democracy, for the people are the repositor
sovereign powers as well as the source of all governmental authority (Pole vs. Gray, 104 SO 2nd 841 [1958]). This ba
democratic concept is expressly restated in Section 1 of Article II of the Declaration of Principles of the 1935 and 197
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 pe
any infirmity in its submission or any other irregularities therein which are deemed mandatory before submission as th
considered merely directory after such ratification or adoption or acquiescence by the people. As Mr. Justice Brewer,
Kansas State Supreme Court and later Associate Justice of the Federal Supreme Court, stated in re Prohibitory Ame
Cases (24 Kansas 700 & 710 Reprint 499, 506): "The two important, vital elements of the Legislature and a majority o
popular vote. Beyond these, other provisions are mere machineries and forms. They may not be disregarded, becaus
certainty as to the essentials is secured. But they are not themselves the essentials." (Cited in Larken vs. Gronna, 28
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. 1
Chief Justice Hughes, speaking for the majority, stated that:

... Thus the political departments of the government dealt with the effect of both previous rejec
attempted withdrawal and determined that both were ineffectual in the presence of an actual r
. This decision by the political departments of the Government as to the validity of the adoptio
Fourteenth amendment has been accepted.

We think that in accordance with this historic precedent the question of the efficacy of ratificat
legislatures, in the light of previous rejection or attempted withdrawal, should be regarded as a
question pertaining to the political departments, with the ultimate authority in the Congress in
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, Fra
and Douglas join, thus:

The Constitution grants Congress exclusive power to control submission of constitutional ame
Final determination by Congress that ratification by three-fourths of the States has taken place
conclusive upon the courts." In the exercise of that power, Congress, of course, is governed b
Constitution. However, whether submission, intervening procedure or Congressional determin
ratification conforms to the commands of the Constitution, calls for decisions by a "political de
questions of a type which this Court has frequently designated "political." And decision of a "p
question" by the "political department" to which the Constitution has committed it "conclusively
judges, as well as all other officers, citizens and subjects of...government." Proclamation unde
of Congress that an amendment has been ratified will carry with it a solemn assurance by the
that ratification has taken place as the Constitution commands. Upon this assurance a proclai
amendment must be accepted as a part of the Constitution, leaving to the judiciary its tradition
of interpretation. To the extent that the Court's opinion in the present case even impliedly assu
power to make judicial interpretation of the exclusive constitutional authority of Congress over
and ratification of amendments, we are unable to agree... (American Constitutional Issues, by
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. L
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. Co
(L-34150, Oct. 16, 1971, 41 SCRA 702) on which petitioners place great reliance — that the courts may review the pr
submission of a proposed constitutional amendment before the ratification or adoption of such proposed amendment
sovereign people, hardly applies to the cases at bar; because the issue involved in the aforesaid cases refers to only
propriety of the submission of a proposed constitutional amendment to the people for ratification, unlike the present p
which challenge inevitably the validity of the 1973 Constitution after its ratification or adoption thru acquiescence by th
people. As heretofore stated, it is specious and pure sophistry to advance the reasoning that the present petitions pra
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 include
general grant of legislative powers to Congress. It is part of the inherent powers of the people
repository of sovereignty in a republican state, such as ours — to make, and hence, to amend
Fundamental Law. Congress may propose amendments to the same explicitly grants such po
when exercising the same, it is said that Senators and Members of the House of Representati
act, not as members, but as component elements of a constituent assembly. When acting as
members of Congress derive their authority from the Constitution, unlike the people, when per
same function, for their authority does not emanate from the Constitution — they are the very
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 propo
amend and the ratification of such a constitutional amendment are political in nature forming as they do the essential
political scheme — the amending process. WE merely stated therein that the force of the ruling in the said case of Ma
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
political one, declined to pass upon the question whether or not a given number of votes cast
in favor of a proposed amendment to the Constitution — which was being submitted to the pe
ratification — satisfied the three fourths vote requirement of the fundamental law. The force of
precedent has been weakened, however, by Suanes vs. Chief Accountant of the Senate, Ave
Cuenco, Tañada vs. Cuenco and Macias vs. Commission on Elections. In the first, we held th
and employees of the Senate Electoral Tribunal are supervision and control, not of that of the
President, claimed by the latter; in the second, this Court proceeded to determine the number
necessary for a quorum in the Senate; in the third we nullified the election, by Senators belong
party having the largest number of votes in said chamber purporting to act on behalf of the pa
the second largest number of votes therein, of two (2) Senators belonging to the first party, as
for the second party, of the Senate Electoral Tribunal; and in the fourth, we declared unconstit
act of Congress purporting to apportion the representative districts for the House of Represen
upon the ground that the apportionment had not been made as may be possible according to
of inhabitants of each province. Thus we rejected the theory advanced in these four (4) cases
issues therein raised were political questions the determination of which is beyond judicial rev
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 asse
violates the Constitution is essentially justiciable, not political, and, hence, subject to judicial re
and to the extent that this view may be inconsistent with the stand taken in Mabanag vs. Lope
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 peop
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 submissio
proposed constitutional amendment. Courts do not deal with propriety or wisdom or absence of either of an official ac
law. Judicial power concerns only with the legality or illegality, constitutionality or unconstitutionality of an act: it inquir
existence of power or lack of it. Judicial wisdom is not to be pitted against the wisdom of the political department of th
government.
The classic example of an illegal submission that did not impair the validity of the ratification or adoption of a new Con
the case of the Federal Constitution of the United States. It should be recalled that the thirteen (13) original states of
American Union — which succeeded in liberating themselves from England after the revolution which began on April
with the skirmish at Lexington, Massachusetts and ended with the surrender of General Cornwallis at Yorktown, Virgi
October 19, 1781(Encyclopedia Brit., Vol. I, 1933 Ed., p. 776) — adopted their Articles of Confederation and Perpetu
that was written from 1776 to 1777 and ratified on March 1, 1781 (Encyclopedia Brit., Vol. II, 1966 Ed., p. 525). Abou
thereafter, the Congress of the Confederation passed a resolution on February 21, 1787 calling for a Federal Constitu
Convention "for the sole and express purpose of revising the articles of confederation ... ." (Appendix I, Federalist, Mo
Library ed., p. 577, emphasis supplied).

The Convention convened at Philadelphia on May 14, 1787. Article XIII of the Articles of Confederation and Perpetua
stated specifically:

The articles of this confederation shall be inviolably observed in every state, and the union sha
perpetual; nor shall any alterations at any time hereafter be made in any of them; unless such
be agreed to in a congress of the united states, and be afterwards confirmed by the legislature
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
ratification of the Federal Constitution as drafted by the Philadelphia Convention were not followed. Fearful the said F
Constitution would not be ratified by the legislatures as prescribed, the Philadelphia Convention adopted a resolution
the Congress of the Confederation to pass a resolution providing that the Constitution should be submitted to elected
conventions and if ratified by the conventions in nine (9) states, not necessarily in all thirteen (13) states, the said Con
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 merci
legislatures of each and all of the 13 states. Experience clearly indicated that ratification then
had the same chance as the scriptural camel passing through the eye of a needle. It was ther
determined to recommend to Congress that the new Constitution be submitted to conventions
several states especially elected to pass upon it and that, furthermore, the new government sh
into effect if and when it should be ratified by nine of the thirteen states ... . (The Federalist, M
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 Antifederalis
for ratification of the Constitution by popularly elected conventions in each state. Suspecting th
Island, at least, would prove recalcitrant, it declared that the Constitution would go into effect a
nine states ratified. The convention method had the further advantage that judges, ministers, a
ineligible to state legislatures, could be elected to a convention. The nine-state provision was,
mildly revolutionary. But the Congress of the Confederation, still sitting in New York to carry o
government until relieved, formally submitted the new constitution to the states and politely fad
before the first presidential inauguration. (The Oxford History of the Am. People, by Samuel E
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
(12 C.J. p. 679 footnote, 16 C.J.S., 27. — by the state conventions and not by all thirteen (13) state legislatures as re
Article XIII of the Articles of Confederation and Perpetual Union aforequoted — and in spite of the fact that the Feder
Constitution as originally adopted suffers from two basic infirmities, namely, the absence of a bill of Rights and of a pr
affirming the power of judicial review.

The liberties of the American people were guaranteed by subsequent amendments to the Federal Constitution. The d
judicial review has become part of American constitutional law only by virtue of a judicial pronouncement by Chief Jus
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, no
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
new or revised Constitution does not depend on the method of its submission or ratification by the people, but on the
or approval or adoption or acquiescence by the people which fact of ratification or adoption or acquiescence is all tha
essential, the Court cited precisely the case of the irregular revision and ratification by state conventions of the Feder
Constitution, thus:

No case identical in its facts with the case now under consideration has been called to our atte
we have found none. We think that the principle which we apply in the instant case was very c
applied in the creation of the constitution of the United States. The convention created by a re
Congress had authority to do one thing, and one only, to wit, amend the articles of confederat
they did not do, but submitted to the sovereign power, the people, a new constitution. In this m
the constitution of the United States submitted to the people and it became operative as the o
of this nation when it had been properly adopted by the people.

Pomeroy's Constitutional Law, p. 55, discussing the convention that formulated the constitutio
United States, has this to say: "The convention proceeded to do, and did accomplish, what the
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
Congress, and afterwards ratified by all the State legislatures, in the manner pointed out by th
organic law. But the convention soon became convinced that any amendments were powerles
cure; that the disease was too deeply seated to be reached such tentative means. They saw t
system they were called to improve must be totally abandoned, and that the national idea mus
established at the center of their political society. It was objected by some members, that they
power, no authority, to construct a new government. They had no authority, if their decisions w
final; and no authority whatsoever, under the articles of confederation, to adopt the course the
they knew that their labors were only to be suggestions; and that they as well as any private in
and any private individuals as well as they, had a right to propose a plan of government to the
their adoption. They were, in fact, a mere assemblage of private citizens, and their work had n
binding sanction than a constitution drafted by Mr. Hamilton in his office would have had. The
their expressed will, transformed this suggestion, this proposal, into an organic law, and the p
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
instrument is not what gives it binding force and effect. The fiat of the people and only the fiat
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
 sovereign. This would be an authorized exercise of sovereign power by the court. In State v. S
505, 519, the Indiana Supreme Court said: "The people of a State may form an original consti
abrogate an old one and form a new one, at any time, without any political restriction except th
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
the act of February 23, 1887, is unconstitutional and void, it would not, in our opinion, by any m
follow that the amendment is not a part of our state Constitution. In the recent case of Taylor v
Commonwealth (Va.) 44 S.E. 754, the Supreme Court of Virginia hold that their state Constitu
1902, having been acknowledged and accepted by the officers administering the state govern
by the people, and being in force without opposition, must be regarded as an existing Constitu
irrespective of the question as to whether or not the convention which promulgated it had auth
do without submitting it to a vote of the people. In Brittle v. People, 2 Neb. 198, is a similar hol
certain provisions of the Nebraska Constitution of 1886, which were added by the Legislature
requirement of Congress, though never submitted to the people for their approval." (97 NW 34
emphasis supplied).

Against the decision in the Wheeler case, supra, confirming the validity of the ratification and adoption of the America
Constitution, in spite of the fact that such ratification was in clear violation of the prescription on alteration and ratifica
Articles of Confederation and Perpetual Union, petitioners in G.R. No. L-36165 dismissed this most significant historic
calling the Federal Constitution of the United States as a revolutionary one, invoking the opinion expressed in Vol. 16
Juris Secundum, p. 27, that it was a revolutionary constitution because it did not obey the requirement that the Article
Confederation and Perpetual Union can be amended only with the consent of all thirteen (13) state legislatures. This
does not cite any decided case, but merely refers to the footnotes on the brief historic account of the United States C
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 th
People, 1965 Ed. by Samuel Eliot Morison, who discusses the Articles of Confederation and Perpetual Union in Chap
captioned "Revolutionary Constitution Making, 1775 1781" (pp. 270-281). In Chapter XX on "The Creative Period in P
1785-1788," Professor Morison delineates the genesis of the Federal Constitution, but does not refer to it even implic
revolutionary constitution (pp. 297-316). However, the Federal Constitution may be considered revolutionary from the
of McIver if the term revolution is understood in "its wider sense to embrace decisive changes in the character of gove
even though they do not involve the violent overthrow of an established order, ... ." (R.M. MacIver, The Web of Gover
1965 ed., p. 203).

It is rather ridiculous to refer to the American Constitution as a revolutionary constitution. The Articles of Confederatio
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 wa
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 "cr
brain and purpose of man" in an era of peace. It can only be considered revolutionary in the sense that it is a radical d
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 Artic
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 t
Constitution and of the government established and operating thereunder. Petitioners pray for a declaration that the 1
Constitution is inoperative (L-36164). If Proclamation No. 1102 is nullified, then there is no valid ratification of the 197
Constitution and the inevitable conclusion is that the government organized and functioning thereunder is not a legitim
government.

That the issue of the legitimacy of a government is likewise political and not justiciable, had long been decided as ear
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.
L.ed. 1187) and re-enunciated in 1912 in the case of Pacific States Telephone and Telegraph Company vs. Oregon (
118, 133-151, 56 L.ed. 377-386). Because it reaffirmed the pronouncements in both Borden and Beckham cases, it is
for us to quote the decision in Pacific States Telephone and Telegraph Co., supra, penned by Mr. Chief Justice White
stated:

In view of the importance of the subject, the apparent misapprehension on one side and seem
misconception on the other, suggested by the argument as to the full significance of the previo
we do not content ourselves with a mere citation of the cases, but state more at length than w
would the issues and the doctrine expounded in the leading and absolutely controlling case —
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
that the character government had no legal existence during the period of time above mention
had been annulled by the adoption of the opposing government, — then the laws passed by i
legislature during that time were nullities; its taxes wrongfully collected, its salaries and compe
its officers illegally paid ; its public accounts improperly settled and the judgments and sentenc
courts in civil and criminal cases null and void, and the officers who carried their decisions into
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
state in the Union a republican form of government, and shall protect each of them against inv
on the application of the Legislature or of the Executive (when the legislature cannot be conve
against domestic violence.

"Under this article of the Constitution it rests with Congress to decide what government is esta
in a state. For, as the United State guarantee to each state a republican government, Congres
necessarily decide what government is established in the state before it can determine whethe
republican or not. And when the senators and representatives of a state are admitted into the
the Union, the authority of the government under which they were appointed, as well as its rep
character, is recognized by the proper constitutional authority. And its decision is binding on e
department of the government, and could not be questioned in a judicial tribunal. It is true that
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
Congress was not called upon to decide the controversy. Yet the right to decide is placed ther
the courts."

xxx xxx xxx

... We do not stop to cite other cases which indirectly or incidentally refer to the subject, but co
directing attention to the statement by the court, speaking through Mr. Chief Justice Fuller, in
 Beckham, 178 U.S. 548, 44 L.ed. 1187, 20 Sup. Ct. Rep. 890, 1009, where, after disposing of
contention made concerning the 14th Amendment, and coming to consider a proposition whic
necessary to be decided concerning the nature and effect of the guaranty of S 4 of article 4, it
(p. 578):

"But it is said that the 14th Amendment must be read with S 4 of article 4, of the Constitution,
that the United States shall guarantee to every state in this Union a republican form of govern
shall protect each of them against invasion; and on application of the legislature, or the Execu
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 departm
v. Borden, 7 How. 1, 12 L.ed. 581. In that case it was held that the question, which of the two
governments of Rhode Island, namely, the charter government or the government established
voluntary convention, was the legitimate one, was a question for the determination of the polit
department; and when that department had decided, the courts were bound to take notice of t
and follow it."

xxx xxx xxx

As the issues presented, in their very essence, are, and have long since by this Court been, d
determined to be political and governmental, and embraced within the scope of the scope of t
conferred upon Congress, and not, therefore within the reach of judicial power, it follows that t
presented is not within our jurisdiction, and the writ of error must therefore be, and it is, dismis
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
submitting the same to the people for ratification, becomes valid, when recognized, accepted and acted upon the by C
State and other government functionaries, as well as by the people. In the 1903 case of Taylor vs. Commonwealth (4
755), the Court ruled:

The sole ground urged in support of the contention that Constitution proclaimed in 1902 is inv
was ordained and promulgated by the convention without being submitted for ratification or re
the people of the commonwealth.

The Constitution of 1902 was ordained and proclaimed by convention duly called by direct vot
people of the state to revise and amend the Constitution of 1869. The result of the work that th
convention has been recognized, accepted, and acted upon as the only valid Constitution of th
the Governor in swearing fidelity to it and proclaiming it, as directed thereby; by the Legislatur
formal official act adopting a joint resolution, July 15, 1902, recognizing the Constitution ordain
convention which assembled in the city of Richmond on the 12th day of June 1901, as the Co
Virginia; by the individual oaths of members to support it, and by its having been engaged for
year in legislating under it and putting its provisions into operation but the judiciary in taking th
prescribed thereby to support and by enforcing its provisions; and by the people in their prima
by peacefully accepting it and acquiescing in it, registering as voters under it to the extent of th
through the state, and by voting, under its provisions, at a general election for their representa
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
without omitting any requisite steps, courts should uphold amendment, unless satisfied that th
Constitution was violated in submitting the proposal. ... Substance more than form must be re
considering whether the complete constitutional system for submitting the proposal to amend
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
advertisement, yet, if followed, unobjected to, by approval of the electors, it becomes part of th
Constitution. Legal complaints to the submission may be made prior to taking the vote, but, if
sanctioned, the amendment is embodied therein, and cannot be attacked, either directly or co
because of any mistake antecedent thereto. Even though it be submitted at an improper time,
effective for all purposes when accepted by the majority. Armstrong v. King, 281 Pa. 207, 126
(130 A 409).

Even if the act of the Constitutional Convention is beyond its authority, such act becomes valid upon ratification or ad
acquiescence by the people. Thus, in the 1905 case of Ex parte Birmingham and A.R. Company (42 SO pp. 118 & 1
Alabama Supreme Court upheld this principle and stated that: "The authorities are almost uniform that this ratification
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 o
enough that they are electors voting on the new Constitution. (Bott vs. Wurts, 40 A 740 [1899]; 45 LRA 251, emphasi

In the 1956 case of Thomson vs. Peoples State Bank (75 NW 2nd 370, 375), the Supreme Court of Wisconsin ruled
"irregularity in the procedure for the submission of the proposed constitutional amendment will not defeat the ratificati
people."

Again, in the 1958 case of Swaim vs. Tuscaloosa County (103 SO 2nd 769), the Alabama Supreme Court pronounce
irregularity in failing to publish the proposed constitutional amendment once in each of the 4 calendar weeks next pre
calendar week in which the election was held or once in each of the 7-day periods immediately preceding the day of t
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
where they admitted irregularities or illegalities committed in the procedure for submission of the proposed constitutio
amendment to the people for ratification consisted of: "(a) the alleged failure of the county election commissioners of
counties to provide a sufficient number of ballot boxes 'secured by good and substantial locks,' as provided by Sectio
Code of 1942, Rec., to be used in the holding of the special election on the constitutional amendment, and (b) the alle
of the State Election Commissioners to comply with the requirements of Code Sections 3204 and 3205 in the appoint
election commissioners in each of the 82 counties. The irregularities complained of, even if proved, were not such irre
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 deliberatio
Constitutional Convention from June 1, 1971 until martial law was proclaimed on Sept. 21, 1972, the salient reforms c
the 1973 Constitution which have long been desired by the people, had been thoroughly discussed in the various com
the Constitutional Convention, on the floor of the Convention itself, in civic forums and in all the media of information.
decrees promulgated by the Chief Executive from Sept. 22, 1972 to Jan. 17, 1973 implement some of the reforms an
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 a
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 oppos
out of eight senatorial seats despite the suspension of the privileges of the writ of habeas corpus (see Lansang vs. G
Dec. 14, 1971, 42 SCRA 448), which suspension implies constraint on individual freedom as the proclamation of mar
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 Exe
branches of the government elected and/or appointed under the 1935 Constitution have either recognized or are now
under the 1973 Constitution, aside from the fact of its ratification by the sovereign people through the Citizens Assem
Ninety-five (95) of a total of one hundred ten (110) members of the House of Representatives including the Speaker a
Speaker Pro Tempore as well as about eleven (11) Congressmen who belong to the Liberal Party and fifteen (15) of
twenty-four (24) senators including Liberal senators Edgar U. Ilarde and John Osmeña opted to serve in the Interim A
according to the certification of the Commission on Elections dated February 19, 1973 (Annex Rejoinder-3 to Consoli
Rejoinder of petitioners in L-36165). Only the five (5) petitioners in L-36165 close their eyes to a fait accompli. All the
functionaries recognize the new government and are performing their duties and exercising their powers under the 19
Constitution, including the lower courts. The civil courts, military tribunals and quasi-judicial bodies created by preside
decrees have decided some criminal, civil and administrative cases pursuant to such decrees. The foreign ambassad
were accredited to the Republic of the Philippines before martial law continue to serve as such in our country; while tw
ambassadors have been accepted by the Philippines after the ratification of the 1973 Constitution on January 17, 197
of the 1973 Constitution had been furnished the United Nations Organization and practically all the other countries wi
Philippines has diplomatic relations. No adverse reaction from the United Nations or from the foreign states has been
On the contrary, our permanent delegate to the United Nations Organization and our diplomatic representatives abro
appointed before martial law continue to remain in their posts and are performing their functions as such under the 19
Constitution.

Even the Commission on Elections is now implementing the provisions of the 1973 Constitution by requiring all electi
to register 18-year olds and above whether literates or not, who are qualified electors under the 1973 Constitution (se
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 th
over 10 weeks now With the petitioners herein, secessionists, rebels and subversives as the only possible exceptions
the citizenry are complying with decrees, orders and circulars issued by the incumbent President implementing the 19
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
and declare it the constitution, it would undoubtedly be the duty of the courts declare its work
This would be revolution, and this the courts of the existing government must resist until they
overturned by power, and a new government established. The convention, however, was the
law. The instrument which we are asked to declare invalid as a constitution has been made an
promulgated according to the forms of law. It is a matter of current history that both the execu
legislative branches of the government have recognized its validity as a constitution, and are n
doing so. Is the question, therefore, one of a judicial character? It is our undoubted duty, if a s
unconstitutional to so declare it; also, if a provision of the state constitution be in conflict with t
constitution, to hold the former invalid. But this is a very different case. It may be said, howeve
every violation of or non-compliance with the law, there should be a remedy in the courts. This
however, always the case. For instance, the power of a court as to the acts of the other depar
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 d
to perform a duty. It is responsible to the people; but if it does act, then, when the question is p
presented, it is the duty of the court to say whether it has conformed to the organic law. While
judiciary should protect the rights of the people with great care and jealousy, because this is it
also because, in times of great popular excitement, it is usually their last resort, yet it should a
time be careful to overstep the proper bounds of its power, as being perhaps equally dangero
especially where such momentous results might follow as would be likely in this instance, if th
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 c
and no law existed providing for the making of a new one. In 1841 public meetings were held,
the election of a convention to form a new one, — to be submitted to a popular vote. The conv
framed one, submitted it to a vote, and declared it adopted. Elections were held for state office
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, wh
formed a new constitution. Whether the charter government, or the one established by the vol
convention, was the legitimate one, was uniformly held by the courts of the state not to be a ju
political question; and the political department having recognized the one, it was held to be the
judiciary to follow its decision. The supreme court of the United States, in Luther v. Borden, 7
while not expressly deciding the principle, as it held the federal court, yet in the argument app
in substance says that where the political department has decided such a matter the judiciary
abide by it.

Let us illustrate the difficulty of a court deciding the question: Suppose this court were to hold
convention, when it reassembled, had no power to make any material amendment, and that s
made are void by reason of the people having theretofore approved the instrument. Then, nex
must determine what amendments were material; and we find the court, in effect, making a co
This would be arrogating sovereignty to itself. Perhaps the members of the court might differ a
amendments are material, and the result would be confusion and anarchy. One judge might s
the amendments, material and immaterial, were void; another, that the convention had then th
power to correct palpable errors, and then the court might differ as to what amendments are m
the instrument as ratified by the people could not be corrected or altered at all, or if the court m
determine what changes were material, then the instrument, as passed upon by the people or
the court would be lacking a promulgation by the convention; and, if this be essential, then the
would arise, what constitution are we now living under, and what is the organic law of the state
suggestion of these matters shows what endless confusion and harm to the state might and li
arise. If, through error of opinion, the convention exceeded its power, and the people are dissa
have ample remedy, without the judiciary being asked to overstep the proper limits of its powe
instrument provides for amendment and change. If a wrong has been done, it can, in the prop
which it should be remedied, is by the people acting as a body politic. It is not a question of wh
merely an amendment to a constitution, made without calling a convention, has been adopted
required by that constitution. If it provides how it is to be done, then, unless the manner be foll
judiciary, as the interpreter of that constitution, will declare the amendment invalid. Koehler v.
Iowa, 543, 14 N.W. Rep. 738, and 15 N.W. Rep. 609; State v. Tuffy, 1 Nev. 391, 12 Pac. Rep
is a case where a new constitution has been formed and promulgated according to the forms
Great interests have already arisen under it; important rights exist by virtue of it; persons have
convicted of the highest crime known to the law, according to its provisions; the political powe
government has in many ways recognized it; and, under such circumstances, it is our duty to
 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
making of them was in excess of its powers, yet, as the entire instrument has been recognized
the manner suggested, it would be equally an abuse of power by the judiciary and violative of
the people, — who can and properly should remedy the matter, if not to their liking, — if it wer
the instrument of a portion invalid, and bring confusion and anarchy upon the state. (emphasis

If this Court inquires into the validity of Proclamation No. 1102 and consequently of the adoption of the 1973 Constitu
be exercising a veto power on the act of the sovereign people, of whom this Court is merely an agent, which to say th
would be anomalous. This Court cannot dictate to our principal, the sovereign people, as to how the approval of the n
Constitution should be manifested or expressed. The sovereign people have spoken and we must abide by their deci
regardless of our notion as to what is the proper method of giving assent to the new Charter. In this respect, WE cann
to know better than the incumbent Chief Executive, who, unlike the members of this Court, only last January 8, 1973,
affirmed in Osmeña vs. Marcos (Pres. Election Contest No. 3, Jan. 8, 1973), was re-elected by the vote of over 5 mill
in 1969 for another term of four years until noon of December 30, 1973 under the 1935 Constitution. This Court, not h
similar mandate by direct fiat from the sovereign people, to execute the law and administer the affairs of government
restrain its enthusiasm to sally forth into the domain of political action expressly and exclusively reserved by the sove
themselves.

The people in Article XV of the 1935 Constitution did not intend to tie their hands to a specific procedure for popular r
their organic law. That would be incompatible with their sovereign character of which We are reminded by Section 1,
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 w
themselves define in their Constitution, cannot apply to a unitary state like the Republic of the Philippines. His opinion
in 1868 may apply to a Federal State like the United States, in order to secure and preserve the existence of the Fed
Republic of the United States against any radical innovation initiated by the citizens of the fifty (50) different states of
American Union, which states may be jealous of the powers of the Federal government presently granted by the Ame
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
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 th

Even if conclusiveness is to be denied to the truth of the declaration by the President in Proclamation No. 1102 that th
through their Citizens' Assemblies had overwhelmingly approved the new Constitution due regard to a separate, coor
co-equal branch of the government demands adherence to the presumption of correctness of the President's declara
presumption is accorded under the law and jurisprudence to officials in the lower levels of the Executive branch, there
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 Departm
Government and Community Development. (Annexes 1, to 1-E, Annexes 2 to 2-O to the compliance with manifestatio
the Solicitor General on behalf of the respondents public officers dated March 7, 1973). There is nothing in the record
contradicts, much less overthrow the results of the referendum as certified. Much less are We justified in reversing th
proof — by shifting it from the petitioners to the respondents. Under the rules on pleadings, the petitioners have the d
demonstrate by clear and convincing evidence their claim that the people did not ratify through the Citizens' Assembl
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 relaye
from private sources which could be biased and hearsay, aside from the fact that such reports are not contained in th
Proclamation No. 1102 is not just an ordinary act of the Chief Executive. It is a well-nigh solemn declaration which an
highest act of the sovereign people — their imprimatur to the basic Charter that shall govern their lives hereafter — m
decades, if not for generations.

Petitioners decry that even 15-year olds, ex convicts and illiterates were allowed to vote in the Citizens' Assemblies, d
admission that the term "Filipino people" in the preamble as well as "people" in Sections 1 and 5 of Article II of the 19
Constitution and in Section 1(3) of Article III of the Bill of Rights includes all Filipino citizens of all ages, of both sexes
literate or illiterate, whether peaceful citizens, rebels, secessionists, convicts or ex-convicts. Without admitting that ex
voted in the referendum, about which no proof was even offered, these sectors of our citizenry, whom petitioners see
with contempt or decision and whom petitioners would deny their sovereign right to pass upon the basic Charter that
their lives and the lives of their progenies, are entitled as much as the educated, the law abiding, and those who are 2
age or above to express their conformity or non conformity to the proposed Constitution, because their stake under th
Charter is not any less than the stake of the more fortunate among us. As a matter of fact, these citizens, whose jurid
personality or capacity to act is limited by age, civil interdiction or ignorance deserve more solicitude from the State th
of the citizenry. In the ultimate analysis, the inclusion of those from 15 years up to below 21 years old, the ex-convicts
ignorant, is more democratic as it broadens the base of democracy and therefore more faithful to the express affirma
Section 1 of Article II of the Declaration of Principles that "sovereignty resides in the people and all government autho
emanates from them."

Moreover, ex-convicts granted absolute pardon are qualified to vote. Not all ex-convicts are banned from voting. Only
had been sentenced to at least one year imprisonment are disenfranchised but they recover their right of suffrage upo
expiration of ten years after service of sentence (Sec. 102, 1971 Rev. Elec. Code). Furthermore, ex-convicts and imb
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
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 certific
results of the same from the Department of Local Governments. But there was such certification as per Annex 1 to 1-
Notes submitted by the Solicitor General counsel for respondents public officers. This should suffice to dispose of this
Even in the absence of such certification, in much the same way that in passing law, Congress or the legislative body
presumed to be in possession of the facts upon which such laws are predicated (Justice Fernando, The Power of Jud
Review, 1967 Ed., pp. 112-11 citing Lorenzo vs. Dir., etc., [1927] 50 Phil. 595 and O'Gonmore, et al: vs. Hartford, etc
U.S. 251), it should likewise be presumed that the President was in possession of the fact upon which Proclamation N
was based. This presumption is further strengthened by the fact that the Department of Local Governments, the Depa
National Defense and the Philippine Constabulary as well the Bureau of Posts are all under the President, which offic
alter ego, are presumptively acting for and in behalf of the President and their acts are valid until disapproved or repro
the President (Planas vs. Gil, 67 Phil. 62; Villen vs. Secretary of Interior, 67 Phil. 451). To deny the truth or the procla
the President as to the overwhelming majority vote in the Citizens' Assemblies in favor of the new Constitution, is to c
President with falsification, which is a most grievous accusation. Under the, rules of pleadings and evidence, the petit
the burden of proof by preponderance of evidence in civil cases and by proof beyond reasonable doubt in criminal pro
where the accused is always presumed to be innocent. Must this constitutional right be reversed simply because the
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
officers whose category in the official hierarchy is very much lower than that of the Chief of State. What reason is the
withhold such a presumption in favor of the President? Does the fact that the President belong to the party in power a
(4) of the five (5) senators who are petitioners in L-36165 belong to the opposition party, justify a discrimination again
President in matters of this nature? Unsupported as their word is by any credible and competent evidence under the
evidence, must the word of the petitioners prevail over that of the Chief Executive, because they happen to be former
and delegates to the Constitutional Convention? More than any of the petitioners herein in all these cases, the incum
President realizes that he risks the wrath of his people being visited upon him and the adverse or hostile verdict of his
because of the restrictions on the civil liberties of his people, inevitable concomitants of martial law, which necessarily
some degree of sacrifice on the part of the citizenry. Until the contrary is established or demonstrated, herein petition
grant that the Chief Executive is motivated by what is good for the security and stability of the country, for the progres
happiness of the people. All the petitioners herein cannot stand on the proposition that the rights under the 1935 Con
absolute and invulnerable to limitations that may be needed for the purpose of bringing about the reforms for which th
petitioners pretend to be clamoring for and in behalf of the people. The five (5) petitioners in L-36165 and four (4) of t
petitioners in L-36164 were all participants in the political drama of this country since 1946. They are witness to the fr
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 (
petitioners in L-36164 and L-36165 may not have participated in the systematic blocking of the desired reforms in Co
outside of it; but the question may be asked as to what exactly they did to support such reforms. For the last seven (7
since the turn of the century, for the last thirty-five (35) years since the establishment of the Commonwealth governm
and for the last twenty seven (27) years since the inauguration of the Republic on July 4, 1946, no tangible substantia
had been effected, funded and seriously implemented, despite the violent uprisings in the thirties, and from 1946 to 1
the violent demonstrations of recent memory. Congress and the oligarchs acted like ostriches, "burying their heads in
sand. "Now the hopes for the long-awaited reforms to be within a year or to are brighter. It would seem therefore to th
everyone including herein petitioners to give the present leadership the opportunity to institute and carry out the need
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 so

This Court in the Gonzales and Tolentino cases transcended its proper sphere and encroached upon the province ex
reserved to and by the sovereign people. This Court did not heed to the principle that the courts are not the fountain o
remedies for all wrongs. WE cannot presume that we alone can speak with wisdom as against the judgment of the pe
basic instrument which affects their very lives. WE cannot determine what is good for the people or ought to be their f
law. WE can only exercise the power delegated to Us by the sovereign people, to apply and interpret the Constitution
laws for the benefit of the people, not against them nor to prejudice them. WE cannot perform an act inimical to the in
Our principal, who at any time may directly exercise their sovereign power ratifying a new Constitution in the manner
to them.

It is pertinent to ask whether the present Supreme Court can function under the 1935 Constitution without being a pa
government established pursuant thereto. Unlike in the Borden case, supra, where there was at least another govern
claiming to be the legitimate organ of the state of Rhode Island (although only on paper as it had no established orga
Dorr who represented himself to be its head; in the cases at bar there is no other government distinct from and maint
position against the existing government headed by the incumbent Chief Executive. (See Taylor vs. Commonwealth, 
There is not even a rebel government duly organized as such even only for domestic purposes, let alone a rebel gove
engaged in international negotiations. As heretofore stated, both the executive branch and the legislative branch esta
under the 1935 Constitution had been supplanted by the government functioning under the 1973 Constitution as of Ja
1973. The vice president elected under the 1935 Constitution does not asset any claim to the leadership of the Repub
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
whom he calls the "hero of the American Bar," because during the American civil war he apparently had the courage
proclamation of President Lincoln suspending the privileges of the writ of habeas corpus in Ex parte Merryman (Fede
No. 9487 [1861]). But who exactly was Chief Justice Roger Brooke Taney? The Editorial Board of Vol. 21 of the Ency
Brit., 1966 ed. (pp. 778-779, 1969 ed., pp. 654-657), briefly recounts that he was born in 1777 in Calvert County, Mar
parents who were landed aristocrats as well as slave owners. Inheriting the traditional conservatism of his parents wh
to the landed aristocracy, Taney became a lawyer in 1799, practiced law and was later appointed Attorney General o
He also was a member of the Maryland state legislature for several terms. He was a leader of the Federalist Party, w
disintegrated after the war of 1812, compelling him to join the Democratic Party of Andrew Jackson, also a slave own
landed aristocrat, who later appointed him first as Attorney General of the United States, then Secretary of the Treasu
1836 Chief Justice of the United States Supreme Court to succeed Chief Justice John Marshall, in which position he
for 28 years until he died on October 21, 1864. His death "went largely unnoticed and unregretted." Because he hims
slave owner and a landed aristocrat, Chief Justice Taney sympathized with the Southern States and, even while Chie
hoped that the Southern States would be allowed to secede peacefully from the Union. That he had no sympathy for
was revealed by his decision in Dred Scott vs. Sandford (19 How. 398 [1857]) where he pronounced that the America
not entitled to the rights of an American citizen and that his status as a slave is determined by his returning to a slave
can therefore discern his hostility towards President Lincoln when he decided Ex parte Merryman, which animosity to
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 o
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 rhetor
Encyclopedia Britannica (Vol. 9, 1969 ed., pp. 508-509) to this effect. On the contrary, Encyclopedia Britannica (Vol.
Encyclopedia Brit., 1966 & 1969 eds., 732-733), refers to Marshal Henri Philippe Petain as the genuine hero or "Savi
Verdun"; because he held Verdun against the 1916 offensive of the German army at the cost of 350,000 of his Frenc
who were then demoralized and plotting mutiny. Certainly, the surviving members of the family of Marshal Petain wou
the error. And neither would the members of the clan of Marshal Foch acknowledge the undeserved accolade, althou
Foch has a distinct place in history on his own merits. The foregoing clarification is offered in the interest of true scho
historical accuracy, so that the historians, researchers and students may not be led astray or be confused by esteem
eloquence and mastery of the spoken and written word as well as by his eminence as law professor, author of law bo
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 th
senators who are petitioners in L-36165 to also act as "heroes and idealists," to defy the President by holding session
themselves alone in a hotel or in their houses if they can muster a quorum or by causing the arrest of other senators
quorum and thereafter remove respondents Puyat and Roy (Avelino, et al. vs. Cuenco, et al. [1949] 83 Phil. 17), if the
most vehemently in the justice and correctness of their position that the 1973 Constitution has not been validly ratified
or acquiesced in by the people since January 18, 1973 until the present. The proclaimed conviction of petitioners in L
this issue would have a ring of credibility, if they proceeded first to hold a rump session outside the legislative building
is not unreasonable to demand or to exact that he who exhorts others to be brave must first demonstrate his own cou
Surely, they will not affirm that the mere filing of their petition in L-36165 already made them "heroes and idealists." T
challenge likewise seems to insinuate that the members of this Court who disagree with petitioners' views are materia
cowards or mercenary fence-sitters. The Court need not be reminded of its solemn duty and how to perform it. WE re
believe that petitioners and their learned as well as illustrious counsels, scholars and liberal thinkers that they are, do
recognize the sincerity of those who entertain opinions that clash with their own. Such an attitude does not sit well wit
dictum that "We can differ without being difficult; we can disagree without being disagreeable," which distinguished co
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 fin
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 STRO

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 c
amendment or the revised or new Constitution has been validly submitted to the people for ratification in accordance
procedure prescribed by the existing Constitution, is a justiciable question, accord all presumption of validity to the co
amendment or the revised or new Constitution after the government officials or the people have adopted or ratified or
in the new Constitution or amendment, although there was an illegal or irregular or no submission at all to the people
Gray, 4th Dec. Dig. 935 [1934], Hammond vs. Clark, 71 SE 482-483; People vs. Sours, 31 Colo. 369, 74 Pac. 167, 10
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.
574; Weston vs. Ryan, 70 Neb. 211, 97 NW 347; Combs vs. State, 81 Ga. 780, 8 SE 318; Woodward vs. State, 103 G
SE 522; Corre vs. Cooney, 70 Mont. 355, 225 P 1007, 1009). As late as 1971, the courts stressed that the constitutio
amendment or the new Constitution should not be condemned "unless our judgment its nullity is manifest beyond rea
doubt" (1971 case of Moore vs. Shanahan, 486 Pac. 2d 506, 207 Kan. 1, 645; and the 1956 case of Tipton vs. Smith
al., supra).

Mr. Justice Enrique M. Fernando, speaking for the Court, pronounced that the presumption of constitutionality must p
absence of factual foundation of record to overthrow such presumption (Ermita-Malate Hotel, etc. vs. City Mayor, L-2
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 departme
Government, namely, the legislative, the executive and the judicial. As a fourth separate and distinct branch, to emph
independence, the Convention cannot be dictated to by either of the other three departments as to the content as we
form of the Charter that it proposes. It enjoys the same immunity from interference or supervision by any of the afores
branches of the Government in its proceedings, including the printing of its own journals (Tañada and Fernando, Con
the Philippines, 1952 ed., Vol. I, pp. 8 9; Malcolm and Laurel, Phil. Const. Law, p. 22; Frantz vs. Autry, 91 Pac. 193).
that independence, for the purpose of maintaining the same unimpaired and in order that its work will not be frustrate
Convention has the power to fix the date for the plebiscite and to provide funds therefor. To deny the Convention suc
prerogative, would leave it at the tender mercy of both legislative and executive branches of the Government. An uns
Congress would not be disposed to submit the proposed Constitution drafted by the Constitutional Convention to the
ratification, much less appropriate the necessary funds therefor. That could have been the fate of the 1973 Constitutio
the same abolished the Senate by creating a unicameral National Assembly to be presided by a Prime Minister who w
legislative and executive powers and is the actual Chief Executive, for the President contemplated in the new Constit
exercises primarily ceremonial prerogatives. The new Constitution likewise shortened abruptly the terms of the memb
present Congress (whose terms end on December 31, 1973, 1975 and 1977) which provides that the new Constitutio
effect immediately upon its ratification (Sec. 16, Article XVII, 1973 Constitution). The fact that Section 2 of the same A
secures to the members of Congress membership in the interim National Assembly as long as they opt to serve there
thirty (30) days after the ratification of the proposed Constitution, affords them little comfort; because the convening o
National Assembly depends upon the incumbent President (under Sec. 3[1], Art. XVII, 1973 Constitution). Under the
circumstances, the members of Congress, who were elected under the 1935 Constitution, would not be disposed to c
plebiscite and appropriate funds therefor to enable the people to pass upon the 1973 Constitution, ratification of whic
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 effec
possesses the power to call a plebiscite and to appropriate funds for the purpose, it inescapably must have the powe
the same to the President, who, in estimation of the Convention can better determine appropriate time for such a refe
well as the amount necessary to effect the same; for which reason the Convention thru Resolution No. 29 approved o
November 22, 1972, which superseded Resolution No. 5843 adopted on November 16, 1972, proposed to the Presid
a decree be issued calling a plebiscite for the ratification of the proposed new Constitution such appropriate date as h
determine and providing for the necessary funds therefor, ...," after stating in "whereas" clauses that the 1971 Constit
Convention expected to complete its work by the end of November, 1972 that the urgency of instituting reforms rende
imperative the early approval of the new Constitution, and that the national and local leaders desire that there be con
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 an
regulations to implement the law, this authority to delegate implementing rules should not be denied to the Constitutio
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
Constitutional Convention thru its Resolution No. 29, the organization of the Citizens' Assemblies for consultation on
issues, is comprehended within the ordinance-making power of the President under Section 63 of the Revised Admin
Code, which expressly confers on the Chief Executive the power to promulgate administrative acts and commands to
the organization or mode of operation of the government or re-arranging or re-adjusting any district, division or part o
Philippines "or disposing of issues of general concern ... ." (Emphasis supplied). Hence, as consultative bodies repre
localities including the barrios, their creation by the President thru Presidential Decree No. 86 of December 31, 1972,
successfully challenged.

The employment by the President of these Citizens' Assemblies for consultation on the 1973 Constitution or on wheth
was further need of a plebiscite thereon, — both issues of national concern — is still within the delegated authority re
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 plebisc
conducted by the Commission on Elections in accordance with the provisions of the 1971 Revised Election Code. If t
intention of the Constitutional Convention in making the delegation, it could have easily included the necessary phras
purpose, some such phrase like "to call a plebiscite to be supervised by the Commission on Elections in accordance
provisions of the 1971 Revised Election Code (or with existing laws)." That the Constitutional Convention omitted suc
can only mean that it left to the President the determination of the manner by which the plebiscite should be conducte
supervise the plebiscite, and who can participate in the plebiscite. The fact that said Resolution No. 29 expressly stat
copies of this resolution as approved in plenary session be transmitted to the President of the Philippines and the Co
Elections for implementation," did not in effect designate the Commission on Elections as supervisor of the plebiscite
of said resolution that were transmitted to the Commission on Elections at best serve merely to notify the Commission
Elections about said resolution, but not to direct said body to supervise the plebiscite. The calling as well as conduct
plebiscite was left to the discretion of the President, who, because he is in possession of all the facts funnelled to him
intelligence services, was in the superior position to decide when the plebiscite shall be held, how it shall be conducte
shall oversee it.

It should be noted that in approving said Resolution No. 29, the Constitutional Convention itself recognized the validit
validated Presidential Proclamation No. 1081 placing the entire country under martial law by resolving to "propose to
Ferdinand E. Marcos that a decree be issued calling a plebiscite ... ." The use of the term "decree" is significant for th
orders regulating the conduct of all inhabitants are issued in that form and nomenclature by the President as the Com
Chief and enforcer of martial law. Consequently, the issuance by the President of Presidential Decree No. 73 on Dec
1972 setting the plebiscite on January 15, 1973 and appropriating funds therefor pursuant to said Resolution No. 29,
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 s
does not need sufficient standards to circumscribe the exercise of the power delegated, and is beyond the competen
Court to nullify. But even if adequate criteria should be required, the same are contained in the "Whereas" clauses of
Constitutional Convention Resolution No. 29, thus:

WHEREAS, the 1971 Constitutional Convention is expected to complete its work of drafting a
 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 Consti
become imperative;

WHEREAS, it is the desire of the national and local leaders that there be continuity in the imm
political transition from the old to the New Constitution;" (Annex "1" of Answer, Res. No. 29, C
Convention).

As Mr. Justice Fernando, with whom Messrs. Justices Barredo, Antonio and the writer concurred in the Plebiscite Ca

... Once this work of drafting has been completed, it could itself direct the submission to the pe
ratification as contemplated in Article XV of the Constitution. Here it did not do so. With Congr
being in session, could the President, by the decree under question, call for such a plebiscite?
such circumstances, a negative answer certainly could result in the work of the Convention be
rendered nugatory. The view has been repeatedly expressed in many American state court de
to avoid such undesirable consequence the task of submission becomes ministerial, with the p
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 Constitutio
done by him in his capacity as President, such an objection would indeed have been formidab
say insurmountable. If the appropriation were made in his capacity as agent of the Convention
that there be submission to the people, then such an argument loses force. The Convention it
have done so. It is understandable why it should be thus. If it were otherwise, then a legislativ
appropriating arm of the government, could conceivably make use of such authority to compe
Convention to submit to its wishes, on pain of being rendered financially distraught. The Presi
performing his role as its agent, could be held as not devoid of such competence. (pp. 2-3, co
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 o
18 and 19, 1972 on the Plebiscite Cases. But the inclusion of questionable or ambiguous provisions does not affect th
the ratification or adoption of the 1973 Constitution itself (Pope vs. Gray, 104 SO, 2d 841; 7th Dec. pp. 212-219, 1956

Alexander Hamilton, one of the leading founders and defenders of the American Constitution, answering the critics of
Constitution, stated that: "I never expect to see a perfect work from imperfect man. The result of the deliberations of a
bodies must necessarily be a compound, as well of the errors and prejudices as of the good sense and wisdom, of th
of whom they are composed. The compacts which are to embrace thirteen distinct States in a common bond of amity
must necessarily be a compromise of as many dissimilar interests and inclinations. How can perfection spring from su
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 beyo
power of the Constitutional Convention to propose.

This objection relates to the wisdom of changing the form of government from Presidential to Parliamentary and inclu
provisions as Section 3 of Article IV, Section 15 of Article XIV and Sections 3(2) and 12 of Article XVII in the 1973 Co
 Article IV —

Sec. 3. The right of the people to be secure in their persons, houses, papers, and effects agai
unreasonable searches and seizures of whatever nature and for any purpose shall not be viol
search warrant or warrant of arrest shall issue except upon probable cause to be determined
judge, or such other responsible officer as may be authorized by law, after examination under
affirmation of the complainant and the witnesses may produce, and particularly describing the
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
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 do
incumbent President shall be part of the law of the land, and shall remain valid, legal, binding
effective even after lifting of martial law or the ratification of this Constitution, unless modified,
superseded by subsequent proclamations, orders, decrees, instructions, or other acts of the in
President, or unless expressly and explicitly modified or repealed by the regular National Asse

xxx xxx xxx

Sec. 12. All treaties, executive agreements, and contracts entered into by the Government, or
subdivision, agency, or instrumentality thereof, including government-owned or controlled corp
are hereby recognized as legal, valid and binding. When the national interest so requires, the
President of the Philippines or the interim Prime Minister may review all contracts, concession
or other forms of privileges for the exploration, development, exploitation, or utilization of natu
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), Chi
Roberto Concepcion, concurred in by Justices Fernando, Barredo, Antonio and the writer, overruled this objection, th

... Regardless of the wisdom and moral aspects of the contested provisions of
proposed Constitution, it is my considered view that the Convention was legall
to propose — save perhaps what is or may be insistent with what is now know
particularly in international law, as Jus Cogens — not only because the Conve
exercised sovereign powers delegated thereto by the people — although insof
the determination of the proposals to be made and formulated by said body is
— but also, because said proposals cannot be valid as part of our Fundament
unless and until "approved by the majority of the votes cast at an election whic
proposals "are submitted to the people for their ratification," as provided in Sec
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 Constitut
Convention has the authority to "entirely overhaul the present Constitution and propose an entirely new Constitution b
ideology foreign to the democratic system ...; because the same will be submitted to the people for ratification. Once
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
constitutional convention ..., is practically limitless" (citing Cf. Koehler vs. Hill, 14 NW 738, 60 Iowa 543 [1883]; Hatch
6 P 734, 66 Cal. 632 [1885]; MacMillan v. Blattner, 25 NW 245, 67 Iowa 287 [1895]; State v. Powell, 27 SO 297, 77 M
[1900]; Hammond v. Clark, 71 SE 479, 136 Ga. 313 [1911]; Hamilton v. Vaughan, 179 NW 533, 212 Mich. 31 [1920];
Smith, 138 NE 881, 105 Ohio St. 570 [1922]; Looney vs. Leeper, 292 P 365, 145 Okl. 202 [1930]; School District vs.
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 ele
delegates to the Convention and when the delegates themselves were campaigning, such limitation of the scope of th
and objective was not in their minds."

1973 CONSTITUTION DULY ADOPTED AND

PROMULGATED.

Petitioners next claim that the 1971 Constitutional Convention adjourned on November 30, 1972 without officially pro
the said Constitution in Filipino as required by Sections 3(1) of Article XV on General Provisions of the 1973 Constitu
claim is without merit because their Annex "M" is the Filipino version of the 1973 Constitution, like the English version
the certification by President Diosdado Macapagal of the Constitutional Convention, duly attested by its Secretary, th
proposed Constitution, approved on second reading on the 27th day of November, 1972 and on third reading in the C
291st plenary session on November 29, 1972 and accordingly signed on November 1972 by the delegates whose sig
thereunder affixed. It should be recalled that Constitutional Convention President Diosdado Macapagal was, as Presi
Republic 1962 to 1965, then the titular head of the Liberal Party to which four (4) of the petitioners in L-36165 includin
counsel, former Senator Jovito Salonga, belong. Are they repudiating and disowning their former party leader and be

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 Constitutio
approved by a majority of the votes cast at an election at which the amendments are submitted to the people for ratifi

But petitioners construe the aforesaid provision to read: "Such amendments shall be valid as part of this Constitution
approved by a majority of the votes cast at an election called by Congress at which the amendments are submitted fo
by the qualified electors defined in Article V hereof, supervised by the Commission on Elections in accordance with th
election law and after such amendments shall have been published in all the newspapers of general circulation for at
months prior to such election."

This position certainly imposes limitation on the sovereign people, who have the sole power of ratification, which impo
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 C
This is a clear case of usurpation of sovereign power they do not possess — through some kind of escamotage. This
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 wit
procedure prescribed by the Constitution and/or the law, nullifies the proposed amendment or the new Constitution, t
procedure prescribed by the state Constitution is so detailed that it specifies that the submission should be at a gener
election, or at the election for members of the State legislature only or of all state officials only or of local officials only
state and local officials; fixes the date of the election or plebiscite limits the submission to only electors or qualified ele
prescribes the publication of the proposed amendment or a new Constitution for a specific period prior to the election
plebiscite; and designates the officer to conduct the plebiscite, to canvass and to certify the results, including the form
ballot which should so state the substance of the proposed amendments to enable the voter to vote on each amendm
separately or authorizes expressly the Constitutional Convention or the legislature to determine the procedure or cert
thereof. See the State Constitutions of Alabama [1901]; Arizona [1912]; Arkansas [1874]; Colorado [1976]; Connectic
Florida [1887]; Georgia [1945]; Illinois [1970]; Indiana [1851]; Iowa [1857]; Kansas [1861]; Kentucky [1891]; Louisiana
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 leg
the manner following: The proposed amendments shall be read in the house in which they ori
three several days, and, if upon the third reading, three-fifths of all the members elected to tha
shall vote in favor thereof, the proposed amendments shall be sent to the other house, in whic
likewise be read on three several days, and if upon the third reading, three-fifths of all the mem
elected that house shall vote in favor of the proposed amendments, the legislature shall order
by the qualified electors of the state upon such proposed amendments, to be held either at the
election next succeeding the session of the legislature at which the amendments are propose
another day appointed by the legislature, not less than three months after the final adjournme
session of the legislature at which the amendments were proposed. Notice of such election, to
the proposed amendments, shall be given by proclamation of the governor, which shall be pu
every county in such manner as the legislature shall direct, for at least eight successive week
preceding the day appointed for such election. On the day so appointed an election shall be h
vote of the qualified electors of the state upon the proposed amendments. If such election be
day of the general election, the officers of such general election shall open a poll for the vote o
qualified electors upon the proposed amendments; if it be held on a day other than that of a g
election, officers for such election shall be appointed; and the election shall be held in all thing
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 ma
secretary of state, and counted, in the same manner as in elections for representatives to the
and if it shall thereupon appear that a majority of the qualified electors who voted at such elec
the proposed amendments voted in favor of the same, such amendments shall be valid to all i
purposes as parts of this Constitution. The result of such election shall be made known by pro
the governor. Representation in the legislature shall be based upon population, and such basi
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
of this Constitution, the substance or subject matter of each proposed amendment shall be so
the nature thereof shall be clearly indicated. Following each proposed amendment on the ball
printed the word "Yes" and immediately under that shall be printed the word "No". The choice
elector shall be indicated by a cross mark made by him or under his direction, opposite the wo
 expressing his desire, and no amendment shall be adopted unless it receives the affirmative v
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 sess
may propose amendments to this Constitution, and, if the same be agreed to by a majority of
members, elected to each house, such proposed amendments shall be entered on the journa
yeas and nays, and published in at least one newspaper in each county, where a newspaper
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 app
rejection, and if a majority of the electors voting at such election adopt such amendments, the
become a part of this Constitution; but no more than three amendments shall be proposed or
the same time. They shall be so submitted as to enable the electors to vote on each amendm
separately.

Constitution of Kansas (1861):

Article XIV. Amendments.

Sec. 1. Proposal of amendments; publications; elections. Propositions for the amendment of t

constitution may be made by either branch of the legislature; and if two thirds of all the membe
to each house shall concur therein, such proposed amendments, together with the yeas and n
be entered on the journal; and the secretary of state shall cause the same to be published in a
newspaper in each county of the state where a newspaper is published, for three months prec
next election for representatives, at which time, the same shall be submitted to the electors, fo
approval or rejection; and if a majority of the electors voting on said amendments, at said elec
adopt the amendments, the same shall become a part of the constitution. When more than on
amendment shall be submitted at the same time, they shall be so submitted as to enable the e
vote on each amendments separately; and not more than three propositions to amend shall b
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 proclamat

General Assembly may propose Amendments to this Constitution; provided that each Amendm
be embraced in a separate bill, embodying the Article or Section, as the same will stand when
and passed by three fifths of all the members elected to each of the two Houses, by yeas and
entered on the Journals with the proposed Amendment. The bill or bills proposing amendmen
amendments shall be published by order of the Governor, in at least two newspapers, in each
where so many may be published, and where not more than one may be published, then in th
newspaper, and in three newspapers published in the City of Baltimore, once a week for four
immediately preceding the next ensuing general election, at which the proposed amendment o
amendments shall be submitted, in a form to be prescribed by the General Assembly, to the q
voters of the State for adoption or rejection. The votes cast for and against said proposed ame
amendments, severally, shall be returned to the Governor, in the manner prescribed in other c
 it shall appear to the Governor that a majority of the votes cast at said election on said amend
amendments, severally, were cast in favor thereof, the Governor shall, by his proclamation, de
said amendment or amendments having received said majority of votes, to have been adopte
people of Maryland as part of the Constitution thereof, and henceforth said amendment or am
shall be part of the said Constitution. When two or more amendments shall be submitted in th
aforesaid, to the voters of this State at the same election, they shall be so submitted as that e
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 a
proposed by the general assembly or by the initiative shall be submitted to the electors for the
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 th
which he may submit any of the amendments. No such proposed amendment shall contain m
one amended and revised article of this constitution, or one new article which shall not contain
one subject and matters properly connected therewith. If possible, each proposed amendmen
published once a week for two consecutive weeks in two newspapers of different political faith
county, the last publication to be not more than thirty nor less than fifteen days next preceding
election. If there be but one newspaper in any county, publication of four consecutive weeks s
made. If a majority of the votes cast thereon is in favor of any amendment, the same shall tak
the end of thirty days after the election. More than one amendment at the same election shall
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 submiss
ratification. As heretofore stated, it does not specify what kind of election at which the new Constitution shall be subm
does it designate the Commission on Elections to supervise the plebiscite. Neither does it limit the ratification to the q
electors as defined in Article V of the 1935 Constitution. Much less does it require the publication of the proposed Co
any specific period before the plebiscite nor does it even insinuate that the plebiscite should be supervised in accorda
the existing election law.

(2) As aforequoted, Article XV does not indicate the procedure for submission of the proposed Constitution to the peo
ratification. It does not make any reference to the Commission on Elections as the body that shall supervise the plebi
Article XV could not make any reference to the Commission on Elections because the original 1935 Constitution as ra
May 14, 1935 by the people did not contain Article X on the Commission on Elections, which article was included the
pursuant to an amendment by that National Assembly proposed only about five (5) years later — on April 11, 1940, ra
people on June 18, 1940 as approved by the President of the United States on December 1940 (see Sumulong vs. C
70 Phil. 703, 713, 715; Gonzales, Phil. Const. Law, 1966 ed., p. 13). So it cannot be said that the original framers of t
Constitution as ratified May 14, 1935 intended that a body known as the Commission on Elections should be the one
supervise the plebiscite, because the Commission on Elections was not in existence then as was created only by Com
Act No. 607 approved on August 22, 1940 and amended by Commonwealth Act No. 657 approved on June 21, 1941
Tañada & Carreon, Political Law of the Philippines, Vol. I, 1961 ed., pp. 475-476; Sumulong vs. Commission, 170 Ph
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 Interio
Department of Local Governments and Community Development) supervised the plebiscites on the 1937 amendmen
woman's suffrage, the 1939 amendment to the Ordinance appended to the 1935 Constitution (Tydings-Kocialkowski
U.S. Congress) and the three 1940 amendments on the establishment of a bicameral Congress, the re-election of the
and the Vice-President, and the creation of the Commission on Elections (ratified on June 18, 1940). The supervision
plebiscites by the then Department of Interior was not automatic, but by virtue of an express authorization in Common
Nos. 34, 49 and 517.

If the National Assembly then intended that the Commission on Elections should also supervise the plebiscite for ratif
constitutional amendments or revision, it should have likewise proposed the corresponding amendment to Article XV
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 q
voters under Article V of the 1935 Constitution should participate in the referendum on any amendment or revision th
could have provided the same in 1935 or in the 1940 amendment by just adding a few words to Article XV by changin
phrase to "submitted for ratification to the qualified electors as defined in Article V hereof," or some such similar phras

Then again, the term "people" in Article XV cannot be understood to exclusively refer to the qualified electors under A
the 1935 Constitution because the said term "people" as used in several provisions of the 1935 Constitution, does no
uniform meaning. Thus in the preamble, the term "Filipino people" refer, to all Filipino citizens of all ages of both sexe
Section 1 of Article II on the Declaration of Principles, the term "people" in whom sovereignty resides and from whom
government authority emanates, can only refer also to Filipino citizens of all ages and of both sexes. But in Section 5
Article II on social justice, the term "people" comprehends not only Filipino citizens but also all aliens residing in the c
ages and of both sexes. Likewise, that is the same connotation of the term "people" employed in Section 1(3) of Artic
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 th
the election of senators and congressmen. Section 2 Article VI expressly provides that the senators "shall be chosen
the qualified electors of the Philippines as may provided by law." Section 5 of the same Article VI specifically provides
congressmen shall "be elected by the qualified electors." The only provision that seems to sustain the theory of petitio
the term "people" in Article XV should refer to the qualified electors as defined in Article V of the 1935 Constitution is
provision that the President and Vice-President shall be elected "by direct vote of the people." (Sec. 2 of Art. VII of the
Constitution). But this alone cannot be conclusive as to such construction, because of explicit provisions of Sections 2
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 proced
ratification of amendments to or revision of said Constitutions and expressly require ratification by qualified electors, n
generic term "people".

The proposal submitted to the Ozamis Committee on the Amending Process of the 1934-35 Constitutional Conventio
that the amendment shall be submitted to qualified election for ratification. This proposal was not accepted indicating
1934-35 Constitutional Convention did intend to limit the term "people" in Article XV of the 1935 Constitution to qualifi
only. As above demonstrated, the 1934-35 Constitutional Convention limits the use of the term "qualified electors" to
public officials. It did not want to tie the hands of succeeding future constitutional conventions as to who should ratify
proposed amendment or revision.

(4) It is not exactly correct to opine that Article XV of 1935 Constitution on constitutional amendment contemplates th
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 the
of a statute expressly authorizing the application of the election laws to plebiscites of this nature. Thus, Com. Act No.
woman's suffrage amendment enacted on September 30, 1936, consists of 12 sections and, aside from providing tha
shall be held a plebiscite on Friday, April 30, 1937, on the question of woman's suffrage ... and that said amendment
published in the Official Gazette in English and Spanish for three consecutive issues at least fifteen (15) days prior to
election, ... and shall be posted in a conspicuous place in its municipal and provincial office building and in its polling
later than April 22, 1937" (Sec. 12, Com. Act No. 34), specifies that the provisions of the Election Law regarding, the
a special election, insofar as said provisions are not in conflict with it, should apply to the said plebiscite (Sec. 3, Com
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 t
plebiscites. Yet the subsequent laws, namely, Com. Act Nos. 492 and 517 and Rep. Act No. 73 calling for the plebisc
constitutional amendments in 1939, 1940 and 1946, including the amendment creating the Commission on Elections,
provided that the provisions of the existing election law shall apply to such plebiscites insofar as they are not inconsis
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 t
Constitution adopted by the National Assembly on September 15, 1939, consists of 8 sections and provides that the p
amendments to the Constitution adopted in Resolution No. 39 on September 15, 1939 "shall be submitted to the Filip
for approval or disapproval at a general election to be held throughout the Philippines on Tuesday, October 24, 1939
amendments to said Constitution proposed in "Res. No. 38, adopted on the same date, shall be submitted at followin
local officials," (Sec. 1, Com. Act No. 492) that the said amendments shall be published in English and Spanish in thr
consecutive issues of the Official Gazette at least ten (10) days prior to the elections; that copies thereof shall be pos
than October 20, 1939 (Sec. 2, Com. Act 492); that the election shall be conducted according to provisions of the Ele
insofar as the same may be applicable; that within thirty (30) days after the election, Speaker of the National Assemb
request the President to call a special session of the Assembly for the purpose of canvassing the returns and certify t
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:
plebiscite on the constitutional amendments providing bicameral Congress, re-election of the President and Vice-Pre
the creation of a Commission on Elections shall be held at a general election on June 18, 1940 (Sec. 1); that said am
shall be published in three consecutive issues of the Official Gazette in English and Spanish at least 20 days prior to
and posted in every local government office building and polling place not later than May 18, 1940 (Sec. 2); that the e
be conducted in conformity with the Election Code insofar as the same may be applicable (Sec. 3) that copies of the
be forwarded to the Secretary of National Assembly and the Secretary of Interior (Sec. 7); that the National Assembly
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 sec
provides that the Amendment "shall be submitted to the people, for approval or disapproval, at a general election wh
held on March 11, 1947, in accordance with the provisions of this Act" (Sec. 1, R.A. No. 73); that the said amendmen
be published in English and Spanish in three consecutive issues of the Official Gazette at least 20 days prior to the e
copies of the same shall be posted in a conspicuous place and in every polling place not later than February 11, 194
R.A. No. 73); that the provisions of Com. Act No. 357 (Election Code) and Com. Act No. 657 creating the Commissio
Elections, shall apply to the election insofar as they are not inconsistent with this Act (Sec. 3, R.A. No. 73); and that w
days after the election, the Senate and House of Representatives shall hold a joint session to canvass the returns an
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
automatic application of the election law; and even at that, not all the provisions of the election law were made applic
because the various laws aforecited contain several provisions which are inconsistent with the provisions of the Revis
Code (Com. Act No. 357). Moreover, it should be noted that the period for the publication of the copies of the propose
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,
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 nee
Congress to expressly provide therefor in the election laws enacted after the inauguration of the Commonwealth gove
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 Stat
Constitutions of the American Union (with few exceptions), Article XV does not state that only qualified electors can v
plebiscite. As above-intimated, most of the Constitutions of the various states of the United States provide for very de
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 J
1967 and superseded Republic Act No. 2370, expanded the membership of the barrio assembly to include citizens w
least 18 years of age, whether literate or not, provided they are also residents of the barrio for at least 6 months (Sec
3590).

Sec. 4. The barrio assembly. — The barrio assembly shall consist of all persons who are resid
barrio for at least six months, eighteen years of age or over, citizens of the Republic of the Ph
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 cou
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-Tent
members of the barrio assembly.

No meeting of the barrio assembly shall take place unless notice is given one week prior to th
except in matters involving public safety or security in which case notice within a reasonable t
sufficient. The barrio captain, or in his absence, the councilman acting as barrio captain, or an
member selected during the meeting, shall act as presiding officer at all meetings of the barrio
The barrio secretary or in his absence, any member designated by the presiding officer to act
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, i
necessary that at least one-fifth of the members of the barrio assembly be present to constitut
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 follo

a. To recommend to the barrio council the adoption of measures for the welfar
barrio;

b. To decide on the holding of a plebiscite as provided for in Section 6 of this A

c. To act on budgetary and supplemental appropriations and special tax ordina

submitted for its approval by the barrio council; and

d. To hear the annual report council concerning the activities and finances of t
assembly.
 Sec. 6. Plebiscite. — A plebiscite may be held in the barrio when authorized by a majority vote
members present in the barrio assembly, there being a quorum, or when called by at least fou
of the barrio council; Provided, however, That no plebiscite shall be held until after thirty days
approval by either body, and such plebiscite has been given the widest publicity in the barrio,
date, time, and place thereof, the questions or issues to be decided, action to be taken by the
such other information relevant to the holding of the plebiscite.

All duly registered barrio assembly members qualified to vote may vote in the plebiscite. Votin
procedures may be made either in writing as in regular election, and/or declaration by the vote
board of election tellers. The board of election tellers shall be the same board envisioned by s
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 plebi
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 as
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
age or over, able to read and write, who has been a resident of the barrio during the six month
immediately preceding the election, duly registered in the list of voters kept by the barrio secre
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
imprisonment, within two years after service of his sentence;

b. Any person who has violated his allegiance to the Republic of the Philippine

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
of any member of the barrio council or on a budgetary, supplemental appropriation, or special ordinances, a valid act
requires "a majority vote of all of the barrio assembly members registered in the list of the barrio secretary" (par. 5, Se
No. 3590). Such plebiscite may be authorized by a majority vote of the members present in the barrio assembly, ther
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
residents of the barrio during the 6 months immediately preceding the election and duly registered in the list of voters
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 ... eithe
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 v
plebiscite," cannot sustain the position of petitioners in G.R. No. L-36165 that only those who are 21 years of age and
who possess all other qualifications of a voter under Section 10 of R.A. No. 3590, can vote on the plebiscites referred
Section 6; because paragraph 3 of Section 6 does not expressly limit the voting to those with the qualifications under
as said Section 6 does not distinguish between those who are 21 or above on the one hand and those 18 or above b
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 lo
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 i
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
whether literate or not. Republic Act No. 3590 could simply have restated Section 4 of Republic Act No. 2370, the old
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 participa
enactment of Republic Act No. 3590 and should have known the intendment of Congress in expanding the membersh
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 a
electors for barrio plebiscites, this prerogative can also be exercised by the Chief Executive as delegate of the Consti
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
overwhelmingly ratified by the people through the Citizens' Assemblies in a referendum conducted from January 10 to
should be accorded the presumption of correctness; because the same was based on the certification by the Secreta
Department of Local Government and Community Development who tabulated the results of the referendum all over
The accuracy of such tabulation and certification by the said Department Secretary should likewise be presumed; bec
done in the regular performance of his official functions aside from the fact that the act of the Department Secretary, a
ego of the President, is presumptively the act of the President himself unless the latter disapproves or reprobates the
(Villena vs. Secretary of Interior, 67 Phil. 451 ). The truth of the certification by the Department Secretary and the Chi
on the results of the referendum, is further strengthened by the affidavits and certifications of Governor Isidro Rodrigu
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
to the 1935 Constitution, the 1940 amendments establishing the bicameral Congress, creating the Commission on El
providing for two consecutive terms for the President, and the 1947 parity amendment, cannot be invoked; because t
amendments were proposed by the National Assembly as expressly authorized by Article V of the 1935 Constitution
woman suffrage and as a constituent assembly in all the other amendments aforementioned and therefore as such, C
had also the authority to prescribe the procedure for the submission of the proposed amendments to the 1935 Consti

In the cases at bar, the 1973 Constitution was proposed by an independent Constitutional Convention, which as here
discussed, has the equal power to prescribe the modality for the submission of the 1973 Constitution to the people fo
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 fo
extrapolation of the Citizens' Assemblies in all the other provinces, cities and municipalities in all the other provinces,
municipalities, and the affirmative votes in the Citizens' Assemblies resulting from such extrapolation would still const
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 Communit
Development that in Rizal there were 1,126,000 Yes votes and 100,310 No votes, the certification of Governor Isidro
of Rizal, shows only 614,157 Yes votes against 292,530 No votes. In Cavite province, there were 249,882 Yes votes
12,269 No votes as disclosed in Annex 1-A of respondents' Compliance (the certification by the Department of Local
and Community Development), while the alleged certification of Governor Lino Bocalan of Cavite shows only 126,163
and 5,577 No votes. If such a ratio is extended by way of extrapolation to the other provinces, cities and towns of 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 certificati
March 16, 1973, he states that since the declaration of martial law and up to the present time, he has been under hou
his residence in Urdaneta Village, Makati, Rizal; that he never participated in the conduct of the Citizens' Assemblies
10 15, 1973 in the province of Cavite; that the acting chairman and coordinator of the Citizens' Assemblies at that tim
Governor Dominador Camerino; and that he was shown a letter for his signature during the conduct of the Citizens' A
which he did not sign but which he referred to Vice-Governor Camerino (Annex 1-Rejoinder of the Sol. Gen. dated M
1973).

Mayor Pablo Cuneta likewise executed an affidavit dated March 16, 1973 stating that on January 15, 1973, he cause
preparation of a letter addressed to Secretary Jose Roño of the Department of Local Government and Community De
showing the results of the referendum in Pasay City; that on the same day, there were still in any Citizens' Assemblie
referendum in Pasay City, for which reason he did not send the aforesaid letter pending submittal of the other results
said Citizens' Assemblies; and that in the afternoon of January 15, 1973, he indorsed the complete certificate of resul
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
stating that a certain Atty. Delia Sutton of the Salonga Law Office asked him for the results of the referendum; that he
her that he had in his possession unsigned copies of such results which may not be considered official as they had th
knowledge whether the original thereof had been signed by the mayor; and that in spite of his advice that said unsign
were not official, she requested him if she could give her the unofficial copies thereof, which he gave in good faith (An
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 Pet
Notes in L-36165). The fact that a certain Mrs. Remedio Gutierrez, wife of alleged barrio treasurer Faustino Gutierrez
South Triangle, Quezon City, states that "as far as we know, there has been no Citizens' Assembly meeting in our Ar
particularly in January of this year," does not necessarily mean that there was no such meeting in said barrio; for she
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
there was no meeting at all in the other barrios of Quezon City. The barrio captain or the secretary of the barrio assem
have been a credible witness.

Councilor Eduardo T. Paredes, chairman of the Secretariat of Quezon City Ratification and Coordinating Council, cer
March 12, 1973 that as such chairman he was in charge of the compilation and tabulation of the results of the referen
the Citizens' Assemblies in Quezon City based on the results submitted to the Secretariat by the different Citizens' As
but many results of the referendum were submitted direct to the national agencies having to do with such activity and
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 Presid
January 15, 1973 informing him of the results of the referendum in Rizal, in compliance with the instruction of the Nat
Secretariat to submit such letter 2 or 3 days from January 10 to show the trend of voting in the Citizens' Assemblies;
figures 614,157 and 292,530 mentioned in said letter were based on the certificates of results in his possession as of
1973, which results were made the basis of the computation of the percentage of voting trend in the province; that his
never intended to show the final or complete result in the referendum in the province as said referendum was then sti
from January 14-17, 1973, for which reason the said letter merely stated that it was only a "summary result"; and that
January 15, 1973, he sent to the National Secretariat all the certificates of results in 26 municipalities of Rizal for final
(Annex 3-Rejoinder of the Sol. Gen.; emphasis supplied).
Lydia M. Encarnacion, acting chief of the Records Section, Department of Local Government and Community Develo
issued a certificate dated March 16, 1973 that she was shown xerox copies of unsigned letters allegedly coming from
Lino Bocalan dated January 15, 1973 and marked "Rejoinder Annex Cavite" addressed to the President of the Philipp
through the Secretary of the Department of Local Government and Community Development and another unsigned le
reportedly from Mayor Pablo Cuneta dated January 15, 1973 and marked "Rejoinder Annex Pasay City" addressed to
Secretary of the Department of Local Government and Community Development; that both xerox copies of the unsign
contain figures showing the results of the referendum of the Citizens' Assemblies in those areas; and that the said let
not received by her office and that her records do not show any such documents received by her office (Annex 2-Rejo
Sol. Gen.).

Thus it would seem that petitioners in L-36165 have attempted to deceive this Court by representing said unsigned le
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
summary report of Governor Rodriguez of Rizal as well as those contained in the alleged report of Governor Lino Boc
Cavite who repudiated the same as not having been signed by him for he was then under house arrest, on the one ha
number of votes certified by the Department of Local Government and Community Development, on the other, to the
even assuming the correctness of the figures insisted on by counsel for petitioners in L-36165, if they were extrapolat
applied to the other provinces and cities of the country, the Yes votes would still be overwhelmingly greater than the N
applies equally to the alleged discrepancy between the figures contained in the certification of the Secretary of the De
Local Government and Community Development and the figures furnished to counsel for petitioners in L-36165 conc
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 fav
plebiscite to be held later than those against, only serve to emphasize that there was freedom of voting among the m
the Citizens' Assemblies all over the country during the referendum from January 10 to 15, 1973 (Annex-6 Camarines
Rejoinder of Petitioners in L-36165). If there was no such freedom of choice, those who wanted a plebiscite would no
those against holding such plebiscite.

The letter of Governor Felix O. Alfelor, Sr. dated January 1973 confirms the "strong manifestation of approval of the n
Constitution by almost 97% by the members of the Citizens' Assemblies in Camarines Sur" (Annex-Camarines Sur to
of Petitioners in L-36165).

The report of Governor Efren B. Pascual of Bataan shows that the members of the Citizens' Assemblies voted overw
favor of the new Constitution despite the fact that the second set of questions including the question "Do you approve
Constitution?" was received only on January 10. Provincial Governor Pascual stated that "orderly conduct and favora
of the referendum" were due not only to the coordinated efforts and cooperation of all teachers and government empl
area but also to the enthusiastic participation by the people, showing "their preference and readiness to accept this n
of government to people consultation in shaping up government policies." (Annex-Bataan to Rejoinder of Petitioners i

As heretofore stated, it is not necessary that voters ratifying the new Constitution are registered in the book of voters;
that they are electors voting on the new Constitution (Bott vs. Wurts, 40 A 740 [1898]; 43 A 744, 881 [1899]; 45 LRA
fact that the number of actual voters in the referendum in certain localities may exceed the number of voters actually
for the 1971 elections, can only mean that the excess represents the qualified voters who are not yet registered inclu
who are at least 15 years of age and the illiterates. Although ex-convicts may have voted also in the referendum, som
might have been granted absolute pardon or were sentenced to less than one year imprisonment to qualify them to v
201, 1971 Rev. Election Code). At any rate, the ex-convicts constitute a negligible number, discounting which would n
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 lette
March 13, 1973 that he does not "feel authorized by the proper authorities to confirm or deny the data" concerning th
participants, the Yes votes and No votes in the referendum on the new Constitution among the members of the Citize
Assemblies in Caloocan City, does not necessarily give rise to the inference that Mayor Samson of Caloocan City is b
intimidated, having been recently released from detention; because in the same letter of Mayor Samson, he suggeste
counsel for petitioners in L-36165 that he can secure "the true and legitimate results of the referendum" from the Offic
President (Annex Caloocan-B to Rejoinder of Petitioners in L-36165). Why did not learned and eminent counsel heed
suggestion?

Counsel for petitioners in L-36165, to sustain their position, relies heavily on the computation of the estimated turnove
Citizens' Assemblies referendum on January 10 to 15, 1973 by a certain Professor Benjamin R. Salonga, of the Mapu
of Technology, ostensibly a close relative of former Senator Jovito R. Salonga, eminent counsel for petitioners in L-36
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
the Bureau of Census and Statistics, in his letter dated March 16, 1973 address to the Secretary of the Department o
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-yea
(1972) will have to be estimated in order to give a 101.9% estimate of the percentage participa
"15-20 year old plus total number of qualified voters" which does not deem to answer the prob
computation apparently fails to account for some 5.6 million persons "21 years old and over" w
not registered voters (COMELEC), but who might be qualified to participate at the Citizen's As

2) The official population projection of this office (medium assumption) for "15 year olds and o
January 1, 1973 is 22.506 million. If total number of participants at the Citizens' Assembly Ref
held on January 10-15, 1973 was 16.702 million, participation rate will therefore be the ratio o
figure to the former which gives 74.2%.

3) 1 cannot also understand c-2 "Solution to Problem 11." The "difference or implied number o
year olds" of 5,039,906 would represent really not only all 15-year olds and over who participa
Citizens' Assembly but might not have been registered voters at the time, assuming that all th
11,661,909 registered voted at Citizens' Assembly. Hence, the "estimate percentage participa
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 gro
was estimated to be 4.721 million as of January 1, 1973 by the population of "15 years old and
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 a
dead. It cannot therefore be assumed that all of them participated at the Citizens' Assembly. It
therefore be inferred that "a total number of persons 15 and over unqualified/disqualified to vo
more than 10,548,197 and hence the "difference or implied number of registered voters that p
will be less than 6,153,618.

I have reservations on whether an "appropriate number of qualified voters that supposedly vot
be meaningfully estimated.

5) The last remark will therefore make the ratio (a) [Solution to Problem] more than 1.71 and t
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 pr
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

If the registered electors as of the election of November 8, 1971 numbered 11,661,909, the difference between 16,70
participated in the referendum and the registered electors of 11,661,909 for the November 8, 1971 elections, is 5,040
may include not only the 15-year olds and above but below 21 but also the qualified electors who were not registered
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
votes as against about 3,000,000 votes for his rival LP Senator Sergio Osmeña, Jr., garnering a majority of from abou
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
not vote in favor of the 1973 Constitution during the referendum from January 10 to 15, 1973. It should also be stress
many of the partisans of the President in the 1969 Presidential elections, have several members in their families and
who are qualified to participate in the referendum because they are 15 years or above including illiterates, which fact
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
fear to disagree with the President and Commander-in-Chief of the Armed Forces of the Philippines and therefore ca
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 in
Even without martial law, the penal, civil or administrative sanction provided for the violation of ordinarily engenders f
individual which persuades the individual to comply with or obey the law. But before martial law was proclaimed, man
individuals fear such sanctions of the law because of lack of effective equal enforcement or implementation thereof —
compartmentalized justice and extraneous pressures and influences frustrated the firm and just enforcement of the la
fear that is generated by martial law is merely the fear of immediate execution and swift enforcement of the law and t
immediate infliction of the punishment or sanction prescribed by the law whenever it is transgressed during the period
law. This is not the fear that affects the voters' freedom of choice or freedom to vote for or against the 1973 Constituti
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
laws. But the 1935 Constitution does not require secret voting. We search in vain for such guarantee or prescription i
organic law. The Commission on Elections under the 1940 Amendment, embodied as Article X is merely mandated to
"free, orderly and honest election." Congress, under its plenary law-making authority, could have validly prescribed in
law open voting in the election of public officers, without trenching upon the Constitution. Any objection to such a stat
concerns its wisdom or propriety, not its legality or constitutionality. Secret balloting was demanded by partisan strife
for elective officials. Partisanship based on party or personal loyalties does not generally obtain in a plebiscite on pro
constitutional amendments or on a new Constitution. We have seen even before and during martial law that voting in
government agencies or private organizations is usually done openly. This is specially true in sessions of Congress, p
boards, city councils, municipal boards and barrio councils when voting on national or local issues, not on personalitie

Then again, open voting was not a universal phenomenon in the Citizens' Assemblies. It might have been true in cert
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 w
by acclamation presided over by its former president, petitioner Eduardo Monteclaro in L-36236 (see Bulletin Today,
3, 1973 issue). There can be no more hardboiled group of persons than newspapermen, who cannot say that voting a
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
Constitution. They will not deny that there are those who favor the same, even among the 400,000 teachers among w
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 drive
driver, bus driver, pedestrian, salesman, or salesgirl — does not want the new Constitution, or the reforms provided f

(8) Petitioners likewise claim that there was no sufficient publicity given to the new Constitution. This is quite inaccura
even before the election in November, 1970 of delegates to the Constitutional Convention, the proposed reforms wer
discussed in various forums and through the press as well as other media of information. Then after the Constitutiona
Convention convened in June, 1971, specific reforms advanced by the delegates were discussed both in committee h
well as in the tri-media — the press, radio and television. Printed materials on the proposed reforms were circulated b
proponents. From June, 1971 to November 29, 1972, reforms were openly discussed and debated except for a few d
the proclamation of martial law on September 21, 1972. From the time the Constitutional Convention reconvened in O
1972 until January 7, 1973, the provisions of the new Constitution were debated and discussed in forums sponsored
organizations universities and debated over the radio and on television. The Philippines is a literate country, second o
Japan in the Far East, and more literate perhaps than many of mid-western and southern states of the American Unio
Spain. Many residents in about 1,500 towns and 33,000 barrios of the country have radios. Even the illiterates listene
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, 19
"Otto Lang, Hollywood producer director (Tora, Tora, Tora) went around the country doing a 30-minute documentary
Philippines for American television stated that what impressed him most in his travel throughout the country was the g
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, M
Secretary of the United States Senate, who conducted a personal survey of the country as delegate of Senator Mike
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
Marcos has been prompt and sure-footed in using the power of presidential decree under mar
this purpose. He has zeroed in on areas which have been widely recognized as prime sources
nation's difficulties — land tenancy, official corruption, tax evasion and abuse of oligarchic eco
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 alternative
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 popul
like the reforms stipulated in the new Constitution, as well as the decrees, orders and circulars issued to implement th
should be recalled, as hereinbefore stated, that all these reforms were the subject of discussion both in the committee
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 thereo
the media of information before the proclamation of martial law on September 21, 1972. This is the reason why the C
Convention, after spending close to P30 million during the period from June 1, 1971 to November 29, 1972, found it e
accelerate their proceedings in November, 1972 because all views that could possibly be said on the proposed provis
1973 Constitution were already expressed and circulated. The 1973 Constitution may contain some unwise provision
objection to such unwise or vague provisions, as heretofore stated, refers to the wisdom of the aforesaid provisions, w
is not for this Court to decide; otherwise We will be substituting Our judgment for the judgment of the Constitutional C
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 w
legislative powers, is sustained by the ruling in the 1949 case of Kuroda vs. Jalandoni, et al. (83 Phil. 171, 177-178) w
reiterates the 1945 case of Yamashita vs. Styer (75 Phil. 563, 571-72). The trial of General Kuroda was after the surr
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 Preside
Philippines has acted in conformity with the generally accepted principles and policies of inter
which are part of our Constitution.

The promulgation of said executive order is an exercise by the President of his powers as Com
Chief of all our armed forces, as upheld by this Court in the case of Yamashita vs. Styver (L-1
Gaz., 664) when we said —

"War is not ended simply because hostilities have ceased. After cessation of a
hostilities, incidents of war may remain pending which should be disposed of a
war. "An important incident to a conduct of war is the adoption measures by th
command not only to repel and defeat the enemies but to seize and subject to
measures those enemies who in their attempt to thwart or impede our military
violated the law of war." (Ex parte Quirin, 317 U.S., 1; 63 Sup. Ct., 2.) Indeed,
to create a military commission for the trial and punishment of war criminals is
of waging war. And, in the language of a writer, a military commission "has jur
long as the technical state of war continues. This includes the period of an arm
military occupation, up to the effective date of treaty of peace, and may extend
treaty agreement." (Cowles, Trial of War Criminals by Military Tribunals, Amer
Association Journal, June, 1944).

Consequently, the President as Commander-in-Chief is fully empowered to consummate this

aspect of war, namely the trial and punishment of war criminals, through the issuance and enf
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 conc
opinion in Duncan vs. Kahanamoku (327 U.S. 304 [1946]), he defined martial law as "the exercise of the power which
the executive branch of the government to preserve order and insure the public safety in times of emergency, when o
branches of the government are unable to function, or their functioning would itself threaten the public safety." (Emph
supplied). There is an implied recognition in the aforesaid definition of martial law that even in places where the court
function, such operation of the courts may be affected by martial law should their "functioning ... threaten the public s
possible that the courts, in asserting their authority to pass upon questions which may adversely affect the conduct of
campaign against rebels, secessionists, dissidents as well as subversives, martial law may restrict such judicial funct
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 dictatorsh
 no other purposes than the preservation of the independence of the state, the maintenance of
constitutional order, and the defense of the political and social liberties of the people. It is impo
recognize the true and limited ends of any practical application of the principle of constitutiona
dictatorship. Perhaps the matter may be most clearly stated in this way: the government of a f
proceeding on its way and meeting the usual problems of peace and normal times within the l
framework of its established constitutional order. The functions of government are parceled ou
number of mutually independent offices and institutions; the power to exercise those functions
circumscribed by well-established laws, customs, and constitutional prescriptions; and the peo
whom this government was instituted are in possession of a lengthy catalogue of economic, p
social rights which their leaders recognize as inherent and inalienable. A severe crisis arises —
country is invaded by a hostile power, or a dissident segment of the citizenry revolts, or the im
world-wide depression threatens to bring the nation's economy in ruins. The government mee
by assuming more powers and respecting fewer rights. The result is a regime which can act a
and even dictatorially in the swift adaption of measures designed to save the state and its peo
destructive effects of the particular crisis. And the narrow duty to be pursued by this strong go
this constitutional dictatorship? Simply this and nothing more: to end the crisis and restore no
The government assumes no power and abridges no right unless plainly indispensable to that
extends no further in time than the attainment of that end; and it makes no alteration in the po
and economic structure of the nation which cannot be eradicated with the restoration of norma
short, the aim of constitutional dictatorship is the complete restoration of the status quo ante b
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 t
all institutions of government, and the principle of constitutional dictatorship remains eternally
matter how often and seriously it may have been violated in practice. (Constitutional Dictators
ed., by Clinton L. Rossiter, p. 7; emphasis supplied.)

Finally, Rossiter expressly recognizes that during martial law, the Chief Executive exercises legislative power, whethe
temporary or permanent character, thus:

The measures adopted in the prosecution of a constitutional dictatorship should never be perm
character or effect. Emergency powers are strictly conditioned by their purpose and this purpo
restoration of normal conditions. The actions directed to this end should therefore be provision
example, measures of a legislative nature which work a lasting change in the structure of the
constitute permanent derogations from existing law should not be adopted under an emergen
act, at least not without the positively registered approval of the legislature. Permanent laws, w
adopted in regular or irregular times, are for parliaments to enact. By this same token, the dec
sentences of extraordinary courts should be reviewed by the regular courts after the terminatio
crisis.

But what if a radical act of permanent character, one working lasting changes in the political a
fabric, is indispensable to the successful prosecution of the particular constitutional dictatorsh
answer can be: it must be resolutely taken and openly acknowledged. President Lincoln found
necessary to proceed to the revolutionary step of emancipation in aid of his conservative purp
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
the positive approval of the people or of their representatives in the legislature. (P. 303, emph
supplied).

From the foregoing citations, under martial law occasioned by severe crisis generated by revolution, insurrection or e
depression or dislocation, the government exercises more powers and respects fewer rights in order "to end the crisis
restore normal times." The government can assume additional powers indispensable to the attainment of that end —
complete restoration of peace. In our particular case, eradication of the causes that incited rebellion and subversion a
secession, is the sine qua non to the complete restoration of normalcy. Exercise of legislative power by the President
Commander in Chief, upon his proclamation of martial law, is justified because, as he professes, it is directed towards
institution of radical reforms essential to the elimination of the causes of rebellious, insurgent or subversive conspirac
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 th
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?" T
dilemma that vexed President Lincoln during the American Civil War, when without express authority in the Constituti
laws of the United States, he suspended one basic human freedom — the privilege of the writ of habeas corpus — in
preserve with permanence the American Union, the Federal Constitution of the United States and all the civil liberties
American people. This is the same dilemma that presently confronts the Chief Executive of the Republic of the Philipp
more than the Courts and Congress, must, by express constitutional mandate, secure the safety of our Republic and
as well as lives of the people against open rebellion, insidious subversion secession. The Chief Executive announced
that in choosing to proclaim martial law, the power expressly vested in him by the 1935 Constitution (Sec. 10[2], Art. V
Constitution) to insure our national and individual survival in peace and freedom, he is in effect waging a peaceful, de
revolution from the center against the violent revolution and subversion being mounted by the economic oligarchs of
right, who resist reforms to maintain their economic hegemony, and the communist rebels a Maoist oriented secessio
extreme left who demand swift institution of reforms. In the exercise of his constitutional and statutory powers, to save
and to protect the citizenry against actual and threatened assaults from insurgents, secessionists and subversives, do
concepts and principles, no matter how revered they may be by jurisprudence and time, should not be regarded as p
commands; otherwise the dead hand of the past will regulate and control the security and happiness of the living pres
contrary view would be to deny the self-evident proposition that constitutions and laws are mere instruments for the w
peace, security and prosperity of the country and its citizenry. The law as a means of social control is not static but dy
Paraphrasing Mr. Justice Frankfurter, the Constitution is neither a printed finality nor the imprisonment of the past, bu
enfolding of the future. In the vein of Mr. Justice Holmes, the meaning of the words of the Constitution is not to be det
merely opening a dictionary. Its terms must be construed in the context of the realities in the life of a nation it is intend
Because experience may teach one generation to doubt the validity and efficacy of the concepts embodied in the exis
Constitution and persuade another generation to abandon them entirely, heed should be paid to the wise counsel of s
learned jurists that in the resolution of constitutional questions — like those posed before Us — the blending of idealis
practical wisdom or progressive legal realism should be applied (see Alexander M. Bickel, the Supreme Court and the
Progress, 1970 ed., pp. 19-21). To Justice Frankfurter, law is "a vital agency for human betterment" and constitutiona
applied politics using the word in its noble sense." (Frankfurter, Law and Politics, 1939 ed., pp. 3 & 6; emphasis supp
Brandeis gave utterance to the truth that "Our Constitution is not a straight jacket. It is a living organism. As such, it is
growth — or expansion and adaptation to new conditions. Growth implies changes, political, economic and social." (B
Papers, Harvard Law School; emphasis supplied). Harvard Professor Thomas Reed Powell emphasizes "practical wi
"the logic of constitutional law is the common sense of the Supreme Court." (Powell, the Validity of State Legislation,
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 o
well as man-made institutions are not immutable. Civilized men organize themselves into a State only for the purpose
their supreme interest — their welfare. To achieve such end, they created an agency known as the government. From
savage era thru ancient times, the Middle Ages, the Dark Ages and the Renaissance to this era of sophisticated elect
nuclear weaponry, states and governments have mutated in their search for the magic instrument for their well-being
and error then as it is still now. Political philosophies and constitutional concepts, forms and kinds of government, had
adopted, overturned, discarded, re-adopted or modified to suit the needs of a given society at a particular given epoc
true of constitutions and laws because they are not "the infallible instruments of a manifest destiny." No matter how w
law to be stable, it cannot stand still. As Mr. Justice Holmes aptly observed, every "constitution is an experiment as a
experiment," (Abrahms vs. U.S., 250 US 616, 631) for "the life of the law is not logic, but experience." In the pontifica
Mr. Justice Benjamin Nathan Cardozo, "so long as society is inconstant, there can be no constancy in law," and "ther
change whether we will it or not." As Justice Jose P. Laurel was wont to say, "We cannot, Canute-like, command the
progress to halt."

Thus, political scientists and jurists no longer exalt with vehemence a "government that governs least." Adherents the
poetic dictum of Alexander Pope: "For forms of government let fools contest; whatever is best administered is best." (
Pope, 1931 Cambridge ed., p. 750). In between, the shades vary from direct democracy, representative democracy,
states, socialist democracy, mitigated socialism, to outright communism which degenerated in some countries into to
or authoritarianism.

Hence, even the scholar, who advances academic opinions unrelated to factual situations in the seclusion of his ivory
must perforce submit to the inexorable law of change in his views, concepts, methods and techniques when brought
actual arena of conflict as a public functionary — face to face with the practical problems of state, government and pu
administration. And so it is that some learned jurists, in the resolution of constitutional issues that immediately affect t
liberties and fortunes of the citizens and the nation, recommend the blending of idealism with practical wisdom which
thinkers prefer to identify as progressive legal realism. The national leader, who wields the powers of government, mu
to innovate if he must govern effectively to serve the supreme interests of the people. This is especially true in times
crises where the need for a leader with vision, imagination, capacity for decision and courageous action is greater, to
the unity of people, to promote their well-being, and to insure the safety and stability of the Republic. When the metho
rebellion and subversion have become covert, subtle and insidious, there should be a recognition of the correspondin
on the part of the Commander-in-Chief of the Armed Forces to utilize all the available techniques to suppress the per
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 forme
of the United States, who personifies the progressive liberal, spoke the truth when he said that some men "ascribe m
preceding age a wisdom more than human, and suppose what they did to be beyond amendment. ... But I know also
and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more
as new discoveries are made, new truths disclosed and manners and opinions change, with the change of circumstan
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 adeq
fairly appraised within the present ambience, charged as it is with so much tension and emotion, if not partisan passio
analytical, objective historians will write the final verdict in the same way that they pronounced judgment on Presiden
Lincoln who suspended the privilege of the writ of habeas corpus without any constitutional or statutory authority ther
President Franklin Delano Roosevelt who approved the proclamation of martial law in 1941 by the governor of Hawai
the Hawaiian territory. President Lincoln not only emancipated the Negro slaves in America, but also saved the Fede
of the United States from disintegration by his suspension of the privilege of the writ of habeas corpus, which power t
American Constitution and Congress did not then expressly vest in him. No one can deny that the successful defense
preservation of the territorial integrity of the United States was due in part, if not to a great extent, to the proclamation
law over the territory of Hawaii — main bastion of the outer periphery or the outpost of the American defense perimet
Pacific — which protected the United States mainland not only from actual invasion but also from aerial or naval bom
by the enemy. Parenthetically, the impartial observer cannot accurately conclude that the American Supreme Court a
courage in its decision in the cases of Ex parte Milligan and Duncan vs. Kahanamoku (filed on May 10, 1865 argued
to 13, 1866, decided on April 3, 1866, and opinion delivered on December 17, 1866) after the lifting of the proclamatio
suspending the privilege of the writ of habeas corpus, long after the Civil War and the Second World ended respectiv
9 or 26, 18-65 (Vol. 1, Encyclopedia Britannica, 1969 ed., pp. 730, 742) and on September 2, 1945 (Vol. 23, Encyclop
Britannica, 1969 ed., p. 799). Was the delay on the part of the American Supreme Court in deciding these cases aga
position of the United States President — in suspending the privilege of the writ of habeas corpus in one case and ap
proclamation of martial law in the other — deliberate as an act of judicial statesmanship and recognition on their part
adverse court ruling during the period of such a grave crisis might jeopardize the survival of the Federal Republic of t
States in its life-and-death struggle against an organized and well armed rebellion within its own borders and against
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
Philippines even on the assumption that the 1935 Constitution still subsists; because pursuant to the doctrine of sepa
powers under the 1935 Constitution, the processes of this Court cannot legally reach a coordinate branch of the gove
its head. This is a problem that is addressed to the Senate itself for resolution; for it is purely an internal problem of th
a majority of the senators can convene, they can elect a new Senate President and a new Senate President Pro Tem
they have no quorum, those present can order the arrest of the absent members (Sec. 10[2], Art. VI, 1935 Constitutio
fails, then there is no remedy except an appeal to the people. The dictum ubi jus, ubi remedium, is not absolute and c
does not justify the invocation of the power of this Court to compel action on the part of a co-equal body or its leaders
was emphasized with sufficient clarity by this Court in the 1949 case of Avelino vs. Cuenco (83 Phil. 17, 22,24), with w
distinguished counsels for the petitioners in L-36164 and L-36165 are familiar. We stress that the doctrine of separati
powers and the political nature of the controversy such as this, preclude the interposition of the Judiciary to nullify an
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 mo
a magic formula which should be disregarded by this Court, forgetting that this magic formula constitutes an essentia
constitutional fabric of our government, which, together with other basic constitutional precepts, conserves the unity o
people, strengthens the structure of the government and assures the continued stability of the country against the for
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 depen
place of session; for the Constitution does not designate the place of such a meeting. Section 9 of Article VI imposes
Congress to convene in regular session every year on the 4th Monday of January, unless a different date is fixed by l
special session called by the President. As former Senator Arturo Tolentino, counsel for respondents Puyat and Roy
stated, the duty to convene is addressed to all members of Congress, not merely to its presiding officers. The fact tha
of Congress are padlocked, will not prevent the senators — especially the petitioners in L-36165 — if they are minded
from meeting elsewhere — at the Sunken Gardens, at the Luneta Independence Grandstand, in any of the big hotels
in their own houses, or at the Araneta Coliseum, which is owned by the father-in-law of petitioner Gerardo Roxas in L

However, a session by the Senate alone would be purely an exercise in futility, for it cannot validly meet without the lo
(Sec. 10[5], Art. VI, 1935 Constitution). Hence, this petition by five former senators for mandamus in L-36165 is usele

And as pointed out by former Senator Arturo Tolentino, counsel for respondents Puyat and Roy, mandamus will lie on
a law imposing on the respondents the duty to convene the body. The rule imposing such a duty invoked by petitione
36165 is purely an internal rule of the Senate; it is not a law because it is not enacted by both Houses and approved
President.

The Constitutional provision on the convening of Congress, is addressed to the individual members of the legislative
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 Con
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
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 unco
The proposed Constitution is an act of the Constitutional Convention, which is co-equal and coordinate with as well a
independent of either Congress or the Chief Executive. Hence, its final act, the 1973 Constitution, must have the sam
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
of Article VIII of the 1935 Constitution in relation to Section 9 of the Judiciary Act or Republic Act No. 296, as amende
be ten (10) under Section 2(2) of Article X of the 1973 Constitution. Should the required vote of eight (8) or ten (10), a
may be, for the declaration of invalidity or unconstitutionality be not achieved, the 1973 Constitution must be deemed
in force and operative.

ARTICLE OF FAITH

WE yield to no man as devotees of human rights and civil liberties. Like Thomas Jefferson, We swear "eternal hostilit
any form of tyranny over the mind of man" as well as towards bigotry and intolerance, which are anathema to a free s
human rights and civil liberties under a democratic or republican state are never absolute and never immune to restri
essential to the common weal. A civilized society cannot long endure without peace and order, the maintenance of w
primary function of the government. Neither can civilized society survive without the natural right to defend itself again
dangers that may destroy its life, whether in the form of invasion from without or rebellion and subversion from within.
first law of nature and ranks second to none in the hierarchy of all values, whether human or governmental. Every citi
prides himself in being a member or a civilized society under an established government, impliedly submits to certain
on his freedom for the general welfare and the preservation of the State itself, even as he reserves to himself certain
constitute limitations on the powers of government. But when there is an inevitable clash between an exertion of gove
authority and the assertion of individual freedom, the exercise of which freedom imperils the State and the civilized so
which the individual belongs, there can be no alternative but to submit to the superior right of the government to defen
preserve the State. In the language of Mr. Justice Holmes — often invoked by herein petitioners — "when it comes to
involving its (state life, the ordinary rights of individuals must yield to what he (the President) deems the necessities o
moment. Public danger warrants the substitution of executive process for judicial process. (See Keely vs. Sanders, 9
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 ob
although it was disputed, that the same is true of temporary detention to prevent apprehended harm." (Moyer vs. Pea
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 sho
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,
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
institution of the needed reforms. The people have been victimized by such bargaining and dilly-dallying. To vert a ter
blood bath and the breakdown of the Republic, the incumbent President proclaimed martial law to save the Republic
overrun by communists, secessionists and rebels by effecting the desired reforms in order to eradicate the evils that p
society, which evils have been employed by the communists, the rebels and secessionists to exhort the citizenry to ri
the government. By eliminating the evils, the enemies of the Republic will be decimated. How many of the petitioners
counsels have been utilizing the rebels, secessionists and communists for their own personal or political purposes an
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 o
they should be willing to give the incumbent Chief Executive a chance to implement the desired reforms. The incumb
President assured the nation that he will govern within the framework of the Constitution and if at any time, before no
restored, the people thru their Citizens' Assemblies, cease to believe in his leadership, he will step down voluntarily fr
Presidency. But if, as apprehended by the petitioners, he abuses and brutalizes the people, then to the battlements w
to man the ramparts against tyranny. This, it is believed, he knows only too well; because he is aware that he who rid
will eventually end inside the tiger's stomach. He who toys with revolution will be swallowed by that same revolution.
replete with examples of libertarians who turned tyrants and were burned at stake or beheaded or hanged or guillotin
very people whom they at first championed and later deceived. The most bloody of such mass executions by the wra
wronged people, was the decapitation by guillotine of about 15,000 Frenchmen including the leaders of the French re
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 sign
November 30, 1972; in L-36165, to compel respondents Gil Puyat and Jose J. Roy, President and President Pro-Tem
respectively, of the Senate under the 1935 Constitution, to convene the Senate in regular session which should have
January 22, 1973; to nullify Proclamation No. 1102 of the President, issued on January 17, 1973, which declared the
of the Constitution on November 30, 1972, by the Filipino people, through the barangays or Citizens Assemblies esta
under Presidential Decree No. 86 issued on December 31, 1972, which were empowered under Presidential Decree
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 Ma
September 21, 1972.

2. The Convention was not empowered to incorporate certain provisions in the 1972 Constitution because they are hi
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 th
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 o

The petitions were not given due course immediately but were referred to the Solicitor General as counsel for the res
comment, with three members of the Court, including the undersigned, voting to dismiss them outright. The comment
considered motions to dismiss which were set for hearing and extensively argued. Thereafter both parties submitted
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 an
judicial determination?

2. Was the new Constitution of November 30, 1972, ratified in accordance with the amending process prescribed by A
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 main
Court should abstain from assuming jurisdiction, but, instead, as an act of judicial statesmanship, should dismiss the
resolving whether or not the question presented is political, joint discussion of issues Nos. 1, 3 and 4 is necessary so
at a logical conclusion. For after the acceptance of a new Constitution and acquiescence therein by the people by pu
practical operation, any question regarding its validity should be foreclosed and all debates on whether it was duly or
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 a
forth in the majority and dissenting opinions in the Plebiscite cases decided on January 22, 1973, and need not be re
here.

Petitioners seek to set at naught Proclamation No. 1102 and Presidential Decrees Nos. 86 and 86-A, claiming that th
of the new Constitution pursuant to the said decrees is invalid and of no effect. Presidential Decree No. 86 organized
barangays or Citizens Assemblies composed of all citizens at least fifteen years of age, and through these assemblie
proposed 1972 Constitution was submitted to the people for ratification. Proclamation No. 1102 of the President anno
declared the result of the referendum or plebiscite conducted through the Citizens Assemblies, and that 14,976,561 m
thereof voted for the ratification of the new Constitution and 743,869 voted against it. Petitioners assail these two acts
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 sou
invalidated is the new Constitution itself — the very framework of the present Government since January 17, 1973. T
obvious. The Presidential decrees set up the means for the ratification and acceptance of the new Constitution and P
No. 1102 simply announced the result of the referendum or plebiscite by the people through the Citizens Assemblies.
Government under the new Constitution has been running on its tracks normally and apparently without obstruction in
organized resistance capable of jeopardizing its existence and disrupting its operation. Ultimately the issue is whethe
Constitution may be set aside by this Court. But has it the power and authority to assume such a stupendous task wh
result of such invalidation would be to subject this nation to divisive controversies that may totally destroy the social o
the Government under the new Constitution has been admirably protecting and promoting under Martial Law? That th
Constitution has taken deep root and the people are happy and contended with it is a living reality which the most art
critics of the new order cannot deny. 95 out of 108 members of the House of Representatives have opted to serve in
National Assembly provided for under the new Constitution. 15 out of 24 Senators have done likewise. The members
Congress did not meet anymore last January 22, 1973, not because they were really prevented from so doing but be
serious effort on their parts to assert their offices under the 1935 Constitution. In brief, the Legislative Department und
Constitution is a thing of the past. The Executive Department has been fully reorganized; the appointments of key exe
officers including those of the Armed Forces were extended and they took an oath to support and defend the new Co
The courts, except the Supreme Court by reason of these cases, have administered justice under the new constitutio
government offices have dealt with the public and performed their functions according to the new Constitution and law
promulgated thereunder.

If the real purpose of the petitions is to set aside the new Constitution, how can this Court justify its assumption of juri
when no power has ... conferred upon it the jurisdiction to declare the Constitution or any part thereof null and void? I
height of absurdity and impudence for a court to wage open war against the organic act to which it owes its existence
situation in which this Court finds itself does not permit it to pass upon the question whether or not the new Constituti
entered into force and has superseded the 1935 Constitution. If it declares that the present Constitution has not been
ratified, it has to uphold the 1935 Constitution as still the prevailing organic law. The result would be too anomalous to
for then this Court would have to declare that it is governed by one Constitution or the 1935 Constitution, and the legi
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
no other choice but to uphold the new Constitution as against any other one? In the circumstances it would be bereft
attributes as the matter would then be not meet for judicial determination, but one addressed to the sovereign power
people who have already spoken and delivered their mandate by accepting the fundamental law on which the govern
Republic is now functioning. To deny that the new Constitution has been accepted and actually is in operation would
the face of reason and pounding one's bare head against a veritable stone wall or a heavily reinforced concrete, or si
"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 p
thereto by the organization of the government provided therein and observance of its prescriptions by public officers c
thereunder, is indicative of approval. Courts should be slow in nullifying a Constitution claimed to have been adopted
accordance with constitutional or statutory directives [Miller vs. Johnson, 92 Ky. 589; 189 S.W. 522; Taylor vs Commo
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 th
law. Great interests have already arisen under it; important rights exist by virtue of it; persons
convicted of the highest crimes known to the law, according to its provisions; the political pow
government has in many ways recognized it; and, under such circumstances, it is our duty to
regard it as a valid constitution, and now the organic law of our state. We need not consider th
the amendments made after the convention reassembled. If the making of them was in exces
power, yet as the entire instrument has been recognized as valid in the manner suggested, it
equally an abuse of power by the judiciary, and violative of the rights of the people, — who ca
properly should remedy the matter, if not to their liking, — if it were to declare the instrument o
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 n
constitution, and not an amendment, because the judicial power presupposes an established
and if the authority of that government is annulled and overthrown, the power of its courts is a
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 ce
court, and it would be incapable of pronouncing a judicial decision upon the question before it
decides at all, it must necessarily affirm the existence of the government under which it exerci
 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 enforcin
execution, and appointing judges to expound and administer them. The acceptance of the jud
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
if a State court should enter upon the inquiry proposed in this case, and should come to concl
the government under which it acted had been put aside and displaced by an opposing gover
would cease to be a court, and be incapable of pronouncing a judicial decision upon the ques
undertook to try. If it decides at all as a court, it necessarily affirms the existence and authority
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 Consti
no state with which we maintain diplomatic relations has withdrawn its recognition of our government. (For particulars
executive acts done under the new Constitution, see pages 22-25 of the Comments of the Solicitor General, dated Fe
1973.)

Certainly the invalidation of Proclamation No. 1102 and Presidential Decrees Nos. 86 and 86-A by this Court would s
plain political meddling which is described by the United States Supreme Court as "entering a political thicket" in Cole
Green, 328 U.S. p. 549. At this juncture it would be the part of wisdom for this Court to adopt the proper attitude towa
upheavals and realize that the question before Us is political and not fit for judicial determination. For a political quest
entrusted to the people for judgment in their sovereign capacity (Tañada vs. Cuenco, G.R. No. L-10520, Feb. 28,196
1101), or to a co-equal and coordinate branch of the Government (Vera vs. Arellano, 77 Phil. 192; Mabanag vs. Lope
Phil. 1; Alejandrino vs. Quezon, 46 Phil. 35; Cabili vs. Francisco, G.R. No. 4638, May 8, 1931). A case involves a poli
question when there would be "the impossibility of undertaking independent resolutions without expressing a lack of r
to coordinate branches of government", or when there is "the potentiality of embarrassment from multifarious pronoun
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
in that vast range of legal problems often strongly entangled in popular feeling on which this Court must pronounce",
harken to the following admonition of Justice Frankfurter in his dissent in Baker vs. Carr, 369 U.S. 186; 82 S. Ct. 691;
663:

The Court's authority — possessed neither of the purse nor the sword — ultimately rests on s
public confidence in its moral sanction. Such feeling must be nourished by the Court's comple
detachment, in fact and appearance, from political entanglements and abstention from injectin
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 n
plenitude of its efficacy and vigor. We are now living under its aegis and protection and only the cynics will deny this.
should not in the least attempt to act as a super-legislature or a super-board of canvassers and sow confusion and di
among our people by pontificating there was no valid ratification of the new Constitution. The sober realization of its p
and delicate function and its consciousness of the limitations on its competence, especially situations like this, are mo
keeping with the preservation of our democratic tradition than the blatant declamations of those who wish the Court to
their brand of activism and would not mind plunging it into the whirlpool of passion and emotion in an effort to capture
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 Constit
Convention of 1971 had been ratified in accordance with the provisions of Article XV of the 1935 Constitution. In the p
cases, which were decided by this Court on January 22, 1973 , I held the view that this issue could be properly resolv
1

Court, and that it was in the public interest that this Court should declare then whether or not the proposed Constitutio
validly ratified. The majority of this Court, however, was of the view that the issue was not squarely raised in those ca
the Court, as a body, did make any categorical pronouncement on the question of whether or not the Constitution pro
the 1971 Convention was validly ratified. I was the only one who expressed the opinion that the proposed Constitutio
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 Const
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 mention
that issue is a political question that cannot be decided by this Court. This contention by the Solicitor General is unten
political question relates to "those questions which under the Constitution are to be decided by the people in their sov
capacity or in regard to which full discretionary authority has been delegated to the legislative, or to the executive, bra
government.  The courts have the power to determine whether the acts of the executive are authorized by the Constit
2

the laws whenever they are brought before the court in a judicial proceeding. The judicial department of the governm
exercises a sort of controlling, or rather restraining, power over the two other departments of the government. Each o
departments, within its proper constitutional sphere, acts independently of the other, and restraint is only placed on o
department when that sphere is actually transcended. While a court may not restrain the executive from committing a
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
declare a law enacted by the legislature to be unconstitutional.  It is a settled doctrine that every officer under a const
3

government must act according to law and subject to its restrictions, and every departure therefrom, or disregard ther
subject him to the restraining and controlling power of the people, acting through the agency of the judiciary. It must b
remembered that the people act through the courts, as well as through the executive or the legislature. One departme
representative as the other, and judiciary is the department which is charged with the special duty of determining the
which the law places upon all official actions  . In the case of Gonzales v. Commission on Elections , this Court ruled
4 5

issue as to whether or not a resolution of Congress acting as a constituent assembly violates the Constitution is not a
question and is therefore subject to judicial review. In the case of Avelino v. Cuenco , this Court held that the exceptio
6

that courts will not interfere with a political question affecting another department is when such political question invol
issue as to the construction and interpretation of the provision of the constitution. And so, it has been held that the qu
whether a constitution shall be amended or not is a political question which is not in the power of the court to decide,
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
United States — where, after all, our constitutional system has been patterned to a large extent — made me arrive at
considered view that it is in the power of this Court, as the ultimate interpreter of the Constitution, to determine the va
proposal, the submission, and the ratification of any change in the Constitution. Ratification or non-ratification of a con
amendment is a vital element in the procedure to amend the constitution, and I believe that the Court can inquire into
on, the question of whether or not an amendment to the constitution, as in the present cases, has been ratified in acc
with the requirements prescribed in the Constitution that was amended. And so, in the cases now before Us, I believe
question of whether or not the Constitution proposed by the 1971 Constitutional Convention had been validly ratified
justiciable question.

The Chief Justice, in his opinion, has discussed lengthily the subject on whether or not, the cases, before Us involve
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 va
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 d
accordance with the provisions of Section 1, Article XV of the 1935 Constitution of the Philippi
reads:

"Section 1. The Congress in joint session assembled by a vote of three fourths

Members of the Senate and of the House of Representatives voting separately
propose amendments to the Constitution or call a convention for that purpose.
amendments shall be valid as part of this Constitution when approved by a ma
votes cast at an election at which the amendments are submitted to the people
ratification."

It is in consonance with the abovequoted provision of the 1935 Constitution that on March 16,
Congress of the Philippines Resolution No. 2 calling a convention to propose amendments to
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 c

part of the Constitution when approved by a majority of the votes cast in an ele
which they are submitted to the people for their ratification pursuant to Article X
Constitution.

It follows that from the very resolution of the Congress of the Philippines which called for the 1
Constitutional Convention, there was a clear mandate that the amendments proposed by the 1
Convention, in order to be valid and considered part of the Constitution, must be approved by
the votes cast in an election at which they are submitted to the people for the ratification as pr
the Constitution.

This Court, in the case of Tolentino vs. Commission Elections, L-35140, October 16, 1971 (41
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 Con
the Philippines. This Convention has not been called by the people directly as
of a revolutionary convention which drafts the first Constitution of an entirely n
government born of either a war of liberation from a mother country or of revol
against an existing government or of a bloodless seizure of power a la coup d'
such kind of conventions, it is absolutely true that the convention is completely
restraint and omnipotent all wise, and it as to such conventions that the remark
Delegate Manuel Roxas of the Constitutional Convention of 1934 quoted by S
Pelaez refer. No amount of rationalization can belie the fact that the current co
came into being only because it was called by a resolution of a joint session of
acting as a constituent assembly by authority of Section 1, Article XV of the pr
Constitution ... ."

xxx xxx xxx

 "As to matters not related to its internal operation and the performance of its a
mission to propose amendments to the Constitution, the Convention and its of
members are all subject to all the provisions of the existing Constitution. Now
even as to its latter task of proposing amendments to the Constitution, it is sub
provisions of Section 1 of Article XV."

In Proclamation No. 1102, issued on January 17, 1973, the President of the Philippines certifie
result of the voting before the barangays (Citizens Assemblies) 14,976,561 members of the ba
voted for the adoption of the proposed Constitution, as against 743,869 who voted for its rejec
the basis of the overwhelming majority of the votes cast by the members of all the barangays
the Philippines, the President proclaimed that the Constitution proposed by the 1971 Convent
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
XV of the Constitution of 1935 were not complied with. It is not necessary that evidence be pro
before this Court to show that no elections were held in accordance with the provisions of the
Code. Proclamation No. 1102 unequivocally states that the proposed Constitution of 1972 wa
upon by the barangays. It is very clear, therefore, that the voting held in these barangays is no
election contemplated in the provisions of Section 1, Article XV, of the 1935 Constitution. The
contemplated in said constitutional provision is an election held in accordance with the provisi
election law, where only the qualified and registered voters of the country would cast their vote
official ballots prepared for the purpose are used, where the voters would prepare their ballots
inside the voting booths in the polling places established in the different election precincts thro
country, where the election is conducted by election inspectors duly appointed in accordance
election law, where the votes are canvassed and reported in a manner provided for in the elec
was this kind of election that was held on May 14, 1935, when the Constitution of 1935 was ra
April 30, 1937, when the amendment to the Constitution providing for Women's Suffrage was
June 18, 1940, when the 1940 Amendments to the Constitution were ratified; on March 11, 19
the Parity Amendment to the Constitution was ratified; and on November 14, 1967 when the a
to the Constitution to increase the number of Members of the House of Representatives and t
Members of Congress to run in the elections for Delegates to the Constitutional Convention of
rejected.

I cannot see any valid reason why the practice or procedure in the past, in implementing the c
provision requiring the holding, of an election to ratify or reject an amendment to the Constitut
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
1972 Constitution thru a voting in the barangays and make said result the basis for proclaimin
ratification of the proposed constitution. It is very clear, to me, that Proclamation No. 1102 was
complete disregard or in violation, of the provisions of Section 1 of Article X of the 1935 Const

Proclamation No. 1102 mentions, furthermore, that on the question as to whether or not the p
still like a plebiscite to be called to ratify the new Constitution, 14,298,814 members of the bar
answered that there was no need for a plebiscite but that the vote of the barangays should be
a vote in a plebiscite. It would thus appear that the barangays assumed the power to determin
plebiscite as ordained in the Constitution be held or not. Indeed, the provision of Section 1, Ar
the Constitution was completely disregarded.

The affirmative votes cast in the barangays are not the votes contemplated in Section 1 of Art
the 1935 Constitution. The votes contemplated in said constitutional provision are votes obtain
the election processes as provided by law.

"An election is the embodiment of the popular will, the expression of the sover
of the people. In common parlance, an election is the act of casting and receiv
ballots, counting them, and making the return." (Hontiveros vs. Altavas, 24 Ph

"Election" implies a choice by an electoral body at the time and substantially in

and with the safeguards provided by law with respect to some question or issu
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 p

matters submitted to them — the election of officers, national, state, county, to
the passing on various other questions submitted for their determination." (29
citing Iowa-Illinois Gas & Elec. Co. v. City of Bettendorf, 41 N.W. 2d 1, 5, 241 I

"Election" is expression of choice by voters of body politic. (Ginsburg v. Giles,

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 req
as have been set by the legislature." (People ex rel. Rago v. Lipsky, 63 N.E. 2
III. App. 63; Rothfels v. Southworth, 356 P. 2d 612, 11 Utah 2d 169 in 29 C.J.S
(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 ple
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 v
regular or special election or in any plebiscite, he must be registered in the permanent list of v
city, municipality or municipal district in which he resides: Provided, that no person shall regist
than once without first applying for cancellation of his previous registration." (Emphasis suppli
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 ass
are 15 years of age or over. Under the provision of Section I of Article V of the 1935 Constituti
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 ins
done by the raising of hands by the persons indiscriminately gathered to participate in the voti
even children below 15 years of age were included. This is a matter of common observation, o
common knowledge, which the Court may take judicial notice of. To consider the votes in the
as expressive of the popular will and use them as the basis in declaring whether a Constitutio
or rejected is to resort to a voting by demonstrations, which is would mean the rule of the crow
only one degree higher than the rule by the mob. Certainly, so important a question as to whe
Constitution, which is the supreme law of the land, should be ratified or not, must not be decid
simply gathering people and asking them to raise their hands in answer to the question of whe
vote for or against a proposed Constitution. The election as provided by law should be strictly
determining the will of the sovereign people in a democracy. In our Republic, the will of the pe
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
but the will of the people must be expressed in a manner as the law and the demands a well-o
society require. The rule of law must prevail even over the apparent will of the majority of the p
that will had not been expressed, or obtained, in accordance with the law. Under the rule of la
questions must be decided in accordance with the Constitution and the law. This is specially t
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 propose
Constitution of 1972 had been validly ratified, or not:

"When it is said that "the people" have the right to alter or amend the constituti
not be understood that term necessarily includes all the inhabitants of the state
question of the adoption or rejection of a proposed new constitution or constitu
amendment must be answered a vote, the determination of it rests with those
existing constitution, are accorded the right of suffrage. But the qualified electo
understood in this, as in many other cases, as representing those who have no
to participate in the ballot. If a constitution should be abrogated and a new one
by the whole mass of people in a state acting through representatives not chos
"people" in political sense of the term, but by the general body of the populace
movement would be extra-legal." (BIack's Constitutional Law, Second Edition,

"The theory of our political system is that the ultimate sovereignty is in the peo
whom springs all legitimate authority. The people of the Union created a nation
constitution, and conferred upon it powers of sovereignty on certain subjects, a
people of each State created a State government, to exercise the remaining p
sovereignty so far as they were disposed to allow them to be exercised at all. B
constitution which they establish, they not only tie up the hands of their official
but their own hands as well; and neither the officers of the State, nor the whole
an aggregate body, are at liberty to take action in opposition to this fundament
(Cooley's Constitutional Limitations, 8th Edition, Vol. I, p. 81 cited in Graham v
So. 2d. 761, 782).

"The theory that a favorable vote by the electorate, however unanimous, on a

amend a constitution, may cure, render innocuous, all or any antecedent failur
observe commands of that Constitution in respect of the formulation or submis
proposed amendments thereto, does not prevail in Alabama, where the doctrin
stated theory was denied, in obvious effect, by the pronouncement 60 years a
wholesome constitutional principles in Collier v. Frierson, supra, as quoted in t
opinion, ante. The people themselves are bound by the Constitution; and, bein
are powerless, whatever their numbers, to change or thwart its mandates, exc
the peaceful means of a constitutional convention, or of an amendment accord
mode therein prescribed, or through the exertion of the original right of revoluti
Constitution may be set aside by revolution, but it can only be amended in the
provides," said Hobson, C.J., in McCreary v. Speer, 156 Ky. 783, 791, 162 S.W
(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 a
by the Constitution, is not sufficient to make a change in that instrument. Whet
proposed amendment has been legally adopted is a judicial question, for the c
 uphold and enforce the Constitution as written until it is amended in the way w
provides for." Wood v. Tooker, 15 Mont. 8, 37 Pac 840, 25 L.R.A. 560; McCon
State, 106 Minn. 409, 119 N.W. 408; Oakland Paving Company v. Hilton, 69 C
Pac. 3; Utter v. Mosely, 16 Idaho 274, 100 Pac. 1958, 133 Am. St. Rep. 94, 18
723. (McCreary v. Speer, 162 S.W. 99, 104).

"Provisions of a constitution regulating its own amendment, ... are not merely d
are mandatory; and a strict observance of every substantial mandatory; and a
observance of every substantial requirement is essential to the validity of the p
amendment. These provisions are as binding on the people as on the legislatu
former are powerless by vote of acceptance to give legal sanction to an amend
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 r
the Court's action in declaring the proposed constitutional amendment void. Th
statement is grossly and manifestly inaccurate. If confusion and chaos should
not be due to the action of the Court but will be the result of the failure of the d
resolution to observe, follow and obey the plain essential provisions of the Con
Furthermore, to say that, the Court disregards its sworn duty to enforce the Co
chaos and confusion will result, is an inherently weak argument in favor of the
constitutionality of the proposed amendment. It is obvious that, if the Court we
countenance the violations of the sacramental provisions Constitution, those w
thereafter desire to violate it disregard its clear mandatory provisions would re
scheme of involving and confusing the affairs of the State then simply tell the C
was powerless to exercise one of its primary functions by rendering the proper
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
because the requirements of the law were not complied with. In the case of Monsale v. Nico, 8
Monsale and Nico were both candidates for the office of Municipal Mayor of Miagao, Iloilo, in t
of November 11, 1947. Monsale had duly filed his certificate of candidacy before the expiratio
period for the filing of the same. However, on October 10, 1947, after the period for the filing o
certificate of candidacy, Monsale withdrew his certificate of candidacy. But on November 7, 19
attempted to revive his certificate of candidacy by withdrawing the withdrawal of certificate of c
The Commission on Elections, November 8, 1947, ruled that Monsale could no longer be a ca
Monsale nevertheless proceeded with his candidacy. The boards of inspectors in Miagao, how
not count the votes cast for Monsale upon the ground that the votes cast for him were stray vo
because he was considered as having no certificate of candidacy. On the other hand, the boa
inspectors credited Nico with 2,291 votes, and Nico was proclaimed elected. Monsale filed a p
against the election of Nico in the Court of First Instance of Iloilo. In the count of the ballots du
proceedings in the trial court, it appeared that Monsale had obtained 2,877 votes while Nico o
2,276 votes, or a margin of 601 votes in favor of Monsale. The Court of First Instance of Iloilo
election protest in favor of Monsale. Upon appeal by Nico, this Court reversed the decision of
court. This Court declared that because Monsale withdrew his certificate of candidacy, his atte
revive it by withdrawing his withdrawal of his certificate of candidacy did not restore the effecti
his certificate of candidacy, and this Court declared Nico the winner in spite of the fact that Mo
obtained more votes than he.

We have cited this Monsale case to show that the will of the majority of the voters would not b
effect, as declared by this Court, if certain legal requirements have not been complied with in
 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 (
is not the election that is provided for in the 1935 Constitution for the ratification of the amendm
Constitution, the affirmative votes cast in those assemblies can not be made the basis for dec
ratification of the proposed 1972 Constitution, in spite of the fact that it was reported that 14,9
members of the citizens assemblies voted for the adoption as against 743,869 for the rejection
the votes thus obtained were not in accordance with the provisions of Section 1 of Article XV o
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
as provided in Presidential Decree No. 73, is that there is no freedom on the part of the people
their right of choice because of the existence of martial law in our country. The same ground h
regards to the voting of the barangays on January 10 to 15, 1973. More so, because by Gene
No. 20, issued on January 7, 1973, the President of the Philippines ordered "that the provision
3 of Presidential Decree No. 73 in so far as they allow free public discussion of the proposed c
as well as my order of December 17, 1972 temporarily suspending the effects of Proclamation
for the purpose of free and open debate on the proposed constitution, be suspended in the me
is, therefore, my view that voting in the barangays on January 10, 1973 was not free, and so t
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 s
invalid, and should not be given effect. The Constitution of 1972 proposed by the 1971 Consti
Convention should be considered as not yet ratified by the people of this Republic, and so it s
given force and effect.

It is urged by the Solicitor General, however, that the voting in the citizens assemblies was a substantial compliance w
provisions of Article XV of the 1935 Constitution. The Solicitor General maintains that the primary thrust of the provisi
XV of the 1935 Constitution is that "to be valid, amendments must gain the approval of the majority recognition of the
postulate that sovereign resides in the people." It is not disputed that in a democratic sovereignty resides in the peopl
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, in Section 2 of Article VII of the 1935 Constitution, it is provided
8

President shall hold his office during a term of four years and, together with the Vice-President chosen for the same t
be elected by direct vote of the people..." Certainly under that constitutional provision, the "people" who elect directly
President and the Vice-President are no other than the persons who, under the provisions of the same Constitution, a
the right to vote. In like manner the provision in Section 1 of Article II of the 1935 Constitution which says "Sovereignt
the people and all government authority emanates from them", the "people" who exercise the sovereign power are no
the persons who have the right to vote under the Constitution. In the case of Garchitorena vs. Crescini , this Court, sp
9

through Mr. Justice Johnson, said, "In democracies, the people, combined, represent the sovereign power of the Stat
sovereign authority is expressed through the ballot, of the qualified voters, in duly appointed elections held from time
means of which they choose their officials for definite fixed periods, and to whom they entrust, for the time being, as t
representatives, the exercise of the powers of government." In the case of Moya v. Del Fierro,   this Court, speaking
10

Justice Laurel, said, "As long as popular government is an end to be achieved and safeguarded, suffrage, whatever m
modality and form devised, must continue to be the means by which the great reservoir of power must be emptied int
receptacular agencies wrought by the people through their Constitution in the interest of good government and the co
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."
case of Abanil v. Justice of the Peace of Bacolod,   this Court said: "In the scheme of our present republican governm
11

the people are allowed to have a voice therein through the instrumentality of suffrage to be availed of by those posse
certain prescribed qualifications. The people, in clothing a citizen with the elective franchise for the purpose of securin
consistent and perpetual administration of the government they ordain, charge him with the performance of a duty in
of a public trust, and in that respect constitute him a representative of the whole people. This duty requires that the pr
bestowed exclusively for the benefit of the citizen or class of citizens professing it, but in good faith and with an intellig
the general benefit and welfare of the state. (U.S. v. Cruikshauk, 92 U.S. 588)..." There is no question, therefore, that
talk of sovereign people, what is meant are the people who act through the duly qualified and registered voters who v
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 ter
as used in the Provisions of Section 4 of the Philippine Independence Act of the Congress of the United States, popu
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
provisions of this act, it shall be submitted to the people of the Philippine Islands for their ratifi
rejection at an election to he held within months after the date of such certification, on a date t
by the Philippine Legislature at which election, the qualified voters of the Philippine Islands sh
opportunity to vote directly or against the proposed constitution and ordinances append there
election shall be held in such manner as may prescribed by the Philippine Legislature to which
of the election shall be made. The Philippine Legislature shall certify the result to the Governo
the Philippine Islands, together with a statement of the votes cast, and a copy of said constitu
ordinances. If a majority of the votes cast shall be for the constitution, such vote shall be deem
expression of the will of the people of the Philippine Independence, and the Governor-Genera
within thirty days after receipt of the certification from the Philippine Legislature, issue a procla
the election of officers of the government of the Commonwealth of the Philippine Islands provi
the Constitution...

It can safely be said, therefore, that when the framers of the 1935 Constitution used, the word "election" in Section I A
the 1935 Constitution they had no other idea in mind except the elections that were periodically held in the Philippine
choice of public officials prior to the drafting of the 1935 Constitution, and also the "election" mentioned in the Indepen
at which "the qualified voters of the Philippine Islands shall have an opportunity to vote directly for or against the prop
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
the term "election" was understood, and practiced, when the 1935 Constitution as drafted. The alleged referendum in
assemblies — participated in by persons aged 15 years or more, regardless of whether they were qualified voters or
by raising their hands, and the results of the voting reported by the barrio or ward captain, to the municipal mayor, wh
submitted the report to the provincial Governor, and the latter forwarding the reports to the Department of Local Gove
without the intervention of the Commission on Elections which is the constitutional body which has exclusive charge o
enforcement and administration of all laws, relative to the conduct of elections — was not only a non-substantial com
the provisions of Section 1 of Article XV of the 1935 Constitution but a downright violation of said constitutional provis
be indulging in sophistry to maintain that the voting in the citizens assemblies amounted to a substantial compliance w
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 Conv
not ratified in accordance with the provisions of Section 1 of Article XV of the 1935 Constitution, the fact is that after t
of the Philippines had issued Proclamation No. 1102 declaring that the said proposed Constitution "has been ratified
overwhelming majority of all the votes cast by the members of all the barangays (citizens assemblies) throughout the
and had thereby come into effect" the people have accepted the new Constitution. What appears to me, however, is t
practically it is only the officials and employees under the executive department of the Government who have been p
their duties apparently in observance of the provisions of the new Constitution. It could not be otherwise, because the
of the Philippines, who is the head of the executive department, had proclaimed that the new Constitution had come i
and his office had taken the steps to implement the provisions of the new Constitution. True it is, that some 92 memb
House of Representatives and 15 members of the Senate, of the Congress of the Philippines had expressed their op
in the interim National Assembly that is provided for in Section 2 of Article XVII of the proposed Constitution. It must b
however, that of the 15 senators who expressed their option to serve in the interim National Assembly only one them
oath of office; and of the 92 members of the House of Representatives who opted to serve in the interim National Ass
22 took their oath of office. The fact that only one Senator out of 24, and only 22 Representative out of 110, took their
office, is an indication that only a small portion of the members of Congress had manifested the acceptance of the ne
Constitution. It is in the taking of the oath of office where the affiant says that he swears to "support and defend the C
that the acceptance of the Constitution is made manifest. I agree with counsel petitioners in L-36165 (Gerardo Roxas
Alejandro Melchor, et al.) when he said that the members of Congress who opted to serve in the interim National Ass
only ex abundante cautela, or by way of a precaution, making sure, that in the event the new Constitution becomes d
effective and the interim National Assembly convened, they can participate in legislative work in the capacity as duly
representatives of the people, which otherwise they could not do if they did not manifest their option to serve, and tha
to be made within 30 day from January 17, 1973, the date when Proclamation No. 110 was issued. Of course, if the p
Constitution does not become effective, they continue to be members of Congress under the 1935 Constitution. Let it
considered that the members of the House of Representatives were elected in 1969 to serve a term which will yet exp
December 31, 1973. Whereas, of the Senators who opted to serve in the interim National Assembly, the term of som
will yet expire on December 31, 1973, some on December 31, 1975, and the rest on December 31, 1977. Let if be no
Senators did not opt to serve in the interim National Assembly, and 18 members of the House of Representatives als
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 reporte
affirmative votes in the citizens assemblies as a true and correct expression by the people of their approval, or accep
proposed Constitution. I have my serious doubts regarding the freedom of the people to express their views regarding
proposed Constitution during the voting in the citizens assemblies, and I have also my serious doubts regarding the t
and accuracy of the reports of the voting in the citizens assemblies. This doubt has been engendered in my mind afte
examination and study of the records of these cases, particularly with respect to the reports of the voting in the citizen
assemblies. Perhaps, it may be said that the people, or the inhabitants of this country, have acquiesced to the new C
in the sense that they have continued to live peacefully and orderly under the government that has been existing sinc
17, 1973 when it was proclaimed that the new Constitution came into effect. But what could the people do? In the sam
the people have lived under martial law since September 23, 1972, they also have to live under the government as it
and as it has existed since the declaration of martial law on September 21, 1972, regardless of what Constitution is o
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 ne
state in this opinion. I cannot agree, therefore, with my worthy colleagues in the Court who hold the view that the peo
accepted the new Constitution, and that because the people have accepted it, the new Constitution should be consid
force, regardless of the fact that it was not ratified in accordance with the provisions of Section 1 of Article XV of the 1
Constitution.

It is my honest view that the Constitution proposed by the 1971 Constitutional Convention has not come into effect. I
however, that the proposed Constitution is invalid. To me, the validity of the proposed Constitution is not in issue in th
before Us. What the petitioners assail is not the validity of the proposed Constitution but the validity of Presidential Pr
No. 1102 which declares the proposed Constitution as having been ratified and has come into effect. It being my con
that the ratification of the proposed Constitution, as proclaimed in Proclamation No. 1102, is not in accordance with th
provisions of Section 1 of Article XV, of the 1935 Constitution, I hold that Proclamation No. 1102 is invalid and should
given force and effect. Their proposed Constitution, therefore, should be considered as not yet validly ratified, and so
force. The proposed Constitution may still be submitted to a plebiscite in conformity with Section 1 of Article XV of the
Constitution. Incidentally, I must state that the Constitution is still in force, and this Court is still functioning under the 1
Constitution.

I sincerely believe that the proposed Constitution may still be submitted to the people in an election or plebiscite held
accordance with the provisions of Section 1 of Article XV of the 1935 Constitution. In fact, as we have adverted to in t
this was the mandate of Congress when, on March 16, 1967, it passed Resolution No. 2 calling a convention to propo
amendments to the 1935 Constitution. The Court may take judicial notice of the fact that the President of the Philippin
reassured the nation that the government of our Republic since the declaration of martial law is not a revolutionary go
and that he has been acting all the way in consonance with his powers under the Constitution. The people of this Rep
reason to be happy because, according to the President, we still have a constitutional government. It being my view t
1935 Constitution is still in force, I believe Congress may still convene and pass a law calling for an election at which
Constitution proposed by the 1971 Constitutional Convention will be submitted to the people their ratification or reject
plebiscite called pursuant to Section 1 of Article XV of the 1935 Constitution is an assurance to our people that we sti
our country the Rule of Law and that the democratic system of government that has been implanted in our country by
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 democra
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
Constitution had not been complied with, We will be opening the gates for a similar disregard of the Constitution in th
What I mean is that if this Court now declares that a new Constitution is now in force because the members of the cit
assemblies had approved the said new Constitution, although that approval was not in accordance with the procedur
requirements prescribed in the 1935 Constitution, it can happen again in some future time that some amendments to
Constitution may be adopted, even in a manner contrary to the existing Constitution and the law, and then said propo
amendment is submitted to the people in any manner and what will matter is that a basis is claimed that there was ap
the people. There will not be stability in our constitutional system, and necessarily no stability in our government. As a
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 asse
clear violation of the 1935 Constitution, what I say in this opinion is simply an endeavor on my part to be true to my oa
to defend and support the 1935 Constitution. I am inspired by what the great jurist and statesman, Jose P. Laurel, sa

Let our judges be as it were the vestal keepers of the purity and sanctity of our Constitution, a
protection and vindication of popular rights will be safe and secure in their reverential guardian

I only wish to help prevent, if I can, democracy and the liberties of our people from vanishing in our land, because, as
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 b
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
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
distant future as that posed by these petitions. For while the specific substantive issue is the validity of Presidential P
No. 1102, an adverse judgment may be fraught with consequences that, to say the least, are far-reaching in its implic
stressed by respondents, "what petitioners really seek to invalidate is the new Constitution."  Strict accuracy would of
1

qualify such statement that what is in dispute, as noted in the opinion of the Chief Justice, goes only as far as the vali
ratification. It could very well be though that the ultimate outcome is not confined within such limit, and this is not to de
under its aegis, there have been marked gains in the social and economic sphere, but given the premise of continuity
under a fundamental law, which itself explicitly recognizes the need for change and the process for bringing it about, 2

me that the more appropriate course is this Court to give heed to the plea of petitioners that the most serious attentio
their submission that the challenged executive act fails to meet the test of constitutionality. Under the circumstances,
and with due respect for the opinion of my brethren, I must perforce dissent. It would follow therefore that the legal po
by the Chief Justice as set forth with his usual lucidity and thoroughness has, on the whole, my concurrence, subject,
to reservations insofar as it contains views and nuances to which I have in the past expressed doubts. Nonetheless, I
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 g
utterances of eternal verities, but certainly it is more than just a keen but passive observer of the contemporary scene
virtue of its role under the separation of powers concept, involved not necessarily as a participant in the formation of g
policy, but as an arbiter of its legality. Even then, there is realism in what Lerner did say about the American Supreme
"the focal point of a set of dynamic forces which [could play] havoc with the landmarks of the American state and dete
power configuration of the day."  That is why there is this caveat. In the United States as here, the exercise of the pow
3

judicial review is conditioned on the necessity that the decision of a case or controversy before it so requires. To repe
Justices of the highest tribunal are not, as Justice Frankfurter made clear, "architects of policy. They can nullify the po
others, they are incapable of fashioning their own solutions for social problems."  Nonetheless, as was stressed by Pr
4

Black  and Murphy,  a Supreme Court by the conclusion it reaches and the decision it renders does not merely check
5 6

coordinate branches, but also by its approval stamps with legitimacy the action taken. Thus in affirming constitutional
the political departments could seek the aid of the judiciary. For the assent it gives to what has been done conduces
support in a regime where the rule of law holds sway. In discharging such a role, this Court must necessarily take in a
only what the exigent needs of the present demand but what may lie ahead in the unexplored and unknown vistas of
must guard against the pitfall of lack of understanding of the dominant forces at work to seek a better life for all, espe
suffering from the pangs of poverty and disease, by a blind determination to adhere to the status quo. It would be trag
clear case of its being recreant to its trust, if the suspicion can with reason be entertained that its approach amounts m
militant vigilantism that is violently opposed to any form of social change. It follows then that it does not suffice that re
had only to what passes for scholarship in the law that could be marred by inapplicable erudition and narrow legalism
due recognition, such factors, however, I cannot, for reasons to be set more lengthily and in the light of the opinion of
Justice, reach the same result as the majority of my brethren. For, in the last analysis, it is my firm conviction that the
of judicial review speaks too clearly for the point to be missed that official action, even with due allowance made for th
faith that invariably inspires the step taken, has to face the gauntlet of a court suit whenever there is a proper case wi
appropriate parties.

1. Respondents are acting in the soundest constitutional tradition when, at the outset, they would seek a dismissal of
petitions. For them, the question raised is political and thus beyond the jurisdiction of this Court. Such an approach ca
indicted for unorthodoxy. It is implicit in the concept of the rule of law that rights belong to the people and the governm
possesses powers only. Essentially then, unless such an authority may either be predicated on express or implied gr
Constitution or the statutes, an exercise thereof cannot survive an inquiry as to its validity. Respondents through Solic
General Mendoza would deny our competence to proceed further. It is their view, vigorously pressed and plausibly as
since what is involved is not merely the effectivity of an amendment but the actual coming into effect of a new constitu
matter is not justiciable. The immediate reaction is that such a contention is to be tested in the light of the fundamenta
separation of powers that it is not only the function but the solemn duty of the judiciary to determine what the law is a
it in cases and controversies that call for decision.  Since the Constitution pre-eminently occupies the highest rung in
7

hierarchy of legal norms, it is in the judiciary, ultimately this Tribunal, that such a responsibility is vested. With the 193
Constitution containing, as above noted, an explicit article on the subject of amendments, it would follow that the pres
be indulged in is that the question of whether there has been deference to its terms is for this Court to pass upon. Wh
the Gonzales,  Tolentino  and Planas   cases speak unequivocally to that effect. Nor is it a valid objection to this conc
8 9 10

what was involved in those cases was the legality of the submission and not ratification, for from the very language o
controlling article, the two vital steps are proposal and ratification, which as pointed out in Dillon v. Gloss,   "cannot b
11

unrelated acts, but as succeeding steps in a single endeavor."   Once an aspect thereof is viewed as judicial, there w
12

justification for considering the rest as devoid of that character. It would be for me then an indefensible retreat, derivin
justification from circumstances of weight and gravity, if this Court were to accede to what is sought by respondents a
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 ter
13

made applicable to controversies clearly non-judicial and therefore beyond its jurisdiction or to an issue involved in a
appropriately subject to its cognizance, as to which there has been a prior legislative or executive determination to wh
deference must be paid. It has likewise been employed loosely to characterize a suit where the party proceeded agai
President or Congress, or any branch thereof. If to be delimited with accuracy, "political questions" should refer to suc
under the Constitution be decided by the people in their sovereign capacity or in regard to full discretionary authority
either in the President or Congress. It is thus beyond the competence of the judiciary to pass upon. Unless clearly fal
the formulation, the decision reached by the political branches whether in the form of a congressional act or an execu
could be tested in court. Where private rights are affected, the judiciary has no choice but to look into its validity. It is
lost sight of that such a power comes into play if there be an appropriate proceeding that may be filed only after each
branch has acted. Even when the Presidency or Congress possesses plenary powers, its improvident exercise or the
thereof, if shown, may give rise to a justiciable controversy. For the constitutional grant of authority is usually unrestric
are limits to what may be done and how it is to be accomplished. Necessarily then, the courts in the proper exercise o
review could inquire into the question of whether or not either of the two coordinate branches has adhered to what is
by the Constitution. The question thus posed is judicial rather than political."   The view entertained by Professor Dod
14

dissimilar. For him such a term "is employed to designate certain types of functions committed to the political organs
government (the legislative and executive departments, or either of them) and not subject to judicial investigation."   A15

thorough study of American judicial decisions, both federal and state, he could conclude: "The field of judicial nonenfo
important, but is not large when contrasted with the whole body of written constitutional texts. The exceptions from ju
enforceability fall primarily within the field of public or governmental interests."   Nor was Professor Weston's formula
16

different. As was expressed by him: "Judicial questions, in what may be thought the more useful sense, are those wh
sovereign has set to be decided in the courts. Political questions, similarly, are those which the sovereign has entrust
so-called political departments of government or has reserved to be settled by its own extra-governmental action."   W 17

appears undeniable then both from the standpoint of Philippine as well as American decisions is the care and circum
required before the conclusion is warranted that the matter at issue is beyond judicial cognizance, a political question
raised.

2. The submission of respondents on this subject of political question, admittedly one of complexity and importance, d
be pursued further. They would derive much aid and comfort from the writings of both Professor Bickel   of Yale and 18

Freund   of Harvard, both of whom in turn are unabashed admirers of Justice Brandeis. Whatever be the merit inhere
19

lack of enthusiasm for a more active and positive role that must be played by the United States Supreme Court in con
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 Am
sovereignty, there has sprung a tradition of what has been aptly termed as judicial activism. Such an approach could
the valedictory address before the 1935 Constitutional Convention of Claro M. Recto. He spoke of the trust reposed i
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 wou
appear that even then this Court was expected not to assume an attitude of timidity and hesitancy when a constitution
is posed. There was the assumption of course that it would face up to such a task, without regard to political consider
with no thought except that of discharging its trust. Witness these words Justice Laurel in an early landmark case, Pe
Vera,   decided in 1937: "If it is ever necessary for us to make vehement affirmance during this formative period of po
21

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 pop
unafraid of criticism in the accomplishment of our sworn duty as we see it and as we understand it."   The hope of co
22

that such assertion of independence impartiality was not mere rhetoric. That is a matter more appropriately left to oth
determine. It suffices to stake that what elicits approval on the part of our people of a judiciary ever alert to inquire int
breaches of the fundamental law is the realization that to do so is merely to do what is expected of it and that thereby
invasion of spheres appropriately belonging to the political branches. For it needs to be kept in kind always that it can
when there is a suit with proper parties before it, wherein rights appropriate for judicial enforcement are sought to be
Then, too, it does not approach constitutional questions with dogmatism or apodictic certainty nor view them from the
cliffs of perfection. This is not to say though that it is satisfied with an empiricism untroubled by the search for jural co
and rational coherence. A balance has to be struck. So juridical realism requires. Once allowance made that for all its
circumspection this Court manned by human beings fettered by fallibility, nonetheless earnestly and sincerely striving
the public acceptance of its vigorous pursuit of the task of assuring that the Constitution be obeyed is easy to underst
not in the past shirked its responsibility to ascertain whether there has been compliance with and fidelity to constitutio
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 jurisdiction, even in the face
23 24

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
able associates presents the whole picture. On the question of judicial review, it is not a case of black and white; ther
shaded areas. It goes too far, in my view, if the perspective is one of dissatisfaction, with its overtones of distrust. Thi
expression of disapproval has not escaped Dean Rostow of Yale, who began one of his most celebrated legal essays
Democratic Character of Judicial Review, thus: "A theme of uneasiness, and even of guilt, colors the literature about
review. Many of those who have talked, lectured, and written about the Constitution have been troubled by a sense th
review is undemocratic."   He went on to state: "Judicial review, they have urged, is an undemocratic shoot on an oth
25

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 review, to be exercised by s
26

the government, is implicit in the conception of a written constitution delegating limited powers. A written constitution
promote discord rather than order in society if there were no accepted authority to construe it, at the least in case of c
action by different branches of government or of constitutionally unauthorized governmental action against individuals
limitation and separation of powers, if they are to survive, require a procedure for independent mediation and constru
reconcile the inevitable disputes over the boundaries of constitutional power which arise in the process of governmen
than that, he took pains to emphasize: "Whether another method of enforcing the Constitution could have been devis
answer is that no such method developed. The argument over the constitutionality of judicial review has long since be
by history. The power and duty of the Supreme Court to declare statutes or executive action unconstitutional in appro
is part of the living Constitution. 'The course of constitutional history,' Mr. Justice Frankfurter recently remarked, 'has
responsibilities upon the Supreme Court which it would be "stultification" for it to evade.' "   Nor is it only Dean Rostow
28

point Frankfurter, reputed to belong to the same school of thought opposed to judicial activism, if not its leading advo
his long stay in the United States Supreme Court, as one fully cognizant of the stigma that attaches to a tribunal whic
to meet the demands of judicial review. There is a statement of similar importance from Professor Mason: "In Stein v.
York Frankfurter remarked, somewhat self-consciously perhaps, that the 'duty of deference cannot be allowed imperc
slide into abdication.' "   Professor Konefsky, like Dean Rostow, could not accept characterization of judicial review a
29

undemocratic. Thus his study of Holmes and Brandeis, the following appears: "When it is said that judicial review is a
undemocratic feature of our political system, it ought also to be remembered that architects of that system did not equ
constitutional government with unbridled majority rule. Out of their concern for political stability and security for private
they designed a structure whose keystone was to consist of barriers to the untrammeled exercise of power by any gro
perceived no contradiction between effective government and constitutional checks. To James Madison, who may leg
regarded as the philosopher of the Constitution, the scheme of mutual restraints was the best answer to what he view
chief problem in erecting a system of free representative government: 'In framing a government which is to be admini
men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the
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 w
eminent authorities on the subject evince at the most fears that the American Supreme Court might overstep the bou
to the judiciary? It cannot be a denial of the fitness of such competence being vested in judges and of their being call
fulfill such a trust whenever appropriate to the decision of a case before them. That is why it has been correctly maint
notwithstanding the absence of any explicit provision in the fundamental law of the United States Constitution, that di
American constitutional historian, Professor Corwin, could rightfully state that judicial review "is simply incidental to th
courts to interpret the law, of which the Constitution is part, in connection with the decision of cases."   This is not to d
31

there are those who would place the blame or the credit, depending upon one's predilection, on Marshall's epochal op
in Marbury v. Madison.   Curtis belonged to that persuasion. As he put it: "The problem was given no answer by the C
32
A hole was left where the Court might drive in the peg of judicial supremacy, if it could. And that is what John Marsha
any rate there was something in the soil of American juristic thought resulting in this tree of judicial power so precario
by Marshall striking deep roots and showing wonderful vitality and hardiness. It now dominates the American legal sc
Through it, Chief Justice Hughes, before occupying that exalted position, could state in a lecture: "We are under a Co
but the Constitution is what the judges say it is ... ."   The above statement is more than just an aphorism that lends it
34

inclusion in judicial anthologies or bar association speeches. It could and did provoke from Justice Jackson, an expon
judicial restraint school of thought, this meaningful query: "The Constitution nowhere provides that it shall be what the
it is. How, did it come about that the statement not only could be but could become current as the most understandab
comprehensive summary of American Constitutional law?"   It is no wonder that Professor Haines could pithily and su
35

sum up the place of the highest American tribunal in the scheme of things in this wise: "The Supreme Court of the Un
has come to be regarded as the unique feature of the American governmental system."   Let me not be misunderstoo
36

here no attempt to close one's eyes to a discernible tendency on the part of some distinguished faculty minds to look
what for them may be inadvisable extension of judicial authority. For such indeed is the case as reflected in two leadi
recent vintage, Baker v. Carr,   decided in 1962 and Powell v. MacCormack,   in 1969, both noted in the opinion of th
37 38

Justice. The former disregarded the warning of Justice Frankfurter in Colegrove v. Green 39 about the American Sup
declining jurisdiction on the question of apportionment as to do so would cut very deep into the very being of Congres
him, the judiciary "ought not to enter this political thicket." Baker has since then been followed; it has spawned a host
cases.   Powell, on the question of the power of a legislative body to exclude from its ranks a person whose qualificat
41

uncontested, for many the very staple of what is essentially political, certainly goes even further than the authoritative
decision of Vera v. Avelino,   It does look then that even in the United States, the plea for judicial self-restraint, even
42

voice by those competent in the field of constitutional law, has fallen on deaf ears. There is in the comments of respo
excerpt from Professor Freund quoting from one of his essays appearing in a volume published in 1968. It is not with
to note that in another paper, also included therein, he was less than assertive about the necessity for self-restraint a
apparently mindful of the claims of judicial activism. Thus: "First of all, the Court has a responsibility to maintain the c
order, the distribution of public power, and the limitations on that power."   As for Professor Bickel, it has been said th
43

counsel for the New York Times in the famous Vietnam papers case,   he was less than insistent on the American Su
44

Court exercising judicial self-restraint. There are signs that the contending forces on such question, for some an uneq
are now quiescent. The fervor that characterized the expression of their respective points of view appears to have be
minimized. Not that it is to be expected that it will entirely disappear, considering how dearly cherished are, for each g
convictions, prejudices one might even say, entertained. At least what once was fitly characterized as the booming gu
rhetoric, coming from both directions, have been muted. Of late, scholarly disputations have been centered on the sta
should govern the exercise of the power of judicial review. In his celebrated Holmes lecture in 1959 at the Harvard La
Professor Wechsler advocated as basis for decision what he termed neutral principles of constitutional law.   It has b
45

a plethora of law review articles, the reaction ranging from guarded conformity to caustic criticism.   There was, to be
46

clear call to a court in effect abandoning the responsibility incumbent on it to keep governmental agencies within cons
channels. The matter has been put in temperate terms by Professor Frank thus: "When allowance has been made fo
it nevertheless seems to me that the doctrine of political questions ought to be very sharply confined to where the fun
reasons justify it and that in a give involving its expansion there should be careful consideration also of the social con
which may militate against it. The doctrine has a certain specious charm because of its nice intellectualism and becau
fine deference it permits to expertise, to secret knowledge, and to the prerogatives of others. It should not be allowed
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 sig
judicial review in the United States. I cannot resist the conclusion then that the views advanced on this subject by dis
counsel for petitioners, with Senators Lorenzo M. Tañada and Jovito Salonga at the van, rather than the advocacy of
Solicitor-General, possess the greater weight and carry persuasion. So much then for the invocation of the political qu
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 Proclam
1102 manifests fidelity to the explicit terms of Article XV. There is, of course, the view not offensive to reason that a s
realities should temper the rigidity of devotion to the strict letter of the text to allow deference to its spirit to control. W
recognition of its force in constitutional litigation,   if my reading of the events and the process that led to such proclam
48
clearly set forth in the opinion of the Chief Justice, is not inaccurate, then it cannot be confidently asserted that there
compliance. It would be to rely on conjectural assumptions that did founder on the rock of the undisputed facts. Any o
conclusion would, for me, require an interpretation that borders on the strained. So it has to be if one does not lose si
the article on amendments is phrased. A word, to paraphrase Justice Holmes may not be a crystal, transparent and u
but it is not, to borrow from Learned Hand, that eminent jurist, a rubber band either. It would be unwarranted in my vie
assert that the requirements of the 1935 Constitution have been met. There are American decisions,   and they are n
49

number, which require that there be obedience to the literal terms of the applicable provision. It is understandable wh
be thus. If the Constitution is the supreme law, then its mandate must be fulfilled. No evasion is tolerated. Submission
commands can be shown only if each and every word is given meaning rather than ignored or disregarded. This is no
that a recognition conclusive effect attached to the electorate manifesting its will to vote affirmatively on the amendme
proposed poses an obstacle to the judiciary being insistent on the utmost regularity. Briefly stated, substantial compli
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 Cou
upon to give meaning and perspective to what could be considered words of vague generality, pregnant with uncerta
whatever obscurity it possesses is illumined when the light of the previous legislation is thrown on it. In the first Comm
Act,   submitting to the Filipino people for approval or disapproval certain amendments to the original ordinance appe
51

1935 Constitution, it was made that the election for such purpose was to "be conducted in conformity with the provisio
Election Code insofar as the same may be applicable."   Then came the statute,   calling for the plebiscite on the thre
52 53

amendments providing for the plebiscite on the three 1930 amendments providing for a bicameral Congress or a Sen
House of Representatives to take the place of a unicameral National Assembly,   reducing the term of the President t
54

but allowing his re-election with the limitation that he cannot serve more than eight consecutive years,   and creating
55

independent Commission on Elections.   Again, it was expressly provided that the election "shall be conducted in con
56

the provisions of the Election Code in so far as the same may be applicable."   The approval of the present parity am
57

was by virtue of a Republic Act   which specifically made applicable the then Election Code.   There is a similar provi
58 59

legislation,   which in cotemplation of the 1971 Constitutional Convention, saw to it that there be an increase in the m
60

of the House of Representatives a maximum of one hundred eighty and assured the eligibility of senators and repres
become members of such constituent body without forfeiting their seats, as proposed amendments to be voted on in
elections.   That is the consistent course of interpretation followed by the legislative branch. It is most persuasive, if n
61

controlling. The restraints thus imposed would set limits to the Presidential action taken, even on the assumption that
agent of the Constitutional Convention or under his martial law prerogatives, he was not devoid of power to specify th
ratification. On two vital points, who can vote and how they register their will, Article XV had been given a definitive co
That is why I fail to see sufficient justification for this Court affixing the imprimatur of its approval on the mode employ
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. Ind
of the lack of validity of the ratification of the new Constitution, if it be accepted by the people, in whom sovereignty re
according to the Constitution,   then this Court cannot refuse to yield assent to such a political decision of the utmost
62

conclusive in its effect. Such a fundamental principle is meaningless if it does not imply, to follow Laski, that the natio
whole constitutes the "single center of ultimate reference," necessarily the possessor of that "power that is able to res
disputes by saying the last word."   If the origins of the democratic polity enshrined in the 1935 Constitution with the d
63

that the Philippines is a republican state could be traced back to Athens and to Rome, it is no doubt true, as McIver p
that only with the recognition of the nation as the separate political unit in public law is there the juridical recognition o
composing it "as the source of political authority."   From them, as Corwin did stress, emanate "the highest possible e
64

of human will,"   which is supreme and must be obeyed. To avoid any confusion and in the interest of clarity, it should
65

expressed in the manner ordained by law. Even if such is not the case, however, once it is manifested, it is to be acce
final and authoritative. The government which is merely an agency to register its commands has no choice but to sub
officials must act accordingly. No agency is exempt such a duty, not even this Court. In that sense, the lack of regular
method employed to register its wishes is fatal in its consequences. Once the fact of acceptance by people of a new
law is made evident, the judiciary is left with no choice but to accord it recognition. The obligation to render it obeisan
the courts as well.

There are American State decisions that enunciate such a doctrine. While certainly not controlling, they are not entire
persuasive significance. In Miller v. Johnson,   decided in 1892, it was set forth in the opinion of Chief Justice Holt tha
66

1890, an act was passed in Kentucky, providing for the calling of a convention for the purpose of framing a new cons
the election of delegates. It provided that before any form of constitution made by them should become operative, it s
submitted to the vote of the state and ratified by a majority of those voting. The constitution then in force authorized th
legislature, the preliminary steps having been taken, to call a convention "for the purpose of readopting, amending, or
it contained no provision giving the legislature the power to require a submission of its work to a vote of the people. T
convention met in September, 1890. By April, 1891, it completed a draft of a constitution, submitted it to a popular vo
adjourned until September following. When the convention reassembled, the delegates made numerous changes in i
As thus amended, it was promulgated by the convention of September 28, 1891, as the new constitution. An action w
to challenge its validity. It failed in the lower court. In affirming such judgment dismissing the action, Chief Justice Hol
a set of men, not selected by the people according to the forms of law, were to formulate an instrument and declare it
constitution, it would undoubtedly be the duty of the courts to declare its work a nullity. This would be revolution, and
courts of the existing government must resist until they are overturned by power, and a new government established.
convention, however, was the offspring of law. The instrument which we are asked to declare invalid as a constitution
made and promulgated according to the forms of law. It is a matter of current history that both the executive and legis
branches of the government have recognized its validity as a constitution, and are now daily doing so. ... While the ju
should protect the rights of the people with great care and jealousy, because this is its duty, and also because; in time
popular excitement, it is usually their last resort, yet it should at the same time be careful not to overstep the proper b
power, as being perhaps equally dangerous; and especially where such momentous results might follow as would be
instance, if the power of the judiciary permitted, and its duty requires, the overthrow of the work of the convention."    67

Commonwealth,   a 1903 decision, it was contended that the Virginia Constitution reclaimed in 1902 is invalid as it w
68

and promulgated by the convention without being submitted for ratification or rejection by the people. The Court rejec
view. As stated in the opinion of Justice Harrison: "The Constitution of 1902 was ordained and proclaimed by a conve
called by direct vote of the people of the state to revise and amend the Constitution of 1869. The result of the work of
convention has been recognized, accepted, and acted upon as the only valid Constitution of the state by the Governo
swearing fidelity to it and proclaiming it, as directed thereby; by the Legislature in its formal official act adopting a join
July 15, 1902, recognizing the Constitution ordained by the convention which assembled in the city of Richmond on th
of June, 1901, as the Constitution of Virginia; by the individual oaths of members to support it, and by enforcing its pr
and the people in their primary capacity by peacefully accepting it and acquiescing in it, by registering as voters unde
extent of thousands throughout the state, and by voting, under its provisions, at a general election for their representa
Congress of the United States. The Constitution having been thus acknowledged and accepted by the office administ
government and by the people of the state, and there being no government in existence under the Constitution of 186
or denying its validity, we have no difficulty in holding that the Constitution in question, which went into effect at noon
day of July, 1902, is the only rightful, valid, and existing Constitution of this state, and that to it all the citizens of Virgin
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 h
accepted by the Filipino people. What is more, so it has been argued, it is not merely a case of its being implied. Thro
Citizens Assemblies, there was a plebiscite with the result as indicated in Proclamation No. 1102. From the standpoin
respondents then, they could allege that there was more than just mere acquiescence by the sovereign people. Its wi
expressed formally and unmistakably. It may be added that there was nothing inherently objectionable in the informal
followed in ascertaining its preference. Nor is the fact that Filipinos of both sexes above the age of fifteen were given
opportunity to vote to be deplored. The greater the base of mass participation, the more there is fealty to the democra
It does logically follow likewise that such circumstances being conceded, then no justifiable question may be raised. T
to respect what had thus received the people's sanction. That is not for me though whole of it. Further scrutiny even t
entirely foreclosed. There is still an aspect that is judicial, an inquiry may be had as to whether such indeed was the r
is no more than what the courts do in election cases. There are other factors to bear in mind. The fact that the Presid
certified is well-nigh conclusive. There is in addition the evidence flowing from the conditions of peace and stability. T
appears to be conformity to the existing order of things. The daily course of events yields such a conclusion. What is
officials under the 1935 Constitution, including practically all Representatives and a majority of the Senators, have sig
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 t
during a period of martial law. It would have been different had there been that freedom of debate with the least interf
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.
a clear-cut decision either way. One could be certain as to the fact of the acceptance of the new or of adherence to th
is not to deny that votes are cast by individuals with their personal concerns uppermost in mind, worried about their im
needs and captive to their existing moods. That is inherent in any human institution, much more so in a democratic po
it open to any valid objection because in the final analysis the state exists for the individuals who in their collectivity co
Whatever be their views, they are entitled to respect. It is difficult for me, however, at this stage to feel secure in the c
that they did utilize the occasion afforded to give expression to what was really in their hearts. This is not to imply tha
could not be dispelled by evidence to the contrary. If the petitions be dismissed however, then such opportunity is for

5. With the foregoing legal principles in mind, I find myself unable to join the ranks of my esteemed brethren who vote
dismissal of these petitions. I cannot yield an affirmative response to the plea of respondents to consider the matter c
proceedings terminated once and for all. It is not an easy decision to reach. It has occasioned deep thought and cons
soul-searching. For there are countervailing considerations that exert a compulsion not easy to resist. It can be asser
truth, especially in the field of social and economic rights, that with the revised Constitution, there is an auspicious be
further progress. Then too it could resolve what appeared to be the deepening contradictions of political life, reducing
governmental authority to near impotence and imparting a sense of disillusionment in democratic processes. It is not
say therefore that there had indeed been the revision of a fundamental law to vitalize the very values out of which dem
grows. It is one which has all the earmarks of being responsive to the dominant needs of the times. It represents an o
cognizant of the tensions of a turbulent era that is the present. That is why for some what was done represented an a
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
are being further considered, the least interference, with the executive department. The President in the discharge of
functions is entitled to obedience. He remains commander-in-chief with all the constitutional powers it implies. Public
go about their accustomed tasks in accordance with the revised Constitution. They can pursue even the tenor of their
are free to act according to its tenets. That was so these past few weeks, even petitions were filed. There was not at
any thought of any restraining order. So it was before. That is how things are expected to remain even if the motions
were not granted. It might be asked though, suppose the petitions should prevail? What then? Even so, the decision
need not be executory right away. Such a disposition of a case before this Court is not novel. That was how it was do
Emergency Powers Act controversy.   Once compliance is had with the requirements of Article XV of the 1935 Const
70

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 stan
actuality. What is more, it may give the impression of reliance on what may, for the practical man of affairs, be no mo
gossamer distinctions and sterile refinements unrelated to events. That may be so, but I find it impossible to transcen
me are the implications of traditional constitutionalism. This is not to assert that an occupant of the bench is bound to
undeviating rigidity doctrines which may have served their day. He could at times even look upon them as mere scrib
sands to be washed away by the advancing tides of the present. The introduction of novel concepts may be carried o
though. As Cardozo put the matter: "The judge, even when he is free, is still not wholly free. He is not to innovate at p
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
consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to ex
discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to "the primordial ne
order in the social life." Wide enough in all conscience is the field of discretion that remains."   Moreover what made i
71

this Court to apply settled principles, which for me have not lost their validity, is traceable to the fact that the revised C
was made to take effect immediately upon ratification. If a period of time were allowed to elapse precisely to enable th
power to be exercised, no complication would have arisen. Likewise, had there been only one or two amendments, n
problem would be before us. That is why I do not see sufficient justification for the orthodoxies of constitutional law no
operate.

Even with full realization then that the approach pursued is not all that it ought to have been and the process of reaso
without its shortcomings, the basic premises of a constitutional democracy, as I understand them and as set forth in t
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 b
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
by the members of all the Barangays (Citizens Assemblies) throughout the Philippines, and has thereby come into ef

More specifically, the issue submitted is whether the purported ratification of the proposed Constitution by means of t
Assemblies has substantially complied with the mandate of Article XV of the existing Constitution of 1935 that duly pr
amendments thereto, in toto or parts thereof, "shall be valid as part of this Constitution when approved by a majority 
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
by the 1971 Constitutional Convention may be said also to have substantially complied with its own mandate that "(T)
Constitution shall take immediately upon its ratification by a majority of the votes cast in a plebiscite called for the pur
except as herein provided, shall supersede the Constitution of Nineteen hundred and thirty-five and all amendments t

Respondents contend that "(A)lthough apparently what is sought to be annulled is Proclamatio

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 "politic
character" and that "what is sought to be invalidated is not an act of the President but of the p

— "(T)he fact of approval of the new Constitution by an overwhelming majority of the votes ca

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 un
law. ... Alternatively, or contemporaneously, he did so as "agent" of the Constitutional Conven

— "alleged defects, such as absence of secret voting, enfranchisement of persons less than 2

years, non supervision (by) the Comelec are matters not required by Article XV of the 1935 C
(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 rati
 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 pop
direct participation of the citizenry ... ."
3

To test the validity of respondents' submittal that the Court, in annulling Proclamation No. 1102 would really be "invali
new Constitution", the terms and premises of the issues have to be defined.

— Respondents themselves assert that "Proclamation No. 1102 ... is plainly merely declarato
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
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

Constitution, dealing with the procedure or manner of amending the fundamental law are bind
the Convention and the other departments of the government. It must be added that ... they ar
less binding upon the people." 7

— In the same Tolentino case, this Court further proclaimed that "as long as any amendment
formulated and submitted under the aegis of the present Charter, any proposal for such amen
which is not in conformity with the letter, spirit and intent of the Charter for effecting amendme
receive the sanction of this Court." 8

— As continues to be held by a majority of this Court, proposed amendments to the Constituti

be ratified in only one way, that is, in an election or plebiscite held in accordance with law and
in only by qualified and duly registered voters"  and under the supervision of the Commission
9

Elections. 10

— Hence, if the Court declares Proclamation 1102 null and void because on its face, the purp
ratification of the proposed Constitution has not faithfully nor substantially observed nor comp
mandatory requirements of Article XV of the (1935) Constitution, it would not be "invalidating"
proposed new Constitution but would be simply declaring that the announced fact of ratificatio
means of the Citizens Assemblies referendums does not pass the constitutional test and that
proposed new Constitution has not constitutionally come into existence.

— Since Proclamation 1102 is acknowledged by respondent to be "plainly merely declaratory"

disputed fact of ratification, they cannot assume the very fact to be established and beg the is
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 immediate
effect upon the issuance on January 17, 1973 of Proclamation 1102 and the question of whether "confusion and diso
government affairs would (not) result" from a judicial declaration of nullity of the purported ratification is raised by the
General on behalf of respondents.

A comparable precedent of great crisis proportions is found in the Emergency Powers cases,   wherein the Court in i
11

Resolution of September 16, 1949 after judgment was initially not obtained on August 26, 1949 for lack of the require
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 inoperativ
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 o
"issued in good faith and with the best of intentions by three successive Presidents, and some of them may have alre
produced extensive effects on the life of the nation" — in the same manner as may have arisen under the bona fide a
President now in the honest belief that the 1972 Constitution had been validly ratified by means of the Citizens Assem
referendums — and indicated the proper course and solution therefor, which were duly abided by and confusion and
well as harm to public interest and innocent parties thereby avoided as follows:

Upon the other hand, while I believe that the emergency powers had ceased in June 1945, I a
prepared to hold that all executive orders issued thereafter under Commonwealth Act No. 671
se null and void. It must be borne in mind that these executive orders had been issued in good
with the best of intentions by three successive Presidents, and some of them may have alread
extensive effects in the life of the nation. We have, for instance, Executive Order No. 73, issue
November 12, 1945, appropriating the sum of P6,750,000 for public works; Executive Order N
issued on January 7, 1946, amending a previous order regarding the organization of the Supr
Executive Order No. 89, issued on January 1, 1946, reorganizing Courts of First Instance; Exe
Order No. 184, issued on November 19, 1948, controlling rice and palay to combat hunger; an
executive orders appropriating funds for other purposes. The consequences of a blanket nullif
these executive orders will be unquestionably serious and harmful. And I hold that before null
them, other important circumstances should be inquired into, as for instance, whether or not th
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 litig
facto officers; acts and contracts of parties acting in good faith; etc. It is my opinion that each
order must be viewed in the light of its peculiar circumstances, and, if necessary and possible
precautionary measures should be taken to avoid harm to public interest and innocent parties

Initially, then Chief Justice Moran voted with a majority of the Court to grant the Araneta and Guerrero petitions holdin
void the executive orders on rentals and export control but to defer judgment on the Rodriguez and Barredo petitions
declarations of nullity of the executive orders appropriating the 1949-1950 fiscal year budget for the government and
for the holding of the 1949 national elections. After rehearsing, he further voted to also declare null and void the last t
executive orders appropriating funds for the 1949 budget and elections, completing the "sufficient majority" of six aga
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 g
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 executive orders in question appears remote and uncertain, I am compelled to, and do he
my unqualified concurrence in the decision penned by Mr. Justice Tuason declaring that these
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 posit
compliance with the Constitution by the other branches of the Government, which is our prime
all these cases, would be effected, and indefinite deferment will produce the opposite result be
would legitimize a prolonged or permanent evasion of our organic law. Executive orders which
opinion, repugnant to the Constitution, would be given permanent life, opening the way or pra
may undermine our constitutional structure.

The harmful consequences which, as I envisioned in my concurring opinion, would come to pa

the said executive orders be immediately declared null and void are still real. They have not d
by reason of the fact that a special session of Congress is not now forthcoming. However, the
now lies in the hands of the Chief Executive and of Congress, for the Constitution vests in the
 power to call a special session should the need for one arise, and in the latter, the power to pa
appropriations act.

That Congress may again fail to pass a valid appropriations act is a remote possibility, for und
circumstances it fully realizes its great responsibility of saving the nation from breaking down;
furthermore, the President in the exercise of his constitutional powers may, if he so desires, co
Congress to remain in special session till it approves the legislative measures most needed by
country.

Democracy is on trial in the Philippines, and surely it will emerge victorious as a permanent w
this country, if each of the great branches of the Government, within its own allocated sphere,
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 m
firm and strong, hard as the best of steel, so as to insure its growth and development along so
stable and vigorous democracy.  14

The late Justice Pedro Tuason who penned the initial majority judgment (declaring null and void the rental and export
executive orders) likewise observed that "(T)he truth is that under our concept of constitutional government, in times o
perils more than in normal circumstances 'the various branches, executive, legislative, and judicial,' given the ability t
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
the President's public manifestation of adherence to constitutional processes and of working within the proper constit
framework as per his press conference of January 20,1973, wherein he stated that "(T)he Supreme Court is the final
the Constitution. It can and will probably determine the validity of this Constitution. I did not want to talk about this bec
actually there is a case pending before the Supreme Court. But suffice it to say that I recognize the power of the Supr
With respect to appointments, the matter falls under a general provision which authorizes the Prime Minister to appoi
members to the Supreme Court. Until the matter of the new Constitution is decided, I have no intention of utilizing tha

Thus, it is that as in an analogous situation wherein the state Supreme Court of Mississippi held that the questions of
submission of the proposed constitutional amendment of the State Constitution providing for an elective, instead of an
judiciary and whether the proposition was in fact adopted, were justifiable and not political questions, we may echo th
therein of Chief Justice Whitfield that "(W)e do not seek a jurisdiction not imposed upon us by the Constitution. We co
we would, escape the exercise of that jurisdiction which the Constitution has imposed upon us. In the particular instan
we are now acting, our duty to know what the Constitution of the state is, and in accordance with our oaths to suppor
maintain it in its integrity, imposed on us a most difficult and embarrassing duty, one which we have not sought, but o
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 c
maintaining a firm and strict — perhaps, even rigid — stand that the Constitution is a "superior paramount law, uncha
ordinary means" save in the particular mode and manner prescribed therein by the people, who, in Cooley's words, s
(not only) the hands of their official agencies, but their own hands as well"   in the exercise of their sovereign will or a
18

flexible stand that would consider compliance with the constitutional article on the amending process as merely direct
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
otherwise exclusively "by approval by a majority of the votes cast an election at which the amendments are submitted
people for their ratification",   participated in only by qualified and duly registered voters twenty-one years of age or o
19
duly supervised by the Commission on Elections,   in accordance with the cited mandatory constitutional requiremen
21

The alternative choice of a liberal stand would permit a disregard of said requirements on the theory urged by respon
"the procedure outlined in Article XV was not intended to be exclusive of other procedures especially one which conte
popular and direct participation of the citizenry",   that the constitutional age and literacy requirements and other statu
22

safeguards for ascertaining the will of the majority of the people may likewise be changed as "suggested, if not presc
people (through the Citizens Assemblies) themselves",   and that the Comelec is constitutionally "mandated to overs
23

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  2

Supreme Court's power of judicial review and to declare void laws repugnant to the Constitution, there is no middle g
between these two alternatives. As Marshall expounded it: "(T)he Constitution is either a superior paramount law, unc
by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, alterable when the legislature
to alter it. If the former part of the alternative be true, then a legislative act, contrary to the Constitution, is not law; if th
be true, then written constitutions are absurd attempts on the part of a people, to limit a power, in its own nature, illim

As was to be restated by Justice Jose P. Laurel a century and a third later in the 1936 landmark case of Angara vs. E
Commission,   "(T)he Constitution sets forth in no uncertain language the restrictions and limitations upon governmen
26

and agencies. If these restrictions and limitations are transcended it would be inconceivable if the Constitution had no
for a mechanism by which to direct the course of government along constitutional channels, for then the distribution o
would be mere verbiage, the bill of rights mere expressions of sentiment, and the principles of good government mere
apothegms. Certainly, the limitations of good government and restrictions embodied in our Constitution are real as th
be in any living Constitution."

Justice Laurel pointed out that in contrast to the United States Constitution, the Philippine Constitution as "a definition
powers of government" placed upon the judiciary the great burden of "determining the nature, scope and extent of su
and stressed that "when the judiciary mediates to allocate constitutional boundaries, it does not assert any superiority
other departments ... but only asserts the solemn and sacred obligation entrusted to it by the Constitution to determin
claims of authority under the Constitution and to establish for the parties in an actual controversy the rights which the
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,"
27

never forget that it is a constitution we are expounding," — termed by Justice Frankfurter as "the single most importa
in the literature of constitutional law — most important because most comprehensive and comprehending."   This end 29

concept to my mind permeated to this Court's exposition and rationale in the hallmark case of Tolentino, wherein we
contentions on the Convention's behalf "that the issue ... is a political question and that the Convention being a legisla
the highest order is sovereign, and as such, its acts impugned by petitioner are beyond the control of Congress and t
Courts." 30

This Court therein made its unequivocal choice of strictly requiring faithful (which really includes substantial) complia
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
Constitutional Convention's Organic Resolution No. 1 proposing to amend Article V, section 1 of the Constitution by lo
voting age to 18 years (vice 21 years) 30a "without prejudice to other amendments that will be proposed in the future
portions of the amended section", this Court stated that "the constitutional provision in question (as proposed) presen
which may be resolved in favor of respondents and intervenors. We do not believe such doubt can exist only because
that the end sought to be achieved is to be desired. Paraphrasing no less than the President of Constitutional Conven
1934, Claro M. Recto, let those who would put aside, invoking grounds at best controversial, any mandate of the fund
law purportedly in order to attain some laudable objective bear in mind that someday somehow others with purported
laudable objectives may take advantage of the precedent and continue the destruction of the Constitution, making tho
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 missio
propose amendments to the Constitution, the Convention and its officers and members are al
all the provisions of the existing Constitution. Now We hold that even as to its latter task of pro
amendments to the Constitution, it is subject to the provisions of Section 1 of Article XV. This
because it is plain to Us that the framers of the Constitution took care that the process of ame
same should not be undertaken with the same ease and facility in changing an ordinary legisl
Constitution making is the most valued power, second to none, of the people in a constitutiona
democracy such as the one our founding fathers have chosen for this nation, and which we of
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 cou
those subject to its sovereignty, every degree of care is taken in preparing and drafting it. A co
worthy of the people for deliberation and study. It is obvious that correspondingly, any amendm
Constitution is of no less importance than the whole Constitution itself, and perforce must be c
and prepared with as much care and deliberation. From the very nature of things, the drafters
original constitution, as already observed earlier, operate without any limitations, restraints or
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 t
their handiwork is not lightly treated and as easily mutilated or changed, not only for reasons p
personal but more importantly, because written constitutions are supposed to be designed so
for some time, if not for ages, or for, at least, as long as they can be adopted to the needs and
of the people, hence, they must be insulated against precipitate and hasty actions motivated b
less passing political moods or fancies. Thus, as a rule, the original constitutions carry with the
limitations and conditions, more or less stringent, made so by the people themselves, in regar
process of their amendment. And when such limitations or conditions are so incorporated in th
constitution, it does not lie in the delegates of any subsequent convention to claim that they m
and disregard such conditions because they are powerful and omnipotent as their original cou

3. This Court in Tolentino likewise formally adopted the doctrine of proper submission first advanced in Gonzales vs.
thus:

We are certain no one can deny that in order that a plebiscite for the ratification of an amendm
Constitution may be validly held, it must provide the voter not only sufficient time but ample ba
an intelligent appraisal of the nature of amendment per se as well as its relation to the other p
Constitution with which it has to form a harmonious whole. In the context of the present state o
where the Convention hardly started considering the merits of hundreds, if not thousands, pro
amend the existing Constitution, to present to people any single proposal or a few of them can
with this requirement. We are of the opinion that the present Constitution does not contemplat
1 of Article XV a plebiscite or "election" wherein the people are in the dark as to frame of refer
can base their judgment on. We reject the rationalization that the present Constitution is a pos
of reference, for the simple reason that intervenors themselves are stating the sole purpose o
proposed amendment is to enable the eighteen year olds to take part in the election for the ra
the Constitution to be drafted by the Convention. In brief, under the proposed plebiscite, there
the language of Justice Sanchez, speaking for the six members of the Court in Gonzales, sup
proper submission.' " 34
4. Four other members of the Court   in a separate concurrence in Tolentino, expressed their "essential agreement" w
35

Sanchez' separate opinion in Gonzales on the need for "fair submission (and) intelligent rejection" as "minimum requ
that must be met in order that there can be a proper submission to the people of a proposed constitutional amendme

... amendments must be fairly laid before the people for their blessing or spurning. The people
be mere rubber stamps. They are not to vote blindly. They must be afforded ample opportunit
over the original provisions, compare them with the proposed amendments, and try to reach a
as the dictates of their conscience suggest, free from the incubus of extraneous or possibly in
influences. We believe the word "submitted" can only mean that the government, within its ma
capabilities, should strain every effort to inform every citizen of the provisions to be amended,
proposed amendments and the meaning, nature and effects thereof. By this, we are not to be
as saying that, if one citizen or 100 citizens or 1,000 citizens cannot be reached, then there is
submission within the meaning of the word as intended by the framers of the Constitution. Wh
Constitution in effect directs is that the government, in submitting an amendment for ratificatio
put every instrumentality or agency within its structural framework to enlighten the people, edu
with respect to their act of ratification or rejection. For as we have earlier stated, one thing is s
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 inten
Article XV, section 1 of the Constitution, in this wise:

A number of doubts or misgivings could conceivably and logically assail the average voter. W
the voting age be lowered at all, in the first place? Why should the new voting age be precisel
and not 19 or 20? And why not 17? Or even 16 or 15? Is the 18-year old as mature as the 21-
that there is no need of an educational qualification to entitle him to vote? In this age of permis
and dissent, can the 18-year old be relied upon to vote with judiciousness when the 21-year o
past elections, has not performed so well? If the proposed amendment is voted down by the p
the Constitutional Convention insist on the said amendment? Why is there an unseemly haste
of the Constitutional Convention in having this particular proposed amendment ratified at this
time? Do some of the members of the Convention have future political plans which they want
subserve by the approval this year of this amendment? If this amendment is approved, does i
mean that the 18-year old should not also shoulder the moral and legal responsibilities of the
Will he be required to compulsory military service under the colors? Will the contractual conse
reduced to 18 years? If I vote against the amendment, will I not be unfair to my own child who
years old, come 1973?

The above are just samplings from here, there and everywhere — from a domain (of searchin
the bounds of which are not immediately ascertainable. Surely, many more questions can be
already long litany. And the answers cannot except as the questions are debated fully, ponder
purposefully, and accorded undivided attention.

Scanning the contemporary scene, we say that the people are not, and by election time will no
be, sufficiently informed of the meaning, nature and effects of the proposed constitutional ame
They have not been afforded ample time to deliberate thereon conscientiously. They have bee
effectively distracted from a full and dispassionate consideration of the merits and demerits of
proposed amendment by their traditional pervasive involvement in local elections and politics.
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 o
the sovereign people to express their decision on the proposed amendments" as "anachronistic in the real constitutio
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 'Filipi
imploring the aid of Divine Providence.' Section 1 of Article XV is nothing than a part of the Co
thus ordained by the people. Hence, in construing said section, We must read it as if the peop
'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.' ... Accor
real issue here cannot be whether or not the amending process delineated by the present Con
may be disregarded in favor of allowing the sovereign people to express their decision on the
amendments, if only because it is evident that the very idea of departing from the fundamenta
is anachronistic in the realm of constitutionalism and repugnant to the essence of the rule of la
is whether or not the provisional nature of the proposed amendment and the manner of its sub
the people for ratification or rejection conform with the mandate of the people themselves in s
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
of these perspectives, if the Court were to allow itself in deciding this case to be carried astray by considerations othe
the imperatives of the rule of law and of the applicable provisions of the Constitution. Needless to say, in a larger me
when it binds other departments of the government or any other official or entity, the Constitution imposes upon the C
sacred duty to give meaning and vigor to the Constitution, by interpreting and construing its provisions in appropriate
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 reconsid
succinctly restated this Court's position on the fundamentals, as follows:

— On the premature submission of a partial amendment proposal, with a "temporary provision

tentative character": — "... a partial amendment would deprive the voters of the context which
necessary for them to make a reasonably intelligent appraisal of the issue submitted for their
or rejection. ... Then, too, the submission to a plebiscite of a partial amendment, without a def
of reference, is fraught with possibilities which may jeopardize the social fabric. For one thing,
door to wild speculations. It offers ample opportunities for overzealous leaders and members
political camps to unduly exaggerate the pros and cons of the partial amendment proposed. In
apt to breed false hopes and create wrong impressions. As a consequence, it is bound to und
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 incomplet
although inconsistent with the letter and spirit of the Constitution: "The view, has, also, advanc
foregoing considerations are not decisive on the issue before Us, inasmuch as the people are
and the partial amendment involved in this case is being submitted to them. The issue before
whether or not said partial amendment may be validly submitted to the people for ratification "
plebiscite coincide with the local elections in November 1971," and this particular issue will no
submitted to the people. What is more, the Constitution does not permit its submission to the
question sought to be settled in the scheduled plebiscite is whether or not the people are in fa
reduction of the voting age.

— On a "political" rather than "legalistic" approach: "Is this approach to the problem too "legal
term has possible connotations. It may mean strict adherence to the law, which in the case at
the Supreme Law of the land. On point, suffice it to say that, in compliance with the specific m
Supreme Law, the members of the Supreme Court taken the requisite "oath to support and de
Constitution." ... Then, again, the term "legalistic" may be used to suggest inversely that the so
 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 re
will of the people, specially the youth. This course of action favors, in effect, adoption of a poli
approach, inasmuch as the advisability of the amendment and an appraisal of the people's fee
thereon political matters. In fact, apart from the obvious message of the mass media, and, at
pulpit, the Court has been literally bombarded with scores of handwritten letters, almost all of
the penmanship and the signature of girls, as well as letterhead of some sectarian educationa
institutions, generally stating that the writer is 18 years of age and urging that she or he be allo
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 polit
questions beyond our province. In fact, respondents and the intervenors originally maintained
have no jurisdiction to entertain the petition herein, upon the ground that the issue therein rais
political one. Aside from the absence of authority to pass upon political question, it is obviousl
and unwise for the bench to develop into such questions owing to the danger of getting involv
politics, more likely of a partisan nature, and, hence, of impairing the image and the usefulnes
of justice as objective and impartial arbiters of justiciable controversies.

Then, too, the suggested course of action, if adopted, would constitute a grievous disservice t
and the very Convention itself. Indeed, the latter and the Constitution it is in the process of dra
essentially for the Rule of Law. However, as the Supreme Law of the land, a Constitution wou
worthy of its name, and the Convention called upon to draft it would be engaged in a futile und
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 e
overlooked a circumvention of said tenets and provisions, because of the good intention with w
Resolution No. 1 is animated, the Court would thereby become the Judge of the good or bad
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
statesmanship in deciding the present case. Indeed, "politics" is the word commonly used to e
compromise, even with principles, for the sake of political expediency or the advancement of t
power of a given political party. Upon the other hand, statesmanship is the expression usually
to refer to high politics or politics on the highest level. In any event, politics, political approach,
expediency and statesmanship are generally associated, and often identified, with the dictum
end justifies the means." I earnestly hope that the administration of justice in this country and
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 pro
amendment lowering the voting age to the plebiscite on November 8, 1971 is to enable the youth 18 to 20 years who
more than three (3) million of our population to participate in the ratification of the new Constitution in so far as "to allo
people who would be governed by the Constitution to be given a say on what kind of Constitution they will have" is a
end, ... those urging the vitality and importance of the proposed constitutional amendment and its approval ahead of t
complete and final draft of the Constitution must seek a valid solution to achieve it in a manner sanctioned by the ame
process ordained by our people in the present Constitution"   — so that there may be "submitted, not piece-meal, but
41

complete and final amendments as an integrated whole (integrated either with the subsisting Constitution or with the
proposed Constitution)..."

9. The universal validity of the vital constitutional precepts and principles above-enunciated can hardly be gainsaid. I
the attempted distinction of restricting their application to proposals for amendments of particular provisions of the Co
and not to so-called entirely new Constitutions. Amendments to an existing Constitution presumably may be only of c
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 c
and prepared with as much care and deliberation", it would appeal that the reverse would equally be true; which is to
the adoption of a whole new Constitution would be of no less importance than any particular amendment and therefo
necessary care and deliberation as well as the mandatory restrictions and safeguards in the amending process ordai
people themselves so that "they (may) be insulated against precipitate and hasty actions motivated by more or less p
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 a majority of the votes cast at an election at which the (duly proposed) amendments are submitted to the people fo
ratification."

The people ordained in Article V, section 1 that only those thereby enfranchised and granted the right of suffrage may
"will of the body politic", viz, qualified literate voters twenty one years of age or over with one year's residence in the m
where they have registered.

The people, not as yet satisfied, further provided by amendment duly approved in 1940 in accordance with Article XV
creation of an independent Commission on Elections with "exclusive charge" for the purpose of "insuring free, orderly
elections" and ascertaining the true will of the electorate — and more, as ruled by this Court in Tolentino, in the case
constitutional amendments, insuring proper submission to the electorate of such proposals.  42

2. A Massachussets case   with a constitutional system and provisions analogous to ours, best defined the uses of th
43

term "people" as a body politic and "people" in the political sense who are synonymous with the qualified voters grant
to vote by the existing Constitution and who therefore are "the sole organs through which the will of the body politic ca
expressed."

It was pointed out therein that "(T)he word 'people' may have somewhat varying significations dependent upon the co
which it is used. In some connections in the Constitution it is confined to citizens and means the same as citizens. It e
aliens. It includes men, women and children. It comprehends not only the sane, competent, law-abiding and educated
those who are wholly or in part dependents and charges upon society by reason of immaturity, mental or moral defici
of the common essentials of education. All these persons are secured fundamental guarantees of the Constitution in
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 comm
"social compact ... for the common good" and in another sense of "people" in a "practical sense" for "political purpose
therein fittingly stated that in this sense, "people" comprises many who, by reason of want of years, of capacity or of t
educational requirements of Article 20 of the amendments of the Constitution, can have no voice in any government a
are entitled to all the immunities and protection established by the Constitution. 'People' in this aspect is coextensive 
the body politic. But it is obvious that 'people' cannot be used with this broad meaning of political signification. The 'pe
connection means that part of the entire body of inhabitants who under the Constitution are intrusted with the exercis
sovereign power and the conduct of government. The 'people' in the Constitution in a practical sense means those w
existing Constitution possess the right to exercise the elective franchise and who, while that instrument remains in for
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 govern
national and state, have been limited by constitutions, and they have themselves thereby set bounds to their own pow
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
election at which the amendments are submitted to the people for their ratification", it seems obvious as above-stated
"people" as therein used must be considered synonymous with "qualified voters" as enfranchised under Article V, sec
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 im
statutes to ascertain and record the will of the people in free, orderly and honest elections supervised by the Comelec
imperative that there be strict adherence to the constitutional requirements laid down for the process of amending 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: "
6. Plebiscite. — A plebiscite may be held in the barrio when authorized by a majority vote of the members present in
assembly, there being a quorum, or when called by at least four members of the barrio council: Provided, however, T
plebiscite shall be held until after thirty days from its approval by either body, and such plebiscite has been given the
publicity in the barrio, stating the date, time and place thereof, the questions or issues to be decided, action to be take
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 member
to vote may vote in the plebiscite. Voting procedures may be made either in writing as in regular elections, and/or dec
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 o
member of the barrio council. A plebiscite shall be called to approve any budgetary, supplemental appropriations or s
ordinances" and the required majority vote is specified: "(F)or taking action on any of the above enumerated measure
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 qualif
49

Article V, section 1 of the Constitution and provide that "(S)EC. 10. Qualifications of Voters and Candidates. — Every
the Philippines, twenty one years of age or over, able to read and write, who has been a resident of the barrio during
months immediately preceding the election, duly registered in the list of voters by the barrio secretary, who is not othe
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 constitu
articles have not been complied with and that no election or plebiscite for ratification as therein provided as well as in
of Article XVII of the proposed Constitution itself   has been called or held, there cannot be said to have been a valid
51

2. Petitioners raised serious questions as to the veracity and genuineness of the reports or certificates of results purp
showing unaccountable discrepancies in seven figures in just five provinces   between the reports as certified by the
52

of Local Governments and the reports as directly submitted by the provincial and city executives, which latter reports
respondents disclaimed inter alia as not final and complete or as not signed;   whether the reported votes of approva
53

proposed Constitution conditioned upon the non-convening of the interim National Assembly provided in Article XVII,
thereof,   may be considered as valid; the allegedly huge and uniform votes reported; and many others.
54

3. These questions only serve to justify and show the basic validity of the universal principle governing written constit
proposed amendments thereto or in replacement thereof may be ratified only in the particular mode or manner prescr
by the people. Under Article XV, section 1 of our Constitution, amendments thereto may be ratified only in the one wa
provided, i.e. in an election or plebiscite held in accordance with law and duly supervised by the Commission on Elec
which is participated in only by qualified and duly registered voters. In this manner, the safeguards provided by the el
generally assure the true ascertainment of the results of the vote and interested parties would have an opportunity to
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 Proclama
itself which shows on its face, as already stated, that the mandatory amending process required by the (1935) Consti
not observed, the cases at bar need not reach the stage of answering the host of questions, raised by petitioners aga
procedure observed by the Citizens Assemblies and the reported referendum results — since the purported ratificatio
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 November 22, 1973, and "as agent of the Convention the Pre
55

devise other forms of plebiscite to determine the will of the majority vis-a-vis the ratification of the proposed Constituti

The minutes of November 22, 1972, of the Convention, however, do not at all support this contention. On the contrary
minutes fully show that the Convention's proposal and "agency" was that the President issue a decree precisely callin
a plebiscite for the ratification of the proposed new Constitution on an appropriate date, under the charge of the Com
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, t
resolution portion of which read as follows:

"RESOLVED, AS IT IS HEREBY RESOLVED, that the 1971 Constitutional Co

propose to President Ferdinand E. Marcos that a decree be issued calling a pl
the ratification of the proposed New Constitution on such appropriate date as h
determine and providing for the necessary funds therefor, and that copies of th
resolution as approved in plenary session be transmitted to the President of th
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
November 1972 according to the Convention's timetable, it would be necessary to lay the grou
the appropriate agencies of the government to undertake the necessary preparation for the pl

xxx xxx xxx

12.2 Interpellating, Delegate Pimentel (V.) contended that the resolution was unnecessary bec
section 15, Article XVII on the Transitory Provision, which had already been approved on seco
third readings, provided that the new constitution should be ratified in a plebiscite called for th
by the incumbent President. Delegate Duavit replied that the provision referred to did not inclu
the appropriation of funds for the plebiscite and that, moreover, the resolution was intended to
formal notice to the President and the Commission on Elections to initiate the necessary prep

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 signif
the new charter. Delegate Duavit agreed, adding that this was precisely why the resolution wa
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 o
adoption of the new Constitution would not suffice considering that under Section 15 of the Tr
Provisions, the President would be duty-bound to call a plebiscite for its ratification. Delegate
replied in the negative, adding that the resolution was necessary to serve notice to the proper
to prepare everything necessary for the plebiscite.

12.6 In reply to Delegate Britanico, Delegate Duavit stated that the mechanics for the holding
the plebiscite would be laid down by the Commission on Elections in coordination with the Pre

12.7 Delegate Catan inquired if such mechanics for the plebiscite could include a partial lifting
law in order to allow the people to assemble peaceably to discuss the new Constitution. Deleg
suggested that the Committee on Plebiscite and Ratification could coordinate with the COMEL
matter.

12.8 Delegate Guzman moved for the previous question. The Chair declared that there was o
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
in view of the provision of section 15, Article XVII on the Transitory Provisions. Delegate Duav
disagreed, pointing out that the said provision did not provide for the funds necessary for the p

13. Delegate Ozamiz then moved to close the debate and proceed to the period of amendmen

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
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 h

I, therefore, vote to deny respondents' motion to dismiss and to give due course to the petitions.

Promulgated: Ju

ANTONIO, J., concurring:

In conformity with my reservation, I shall discuss the grounds for my concurrence.

It is my view that to preserve the independence of the State, the maintenance of the existing constitutional order and
of the political and social liberties of the people, in times of a grave emergency, when the legislative branch of the gov
unable to function or its functioning would itself threaten the public safety, the Chief Executive may promulgate meas
legislative in character, for the successful prosecution of such objectives. For the "President's power as Commander-
been transformed from a simple power of military command to a vast reservoir of indeterminate powers in time of em
In other words, the principal canons of constitutional interpretation are ... set aside so far as concerns both the scope
national power and the capacity of the President to gather unto himself all constitutionally available powers in order th
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 po
government in a constitutional democracy entails the concentration of governmental power. "The more complete the
of powers in a constitutional system, the more difficult, and yet the more necessary" according to Rossiter, "will be the
time of crisis... The power of the state in crisis must not only be concentrated and expanded, it must be freed from the
system of constitutional and legal limitations. One of the basic features of emergency powers is the release of the gov
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 perso
Chief Executive. "Energy in the executive," according to Hamilton, "is essential to the protection of the community aga
attacks ... to the protection of property against those irregular and high-handed combinations which sometimes interru
ordinary course of justice; to the security of liberty against the enterprises and assaults of ambition, of faction, and of
(The Federalist, Number 70). "The entire strength of the nation", said Justice Brewer in the Debs case (158 U.S. 564;
1092), "may be used to enforce in any part of the land the full and free exercise of all national powers and the securit
entrusted by the constitution to its care." The marshalling and employment of the "strength of the nation" are matters
discretion of the Chief Executive. The President's powers in time of emergency defy precise definition since their exte
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 Pres
the Executive power, with the added specific grant of power under the "Commander-in-Chief" clause of the constitutio
contours of such powers have been shaped more by a long line of historical precedents of Presidential action in times
rather than judicial interpretation. Lincoln wedded his powers under the "commander-in-chief" clause with his duty "to
that the laws be faithfully executed," to justify the series of extraordinary measures which he took — the calling of vo
military service, the augmentation of the regular army and navy, the payment of two million dollars from unappropriate
the Treasury to persons unauthorized to receive it, the closing of the Post Office to "treasonable correspondence", the
of southern ports, the suspension of the writ of habeas corpus, the arrest and detention of persons "who were repres
him" as being engaged in or contemplating "treasonable practices" — all this for the most part without the least statu
authorization. Those actions were justified by the imperatives of his logic, that the President may, in an emergency th
him to require it, partially suspend the constitution. Thus his famous question: "Are all laws but one to be unexecuted
Government itself go to pieces lest that one be violated?" The actions of Lincoln "assert for the President", according
"an initiative of indefinite scope and legislative in effect in meeting the domestic aspects of a war emergency." (Corwi
President: Office & Powers, p. 280 [1948]). The facts of the civil war have shown conclusively that in meeting the dom
problems as a consequence of a great war, an indefinite power must be attributed to the President to take emergency
The concept of "emergency" under which the Chief Executive exercised extraordinary powers underwent correlative e
during the first and second World Wars. From its narrow concept as an "emergency" in time of war during the Civil W
World War I, the concept has been expanded in World War II to include the "emergency" preceding the war and even
"The Second World War" observed Corwin and Koenig, was the First World War writ large, and the quasi-legislative p
Franklin Roosevelt as "Commander-in-Chief in wartime"... burgeoned correspondingly. The precedents were there to
most of them from the First World War, but they proliferated amazingly. What is more, Roosevelt took his first step to
some fifteen months before our entrance into shooting war. This step occurred in September, 1940, when he handed
so-called overage destroyers to Great Britain. The truth is, they were not overage, but had been recently reconditione
recommissioned. ... Actually, what President Roosevelt did was to take over for the nonce Congress's power to dispo
property of the United States (Article IV, Section 3) and to repeal at least two statutes." (Corwin & Koenig, The Presid
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 W
on the basis of his powers under the "Commander-in-Chief" clause created "offices" which were copied in lavish scale
President Roosevelt in World War II. In April 1942, thirty-five "executive agencies" were purely of Presidential creation
7, 1941 on the basis of his powers as "Commander-in-Chief", he issued an executive order seizing the North America
plant of Inglewood, California, where production stopped as a consequence of a strike. This was justified by the gove
the exercise of presidential power growing out of the "duty constitutionally and inherently resting upon the President t
civil and military as well as his moral authority to keep the defense efforts of the United States a going concern" as we
obtain supplies for which Congress has appropriated money, and which it has directed the President to obtain." On a
justification, other plants and industries were taken over by the government. It is true that in Youngstown Sheet & Tub
Sawyer (343 U.S. 579; 72 S. Ct. 863; 96 L. Ed. 1153, [1952]), the Supreme Court of the United States did not sustain
that the President could, as the Nation's Chief Executive and Commander-in-Chief of the armed forces, validly order
of most of the country's steel mills. The Court however did not face the naked question of the President's power to se
plants in the absence of any congressional enactment or expressions of policy. The majority of the Court found that th
legislative occupation of the field made untenable the President's claim of authority to seize the plants as an exercise
executive power or as Commander-in-Chief. Justice Clark, in his concurrence to the main opinion of the Court, explic
that the President does possess, in the absence of restrictive legislation, a residual or resultant power above or in con
of his granted powers, to deal with emergencies that he regards as threatening the national security. The same view
with vague qualification by Justices Frankfurter and Jackson, two of the concurring Justices. The three dissenting Jus
speaking through Chief Justice Vinson, apparently went further by quoting with approval a passage extracted from th
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 c
sustained the power of the President to order withdrawals from the public domain not only without Congressional san
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 Pres
times of a grave crisis does not possess a residual power above or in consequence of his granted powers, to deal wit
emergencies that he regards as threatening the national security. The lesson of the Steel Seizure case, according to
Koenig, "Unquestionably ... tends to supplement presidential emergency power to adopt temporary remedial legislatio
Congress has been, in the judgment of the President, unduly remiss in taking cognizance of and acting on a given sit
(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
prerogative as described by John Locke, of a power to wit, to fill needed gaps in the law, or even to supersede it so fa
requisite to realize the fundamental law of nature and government, namely, that as much as may be all the members
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 po
Presidential Decree Nos. 86 and 86-A as well as Proclamation No. 1102, since these measures were considered indi
to effect the desired reforms at the shortest time possible and hasten the restoration of normalcy? It is unavailing for p
to contend that we are not faced by an actual "shooting war" for today's concept of the emergency which justified the
those powers has of necessity been expanded to meet the exigencies of new dangers and crisis that directly threaten
nation's continued and constitutional existence. For as Corwin observed: "... today the concept of 'war' as a special ty
emergency warranting the realization of constitutional limitations tends to spread, as it were, in both directions, so tha
not only "the war before the war," but the 'war after the war.' Indeed, in the economic crisis from which the New Deal
to have issued, the nation was confronted in the opinion of the late President with an 'emergency greater than war'; a
sustaining certain of the New Deal measures the Court invoked the justification of 'emergency.' In the final result cons
practices of wartime have moulded the Constitution to greater or less extent for peacetime as well, seem likely to do s
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 op
large numbers of citizens who are engaged in violent insurrection against enforcement of its la
 bent on capturing it illegally or destroying it altogether. The third crisis, one recognized particu
modern times as sanctioning emergency action by constitutional governments, is economic de
The economic troubles which plagued all the countries of the world in the early thirties involve
governmental methods of an unquestionably dictatorial character in many democracies. It was
acknowledged that an economic existence as a war or a rebellion. And these are not the only
which have justified extraordinary governmental action in nations like the United States. Fire,
drought, earthquake, riots, great strikes have all been dealt with by unusual and of dictatorial m
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 regar
tenets of free enterprise, hardships caused by the eruptions of nature cannot be mitigated lett
take its course. The Civil War, the depression of 1933 and the recent global conflict were not a
not have been successfully resolved by governments similar to those of James Buchanan, Wi
Howard Taft, or Calvin Coolidge. (Rossiter, Constitutional Dictatorship — Crisis of Governme
Modern Democracies, p. 6 [1948).

II

We are next confronted with the insistence of Petitioners that the referendum in question not having been done inacc
with the provisions of existing election laws, which only qualified voters who are allowed to participate, under the supe
the Commission on Elections, the new Constitution, should therefore be a nullity. Such an argument is predicated upo
assumption, that Article XV of the 1935 Constitution provides the method for the revision of the constitution, and auto
apply in the final approval of such proposed new Constitution the provisions of the election law and those of Article V
the old Constitution. We search in vain for any provision in the old charter specifically providing for such procedure in
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 r

the whole constitution. The act of amending a constitution, on the other hand, envisages a change of only specific pro
The intention of an act to amend is not the change of the entire constitution but only the improvement of specific parts
existing constitution of the addition of provisions deemed essential as a consequence of new constitutions or the elim
parts already considered obsolete or unresponsive to the needs of the times.  The 1973 Constitution is not a mere am
1

the 1935 Constitution. It is a completely new fundamental charter embodying new political, social and economic conc

According to an eminent authority on Political Law, "The Constitution of the Philippines and that of the United States e
provide merely for methods of amendment. They are silent on the subject of revision. But this is not a fatal omission.
nothing that can legally prevent a convention from actually revising the Constitution of the Philippines or of the United
even were such conventions called merely for the purpose of proposing and submitting amendments to the people. F
final analysis, it is the approval of the people that gives validity to any proposal of amendment or revision." (Sinco, Ph
Political Law, p. 49).

Since the 1935 Constitution does not specifically provide for the method or procedure for the revision or for the appro
constitution, should it now be held, that the people have placed such restrictions on themselves that they are not disa
exercising their right as the ultimate source of political power from changing the old constitution which, in their view, w
responsive to their needs and in adopting a new charter of government to enable them to rid themselves from the sha
traditional norms and to pursue with new dynamism the realization of their true longings and aspirations, except in the
and form provided by Congress for previous plebiscites? Was not the expansion of the base of political participation,
inclusion of the youth in the process of ratification who after all constitute the preponderant majority more in accord w
and philosophy of the constitution that political power is inherent in the people collectively? As clearly expounded by J
Makasiar, in his opinion, in all the cases cited where the Courts held that the submission of the proposed amendmen
due to the absence of substantial compliance with the procedure prescribed by the constitution, the procedure prescr
state Constitution, is so detailed, that specified the manner in which such submission shall be made, the persons qua
vote for the same, the date of election and other definite standards, from which the court could safely ascertain wheth
the submission was in accordance with the Constitution. Thus the case of In re McConaughy (119 N.E. 408) relied up
the dissenting opinions involved in the application of the provisions of the state Constitution of Minnesota which clear
prescribed in detail the procedure under which the Constitution may be amended or revised.  This is not true with our
2

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 re
the entire constitution, and if such was their intention, they could and should have so provided. Precedents were not w
The constitutions of the various states of the American Union did provide for procedures for their amendment and me
their revision.
4

Certainly We cannot, under the guise of interpretation, modify, revise, amend, remodel or rewrite the 1935 Charter. T
what the law is, or has been, is a judicial power, but to declare what the law shall be is not within Our judicial compete
authority.

Upon the other hand, since our fundamental charter has not provided the method or procedure for the revision or com
change of the Constitution, it is evident that the people have reserved such power in themselves. They decided to ex
through their legislature, but through a Convention expressly chosen for that purpose. The Convention as an indepen
sovereign body has drafted not an amendment but a completely new Constitution, which decided to submit to the peo
approval, not through an act of Congress, but by means of decrees to be promulgated by the President. In view of the
Congress to act, it was within the constitutional powers of the President, either as agent of the Constitutional Conven
under his authority under martial law, to promulgate the necessary measures for the ratification of the proposed new
The adoption the new Charter was considered as a necessary basis for all the reforms set in motion under the new s
root out the causes of unrest. The imperatives of the emergency underscored the urgency of its adoption. The people
accepting such procedure and in voting overwhelmingly for the approval of the new Constitution have, in effect, ratifie
method and procedure taken. "When the people adopt completely revised or new constitution," said the Court in Whe
Board of Trustees (37 SE 2nd 322, 326-330), "the framing or submission of the instrument is not what gives it binding
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 a
on their authority and instituted for their benefit. Thus Section 1 of Article II of the 1935 Constitution declares that: "So
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 g
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
it has been accepted and acquiesced in by the people as shown by their compliance with the decree promulgated the
their cooperation in its implementation, and is now maintained by the Government that is in undisputed authority and

Of course it is argued that acquiescence by the people can be deduced from their acts of conformity, because under
martial law the people are bound to obey and act in conformity with the orders of the President, and has absolutely no
choice. The flaw of this argument lies in its application of a mere theoretical assumption based on the experiences of
nations on an entirely different factual setting. Such an assumption flounders on the rock of reality. It is true that as a
martial law is the use of military forces to perform the functions of civil government. Some courts have viewed it as a
regime which can be imposed in emergency situations. In other words, martial rule exists when the military rises supe
civil power in the exercise of some or all the functions of government. Such is not the case in this country. The govern
functions thru its civilian officials. The supremacy of the civil over the military authority is manifest. Except for the impo
curfew hours and other restrictions required for the security of the State, the people are free to pursue their ordinary c

In short, the existing regime in this Country, does not contain the oppressive features, generally associated with a reg
Martial law in other countries. "Upon the other hand the masses of our people have accepted it, because of its manifo
blessings. The once downtrodden rice tenant has at long last been emancipated — a consummation devoutly wished
Philippine President since the 1930's. The laborer now holds his head high because his rights are amply protected an
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 S
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 ma
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
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 ha
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
United States Senate. "President Marcos has been prompt and sure-footed in using the power of presidential decree
martial law for this purpose. He has zeroed in on areas which have been widely recognized as prime sources of the n
difficulties — land tenancy, official corruption, tax evasion and abuse of oligarchic economic power. Clearly he knows
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 le
approve urgently needed reforms. He found his second term further frustrated by spread riots
uprising in Luzon and a much more serious Moslem insurrection in the southern islands from
across the Sulu archipelago to the frontier regions of Malaysia and Indonesia. Manila claims th
Maoist-coordinated.

Mr. Marcos has now in effect taken all the reins of power and makes no promise as to when h
relinquish them. But, while fettering a free press, terminating Congress and locking up some o
(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
funds. New roads have been started. The educational system is undergoing revision, a corrup
diminished. In non-communist Asia it is virtually impossible to wholly end it and this disagreea
phenomenon still reaches very high.

Mr. Marcos, an imaginative, gifted man, hopes to reshape society by creating an agrarian mid
replace the archaic sharecropper-absentee landlord relationship. He is even pushing for a birt
program with the tacit acceptance of the Catholic Church. He has started labor reforms and in
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 petitioner

The new Constitution is considered effective "if the norms created in conformity with it are by and large applied and o
soon as the old Constitution loses its effectiveness and the new Constitution has become effective, the acts that appe
subjective meaning of creating or applying legal norms are no longer interpreted by presupposing the old basic norm,
presupposing the new one. The statutes issued under the old Constitution and not taken over are no longer regarded
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, w
assailed is not merely the validity of Proclamation No. 1102 of the President, which is merely declaratory of the fact o
or ratification, but the legitimacy of the government. It is addressed more to the framework and political character of th
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 ju
expound and administer them. If it decides at all as a court, it necessarily affirms the existence and authority of the go
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 Cour
existence is affected by such change is, in the words of Mr. Melville Fuller Weston, "precluded from passing upon the
change by a logical difficulty which is not to be surmounted."  Such change in the organic law relates to the existence
5

point in the Court's "chain of title" to its authority and "does not relate merely to a question of the horizontal distributio
powers."  It involves in essence a matter which "the sovereign has entrusted to the so-called political departments of
6

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 C
consistently recognized," said Justice Frankfurter, in his illuminating dissent in Baker v. Carr, 369 U.S. 186, 7 L. Ed. 2
726, 727), "a class of controversies which do not lend themselves to judicial standards and judicial remedies. To clas
various instances as "political questions" is rather a form of stating this conclusion than revealing of analysis ... The c
matter is that courts are not fit instruments of decision where what is essentially at stake is the composition of those l
contests of policy traditionally fought out in non-judicial forums, by which governments and the actions of government
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 o
"wrong" views of the Constitution. It is one of attitudes and values. For there is scarcely any principle, authority or inte
which has not been countered by the opposite. At bottom, it is the degree of one's faith — in the nation's leadership a
maturity of judgment of our people.

IN VIEW OF THE FOREGOING, the dismissal of these five cases, and the conclusion of this
judgment of March question becomes wholly moot except for this consideration, that, when th
individuals or as a body of individuals come to decide which king or which constitution they wi
and assert to represent, it may often be good judgment for them to follow the lead of the men
practical matter are likely to be looked to by the people as more representative of themselves
conversely are likely to be more directly in touch with popular sentiment. If, however, the judge
strong views of their own to be able to take this course, they may follow their own leads at the
hazard. No question of law is involved. (Political Questions, 38 Harvard Law Review [1924-25
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 leg
The secretary of state shall prepare a ballot title and proposition summarizing each proposed amendment, and shall p
on the ballot for the next statewide election. If a majority of the votes cast on the proposition favor the amendment, it
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
shall place on the ballot for the next general election the question: "Shall there be a Constitutional Convention?" If a m
the votes cast on the question are in the negative, the question need not be placed on the ballot until the end of the n
period. If a majority of the votes cast on the question are in the affirmative, delegates to the convention shall be chose
next regular statewide election, unless the legislature provides for the election of the election delegates at a special e
secretary of state shall issue the call for the convention. Unless other provisions have been made by law, the call sha
as nearly as possible to the act calling the Alaska Constitutional Convention of 1955, including, but not limited to, num
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
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 Sen
Assembly, and if two-thirds of all the members elected to each of the houses shall vote in favor thereof, such propose
amendment or amendments shall be entered in their Journals, with the yeas and nays taken thereon; and it shall be t
the Legislature to submit such proposed amendment or amendments to the people in such manner, and at such time
such publication as may be deemed expedient. Should more amendments than one be submitted at the same electio
be so prepared and distinguished, by numbers or otherwise, that each can be voted on separately. If the people shall
and ratify such amendment or amendments, or any of them, by a majority of the qualified electors voting thereon suc
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 sha
necessary to revise this Constitution, they shall recommend to the electors to vote at the next general for or against a
for that purpose, and if a majority of the electors voting at such election on the proposition for a Convention shall vote
thereof, the Legislature shall, at its next session, provide by law for calling the same. The Convention shall consist of
delegates not to exceed that of both branches of the Legislature, who shall be chosen in the same manner, and have
qualifications, as Members of the Legislature. The delegates so elected shall meet within three months after their elec
place as the Legislature may direct. At a special election to be provided for by law, the Constitution that may be agre
such Convention shall be submitted to the people for their ratification or rejection, in such manner as the Convention
determine. The returns of such election shall, in such manner as the Convention shall direct, be certified to the Execu
State, who shall call to his assistance the Controller, Treasurer, and Secretary of State, and compare the returns so c
him; and it shall be the duty of the Executive to declare, by his proclamation, such Constitution, as may have been ra
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 m
elected to each house, recommend to the electors of the state, to vote at the next general election for or against a co
to revise, alter and amend this constitution; and if a majority of those voting on the question shall declare in favor of s
convention, the general assembly shall, at the next session, provide for the calling thereof. The number of members o
convention shall be twice that of the senate and they shall be elected in the same manner, at the same places, and in
districts. The general assembly shall, in the act calling the convention, designate the day, hour and place of its meetin
pay of its members and officers, and provide for the payment of the same, together with the necessary expenses of th
convention. Before proceeding, the members shall take an oath to support the constitution of the United States, and o
of Colorado, and to faithfully discharge their duties as members of the convention. The qualifications of members sha
same as of members of the senate; and vacancies occurring shall be filled in the manner provided for filling vacancie
general assembly. Said convention shall meet within three months after such election and prepare such revisions, alt
amendments to the constitution as may be deemed necessary; which shall be submitted to the electors for their ratific
rejection at an election appointed by the convention for that purpose, not less than two nor more than six months afte
adjournment thereof; and unless so submitted and approved by a majority of the electors voting at the election, no su
alteration or amendment shall take effect.

Sec. 2. Amendments to constitution; how adopted. Any amendment or amendments to this constitution may be propo
either house of the general assembly, and if the same shall be voted for by two-thirds of all the members elected to e
such proposed amendment or amendments, together with the ayes and noes of each house hereon, shall be entered
their respective journals; the proposed amendment or amendments shall be published with the laws of that session o
general assembly, and the secretary of state shall also cause the said amendment or amendments to be published in
more than one newspaper of general circulation in each county, for four successive weeks previous to the next gener
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 votin
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
separately and votes thereon cast shall be separately counted the same as though but one amendment was submitte
general assembly shall have no power to propose amendments to more than six articles of this constitution at the sam

4. Delaware (1897) — Art. XVI. Amendments and Conventions.

Sec. 1. Proposal of constitutional amendments in general assembly; procedure. Any amendment or amendments to t
Constitution may be proposed in the Senate or House of Representatives; and if the same shall be agreed to by two-
the members elected to each House, such proposed amendment or amendments shall be entered on their journals, w
yeas and nays taken thereon, and the Secretary of State shall cause such proposed amendment or amendments to b
three months before the next general election in at least three newspapers in each County in which such newspaper
published; and if in the General Assembly next after the said election such proposed amendment or amendments sha
and nay vote be agreed to by two-thirds of all the members elected to each House, the same shall thereupon become
Constitution.

Sec. 2. Constitutional conventions; procedure; compensation of delegates; quorum; powers and duties; vacancies. T
Assembly by a two-thirds vote of all the members elected to each House may from time to time provide for the submi
qualified electors of the State at the general election next thereafter the question, "Shall there be a Convention to rev
Constitution and amend the same?;" and upon such submission, if a majority of those voting on said question shall de
favor of a Convention for such purpose, the General Assembly at its next session shall provide for the election of dele
such convention at the next general election. Such Convention shall be composed of forty-one delegates, one of who
chosen from each Representative District by the qualified electors thereof, and two of whom shall be chosen from Ne
County, two from Kent County and two from Sussex County by the qualified electors thereof respectively. The delega
chosen shall convene at the Capital of the State on the first Tuesday in September next after their election. Every del
receive for his services such compensation as shall be provided by law. A majority of the Convention shall constitute
for the transaction of business. The Convention shall have the power to appoint such officers, employees and assista
may be deem necessary, and fix their compensation, and provide for the printing of its documents, journals, debates
proceedings. The Convention shall determine the rules of its proceedings, and be the judge of the elections, returns a
qualifications of its members. Whenever there shall be a vacancy in the office of delegate from any district or county b
failure to elect, ineligibility, death, resignation or otherwise, a writ of election to fill such vacancy shall be issued by the
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
ordinary session thereof called for such purpose either in the governor's original call or any amendment thereof, may
revision or amendment of any portion or portions of this Constitution. Any such revision or amendment may relate to
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 e
upon their respective journals with the yeas and nays and published in one newspaper in each county where a newsp
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 o
for approval or rejection at the next general election, provided, however, that such revision or amendment may be su
approval or rejection in a special election under the conditions described in and in the manner provided by Section 3
XVII of the Constitution. If a majority of the electors voting upon the amendment adopt such amendment the same sh
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 bo
shall determine that a revision of this Constitution is necessary, such determination shall be entered upon their respe
Journals, with yea's and nay's thereon. Notice of said action shall be published weekly in one newspaper in every cou
which a newspaper is published, for three months preceding the next general election of Representatives, and in thos
where no newspaper is published, notice shall be given by posting at the several polling precincts in such counties fo
next preceding said election. The electors at said election may vote for or against the revision in question. If a majorit
electors so voting be in favor of revision, the Legislature chosen at such election shall provide by law for a Conventio
the Constitution, said Convention to be held within six months after the passage of such law. The Convention shall co
number equal to the membership of the House of Representatives, and shall be apportioned among the several coun
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 i
branch of the legislature, and if the same shall be agreed to by two-thirds of all the members of each of the two house
separately, such proposed amendment or amendments shall, with the yeas and nays thereon, be entered on their jou
shall be the duty of the legislature to submit such amendment or amendments to the electors of the state at the next g
election, and cause the same to be published without delay for at least six consecutive weeks, prior to said election, i
than one newspaper of the general circulation published in each county; and if a majority of the electors shall ratify th
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 l
shall deem it necessary to call a convention to revise or amend this Constitution, they shall recommend to the elector
the next general election, for or against a convention, and if a majority of all the electors voting at said election shall h
for a convention, the legislature shall at the next session provide by law for calling the same; and such convention sh
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 ea
year thereafter, and also at such times as the General Assembly may, by law, provide, the question, "Shall there be a
to revise the Constitution, and amend the same?" shall be decided by the electors qualified to vote for members of th
Assembly; and in case a majority of the electors so qualified, voting at such election, for and against such proposition
decide in favor of a Convention for such purpose, the General Assembly, at its next session, shall provide by law for t
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
constitution may be proposed in the senate or house of representatives. If the same shall be agreed to by 2/3 of the m
elected to each house, such amendment or amendments shall be entered on the journals, respectively, with the yeas
taken thereon; and the same shall be submitted to the electors at the next spring or autumn election thereafter, as the
shall direct; and, if a majority of the electors qualified to vote for members of the legislature voting thereon shall ratify
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 s
year thereafter and at such times as may be provided by law, the question of a General Revision of the Constitution s
submitted to the Electors qualified to vote for members of the Legislature. In case a majority of the Electors voting on
question shall decide in favor of a Convention for such purpose, at an Election to be held not later than four months a
Proposal shall have been certified as approved, the Electors of each House of Representatives District as then organ
Elect One Delegate for each Electors of each Senatorial District as then organized shall Elect One Delegate for each
Senator to which the District is entitled. The Delegates so elected shall convene at the Capital City on the First Tuesd
October next succeeding such election, and shall continue their sessions until the business of the convention shall be
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
unless by the assent of a majority of all the delegates elected to the convention, the yeas and nays being entered on
Any proposed constitution or amendments adopted by such convention shall be submitted to the qualified electors in
provided by such convention on the first Monday in April following the final adjournment of the convention; but, in cas
of at least 90 days shall not intervene between such final adjournment and the date of such election. Upon the approv
constitution or amendments by a majority of the qualified electors voting thereon such constitution or amendments sh
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 o
houses of the legislature shall deem it necessary to alter or amend this Constitution, they may proposed such alterati
or amendments, which proposed amendments shall be published with the laws which have been passed at the same
and said amendments shall be submitted to the people for their approval or rejection at any general election, and if it
appear, in a manner to be provided by law, that a majority of all the electors voting at said election shall have voted fo
ratified such alterations or amendments, the same shall be valid to all intents and purposes as a part of this Constitut
more alterations or amendments shall be submitted at the same time, it shall be so regulated that the voters shall vot
against each separately.

Sec. 2. Revision of constitution. Whenever two-thirds of the members elected to each branch of the legislature shall t
necessary to call a convention to revise this Constitution, they shall recommend to the electors to vote at the next gen
election for members of the legislature, for or against a convention; and if a majority of all the electors voting at said e
have voted for a convention, the legislature shall, at their next session, provide by law for calling the same. The conve
consist of as many members as the House of Representatives, who shall be chosen in the same manner, and shall m
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 consti
submit any revision thereof by said convention to the people of the State of Minnesota for their approval or rejection a
general election held not less than 90 days after the adoption of such revision, and, if it shall appear in the manner p
law that three-fifths of all the electors voting on the question shall have voted for and ratified such revision, the same
constitute a new constitution of the State of Minnesota. Without such submission and ratification, said revision shall b
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 propose
Senate or Assembly; and if the same shall be agreed to by a Majority of all the members elected to each of the two h
proposed amendment or amendments shall be entered on their respective journals, with the Yeas and Nays taken th
referred to the Legislature then next to be chosen, and shall be published for three months next preceding the time of
such choice. And if in the Legislature next chosen as aforesaid, such proposed amendment or amendments shall be
by a majority of all the members elected to each house, then it shall be the duty of the Legislature to submit such pro
amendment or amendments to the people, in such manner and at such time as the Legislature shall prescribe; and if
shall approve and ratify such amendment or amendments by a majority of the electors qualified to vote for members
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 M
elected to each house, shall determine that it is necessary to cause a revision of this entire Constitution they shall rec
the electors at the next election for Members of the Legislature, to vote for or against a convention, and if it shall appe
majority of the electors voting at such election, shall have voted in favor of calling a Convention, the Legislature shall,
session provide by law for calling a Convention to be holden within six months after the passage of such law, and suc
Convention shall consist of a number of Members not less that of both branches of the legislature. In determining wha
majority of the electors voting such election, reference shall be had to the highest number of vote cast at such electio
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 town
places in this state, in warning the first annual meetings for the choice of senators, after the expiration of seven years
adoption of this constitution, as amended, to insert expressly in the warrant this purpose, among the others for the me
wit, to take the sense of the qualified voters on the subject of a revision of the constitution; and, the meeting being wa
accordingly, and not otherwise, the moderator shall take the sense of the qualified voters present as to the necessity
revision; and a return of the number of votes for and against such necessity, shall be made by the clerk sealed up, an
to the general court at their then next session; and if, it shall appear to the general court by such return, that the sens
people of the state has taken, and that, in the opinion of the majority of the qualified voters in the state, present and v
meetings, there is a necessity for a revision of the constitution, it shall be the duty of the general court to call a conve
purpose, otherwise the general court shall direct the sense of the people to be taken, and then proceed in the manne
mentioned. The delegates to be chosen in the same manner, and proportioned, as the representatives to the general
provided that no alterations shall be made in this constitution, before the same shall be laid before the towns and unin
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 Constitu

proposed in either branch of the Legislature, and if the same shall be agreed to by a majority of all the members elec
of the two houses, such proposed amendment or amendments shall, with yeas and nays thereon, be entered in their
and referred by the Secretary of State to the people for their approval or rejection, at the next regular general election
when the Legislature, by a two-thirds vote of each house, shall order a special election for that purpose. If a majority
the electors voting at such election shall vote in favor of any amendment thereto, it shall thereby become a part of thi
Constitution.

If two or more amendments are proposed they shall be submitted in such manner that electors may vote for or agains
separately.

No proposal for the amendment or alteration of this Constitution which is submitted to the voters shall embrace more
general subject and the voters shall vote separately for or against each proposal submitted; provided, however, that i
submission of proposals for the amendment of this Constitution by articles, which embrace one general subject, each
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 L
propose alterations, revisions, or amendments to this Constitution, or to propose a new Constitution, unless the law p
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 elec
State at a general or special election and be approved by a majority of the electors voting thereon, before the same s
effective Provided, That the question of such proposed convention shall be submitted to the people at least once in e
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 ei
of the legislative assembly, and if the same shall be agreed to by a majority of all the members elected to each of the
houses, such proposed amendment or amendments shall, with the yeas and nays thereon, be entered in their journa
referred by the secretary of state to the people for their approval or rejection, at the next regular election, except whe
legislative assembly shall order a special election for that purpose. If a majority of the electors voting on any such am
shall vote in favor thereof, it shall thereby become a part of this Constitution. The votes for and against such amendm
or amendments, severally, whether proposed by the legislative assembly or by initiative petition, shall be canvassed b
secretary of state in the presence of the governor, and if it shall appear to the governor that the majority of the votes c
election on said amendment, or amendments, severally, are cast in favor thereof, it shall be his duty forthwith after su
by his proclamation, to declare the said amendment, or amendments, severally, having received said majority of vote
been adopted by the people of Oregon as part of the Constitution thereof, and the same shall be in effect as a part of
Constitution from the date of such proclamation. When two or more amendments shall be submitted in the manner af
the voters of this state at the same election, they shall be so submitted that each amendment shall be voted on separ
convention shall be called to amend or propose amendments to this Constitution, or to propose a new Constitution, u
law providing for such convention shall first be approved by the people on a referendum vote at a regular general ele
article shall not be construed to impair the right of the people to amend this Constitution by vote upon an initiative pet
therefor.

Sec. 2. Method of revising constitution. (1) In addition to the power to amend this Constitution granted by section 1, A
and section 1 of this Article, a revision of all or part of this Constitution may be proposed in either house of the Legisl
Assembly and, if the proposed revision is agreed to by at least two-thirds of all the members of each house, the propo
revision shall, with the yeas and nays thereon, be entered in their journals and referred by the Secretary of State to th
their approval or rejection, notwithstanding section 1, Article IV of this Constitution, at the next regular state-wide prim
election, except when the Legislative Assembly orders a special election for that purpose. A proposed revision may d
more than one subject and shall be voted upon as one question. The votes for and against the proposed revision sha
canvassed by the Secretary of State in the presence of the Governor and, if it appears to the Governor that the major
votes cast in the election on the proposed revision are in favor of the proposed revision, he shall, promptly following t
declare, by his proclamation, that the proposed revision has received a majority of votes and has been adopted by th
the Constitution of the State of Oregon, as the case may be. The revision shall be in effect as the Constitution or as a
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 eith
the Legislature, and if two-thirds of all the members elected of the two houses, shall vote in favor thereof, such propo
amendment or amendments shall be entered on their respective journals with the yeas and nays taken thereon; and
Legislature shall cause the same to be published in at least one newspaper in every county of the State, where a new
published, for two months immediately preceding the next general election, at which time the said amendment or ame
shall be submitted to the electors of the State, for their approval or rejection, and if a majority of the electors voting th
approve the same, such amendment or amendments shall become part of this Constitution. If two or more amendme
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 th
Legislature, shall deem it necessary to call a convention to revise or amend this Constitution, they shall recommend
electors to vote at the next general election, for or against a convention, and, if a majority of all the electors, voting at
election, shall vote for a convention. The Legislature, at its next session, shall provide by law for calling the same. Th
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 b
the legislature, and, if the same shall be agreed to by two-thirds of all the members of the two houses, voting separat
proposed amendment or amendments shall, with the yeas and nays thereon, be entered on their journals, and it shal
of the legislature to submit such amendment or amendments to the electors of the state at the next general election,
one newspaper of general circulation, published in each county, and if a majority of the electors shall ratify the same,
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 ele
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 le
shall deem it necessary to call a convention to revise or amend this constitution, they shall recommend to the elector
the next general election for or against a convention, and if a majority of all the electors voting at such election shall h
for a convention, the legislature shall at the next session provide by a law for calling the same; and such convention s
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 submitte
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 ca
petitions to justify their being given due course. Considering on the one hand the urgency of the matter and on the oth
transcendental importance, which suggested the need for hearing the side of the respondents before that preliminary
was resolved, We required them to submit their comments on the petitions. After the comments were filed We consid
as motions to dismiss so that they could be orally argued. As it turned out, the hearing lasted five days, morning and
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 Presiden
January 17, 1973 (Proclamation No. 1102) was not an act of ratification, let alone a valid one, of the proposed Consti
because it was not in accordance with the existing Constitution (of 1935) and the Election Code of 1971. Other groun
relied upon by the petitioners in support of their basic proposition, but to our mind they are merely subordinate and pe

Article XV, Section 1, of the 1935 Constitution provides that amendments (proposed either by Congress in joint sessi
Convention called by it for the purpose) "shall be valid part of this Constitution when approved by a majority of votes c
an election at which the amendments submitted to the people for their ratification." At the time Constitution was appro
Constitutional Convention on February 8, 1935, and ratified in a plebiscite held on following May 14, the word "electio
already a definite meaning in our law and jurisprudence. It was not a vague and amorphous concept, but a procedure
by statute ascertaining the people's choices among candidates for public offices, or their will on important matters sub
the pursuant to law, for approval. It was in this sense that word was used by the framers in Article XV (also in Articles
and in accordance with such procedure that plebiscites were held to ratify the very same Constitution in 1935 as well
subsequent amendments thereto, thus: in 1939 (Ordinance appended to the Constitution); 1940 (establishment of a b
legislature; eligibility of the President and the Vice President for re election; creation of the Commission of Elections);
(Parity Amendment); and 1967 (increase in membership of the House of Representatives and eligibility of members o
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 plebi
be conducted in the manner provided by this Code." This is a statutory requirement designed, as were the other elect
previously in force, to carry out the constitutional mandate relative to the exercise of the right suffrage, and with speci
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. Sec
requires that qualified voters be registered in a permanent list, the qualifications being those set forth in Article V, Sec
the 1935 Constitution on the basis of age (21), literacy and residence. These qualifications are reiterated in Section 1
Election Code. Section 102 enumerates the classes of persons disqualified to vote. Succeeding sections prescribe th
paraphernalia to be used, the procedure for registering voters, the records, of registration and the custody thereof, th
description and printing of official ballots, the actual casting of votes and their subsequent counting by the boards of i
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 co

(1) This draft was prepared and approved by a Convention which had been convened pursuant to Resolution No. 2 p
Congress on March 16, 1967, which provides:

Sec. 7. The amendments proposed by the Convention shall be valid and considered part of th
Constitution when approved by a majority of the votes cast in an election at which they are su
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
in a plebiscite called for the purpose and, except as herein provided, shall supersede the Con
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
Constitution.

(3) After the draft Constitution was approved by the Constitutional Convention on November 30, 1972 the said body a
Resolution No. 5843, proposing "to President Ferdinand E. Marcos that a decree be issued calling a plebiscite for the
of the proposed New Constitution on such appropriate date as he shall determine and providing for the necessary fun
therefor." Pursuant to said Resolution the President issued Decree No. 73 on the same day, calling a plebiscite to be
January 15, 1973, at which the proposed Constitution "shall be submitted to the people for ratification or rejection." Th
had eighteen (18) sections in all, prescribing in detail the different steps to be taken to carry out the process of ratifica
as: (a) publication of the proposed Constitution in English and Pilipino; (b) freedom of information and discussion; (c)
of voters: (d) appointment of boards of election inspectors and designation of watchers in each precinct; (e) printing o
ballots; (f) manner of voting to insure freedom and secrecy thereof; (g) canvass of plebiscite returns; and (h) in gener
compliance with the provisions of the Election Code of 1971, with the Commission on Elections exercising its constitu
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 C
since then to the 1971 Constitutional Convention — amendments to the Constitution should be ratified in only one wa
an election or plebiscite held in accordance with law and participated in only by qualified and duly registered voters. I
concerned was this Court with the importance and indispensability of complying with the mandate of the (1935) Cons
this respect that in the recent case of Tolentino vs. Commission on Elections, No. L-34150, October 16, 1971 (41 SC
resolution of the (1971) Constitutional Convention submitting a proposed amendment for ratification to a plebiscite to
November 1971 was declared null and void. The amendment sought to reduce the voting age from twenty-one to eig
and was approved by the Convention for submission to a plebiscite ahead of and separately from other amendments
or to be considered by it, so as to enable the youth to be thus enfranchised to participate in the plebiscite for the ratifi
such other amendments later. This Court held that such separate submission was violative of Article XV, Section 1, o
Constitution, which contemplated that "all the amendments to be proposed by the same Convention must be submitte
people in a single "election" or plebiscite." * Thus a grammatical construction based on a singular, instead of plural, rendition of the word "election"
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 p
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. C
but the ratification of an entire charter setting up a new form of government; and the issue has arisen not because of
construction of one word or one provision in the 1935 Constitution but because no election or plebiscite in accordanc
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
December 31, 1972, "to broaden the base of citizen participation in the democratic process and to afford ample oppo
the citizenry to express their views on important national issues." The Assemblies "shall consist of all persons who ar
of the barrio, district or ward for at least six months, fifteen years of age or over, citizens of the Philippines and who a
registered in the lists of Citizen Assembly members kept by the barrio, district or ward secretary." By Presidential Dec
A, dated January 5, 1973, the Assemblies were convened for a referendum between January 10 and 15, to "consider
national issues now confronting the country, like the holding of the plebiscite on the new Constitution, the continuation
rule, the convening of Congress on January 22, 1973, and the holding of elections in November 1973."

On January 5, 1973 the newspapers came out with a list of four questions to be submitted to the Citizens Assemblies
one being as follows: "How soon would you like plebiscite on the new Constitution to be held?" It should be noted in t
connection that the President had previously announced that he had ordered the postponement of plebiscite which he
for January 15, 1973 (Presidential Decree No. 73) for the ratification of the Constitution, and that he was considering
dates for the purpose — February 19 or March 5; that he had ordered that the registration of voters (pursuant to Decr
be extended to accommodate new voters; and that copies of the new Constitution would be distributed in eight dialec
people. (Bulletin Today, December 24, 1972.)

On January 10, 1973 it was reported that one more question would be added to the original four which were to be sub
the Citizens Assemblies. The question concerning plebiscite was reworded as follows: "Do you like the plebiscite to b
later?" The implication, it may likewise be noted, was that the Assemblies should express their views as to the plebisc
be held, not as to whether or not it should be held at all.
The next day, January 11, it was reported that six additional questions would be submitted, namely:

(1) Do you approve of the citizens assemblies as the base of popular government to decide is
national interest?

(2) Do you approve of the new Constitution?

(3) Do you want a plebiscite to be called to ratify the new Constitution?

(4) Do you want the elections to be held in November, 1973 accordance with the provisions of
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 supplie

Appended to the six additional questions above quoted were the suggested answers, thus:

COMMENTS ON

QUESTION No. 1

In order to broaden the base of citizens' participation in government.

QUESTION No. 2

But we do not want the Ad Interim Assembly to be convoked. Or if it is to be co

all, it should not be done so until after at least seven (7) years from the approv
New Constitution by the Citizens Assemblies.

QUESTION No. 3

If the Citizens Assemblies approve of the New Constitution, then the new Con
should be deemed ratified.

The vote of the Citizens Assemblies should already be considered the plebisci
New Constitution.

QUESTION No. 4

We are sick and tired of too frequent elections. We are fed up with politics, of s
debates and so much expenses.

QUESTION No. 5

Probably a period of at least seven (7) years moratorium on elections will be e

stability to be established in the country, for reforms to take root and normalcy
 QUESTION No. 6

We want President Marcos to continue with Martial Law. We want him to exerc
powers with more authority. We want him to be strong and firm so that he can
all his reform program and establish normalcy in the country. If all other measu
want President Marcos to declare a revolutionary government along the lines o
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 th
that the plebiscite should be done away with and a favorable vote by the Assemblies deemed equivalent ratification. T
done, not in the questionnaire itself, but in the suggested answer to question No. 3. Strangely, however, it was not sim
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 As
assuming that such voting was held, was not within the intendment of Article XV, Section 1, of the 1935 Constitution n
accordance with the Election Code of 1971. The referendum can by no means be considered as the plebiscite contem
Section 2 of said Code and in Article XVII, Section 16, of the draft Constitution itself, or as the election intended by Co
when it passed Resolution No. 2 on March 16, 1967 calling a Convention for the revision of the 1935 Constitution. Th
Assemblies were not limited to qualified, let alone registered voters, but included all citizens from the age of fifteen, a
regardless of whether or not they were illiterates, feeble-minded, or ex convicts  * — these being the classes of persons expressly dis
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
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, w
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 th
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 assess
results.

It has been suggested that since according to Proclamation No. 1102 the overwhelming majority of all the members o
Citizens Assemblies had voted for the adoption of the proposed Constitution there was a substantial compliance with
Section 1, of the 1935 Constitution and with the Election Code of 1971. The suggestion misses the point entirely. It is
essence of a valid exercise of the right of suffrage that not only must a majority or plurality of the voters carry the day
same must be duly ascertained in accordance with the procedure prescribed by law. In other words the very existenc
majority or plurality depends upon the manner of its ascertainment, and to conclude that it exists even if it has not bee
ascertained according to law is simply to beg the issue, or to assume the very fact to be established. Otherwise no el
plebiscite could be questioned for non-compliance with the provisions of the Election Law as long as it is certified tha
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 Preside
Proclamation No. 1102, was not in accordance with the constitutional and statutory procedure laid down for the purpo
quite resolve the questions raised in these cases. Such a finding, in our opinion, is on a matter which is essentially ju
that is, within the power of this Court to inquire into. It imports nothing more than a simple reading and application of t
provisions of the 1935 Constitution, of the Election Code and of other related laws and official acts. No question of wi
policy is involved. But from this finding it does not necessarily follow that this Court may justifiably declare that the Co
has not become effective, and for that reason give due course to these petitions or grant the writs herein prayed for. T
effectivity of the said Constitution, in the final analysis, is the basic and ultimate question posed by these cases, to re
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 rat
process adopted by the Citizens Assemblies and on that premise would have this Court grant the reliefs they seek. T
respondents represented by the Solicitor General, whose theory may be taken as the official position of the Governm
challenge the jurisdiction of this Court on the ground that the questions raised in the petitions are political and therefo
justiciable, and that in any case popular acquiescence in the new Constitution and the prospect of unsettling acts don
reliance thereon should caution against interposition of the power of judicial review. Respondents Gil J. Puyat and Jo
L-36165), in their respective capacities as President and President Pro Tempore of the Senate of the Philippines, and
their counsel, Senator Arturo Tolentino, likewise invoke the political question doctrine, but on a ground not concurred
Solicitor General, namely, that approval of the 1973 Constitution by the people was made under a revolutionary gove
the course of a successful political revolution, which was converted by act of the people to the present de jure govern
the 1973 Constitution."

Heretofore, constitutional disputes which have come before this Court for adjudication proceeded on the assumption,
by all, that the Constitution was in full force and effect, with the power and authority of the entire Government behind
task of this Court was simply to determine whether or not the particular act or statute that was being challenged contr
some rule or mandate of that Constitution. The process employed was one of interpretation and synthesis. In the cas
there is no such assumption: the Constitution (1935) has been derogated and its continued existence as well as the v
act of derogation is issue. The legal problem posed by the situation is aggravated by the fact that the political arms of
Government — the Executive Departments and the two Houses of Congress — have accepted the new Constitution
the former by organizing themselves and discharging their functions under it, and the latter by not convening on Janu
1973 or at any time thereafter, as ordained by the 1935 Constitution, and in the case of a majority of the members by
their option to serve in the Interim National Assembly in accordance with Article XVIII, Section 2, of the 1973 Constitu

The theory advanced by Senator Tolentino, as counsel for respondents Puyat and Roy, may be taken up and restate
length if only because it would constitute, if sustained, the most convenient ground for the invocation of the political-q
doctrine. In support of his theory, Senator Tolentino contends that after President Marcos declared martial law on Sep
1972 (Proclamation No. 1081) he established a revolutionary government when he issued General Order No. 1 the n
wherein he proclaimed "that I shall govern the nation and direct the operation of the entire government, including all it
and instrumentalities, in my capacity, and shall exercise all the powers and prerogatives appurtenant and incident to
as such Commander-in-Chief of all the Armed Forces of the Philippines." By this order, it is pointed out, the Comman
of the Armed Forces assumed all the powers of government — executive, legislative, and judicial; and thereafter proc
exercise such powers by a series of Orders and Decrees which amounted to legislative enactments not justified unde
law and, in some instances, trenched upon the domain of the judiciary, by removing from its jurisdiction certain classe
such as "those involving the validity, legality, or constitutionality of Proclamation No. 1081, or of any decree, order or
promulgated or performed by me or by my duly designated representative pursuant thereto." (General Order No. 3 as
by General Order No. 3-A, dated September 24, 1972.) The ratification by the Citizens Assemblies, it is averred, was
culminating act of the revolution, which thereupon converted the government into a de jure one under the 1973 Cons

If indeed it be accepted that the Citizens Assemblies had ratified the 1973 Constitution and that such ratification as w
establishment of the government thereunder formed part of a revolution, albeit peaceful, then the issue of whether or
Constitution has become effective and, as necessary corollary, whether or not the government legitimately functions
instead of under the 1935 Constitution, is political and therefore non-judicial in nature. Under such a postulate what th
did in the Citizen Assemblies should be taken as an exercise of the ultimate sovereign power. If they had risen up in a
force deposed the then existing government and set up a new government in its place, there could not be the least do
their act would be political and not subject to judicial review but only to the judgment of the same body politic act, in th
just set forth, is based on realities. If a new government gains authority and dominance through force, it can be effect
challenged only by a stronger force; judicial dictum can prevail against it. We do not see that situation would be any d
far as the doctrine of judicial review is concerned, if no force had been resorted to and the people, in defiance of the e
Constitution but peacefully because of the absence of any appreciable opposition, ordained a new Constitution and s
having the government operate under it. Against such a reality there can be no adequate judicial relief; and so courts
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, cur
by the Solicitor General, who disagrees with the revolutionary government theory of Senator Tolentino. The case involved the issue of which of two opposing govern
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 unifor
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 en
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 gover
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 exis
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 orde
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 th
that the ratification of the Constitution was a revolutionary act and that the government now functioning it is the produ
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 note
Citizens Assemblies were created, according to Presidential Decree No. 86, "to broaden the base of citizen participat
democratic process and to afford ample opportunities for the citizenry to express their views on important national iss
The President announced, according to the Daily Express of January 2, 1973, that "the referendum will be in the natu
a loose consultation with the people." (3) The question, as submitted to them on the particular point at issue here, wa
a approve of the Constitution?" (4) President Marcos, in proclaiming that the Constitution had been ratified, stated as
"(S)ince the referendum results show that more than ninety-five (95) per cent of the members of the Barangays (Citiz
Assemblies) are in favor of the new Constitution, the Katipunan ng mga Barangay has strongly recommended that th
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 s
them. In fact the plebiscite planned for January 15, 1973 under Presidential Decree No. 73 had been postponed to an
date, the reasons for the postponement being, as attributed to the President in the newspapers, that "there was little t
campaign for or against ratification" (Daily Express, Dec. 22, 1972); that he would base his decision (as to the date, o
plebiscite) on the compliance by the Commission (on Elections) on the publication requirement of the new Charter an
position taken by national leaders" (Daily Express, Dec. 23, 1972); and that "the postponement would give us more ti
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 underst
referendum to be for the ratification of the Constitution, but only for the expression of their views on a consultative ba
if the expression of those views had been intended as an act of ratification (or of rejection as a logical corollary) — th
have been no need for the Katipunan ng mga Barangay to recommend that the Constitution should already be deeme
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 ha
effect. The more relevant consideration, therefore, as far as we can see, should be as to what the President had in m
convening the Citizens Assemblies, submitting the Constitution to them and proclaiming that the favorable expression
views was an act of ratification. In this respect subjective factors, which defy judicial analysis and adjudication, are ne
involved.

In positing the problem within an identifiable frame of reference we find no need to consider whether or not the regim
established by President Marcos since he declared martial law and under which the new Constitution was submitted
Citizens Assemblies was a revolutionary one. The pivotal question is rather whether or not the effectivity of the said C
by virtue of Presidential Proclamation No. 1102, upon the recommendation of the Katipunan ng mga Barangay, was i
be definite and irrevocable, regardless of non-compliance with the pertinent constitutional and statutory provisions pre
procedure for ratification. We must confess that after considering all the available evidence and all the relevant circum
have found no reasonably reliable answer to the question. On one hand we read, for instance, the following public sta
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 destiny. We have burned our bridges behind us. Let no man misunderstand the strength o
 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, amon
things:

... We can, perhaps delimit the power of the people to speak on legal matters, on justiciable m
matters that may come before the experts and interpreters of the law. But we cannot disqualif
from speaking on what we and the people consider purely political matters especially those th
fundamental law of the land.

... The political questions that were presented to the people are exactly those that refer to the
government which the people want ... The implications of disregarding the people's will are too
to be even considered. For if any power in government should even dare to disregard the peo
there would be valid ground for revolt.

... Let it be known to everybody that the people have spoken and they will no longer tolerate a
to undermine the stability of their Republic; they will rise up in arms not in revolt against the R
in protection of the Republic which they have installed. It is quite clear when the people say, w
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 fo
portion is quoted:

... the times are too grave and the stakes too high for us permit the customary concessions to
democratic process to hold back our people's clear and unequivocal resolve and mandate to m
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
our citizens ... that when all other measures should fail, that the President be directed to organize and establish a Re
Government," but in the next breath added: "... if we do ratify the Constitution, how can we speak of Revolutionary Go
They cannot be compatible ..." "(I)t is my feeling," he said, "that the Citizens' Assemblies which submitted this recomm
merely sought articulate their impatience with the status quo that has brought about anarchy, confusion and misery to
masses ..." The only alternatives which the President clearly implied by the foregoing statements were the ratification
Constitution and the establishment of a revolutionary government, the latter being unnecessary, in his opinion, becau
the Constitution had been ratified. The third obvious alternative was entirely ruled out, namely, a return to the 1935 C
for it was the status quo under that Constitution that had caused "anarchy, confusion and misery." The message seem
rather than return to such status quo, he would heed the recommendation of the Citizens' Assemblies to establish a r
government, because that would be the only other way to carry out the reforms he had envisioned and initiated — ref
in all fairness and honesty, must be given credit for the improved quality of life in its many aspects, except only in the
liberties.

If there is any significance, both explicit and implicit, and certainly unmistakable, in the foregoing pronouncements, it
step taken in connection with the ratification of the Constitution was meant to be irreversible, and that nothing anyone
would make the least difference. And if this is a correct and accurate assessment of the situation, then we would say
has been brought about by political action and is now maintained by the government that is in undisputed authority an
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
Constitution. In "Today's Revolution: Democracy" he says:
 I believe, therefore, in the necessity of Revolution as an instrument of individual and social ch
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 Co
of the Philippines.

xxx xxx xxx

I repeat, this is not a military takeover of civil government functions. The Government of the R
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 Republ
reform our society...

I have had to use this constitutional power in order that we may not completely lose the civil ri
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 2
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 seriou
you run into critical problems with your programs?

R. I have never gotten off the constitutional track. Everything I am doing is in a

with the 1935 Constitution. The only thing is that instead of 18-year-olds voting
allowed 15-year-olds the right to vote. But the 15-year-olds of today are high-s
students, if not graduates, and they are better informed than my contemporarie
age. On the matter of whether it is constitutional to proclaim martial law, it is co
because the Constitution provides for it in the event of invasion, insurrection, r
immediate danger thereof. We may quarrel about whether what we have gone
sufficient cause to proclaim martial law but at the very least there is a danger o
because so many of our soldiers have been killed. You must remember this (m
provision) was lifted from the American legislation that was the fundamental la
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 h
made reference to subjective factors on which this Court, to our mind, is in no position to pass judgment. Among them
President's own assessment of the will of the people as expressed through the Citizens Assemblies and of the import
1973 Constitution to the successful implementation of the social and economic reforms he has started or envisioned.
decide that there is no turning back, that what the people recommended through the Citizens Assemblies, as they we
to him, demand that the action he took pursuant thereto be final and irrevocable, then judicial review is out of the que

In articulating our view that the procedure of ratification that was followed was not in accordance with the 1935 Const
related statutes, we have discharged our sworn duty as we conceive it to be. The President should now perhaps deci
not already decided, whether adherence to such procedure is weighty enough a consideration, if only to dispel any cl
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, sin
submission to the Citizens Assemblies, has found acceptance among the people, such issue being related to the poli
question theory propounded by the respondents. We have not tarried on the point at all since we find no reliable basi
to form a judgment. Under a regime of martial law, with the free expression of opinions through the usual media vehic
restricted, we have no means of knowing, to the point of judicial certainty, whether the people have accepted the Con
any event, we do not find the issue decisive insofar as our vote in these cases is concerned. To interpret the Constitu
is judicial. That the Constitution should be deemed in effect because of popular acquiescence — that is political, and
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 Petitio
Counsel Lorenzo M. Tañada on January 15, 1973 in the so called Plebiscite Cases decided by this Court on January
Of course, there are amplifications of some of the grounds previously alleged and in the course of the unprecedented
hearing that was held from February 12 to 16 last, more extensive and illuminating arguments were heard by Us, but,
estimation, and with due recognition of the sincerety, brilliance and eloquence of counsels, nothing more cogent and
than what had already been previously presented by Counsel Tañada is before Us now. Accordingly, I cannot see an
why I should change the position I took in regard to the earlier cases. I reiterate, therefore, the vote I cast when these
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
history of the individual stands of the members of the Court in relation to said issues and to the final outcome of these
considering that I reserved before the filing of a more extended opinion, I will take this opportunity to explain further w
that the 1973 Constitution is already in force, if only to clarify that apart from the people's right of revolution to which I
pointed reference in my previous opinion, I can see now, after further reflection, that the vote of the people in the refe
the Citizens Assemblies held on January 10 to 15, 1973, upon the result of which Proclamation 1102 is based, may b
more importantly as a political act than as a purely legal one with the result that such vote to consider the 1973 Cons
ratified without the necessity of holding a plebiscite in the form followed in the previous ratification plebiscites in 1935
Constitution itself, 1937 of women's suffrage, 1939 of the amendments to the Ordinance Appended to the Constitutio
the re-election of the President, the bicameral legislature and the Commission on Elections, 1947 of the parity amend
1967, rejecting the proposed increase in the members of the House of Representatives and eligibility of members of C
the Constitutional Convention, may be deemed as a valid ratification substantially in compliance with the basic intent
XV of the 1935 Constitution. If indeed this explanation may be considered as a modification of my rationalization then
emphasize that my position as to the fundamental issue regarding the enforceability of the new Constitution is even fi
than ever before. As I shall elucidate anon, paramount considerations of national import have led me to the conviction
best interests of all concerned would be best served by the Supreme Court holding that the 1973 Constitution is now
necessarily as a consequence of the revolutionary concept previously suggested by me, but upon the ground that as
more than as a legal, act of the people, the result of the referendum may be construed as a compliance with the subs
Article XV of the 1935 Constitution.

The facts that gave rise to these proceedings are historical and well known. Generally, they may be taken judicial not
revolve around the purported ratification of the Constitution of 1973 declared in Proclamation 1102 issued by the Pres
January 17, 1973.

Pursuant to a joint resolution of the Congress sitting as a constituent assembly approved on March 16, 1967, delegat
constitutional convention to propose amendments to the Constitution of 1935 were elected in accordance with the im
law, Republic Act 6132, on November 10, 1970. Known as the Constitutional Convention of 1971, the assembly bega
sessions on June 1, 1971. After encountering a lot of difficulties, due to bitter rivalries over important positions and co
and an incomprehensible fear of overconcentrating powers in their officers, the delegates went about their work in co
slow pace, and by the third quarter of 1972 had finished deliberations and second-reading voting only on an insignific
of proposals — until September 21, 1972, when the President, not altogether unexpectedly, yet abruptly, issued Proc
1081 declaring martial law throughout the country. An attempt was made to have the Convention recessed until after
martial law, and not long after the motion of Delegate Kalaw to such effect was turned down, the activities within the a
shifted to high gear. As if unmindful of the arrest and continued detention of several of its members, the convention g
swift momentum in its work, and on November 30, 1972, it approved by overwhelming vote the draft of a complete co
instead of mere specific amendments of particular portions of the Constitution of 1935. Needless to say, before martia
declared, there was full and unlimited coverage of the workings in the convention by the mass media. At the same tim
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 t
decree be issued calling a plebiscite for ratification of the proposed new Constitution on appropriate date as he shall
and providing for necessary funds therefor." Acting under this authority, December 1, 1972, the President issued Pres
Decree No. 73 submitting the draft constitution for ratification by the people at a plebiscite set for January 15, 1973. T
contained provisions more or less similar to the plebiscite laws passed by Congress relative to the past plebiscites he
connection with previous proposed amendments.

In connection with the plebiscite thus contemplated, General Order No. 17 was issued ordering and enjoining the aut
allow and encourage public and free discussions on proposed constitution. Not only this, subsequently, under date of
17, 1972, the President ordered the suspension the effects of martial law and lifted the suspension of privilege of the
of habeas corpus insofar as activities connected with the ratification of the draft constitution were concerned. These t
were not, however, to last very long. On January 7, 1973, the President, invoking information related to him that the a
public debate and discussion had opened by his previous orders was being taken advantage of by subversive elemen
the purposes for which they were issued and to foment public confusion, withdrew said orders and enjoined full and s
implementation of martial law.

In the meantime, the President had issued on December 3, 1972 Presidential Decree No. 86 creating Citizens Assem
to afford ample opportunities for the citizenry to express their views on important national issues" and one of the ques
presented to said assemblies was: "Do you like the plebiscite on the proposed Constitution to be held later" So, the s
of January 7, 1973, General Order No. 20, the President ordered, "that the plebiscite scheduled to be held January 1
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 bara
(citizens assemblies) that have so far been established, the people would like to decide for the
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 e
the views of the people on important national issues;

WHEREAS, such barangays (citizens assemblies) desire that they be given legal status and d
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 referendu
certain specified questions such as the ratification of the new Constitution, continuance of ma
convening of Congress on January 22, 1973, and the elections in November 1973 pursuant to
Constitution.

NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of th

vested in me by the Constitution as Commander-in-Chief of all Armed Forces of the Philippine
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
December 31, 1972, shall constitute the base for citizen participation in governmental affairs a
collective views shall be considered in the formulation of national policies or programs and, wh
practicable, shall be translated into concrete and specific decision;

2. Such barangays (citizens assemblies) shall consider vital national issues now confronting th
like the holding of the plebiscite on the new Constitution, the continuation of martial rule, the c
Congress on January 22, 1973, and the holding of elections in November 1973, and others in
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 ref
important national issues, including those specified in paragraph 2 hereof, and submit results
the Department of Local Governments Community Development immediately thereafter, pursu
express will of the people as reflected in the reports gathered from the many thousands of bar
(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
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, 1
 Barangays (Citizens Assemblies) have petitioned the Office of the President to submit them fo
important national issues;

WHEREAS, one of the questions persistently mentioned refers to the ratification of the Consti
proposed by the 1971 Constitutional Convention;

WHEREAS, on the basis of the said petitions, it is evident that the people believe that the sub
the proposed Constitution to the Citizens Assemblies or Barangays should be taken as a pleb
itself in view of the fact that freedom of debate has always been limited to the leadership in po
economic and social fields, and that it is now necessary to bring this down to the level of the p
themselves through the Barangays or Citizens Assemblies;

NOW THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of th

me vested by the Constitution, do hereby order that important national issues shall from time t
referred to the Barangays (Citizens Assemblies) for resolution in accordance with Presidential
86-A dated January 5, 1973 and that the initial referendum shall include the matter of ratificati
Constitution proposed by the 1971 Constitutional Convention.

The Secretary of the Department of Local Governments and Community Development shall in
implementation of this Order.

Done in the City of Manila, this 7th day of January in the year of Our Lord, nineteen hundred a
three.

And so it was that by January 10, 1973, when the Citizens Assemblies thus created started the referendum which wa
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 is
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
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
suggestive of the answer desired. It may assumed that the said "comments" came from official sources, albeit specifi
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 con

all, it should not be done so until after at least seven (7) years from the approv
New Constitution by the Citizens Assemblies.

QUESTION No. 3

The vote of the Citizens Assemblies should already be considered the plebisci
New Constitution.

If the Citizens Assemblies approve of the new Constitution then the new Cons
should be deemed ratified.

The Solicitor General claims, and there seems to be showing otherwise, that the results of the referendum were dete
the following manner:

Thereafter, the results of the voting were collated and sent to the Department of Local Govern
transmission of the results was made by telegram, telephone, the provincial government SSB
each province connecting all towns; the SSB communication of the PACD connecting most pr
Department of Public Information Network System; the Weather Bureau Communication Syste
connecting all provincial capitals and the National Civil Defense Network connecting all provin
The certificates of results were then flown to Manila to confirm the previous figures received b
aforementioned means of transmission. The certificates of results tallied with the previous figu
with the exception of few cases of clerical errors.

The Department adopted a system of regionalizing the receiving section of the Citizens Assem
operation at the Department wherein the identity of the barrio and the province was immediate
a staff in charge of each region. Every afternoon at 2:00 o'clock, the 11 regions submitted the
received from the field to the central committee to tabulate the returns. The last figures were t
12 midnight of January 16, 1973 and early morning of January 17, 1973 and were then comm
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 procla
reads:

PROCLAMATION NO. 1102 ANNOUNCING THE RATIFICATION BY THE FILIPINO PEOPLE

 CONSTITUTION PROPOSED BY THE 1971 CONSTITUTIONAL CONVENTION.

WHEREAS, the Constitution proposed by the nineteen hundred seventy-one Constitutional Co

subject to ratification by the Filipino people;

WHEREAS, Citizens Assemblies were created in barrios in municipalities and in districts/ward

chartered cities pursuant to Presidential Decree No. 6, dated December 31, 1972, composed
persons who are residents of the barrio, district or ward for at least six months, fifteen years o
over, citizens of the Philippines and who are registered in the list of Citizen Assembly member
the barrio, district or ward secretary;

WHEREAS, the said Citizens Assemblies were establish precisely to broaden the base of citiz
participation in the democratic process and to afford ample opportunity for the citizen to expre
views on important national issues;

WHEREAS, responding to the clamor of the people an pursuant to Presidential Decree No. 86
January 5, 1973, the following questions were posed before Citizens' Assemblies or Barangay
approve of the New Constitution? Do you still want a plebiscite to be called to ratify the new C

WHEREAS, fourteen million nine hundred seventy-six thousand five hundred sixty one (14,97
members of all the Barangays (Citizens Assemblies) voted for the adoption of the proposed C
as against seven hundred forty-three thousand eight hundred sixty nine (743,869) who voted
rejection; while on the question as to whether or not the people would still like a plebiscite to b
ratify the new Constitution fourteen million two hundred ninety-eight thousand eight hundred fo
(14,298,814) answered that there was no need for plebiscite and that the vote of the Baranga
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 m
the Barangays (Citizen Assemblies) are in favor of the New Constitution, the Katipunan ng Mg
has strongly recommended that the new Constitution should already be deemed ratified by the
people;

NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of th

me vested by the Constitution, do hereby certify and proclaim that the Constitution proposed b
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 o
Philippines to be affixed.

Done in the City of Manila, this 17th day of January, in the year of Our Lord, nineteen hundred
seventy-three.

The first attempt to question the steps just enumerated taken by the President was in the so-called Plebiscite Cases,
number, which were filed by different petitioners during the first half of December 1972.  Their common target then wa
1

Presidential Decree No. 73, but before the said cases could be decided, the series of moves tending in effect to make
and academic insofar as they referred exclusively to the said Presidential Decree began to take shape upon the issua
Presidential Decree No. 86-A, quoted above. And when Presidential Decree No. 86-B, also above quoted, was issue
six additional questions which were first publicized on January 11, 1973 were known, together with the "comments", p
sensed that a new and unorthodox procedure was being adopted to secure approval by the people of the new Consti
hence Counsel Tañada, not being satisfied with the fate of his urgent motion for early decision of the above ten cases
January 12, 1973, filed on January 15, 1973, his supplemental motion seeking the prohibition against and injunction o
proceedings going on. Principal objective was to prevent that the President be furnished the report of the results of th
referendum and thereby disable him from carrying out what petitioners were apprehensively foreseeing would be don
issuance of some kind of proclamation, order or decree, declaring that the new Constitution had been ratified. Reactin
the Court resolved on the same day, January 15, which was Monday, to consider the supplemental motion as a supp
petition and to require the respondents to answer the same the next Wednesday, January 17th, before the hour of the
the petition which set for 9:30 o'clock in the morning of that day. The details what happened that morning form part of
of facts the decision rendered by this Court in the ten cases on January 22, 1973 and need not be repeated here. Su
state no that before the hearing could be closed and while Counsel Tañada was still insisting on his prayer for prelimi
injunction or restraining order, the Secretary of Justice arrived and personally handed to the Chief Justice a copy Pro
1102 which had been issued at about 11:00 o'clock that same morning. In other words, the valiant and persistent effo
petitioners and their counsels were overtaken by adverse developments, and in the mind of the majority of the memb
Court, the cases had become academic. For my part, I took the view that even on the basis of the supplemental petit
answer thereto filed by respondents, the Court could already decide on the fundamental issue of the validity Proclam
as Justices Zaldivar, Antonio and Esguerra also believed, inasmuch as Counsel Tañada's pleading and argument ha
anticipated its issuance, but the majority felt it was not ready to resolve the matter, for lack, according them, of full ve
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 b
strongly feel needs special attention. I refer to the point raised by Counsel Arturo M. Tolentino for respondent Gil J. P
Jose Roy, who have been sued as President and President Pro Tempore of the Senate, to the effect that change in t
composition of the Supreme Court provided for the 1973 Constitution, from the 11-man tribunal under the 1935 Cons
15-man Court, makes of these cases which were filed after January 17, 1973 the date when Proclamation 1102 decla
Constitution as ratified, political nature and beyond our jurisdiction. The main consideration submitted in this connecti
inasmuch as the number votes needed for a decision of this Court has been increased from six to eight in ordinary ca
from eight to ten for the declaration of unconstitutionality of a treaty, executive agreement  or law, the Court would ha
2

resolve first as a prejudicial question whether the Court is acting in these cases as the 15-man or the 11-man Court, i
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
in issue one way or the other, and, in effect, it would be choosing between two constitutions, which is a political deter
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
necessarily preclude this Court from taking a definite stand on whether the Court is acting in these cases as the 15-M
11-man Court. I feel very strongly that the issue should not be ignored or dodged, if only to make the world know that
Supreme Court of the Philippines is never incognizant of the capacity in which it is acting, much less lacking in courag
wisdom to resolve an issue that relates directly to its own composition. What a disgrace it would be to admit that this
Court does not know, to use a common apt expression, whether it is fish or fowl. Withal, scholars and researchers wh
over our records in the future will inevitably examine minutely how each of us voted and upon what considerations we
individually acted, and, indeed, doubts may arise as to whether or not, despite the general result we might announce,
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 a
11-man Court, only six votes would suffice to declare Proclamation 1102 ineffective, and if upon analysis of our respe
opinions it should be inferable therefrom that six of us have considered the matter before the Court as justiciable and
time have found the procedure of ratification adopted in Presidential Decrees 86-A and 86-B and related orders of the
as not being in conformity with Article XV of the old Constitution, a cloud would exist as to efficacy of the dispositive p
Our decision dismiss these cases, even if we have it understood that by the vote of justices in favor of such dismissa
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 ambigu
equivocation and as a member of the Supreme Court, last thing I should knowingly countenance is uncertainty as to t
significance of any decision of the Court which is precisely being looked upon as the haven in which doubts are supp
authoritatively dispelled. Besides, from very nature of things, one thing is indubitably beyond dispute — we cannot ac
capacities of a 15-man and an 11-man Court at the same time, in like manner that it is inconceivable that the 1935 an
Constitution can be considered by Us both in force. Our inescapable duty is to make a choice between them, accordi
law and other considerations inherent to our function dictate. I cannot bear the thought that someone may someday s
Supreme Court of the Philippines once decided a case without knowing the basis of its author to act or that it was eve
judicial courage to define the same.

Accordingly, with full consciousness of my limitations but compelled by my sense of duty and propriety to straighten o
grave of issue touching on the capacity in which the Court acting in these cases, I hold that we have no alternative bu
the present situation the orthodox rule that when validity of an act or law is challenged as being repugnant constitutio
mandate, the same is allowed to have effect until the Supreme Court rules that it is unconstitutional. Stated differently
to proceed on the assumption that the new Constitution is in force and that We are acting in these cases as the 15-m
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 p
wise to defer the course of any action until after the courts have ascertained their legality, not only because if that we
rule, the functioning of government would correspondingly be undesirably hesitative and cumbersome, but more impo
because the courts must at the first instance accord due respect to the acts of the other departments, as otherwise, th
running of the government would have to depend entirely on the unanimity of opinions among all its departments, wh
possible, unless it is assumed that only the judges have the exclusive prerogative of making and enforcing the law, a
being its sole interpreter, which is contrary to all norms of juridical and political thinking. To my knowledge, there is ye
in the world that has recognized judicial supremacy as its basic governmental principle, no matter how desirable we m
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 fun
under the 1935 Constitution. It is undeniable that the whole government, including the provincial, municipal and barrio
not excluding the lower courts up to the Court of Appeals, is operating under the 1973 Constitution. Almost daily, pres
orders and decrees of the most legislative character affecting practically every aspect of governmental and private ac
as the relations between the government and the citizenry are pouring out from Malacañang under the authority of sa
Constitution. On the other hand, taxes are being exacted and penalties in connection therewith are being imposed un
orders and decrees. Obligations have been contracted and business and industrial plans have been and are being pr
pursuant to them. Displacements of public officials and employees in big numbers are going on in obedience to them
justices of the Supreme Court to constitute an island of resistance in the midst of these developments, which even un
obstinacy cannot ignore, much less impede, is unimaginable, let alone the absurd and complicated consequences su
position entails in the internal workings within the judiciary amount its different components, what with the lower court
considering such orders and decrees as forming part of the law of the land in making their orders and decisions, whe
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
feels that it cannot in the meantime consider the enforcement of the new Constitution, he can wait for its decision. Ac
truth of this assertion, it does necessarily follow that by this attitude of the President, considers the Supreme Court as
operating under the Constitution. Quite on the contrary, it is a fact that he has given instructions for the payment of th
accordance with the rate fixed in the New Constitution. Not only that, official alter ego, the Secretary of Justice, has b
this Court, since January 18, 1973, all matters related to the administrative supervision of the lower courts which by th
charter has been transferred from the Department of Justice to the Supreme Court, and as far as I know, President h
countermanded the Secretary's steps in that direction. That, on the other hand, the President has not augmented the
the Court to complete the prescribed number of fifteen is, in my appraisal, of no consequence considering that with th
of ten justices who are the Court now, there is a working quorum, and the addition of new justices cannot in anyway a
voting on the constitutional questions now before Us because, while there sufficient justices to declare by their unanim
illegality of Proclamation 1102, the votes of the justices to added would only be committed to upholding the same, sin
cannot by any standard be expected to vote against legality of the very Constitution under which they would be appoi

Moreover, what makes the premise of presumptive valid preferable and, even imperative, is that We are dealing here
whole constitution that radically modifies or alters only the form of our government from presidential parliamentary bu
constitutionally institutions vitally affecting all levels of society. It is, to mind, unrealistic to insist on that, fundamentally
Constitution is the same 1935 Constitution, with a few improvements. A cursory perusal of the former should convinc
that it is in essence a new one. While it does retain republicanism as the basic governmental tenet, the institutional ch
introduced thereby are rather radical and its social orientation is decidedly more socialistic, just as its nationalistic fea
somewhat different in certain respects. One cannot but note that the change embraces practically every part of the ol
from its preamble down to its amending and effectivity clauses, involving as they do the statement of general principle
citizenship and suffrage qualifications, the articles on the form of government, the judiciary provisions, the spelling ou
duties and responsibilities not only of citizens but also of officers of the government and the provisions on the nationa
as well as the patrimony of the nation, not to mention the distinctive features of the general provisions. What is more,
transitory provisions notably depart from traditional and orthodox views in that, in general, the powers of government
interim period are more or less concentrated in the President, to the extent that the continuation or discontinuance of
practically a one-man-rule, is even left to his discretion. Notably, the express ratification of all proclamations, orders, d
acts previously issued or done by the President, obviously meant to encompass those issued during martial law, is a
to the concept of martial law powers being implemented by President Marcos, in defiance of traditional views and pre
jurisprudence, to the effect that the Executive's power of legislation during a regime of martial law is all inclusive and
to the matters demanded by military necessity. In other words, the new constitution unlike any other constitution coun
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) Se
its Article XVII which provides that this constitution shall "supersede the Constitution of nineteen hundred and thirty-fi
amendments thereto" and (2) its transitory provisions expressly continue the effectivity of existing laws, offices and co
as the tenure of all incumbent officials, not adversely affected by it, which would have been unnecessary if the old co
were being merely amended.

The new Constitution, in its Section 10, Article XVII, provides that "(T)he incumbent members of the Judiciary (which
Chief Justice and Associate Justices of Supreme Court) may continue in office (under the constitution) until they reac
seventy years, etc." By virtue of the presumptive validity of the new charter, all of form part of the 15-man-Court provi
therein correspondingly, We have in legal contemplation, ceased in the meanwhile to be members of the 11-man-Cou
1935 Constitution. Should the Court finally decide that the Constitution is invalid, then We would automatically revert
positions in the 11-man- Court, otherwise, We would just continue to be in our membership in the 15-man-Court, unle
We cannot in conscience accept the legality of existence. On the other hand, if it is assumed that We are the 11-man
happens that Our collective decision is in favor of the new constitution, it would be problematical for any dissenting ju
consider himself as included automatically in the 15-man-Court, since that would tantamount to accepting a position h
honestly believe exists.

III

In brief, the main contention of the petitioners is that Proclamation 1102 is invalid because the ratification of the 1973
it purports to declare as having taken place as a result of the referendum above-referred to is ineffective since it cann
on the basis of the said referendum that said Constitution has been "approved by a majority of the votes cast at an el
the manner prescribed by Article XV the Constitution of 1935. More specifically, they maintain that the word "election"
Article has already acquired a definite accepted meaning out of the consistent holding in the past of ratification plebis
accordingly, no other form of ratification can be considered contemplated by the framers of the Old Constitution than
had been followed 1935, 1937, 1939, 1940, 1946 and 1967, the last three or four which were held under the supervis
Commission on Elections. Furthermore, they emphatically deny the veracity of the proclaimed results of the referendu
according to them the referendum was a farce and its results were manufactured or prefabricated, considering that M
Cruz, who is supposed to have submitted the final report to the President, which served as basis for Proclamation 11
official authority to render the same, and it is inconceivable and humanly impossible for anyone to have been able to
tabulate and canvass the 15 million votes allegedly reported within the short period of time employed. Of course, they
contend that in any event, there was no proper submission because martial law per se creates constructive duress w
deprives the voters of the complete freedom needed for the exercise of their right of choice and actually, there was ne
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
a political one which the courts are not supposed to inquire into, and, anyway, there has been a substantial complian
Article XV of the 1935 Constitution, inasmuch as, disregarding unessential matters of form, the undeniable fact is tha
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 a
the observation that in view of the lack of solemnity and regularity in the voting as well as in the manner of reporting a
canvassing conducted in connection with the referendum, I cannot say that Article XV of the Old Constitution has bee
with, albeit I held that nonetheless, the Constitution of 1973 is already in force. In order, however, to make myself cle
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 certi
through Proclamation 1102 itself that the New Constitution has been approved by a majority of the people and having
facts of general knowledge which I have judicial notice of, I am in no position to deny that the result of the referendum
President had stated. I can believe that the figures referred to in the proclamation may not accurate, but I cannot say
conscience that all of them are manufactured or prefabricated, simply because I saw with own eyes that people did a
gather and listen discussions, if brief and inadequate for those who are abreast of current events and general occurre
that they did vote. I believe I can safely say that what I have seen have also been seen by many others throughout th
and unless it can be assumed, which honestly, I do not believe to be possible, that in fact there were actually no mee
and no voting done in more places than those wherein there were such meetings and votings, I am not prepared to d
entirely the declaration that there was voting and that the majority of the votes were in favor of the New Constitution.
there were substantially less than 14 million votes of approval, the real figure, in my estimate, could still be significant
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
merely of a loose consultation and not an outright submission for purposes of ratification. I can see that at the outset,
first set of questions was released, such may have been the idea. It must not be lost sight of, however, that if the new
reports are to be believed, and I say this only because petitioners would consider the newspapers as the official gaze
administration, the last set of six questions were included precisely because the reaction to the idea of mere consulta
that the people wanted greater direct participation, thru the Citizens Assemblies, in decision-making regarding matter
national interest. Thus, looking at things more understandingly and realistically the two questions emphasized by cou
namely, (1) Do yo approve of the New Constitution? and (2) Do you want plebiscite to be called to ratify the new Con
should be considered no longer as loose consultations but as direct inquiries about the desire of the voters regarding
mentioned. Accordingly, I take it that if the majority had expressed disapproval of the new Constitution, the logical con
would have been the complete abandonment of the idea of holding any plebiscite at all. On the other hand, it is very p
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 shou
direct and expressed desire of the people to such effect in order to forestall as much as possible any serious controve
regarding the non-holding of the plebiscite required by the letter of Section 16 of Article XVII, the effectivity clause, of
Constitution. Oddly enough, the "comments" accompanying the questions do strongly suggest this view. And as it tur
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 s
the thrust of the said question does not seek an answer of fact but of opinion. It is argued that it would have been fac
worded categorically thus — Do you approve the New Constitution? The contention would have been weighty were it
unrealistic. I remember distinctly that the observation regarding the construction of the subject question was not origin
by any of the talented counsels for petitioners. It came from Mr. Justice Fred Ruiz Castro whose mastery of the Englis
can rightly be the cause of envy of even professors of English. None of the other members of the Court, as far as I ca
ever noticed how the said question is phrased, or if anyone of Us did, I am not aware that he gave it more than passin
What I mean is that if neither any of the distinguished and learned counsels nor any member of the Court understood
question otherwise than calling for a factual answer instead of a mere opinion, how could anyone expect the millions
unlettered members of the Citizens Assemblies to have noticed the point brought out by Justice Castro? Truth to tell,
not realize the difference until Justice Castro gave it emphasis. Besides, reading the question in the light of the accom
"comment" corresponding to it in particular, I am certain that any one who answered the same understood it in no oth
than a direct inquiry as to whether or not, as a matter of fact, he approves the New Constitution, and naturally, affirma
must be taken as a categorical vote of approval thereof, considering, particularly, that according to the reported resul
referendum said answer was even coupled with the request that the President defer the convening of the Interim Nat
Assembly.

It is also contended that because of this reference in answer to that question to the deferment of the convening of the
assembly, the said answer is at best a conditional approval not proper nor acceptable for purposes of ratification pleb
contention has no basis. In interest of accuracy, the additional answer proposed in pertinent "comment" reads as follo
do not want Ad Interim Assembly to be convoked etc." On the assumption that the actual answer, as reported, was of
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

As regards said "comments", it must be considered that a martial law was declared, the circumstances surrounding m
Constitution acquired a different and more meaningful aspect, namely, the formation of a new society. From the point
the President and on the basis of intelligence reports available to him, the only way to meet situation created by the s
elements was to introduce immediately effective reforms calculated to redeem the people from the depth of retrogres
stagnation caused by rampant graft and corruption in high places, influence peddling, oligarchic political practices, pr
armies, anarchy, deteriorating conditions of peace and order, the so inequalities widening the gap between the rich a
and many other deplorable long standing maladies crying for early relief and solution. Definitely, as in the case of reb
movement that threatened the Quirino Administration, the remedy was far from using bullets alone. If a constitution w
approved as an effective instrument towards the eradication of such grave problems, it had to be approved without lo
and sans the cumbersome processes that, from the realistic viewpoint, have in the past obstructed rather than hasten
progress of the people. Stated otherwise, in the context of actualities, the evident objective in having a new constitutio
establish new directions in the pursuit of the national aspirations and the carrying out of national policies. Only by bea
considerations in mind can the "comments" already referred to be properly appreciated. To others said "comments" m
as evidence of corruption of the will of those who attended the assemblies, but actually, they may also be viewed in th
light as the sample ballots commonly resorted to in the elections of officials, which no one can contend are per se me
coercion. Let us not forget that the times are abnormal, and prolonged dialogue and exchange of ideas are not gener
possible, nor practical, considering the need for faster decisions and more resolute action. After all voting on a whole
constitution is different from voting on one, two or three specific proposed amendments, the former calls for nothing m
collective view of all the provisions of the whole charter, for necessarily, one has to take the good together with the ba
rare for anyone to reject a constitution only because of a few specific objectionable features, no matter how substanti
considering the ever present possibility that after all it may be cured by subsequent amendment. Accordingly, there w
indicate to the people the paths open to them in their quest for the betterment of their conditions, and as long as it is n
that those who did not agree to the suggestions in the "comments" were actually compelled to vote against their will,
convinced that the existence of said "comments" should make any appreciable difference in the court's appraisal of th
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 dis
result of the referendum barely because of martial law per se. For one thing, many of the objectionable features of m
have not actually materialized, if only because the implementation of martial law since its inception has been general
characterized by restraint and consideration, thanks to the expressed wishes of the President that the same be made
style", which means without the rigor that has attended it in other lands and other times. Moreover, although the restr
the freedom of speech, the press and movement during martial law do have their corresponding adverse effects on th
information which should be open to a voter, in its real sense what "chills" his freedom of choice and mars his exercis
discretion is suspension of the privilege of the writ of habeas corpus. The reason is simply that a man may freely and
vote even if the needed information he possesses as to the candidates or issues being voted upon is more or less inc
but when he is subject to arrest and detention without investigation and without being informed of the cause thereof, t
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 m
It is a fact, however, borne by history and actual experience, that in the Philippines, the suspension of the privilege of
writ habeas corpus has never produced any chilling effect upon the voters, since it is known by all that only those who
the law, saving inconsequential instances, have any cause for apprehension in regard to the conduct by them of the n
activities of life. And so it is recorded that in the elections 1951 and 1971, held while the privilege of writ of habeas co
under suspension, the Filipino voters gave the then opposition parties overwhelming if not sweeping victories, in defia
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 consid
sufficient basis for declaring that the New Constitution has been ratified in accordance with the amending clause of th
Constitution. I reiterate that in point of law, I find neither strict nor substantial compliance. The foregoing discussion is
counter, if I may, certain impression regarding the general conditions obtaining during and in relation to the referendu
could have in one way or another affected the exercise of the freedom of choice and the use of discretion by the mem
Citizens Assemblies, to the end that as far as the same conditions may be relevant in my subsequent discussions of
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 pre
considered opinion is that the Court may no longer decide these cases on the basis of purely legal considerations. Fa
are non-legal but nevertheless ponderous and compelling cannot be ignored, for their relevancy is inherent in the issu
be resolved.

In my opinion in the Plebiscite Cases, I joined my colleagues in holding that the question of whether or not there was
submission under Presidential Decree No. 73 is justiciable, and I still hold that the propriety of submission under any
in any other form is constitutionally a fit subject for inquiry by the courts. The ruling in the decided cases relied upon b
petitioners are to this effect. In view, however, of the factual background of the cases at bar which include ratification
necessary for me to point out that when it comes to ratification, I am persuaded that there should be a boundary beyo
the competence of the courts no longer has any reason for being, because the other side is exclusively political territo
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 enou
indication of such acceptance in the record and in the circumstances the Court can take judicial notice of. For my par
it unnecessary to be strictly judicial in inquiring into such fact. Being personally aware, as I have already stated, that t
Assemblies did meet and vote, if irregularly and crudely, it is not for me to resort, for the purposes of these cases, to
and measure, to find out with absolute precision the veracity of the total number of votes actually cast. After all, the cl
upon a comparison of conflicting reports, cases of excess votes may be found, even if extrapolated will not, as far as
out, suffice to overcome the outcome officially announced. Rather than try to form a conclusion out of the raw evidenc
which the parties did not care to really complete, I feel safer by referring to the results announced in the proclamation
Giving substantial allowances for possible error and downright manipulation, it must not be overlooked that, after all,
been accepted and adopted by the President, based on official reports submitted to him in due course of performance
appropriate subordinate officials, elevated them to the category of an act of a coordinate department of the governme
under the principle separation of powers is clothed with presumptive correctness or at least entitled to a high degree
acceptability, until overcome by better evidence, which in these cases does not exist. In any event, considering that d
unorthodoxy of the procedure adopted and the difficulty of an accurate checking of all the figures, I am unable to conc
manageable means of acquiring information upon which to predicate a denial, I have no alternative but to rely on wha
officially declared. At this point, I would venture to express the feeling that if it were not generally conceded that there
sufficient showing of the acceptance in question by this time, there would have been already demonstrative and signi
indications of a rather widespread, if not organized resistance in one form or another. Much as they are to be given d
recognition as magnificent manifestations of loyalty and devotion to principles, I cannot accord to the filing of these ca
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 s
unequivocal pronouncements to the effect that any amendment to the Constitution of 1935, to be valid, must appear t
been made in strict conformity with the requirements of Article XV thereof. What is more, that decision asserted judici
competence to inquire into the matter of compliance or non compliance as a justiciable matter. I still believe in the cor
those views and I would even add that I sincerely feel it reflects the spirit of the said constitutional provision. Without
strain any point however, I, submit the following considerations in the context of the peculiar circumstances of the cas
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 im
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 ha
referred to is, now inviting Our attention to the exact language of Article XV and suggesting that the said Article may b
applied to proposed amendments but may hardly govern the ratification of a new Constitution. It is particularly stresse
Article specifically refers to nothing else but "amendments to this Constitution" which if ratified "shall be valid as part o
Constitution." Indeed, how can a whole new constitution be by any manner of reasoning an amendment to any other
and how can it, if ratified, form part of such other constitution? In fact, in the Tolentino case I already somehow hinted
when I made reference in the resolution denying the motion for reconsideration to the fact that Article XV must be foll
long as any amendment is formulated and submitted under the aegis of the present Charter." Said resolution even ad
is not to say that the people may not, in the exercise of their inherent revolutionary powers, amend the Constitution o
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 p
changes in any part of the same constitution itself, for the very fact that a new constitution is being adopted implies a
intent to put aside the whole of the old one, and what would be really incongrous is the idea that in such an eventualit
Constitution would subject its going into effect to any provision of the constitution it is to supersede, to use the langua
of Section 6, Article XVII, the effectivity clause, of the New Constitution. My understanding is that generally, constituti
born, they very rarely, if at all, come into being, by virtue of any provision of another constitution. 3 This must be the r
every constitution has its own effectivity clause, so that if, the Constitutional Convention had only anticipated the idea
referendum and provided for such a method to be used in the ratification of the New Constitution, I would have had s
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
and the circumstances dictating the replacement. From the very nature of things, the proposal to ordain a new constit
be viewed as the most eloquent expression of a people's resolute determination to bring about a massive change of t
order, a meaningful transformation of the old society and a responsive reformation of the contemporary institutions an
principles. Accordingly, should any question arise as to its effectivity and there is some reasonable indication that the
has already received in one way or another the sanction of the people, I would hold that the better rule is for the cour
the people's judgment, so long as they are convinced of the fact of their approval, regardless of the form by which it is
provided it be reasonably feasible and reliable. Otherwise stated, in such instances, the courts should not bother abo
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
elements, both collective and individual, of the Congress of the Philippines. Neither the Senate nor the House of Rep
has been reported to have even made any appreciable effort or attempt to convene as they were supposed to do und
Constitution of 1935 on January 22, 1973 for the regular session. It must be assumed that being composed of experie
knowledgeable and courageous members, it would not have been difficult for said parliamentary bodies to have conc
ingenious way of giving evidence of their determined adherence to the Constitution under which they were elected. F
much as I admire the efforts of the handful of senators who had their picture taken in front of the padlocked portals of
chamber, I do not feel warranted to accord such act as enough token of resistance. As counsel Tolentino has informe
there was noting to stop the senators and the congressmen to meet in any other convenient place and somehow offic
organize themselves in a way that can logically be considered as a session, even if nothing were done than to merely
and disperse. Counsel Tolentino even pointed out that if there were not enough members to form a quorum, any sma
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 presen
for mandamus have no legal and factual bases. And to top it all, quite to the contrary, the records of the Commission
Elections show that at least 15 of 24 senators and over 95 out of less than 120 members of the House of Representa
officially and in writing exercised the option given to them to join the Interim National Assembly under the New Consti
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 th
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 develo
taking place and for the sake of being the guardian of the Constitution and the defender of its integrity and supremacy
judicial power prevail against the decision of those who were duly chosen by the people to be their authorized spokes
representatives. It is not alone the physical futility of such a gesture that concerns me. More than that, there is the sta
that the Senators and the Congressmen, no less than the President, have taken the same oath of loyalty to the Cons
we, the Justices, have taken and they are, therefore, equally bound with Us to preserve and protect the Constitution.
representatives of the people, they have already opted to accept the New Constitution as the more effective instrume
fulfillment of the national destiny, I really wonder if there is even any idealistic worth in our desperately clinging by Ou
alone to Our sworn duty vis-a-vis the 1935 Constitution. Conscious of the declared objectives of the new dispensation
cognizant of the decisive steps being with the least loss of time, towards their accomplishment, cannot but feel appre
instead of serving the best interests of our people, which to me is in reality the real meaning of our oath of office, the
be standing in the way of the very thing our beloved country needs to retrieve its past glory and greatness. In other w
my conviction that what these cases demand most of all is not a decision demonstrative of our legal erudition and So
wisdom but an all rounded judgment resulting from the consideration of all relevant circumstances, principally the pol
brief, a decision more political than legal, which a court can render only by deferring to the apparent judgment of the p
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 So
General that in the legal sense, there has been at least substantial compliance with Article XV of the 1935 Constitutio
I can see is that in a political sense, the answers to the referendum questions were not given by the people as legal c
I take it that when they answered that by their signified approval of the New Constitution, they do not consider it nece
hold a plebiscite, they could not have had in mind any intent to do what was constitutionally improper. Basically accus
proceed along constitutional channels, they must have acted in the honest conviction that what was being done was
conformity with prevailing constitutional standards. We are not to assume that the sovereign people were indulging in
exercise of their supreme political right to choose the fundamental charter by which their lives, their liberties and their
shall be safeguarded. In other words, we must perforce infer that they meant their decision to count, and it behooves
render judgment herein in that context. It is my considered opinion that viewed understandingly and realistically, there
than sufficient ground to hold that, judged by such intent and, particularly, from the political standpoint, the ratification
Constitution declared in Proclamation 1102 complies substantially with Article XV of the 1935 Charter, specially when
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 constitu
substantiality of the whole article, so long as such approval is reasonably ascertained. In the last analysis, therefore,
rightly said, even if only in a broad sense, that the ratification here in question was constitutionally justified and justifia

5. Finally, if any doubt should still linger as to the legitimacy of the New Constitution on legal grounds, the same shou
dispelled by viewing the situation in the manner suggested by Counsel Tolentino and by the writer of this opinion in h
opinion, oft-referred to above, in the Plebiscite Cases — that is, as an extra constitutional exercise by the people, und
leadership of President Marcos, of their inalienable right to change their fundamental charter by any means they may
appropriate, the moment they are convinced that the existing one is no longer responsive to their fundamental, politic
social needs nor conducive to the timely attainment of their national destiny. This is not only the teaching of the Amer
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 ne
the latter may be deemed as constitutionally permissible even from the point of view of the preceding constitution. Th
may feel restrained to consider this view out of respect to the import of Tolentino vs. Comelec, supra., would be well
bear in mind that the case was decided in the context of submission, not accomplished ratification.

The language of the disputed amending clause of the 1935 Constitution should not be deemed as the be all and end
nation. More important than even the Constitution itself with all its excellent features, are the people living under it —
happiness, their posterity and their national destiny. There is nothing that cannot be sacrificed in the pursuit of these
which constitute the totality of the reasons for national existence. The sacred liberties and freedom enshrined in it and
commitment and consecration thereof to the forms of democracy we have hitherto observed are mere integral parts o
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 w
deemed as sanctioning, not only the deviations from traditional democratic concepts and principles but also the qualif
curtailment of individual liberties now being practiced, and this would amount, it is feared, to a repudiation of our oath
and defend the Constitution of 1935. This is certainly something one must gravely ponder upon. When I consider, how
the President, the Vice President, the members of both Houses of Congress, not to speak of all executive departmen
bureaus under them as well as all the lower courts, including the Court of Appeals have already accepted the New Co
as an instrument of a meaningful nationwide-all-level change in our government and society purported to make more
feasible, rather than idealistic and cumbersomely deliberative, the attainment of our national aspirations, I am led to w
whether or not we, as members of the Supreme Court are being true to our duty to our people by refusing to follow su
accept the realities of the moment, despite our being convinced of the sincerity and laudableness of their objectives,
because we feel that by the people's own act of ratifying the Constitution of 1935, they have so encased themselves
provisions and may, therefore, no longer take measures to redeem themselves from the situation brought about by th
deficiencies of the old order, unless they act in strict conformity therewith. I cannot believe that any people can be so
enchained. In any event, I consider it a God-given attribute of the people to disengage themselves, if necessary, from
covenant that would obstruct their taking what subsequently appears to them to be the better road to the promotion a
protection of their welfare. And once they have made their decision in that respect, whether sophisticatedly or crudely
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 Salo
these cases be decided on the basis of conscience. That is exactly what I am doing. But if counsel mean that only by
their petitions can this Court be worthily the bulwark of the people's faith in the government, I cannot agree, albeit my
and respect are all theirs for their zeal and tenacity, their industry and wisdom, their patriotism and devotion to princip
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
we are all animated by sincere love of country and aim exclusively at the attainment of the national destiny. Our hero
past, Rizal, Bonifacio, Aguinaldo, Antonio Luna, Mabini and so also with our patriots of the recent generations, Quezo
Roxas, Laurel and Recto, to mention only some of them, had their differences of views — and they did not hesitate to
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
provision of the Constitution or to the Constitution itself. My oath to abide by the Constitution binds me to whatever co
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 th
leading to these cases have entail will heal after the decision herein is promulgated, so that all us Filipinos may forev
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 co
amendments or of a new Constitution and that such procedure was no complied with, the validity of Presidential Proc
No. 1102 is a political, not a justiciable, issue; for it is inseparably or inextricably link with and strikes at, because it is
the validity of ratification and adoption of, as well as acquiescence of people in, the 1973 Constitution and the legitima
government organized and operating thereunder. And being political, it is beyond the ambit of judicial inquiry, tested b
definition of a political question enunciated in Tañada, et. al. vs. Cuenco, et al. (103 Phil. 1051), aside from the fact th
will not do violence to rights vested under the new Constitution, to international commitments forged pursuant thereto
decisions rendered by the judicial as well as quasi-judicial tribunals organized and functioning or whose jurisdiction h
altered by the 1973 Constitution and the government established thereunder, and will dissipate any confusion in the m
citizenry, who have been obeying the mandates of the new Constitution, as well as exercising the rights and performi
obligations defined by the new Constitution, and decrees and orders issued in implementation of the same and coope
the administration in the renovation of our social, economic and political system as re-structured by the 1973 Constitu
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 ques
which, under the Constitution, is "to be decided by the people in their sovereign capacity, or in regard to which full dis
authority had been delegated to the Legislature or Executive branch of the government." (Tañada, et al. vs. Cuenco,
al., supra).

Article XV of the 1935 Constitution provides: "Such amendments shall be valid as part of this Constitution when appro
majority of the votes cast at an election at which the amendments are submitted to the people for ratification." Under
the 1935 Constitution, the power to propose constitutional amendments is vested in Congress or in a constitutional co
while the power to ratify or reject such proposed amendments or new Constitution is reserved by the sovereign peopl
nullification of Proclamation No. 1102 would inevitably render inoperative the 1973 Constitution, which is in fact the e
prayer of the petitioners in G.R. No. L-36164. Regardless of the modality of submission or ratification or adoption — e
deviates from or violates the procedure delineated therefore by the old Constitution — once the new Constitution is ra
adopted and/or acquiesced in by the people or ratified even by a body or agency not duly authorized therefor but is s
adopted or recognized by the people and by the other official organs and functionaries of the government established
a new Constitution, this Court is precluded from inquiring into the validity of such ratification, adoption or acquiescenc
consequent effectivity of the new Constitution. This is as it should be in a democracy, for the people are the repositor
sovereign powers as well as the source of all governmental authority (Pole vs. Gray, 104 SO 2nd 841 [1958]). This ba
democratic concept is expressly restated in Section 1 of Article II of the Declaration of Principles of the 1935 and 197
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 pe
any infirmity in its submission or any other irregularities therein which are deemed mandatory before submission as th
considered merely directory after such ratification or adoption or acquiescence by the people. As Mr. Justice Brewer,
Kansas State Supreme Court and later Associate Justice of the Federal Supreme Court, stated in re Prohibitory Ame
Cases (24 Kansas 700 & 710 Reprint 499, 506): "The two important, vital elements of the Legislature and a majority o
popular vote. Beyond these, other provisions are mere machineries and forms. They may not be disregarded, becaus
certainty as to the essentials is secured. But they are not themselves the essentials." (Cited in Larken vs. Gronna, 28
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. 1
Chief Justice Hughes, speaking for the majority, stated that:

... Thus the political departments of the government dealt with the effect of both previous rejec
attempted withdrawal and determined that both were ineffectual in the presence of an actual r
. This decision by the political departments of the Government as to the validity of the adoptio
Fourteenth amendment has been accepted.

We think that in accordance with this historic precedent the question of the efficacy of ratificat
legislatures, in the light of previous rejection or attempted withdrawal, should be regarded as a
question pertaining to the political departments, with the ultimate authority in the Congress in
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, Fra
and Douglas join, thus:

The Constitution grants Congress exclusive power to control submission of constitutional ame
Final determination by Congress that ratification by three-fourths of the States has taken place
conclusive upon the courts." In the exercise of that power, Congress, of course, is governed b
Constitution. However, whether submission, intervening procedure or Congressional determin
ratification conforms to the commands of the Constitution, calls for decisions by a "political de
questions of a type which this Court has frequently designated "political." And decision of a "p
question" by the "political department" to which the Constitution has committed it "conclusively
judges, as well as all other officers, citizens and subjects of...government." Proclamation unde
of Congress that an amendment has been ratified will carry with it a solemn assurance by the
that ratification has taken place as the Constitution commands. Upon this assurance a proclai
amendment must be accepted as a part of the Constitution, leaving to the judiciary its tradition
of interpretation. To the extent that the Court's opinion in the present case even impliedly assu
power to make judicial interpretation of the exclusive constitutional authority of Congress over
and ratification of amendments, we are unable to agree... (American Constitutional Issues, by
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. L
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. Co
(L-34150, Oct. 16, 1971, 41 SCRA 702) on which petitioners place great reliance — that the courts may review the pr
submission of a proposed constitutional amendment before the ratification or adoption of such proposed amendment
sovereign people, hardly applies to the cases at bar; because the issue involved in the aforesaid cases refers to only
propriety of the submission of a proposed constitutional amendment to the people for ratification, unlike the present p
which challenge inevitably the validity of the 1973 Constitution after its ratification or adoption thru acquiescence by th
people. As heretofore stated, it is specious and pure sophistry to advance the reasoning that the present petitions pra
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 include
general grant of legislative powers to Congress. It is part of the inherent powers of the people
repository of sovereignty in a republican state, such as ours — to make, and hence, to amend
Fundamental Law. Congress may propose amendments to the same explicitly grants such po
when exercising the same, it is said that Senators and Members of the House of Representati
act, not as members, but as component elements of a constituent assembly. When acting as
members of Congress derive their authority from the Constitution, unlike the people, when per
same function, for their authority does not emanate from the Constitution — they are the very
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 propo
amend and the ratification of such a constitutional amendment are political in nature forming as they do the essential
political scheme — the amending process. WE merely stated therein that the force of the ruling in the said case of Ma
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
political one, declined to pass upon the question whether or not a given number of votes cast
in favor of a proposed amendment to the Constitution — which was being submitted to the pe
ratification — satisfied the three fourths vote requirement of the fundamental law. The force of
precedent has been weakened, however, by Suanes vs. Chief Accountant of the Senate, Ave
Cuenco, Tañada vs. Cuenco and Macias vs. Commission on Elections. In the first, we held th
and employees of the Senate Electoral Tribunal are supervision and control, not of that of the
President, claimed by the latter; in the second, this Court proceeded to determine the number
necessary for a quorum in the Senate; in the third we nullified the election, by Senators belong
party having the largest number of votes in said chamber purporting to act on behalf of the pa
the second largest number of votes therein, of two (2) Senators belonging to the first party, as
for the second party, of the Senate Electoral Tribunal; and in the fourth, we declared unconstit
act of Congress purporting to apportion the representative districts for the House of Represen
upon the ground that the apportionment had not been made as may be possible according to
of inhabitants of each province. Thus we rejected the theory advanced in these four (4) cases
issues therein raised were political questions the determination of which is beyond judicial rev
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 asse
violates the Constitution is essentially justiciable, not political, and, hence, subject to judicial re
and to the extent that this view may be inconsistent with the stand taken in Mabanag vs. Lope
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 peop
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 submissio
proposed constitutional amendment. Courts do not deal with propriety or wisdom or absence of either of an official ac
law. Judicial power concerns only with the legality or illegality, constitutionality or unconstitutionality of an act: it inquir
existence of power or lack of it. Judicial wisdom is not to be pitted against the wisdom of the political department of th
government.

The classic example of an illegal submission that did not impair the validity of the ratification or adoption of a new Con
the case of the Federal Constitution of the United States. It should be recalled that the thirteen (13) original states of
American Union — which succeeded in liberating themselves from England after the revolution which began on April
with the skirmish at Lexington, Massachusetts and ended with the surrender of General Cornwallis at Yorktown, Virgi
October 19, 1781(Encyclopedia Brit., Vol. I, 1933 Ed., p. 776) — adopted their Articles of Confederation and Perpetu
that was written from 1776 to 1777 and ratified on March 1, 1781 (Encyclopedia Brit., Vol. II, 1966 Ed., p. 525). Abou
thereafter, the Congress of the Confederation passed a resolution on February 21, 1787 calling for a Federal Constitu
Convention "for the sole and express purpose of revising the articles of confederation ... ." (Appendix I, Federalist, Mo
Library ed., p. 577, emphasis supplied).

The Convention convened at Philadelphia on May 14, 1787. Article XIII of the Articles of Confederation and Perpetua
stated specifically:

The articles of this confederation shall be inviolably observed in every state, and the union sha
perpetual; nor shall any alterations at any time hereafter be made in any of them; unless such
be agreed to in a congress of the united states, and be afterwards confirmed by the legislature
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
ratification of the Federal Constitution as drafted by the Philadelphia Convention were not followed. Fearful the said F
Constitution would not be ratified by the legislatures as prescribed, the Philadelphia Convention adopted a resolution
the Congress of the Confederation to pass a resolution providing that the Constitution should be submitted to elected
conventions and if ratified by the conventions in nine (9) states, not necessarily in all thirteen (13) states, the said Con
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 merci
legislatures of each and all of the 13 states. Experience clearly indicated that ratification then
had the same chance as the scriptural camel passing through the eye of a needle. It was ther
determined to recommend to Congress that the new Constitution be submitted to conventions
several states especially elected to pass upon it and that, furthermore, the new government sh
into effect if and when it should be ratified by nine of the thirteen states ... . (The Federalist, M
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 Antifederalis
for ratification of the Constitution by popularly elected conventions in each state. Suspecting th
Island, at least, would prove recalcitrant, it declared that the Constitution would go into effect a
nine states ratified. The convention method had the further advantage that judges, ministers, a
ineligible to state legislatures, could be elected to a convention. The nine-state provision was,
 mildly revolutionary. But the Congress of the Confederation, still sitting in New York to carry o
government until relieved, formally submitted the new constitution to the states and politely fad
before the first presidential inauguration. (The Oxford History of the Am. People, by Samuel E
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
(12 C.J. p. 679 footnote, 16 C.J.S., 27. — by the state conventions and not by all thirteen (13) state legislatures as re
Article XIII of the Articles of Confederation and Perpetual Union aforequoted — and in spite of the fact that the Feder
Constitution as originally adopted suffers from two basic infirmities, namely, the absence of a bill of Rights and of a pr
affirming the power of judicial review.

The liberties of the American people were guaranteed by subsequent amendments to the Federal Constitution. The d
judicial review has become part of American constitutional law only by virtue of a judicial pronouncement by Chief Jus
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, no
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
new or revised Constitution does not depend on the method of its submission or ratification by the people, but on the
or approval or adoption or acquiescence by the people which fact of ratification or adoption or acquiescence is all tha
essential, the Court cited precisely the case of the irregular revision and ratification by state conventions of the Feder
Constitution, thus:

No case identical in its facts with the case now under consideration has been called to our atte
we have found none. We think that the principle which we apply in the instant case was very c
applied in the creation of the constitution of the United States. The convention created by a re
Congress had authority to do one thing, and one only, to wit, amend the articles of confederat
they did not do, but submitted to the sovereign power, the people, a new constitution. In this m
the constitution of the United States submitted to the people and it became operative as the o
of this nation when it had been properly adopted by the people.

Pomeroy's Constitutional Law, p. 55, discussing the convention that formulated the constitutio
United States, has this to say: "The convention proceeded to do, and did accomplish, what the
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
Congress, and afterwards ratified by all the State legislatures, in the manner pointed out by th
organic law. But the convention soon became convinced that any amendments were powerles
cure; that the disease was too deeply seated to be reached such tentative means. They saw t
system they were called to improve must be totally abandoned, and that the national idea mus
established at the center of their political society. It was objected by some members, that they
power, no authority, to construct a new government. They had no authority, if their decisions w
final; and no authority whatsoever, under the articles of confederation, to adopt the course the
they knew that their labors were only to be suggestions; and that they as well as any private in
and any private individuals as well as they, had a right to propose a plan of government to the
their adoption. They were, in fact, a mere assemblage of private citizens, and their work had n
binding sanction than a constitution drafted by Mr. Hamilton in his office would have had. The
their expressed will, transformed this suggestion, this proposal, into an organic law, and the p
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
instrument is not what gives it binding force and effect. The fiat of the people and only the fiat
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
sovereign. This would be an authorized exercise of sovereign power by the court. In State v. S
505, 519, the Indiana Supreme Court said: "The people of a State may form an original consti
abrogate an old one and form a new one, at any time, without any political restriction except th
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
the act of February 23, 1887, is unconstitutional and void, it would not, in our opinion, by any m
follow that the amendment is not a part of our state Constitution. In the recent case of Taylor v
Commonwealth (Va.) 44 S.E. 754, the Supreme Court of Virginia hold that their state Constitu
1902, having been acknowledged and accepted by the officers administering the state govern
by the people, and being in force without opposition, must be regarded as an existing Constitu
irrespective of the question as to whether or not the convention which promulgated it had auth
do without submitting it to a vote of the people. In Brittle v. People, 2 Neb. 198, is a similar hol
certain provisions of the Nebraska Constitution of 1886, which were added by the Legislature
requirement of Congress, though never submitted to the people for their approval." (97 NW 34
emphasis supplied).

Against the decision in the Wheeler case, supra, confirming the validity of the ratification and adoption of the America
Constitution, in spite of the fact that such ratification was in clear violation of the prescription on alteration and ratifica
Articles of Confederation and Perpetual Union, petitioners in G.R. No. L-36165 dismissed this most significant historic
calling the Federal Constitution of the United States as a revolutionary one, invoking the opinion expressed in Vol. 16
Juris Secundum, p. 27, that it was a revolutionary constitution because it did not obey the requirement that the Article
Confederation and Perpetual Union can be amended only with the consent of all thirteen (13) state legislatures. This
does not cite any decided case, but merely refers to the footnotes on the brief historic account of the United States C
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 th
People, 1965 Ed. by Samuel Eliot Morison, who discusses the Articles of Confederation and Perpetual Union in Chap
captioned "Revolutionary Constitution Making, 1775 1781" (pp. 270-281). In Chapter XX on "The Creative Period in P
1785-1788," Professor Morison delineates the genesis of the Federal Constitution, but does not refer to it even implic
revolutionary constitution (pp. 297-316). However, the Federal Constitution may be considered revolutionary from the
of McIver if the term revolution is understood in "its wider sense to embrace decisive changes in the character of gove
even though they do not involve the violent overthrow of an established order, ... ." (R.M. MacIver, The Web of Gover
1965 ed., p. 203).

It is rather ridiculous to refer to the American Constitution as a revolutionary constitution. The Articles of Confederatio
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 wa
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 "cr
brain and purpose of man" in an era of peace. It can only be considered revolutionary in the sense that it is a radical d
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 Artic
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 t
Constitution and of the government established and operating thereunder. Petitioners pray for a declaration that the 1
Constitution is inoperative (L-36164). If Proclamation No. 1102 is nullified, then there is no valid ratification of the 197
Constitution and the inevitable conclusion is that the government organized and functioning thereunder is not a legitim
government.

That the issue of the legitimacy of a government is likewise political and not justiciable, had long been decided as ear
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.
L.ed. 1187) and re-enunciated in 1912 in the case of Pacific States Telephone and Telegraph Company vs. Oregon (
118, 133-151, 56 L.ed. 377-386). Because it reaffirmed the pronouncements in both Borden and Beckham cases, it is
for us to quote the decision in Pacific States Telephone and Telegraph Co., supra, penned by Mr. Chief Justice White
stated:

In view of the importance of the subject, the apparent misapprehension on one side and seem
misconception on the other, suggested by the argument as to the full significance of the previo
we do not content ourselves with a mere citation of the cases, but state more at length than w
would the issues and the doctrine expounded in the leading and absolutely controlling case —
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
that the character government had no legal existence during the period of time above mention
had been annulled by the adoption of the opposing government, — then the laws passed by i
legislature during that time were nullities; its taxes wrongfully collected, its salaries and compe
its officers illegally paid ; its public accounts improperly settled and the judgments and sentenc
courts in civil and criminal cases null and void, and the officers who carried their decisions into
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
state in the Union a republican form of government, and shall protect each of them against inv
on the application of the Legislature or of the Executive (when the legislature cannot be conve
against domestic violence.

"Under this article of the Constitution it rests with Congress to decide what government is esta
in a state. For, as the United State guarantee to each state a republican government, Congres
necessarily decide what government is established in the state before it can determine whethe
republican or not. And when the senators and representatives of a state are admitted into the
the Union, the authority of the government under which they were appointed, as well as its rep
character, is recognized by the proper constitutional authority. And its decision is binding on e
department of the government, and could not be questioned in a judicial tribunal. It is true that
 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
Congress was not called upon to decide the controversy. Yet the right to decide is placed ther
the courts."

xxx xxx xxx

... We do not stop to cite other cases which indirectly or incidentally refer to the subject, but co
directing attention to the statement by the court, speaking through Mr. Chief Justice Fuller, in
Beckham, 178 U.S. 548, 44 L.ed. 1187, 20 Sup. Ct. Rep. 890, 1009, where, after disposing of
contention made concerning the 14th Amendment, and coming to consider a proposition whic
necessary to be decided concerning the nature and effect of the guaranty of S 4 of article 4, it
(p. 578):

"But it is said that the 14th Amendment must be read with S 4 of article 4, of the Constitution,
that the United States shall guarantee to every state in this Union a republican form of govern
shall protect each of them against invasion; and on application of the legislature, or the Execu
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 departm
v. Borden, 7 How. 1, 12 L.ed. 581. In that case it was held that the question, which of the two
governments of Rhode Island, namely, the charter government or the government established
voluntary convention, was the legitimate one, was a question for the determination of the polit
department; and when that department had decided, the courts were bound to take notice of t
and follow it."

xxx xxx xxx

As the issues presented, in their very essence, are, and have long since by this Court been, d
determined to be political and governmental, and embraced within the scope of the scope of t
conferred upon Congress, and not, therefore within the reach of judicial power, it follows that t
presented is not within our jurisdiction, and the writ of error must therefore be, and it is, dismis
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
submitting the same to the people for ratification, becomes valid, when recognized, accepted and acted upon the by C
State and other government functionaries, as well as by the people. In the 1903 case of Taylor vs. Commonwealth (4
755), the Court ruled:

The sole ground urged in support of the contention that Constitution proclaimed in 1902 is inv
was ordained and promulgated by the convention without being submitted for ratification or re
the people of the commonwealth.

The Constitution of 1902 was ordained and proclaimed by convention duly called by direct vot
people of the state to revise and amend the Constitution of 1869. The result of the work that th
convention has been recognized, accepted, and acted upon as the only valid Constitution of th
the Governor in swearing fidelity to it and proclaiming it, as directed thereby; by the Legislatur
formal official act adopting a joint resolution, July 15, 1902, recognizing the Constitution ordain
 convention which assembled in the city of Richmond on the 12th day of June 1901, as the Co
Virginia; by the individual oaths of members to support it, and by its having been engaged for
year in legislating under it and putting its provisions into operation but the judiciary in taking th
prescribed thereby to support and by enforcing its provisions; and by the people in their prima
by peacefully accepting it and acquiescing in it, registering as voters under it to the extent of th
through the state, and by voting, under its provisions, at a general election for their representa
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
without omitting any requisite steps, courts should uphold amendment, unless satisfied that th
Constitution was violated in submitting the proposal. ... Substance more than form must be re
considering whether the complete constitutional system for submitting the proposal to amend
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
advertisement, yet, if followed, unobjected to, by approval of the electors, it becomes part of th
Constitution. Legal complaints to the submission may be made prior to taking the vote, but, if
sanctioned, the amendment is embodied therein, and cannot be attacked, either directly or co
because of any mistake antecedent thereto. Even though it be submitted at an improper time,
effective for all purposes when accepted by the majority. Armstrong v. King, 281 Pa. 207, 126
(130 A 409).

Even if the act of the Constitutional Convention is beyond its authority, such act becomes valid upon ratification or ad
acquiescence by the people. Thus, in the 1905 case of Ex parte Birmingham and A.R. Company (42 SO pp. 118 & 1
Alabama Supreme Court upheld this principle and stated that: "The authorities are almost uniform that this ratification
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 o
enough that they are electors voting on the new Constitution. (Bott vs. Wurts, 40 A 740 [1899]; 45 LRA 251, emphasi

In the 1956 case of Thomson vs. Peoples State Bank (75 NW 2nd 370, 375), the Supreme Court of Wisconsin ruled
"irregularity in the procedure for the submission of the proposed constitutional amendment will not defeat the ratificati
people."

Again, in the 1958 case of Swaim vs. Tuscaloosa County (103 SO 2nd 769), the Alabama Supreme Court pronounce
irregularity in failing to publish the proposed constitutional amendment once in each of the 4 calendar weeks next pre
calendar week in which the election was held or once in each of the 7-day periods immediately preceding the day of t
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
where they admitted irregularities or illegalities committed in the procedure for submission of the proposed constitutio
amendment to the people for ratification consisted of: "(a) the alleged failure of the county election commissioners of
counties to provide a sufficient number of ballot boxes 'secured by good and substantial locks,' as provided by Sectio
Code of 1942, Rec., to be used in the holding of the special election on the constitutional amendment, and (b) the alle
of the State Election Commissioners to comply with the requirements of Code Sections 3204 and 3205 in the appoint
election commissioners in each of the 82 counties. The irregularities complained of, even if proved, were not such irre
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 deliberatio
Constitutional Convention from June 1, 1971 until martial law was proclaimed on Sept. 21, 1972, the salient reforms c
the 1973 Constitution which have long been desired by the people, had been thoroughly discussed in the various com
the Constitutional Convention, on the floor of the Convention itself, in civic forums and in all the media of information.
decrees promulgated by the Chief Executive from Sept. 22, 1972 to Jan. 17, 1973 implement some of the reforms an
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 a
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 oppos
out of eight senatorial seats despite the suspension of the privileges of the writ of habeas corpus (see Lansang vs. G
Dec. 14, 1971, 42 SCRA 448), which suspension implies constraint on individual freedom as the proclamation of mar
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 Exe
branches of the government elected and/or appointed under the 1935 Constitution have either recognized or are now
under the 1973 Constitution, aside from the fact of its ratification by the sovereign people through the Citizens Assem
Ninety-five (95) of a total of one hundred ten (110) members of the House of Representatives including the Speaker a
Speaker Pro Tempore as well as about eleven (11) Congressmen who belong to the Liberal Party and fifteen (15) of
twenty-four (24) senators including Liberal senators Edgar U. Ilarde and John Osmeña opted to serve in the Interim A
according to the certification of the Commission on Elections dated February 19, 1973 (Annex Rejoinder-3 to Consoli
Rejoinder of petitioners in L-36165). Only the five (5) petitioners in L-36165 close their eyes to a fait accompli. All the
functionaries recognize the new government and are performing their duties and exercising their powers under the 19
Constitution, including the lower courts. The civil courts, military tribunals and quasi-judicial bodies created by preside
decrees have decided some criminal, civil and administrative cases pursuant to such decrees. The foreign ambassad
were accredited to the Republic of the Philippines before martial law continue to serve as such in our country; while tw
ambassadors have been accepted by the Philippines after the ratification of the 1973 Constitution on January 17, 197
of the 1973 Constitution had been furnished the United Nations Organization and practically all the other countries wi
Philippines has diplomatic relations. No adverse reaction from the United Nations or from the foreign states has been
On the contrary, our permanent delegate to the United Nations Organization and our diplomatic representatives abro
appointed before martial law continue to remain in their posts and are performing their functions as such under the 19
Constitution.

Even the Commission on Elections is now implementing the provisions of the 1973 Constitution by requiring all electi
to register 18-year olds and above whether literates or not, who are qualified electors under the 1973 Constitution (se
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 th
over 10 weeks now With the petitioners herein, secessionists, rebels and subversives as the only possible exceptions
the citizenry are complying with decrees, orders and circulars issued by the incumbent President implementing the 19
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
and declare it the constitution, it would undoubtedly be the duty of the courts declare its work
This would be revolution, and this the courts of the existing government must resist until they
overturned by power, and a new government established. The convention, however, was the
law. The instrument which we are asked to declare invalid as a constitution has been made an
promulgated according to the forms of law. It is a matter of current history that both the execu
legislative branches of the government have recognized its validity as a constitution, and are n
doing so. Is the question, therefore, one of a judicial character? It is our undoubted duty, if a s
unconstitutional to so declare it; also, if a provision of the state constitution be in conflict with t
constitution, to hold the former invalid. But this is a very different case. It may be said, howeve
every violation of or non-compliance with the law, there should be a remedy in the courts. This
however, always the case. For instance, the power of a court as to the acts of the other depar
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 d
to perform a duty. It is responsible to the people; but if it does act, then, when the question is p
presented, it is the duty of the court to say whether it has conformed to the organic law. While
judiciary should protect the rights of the people with great care and jealousy, because this is it
also because, in times of great popular excitement, it is usually their last resort, yet it should a
time be careful to overstep the proper bounds of its power, as being perhaps equally dangero
especially where such momentous results might follow as would be likely in this instance, if th
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 c
and no law existed providing for the making of a new one. In 1841 public meetings were held,
the election of a convention to form a new one, — to be submitted to a popular vote. The conv
framed one, submitted it to a vote, and declared it adopted. Elections were held for state office
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, wh
formed a new constitution. Whether the charter government, or the one established by the vol
convention, was the legitimate one, was uniformly held by the courts of the state not to be a ju
political question; and the political department having recognized the one, it was held to be the
judiciary to follow its decision. The supreme court of the United States, in Luther v. Borden, 7
while not expressly deciding the principle, as it held the federal court, yet in the argument app
in substance says that where the political department has decided such a matter the judiciary
abide by it.

Let us illustrate the difficulty of a court deciding the question: Suppose this court were to hold
convention, when it reassembled, had no power to make any material amendment, and that s
made are void by reason of the people having theretofore approved the instrument. Then, nex
must determine what amendments were material; and we find the court, in effect, making a co
This would be arrogating sovereignty to itself. Perhaps the members of the court might differ a
amendments are material, and the result would be confusion and anarchy. One judge might s
the amendments, material and immaterial, were void; another, that the convention had then th
power to correct palpable errors, and then the court might differ as to what amendments are m
the instrument as ratified by the people could not be corrected or altered at all, or if the court m
determine what changes were material, then the instrument, as passed upon by the people or
the court would be lacking a promulgation by the convention; and, if this be essential, then the
would arise, what constitution are we now living under, and what is the organic law of the state
suggestion of these matters shows what endless confusion and harm to the state might and li
arise. If, through error of opinion, the convention exceeded its power, and the people are dissa
have ample remedy, without the judiciary being asked to overstep the proper limits of its powe
instrument provides for amendment and change. If a wrong has been done, it can, in the prop
which it should be remedied, is by the people acting as a body politic. It is not a question of wh
merely an amendment to a constitution, made without calling a convention, has been adopted
required by that constitution. If it provides how it is to be done, then, unless the manner be foll
judiciary, as the interpreter of that constitution, will declare the amendment invalid. Koehler v.
 Iowa, 543, 14 N.W. Rep. 738, and 15 N.W. Rep. 609; State v. Tuffy, 1 Nev. 391, 12 Pac. Rep
is a case where a new constitution has been formed and promulgated according to the forms
Great interests have already arisen under it; important rights exist by virtue of it; persons have
convicted of the highest crime known to the law, according to its provisions; the political powe
government has in many ways recognized it; and, under such circumstances, it is our duty to
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
making of them was in excess of its powers, yet, as the entire instrument has been recognized
the manner suggested, it would be equally an abuse of power by the judiciary and violative of
the people, — who can and properly should remedy the matter, if not to their liking, — if it wer
the instrument of a portion invalid, and bring confusion and anarchy upon the state. (emphasis

If this Court inquires into the validity of Proclamation No. 1102 and consequently of the adoption of the 1973 Constitu
be exercising a veto power on the act of the sovereign people, of whom this Court is merely an agent, which to say th
would be anomalous. This Court cannot dictate to our principal, the sovereign people, as to how the approval of the n
Constitution should be manifested or expressed. The sovereign people have spoken and we must abide by their deci
regardless of our notion as to what is the proper method of giving assent to the new Charter. In this respect, WE cann
to know better than the incumbent Chief Executive, who, unlike the members of this Court, only last January 8, 1973,
affirmed in Osmeña vs. Marcos (Pres. Election Contest No. 3, Jan. 8, 1973), was re-elected by the vote of over 5 mill
in 1969 for another term of four years until noon of December 30, 1973 under the 1935 Constitution. This Court, not h
similar mandate by direct fiat from the sovereign people, to execute the law and administer the affairs of government
restrain its enthusiasm to sally forth into the domain of political action expressly and exclusively reserved by the sove
themselves.

The people in Article XV of the 1935 Constitution did not intend to tie their hands to a specific procedure for popular r
their organic law. That would be incompatible with their sovereign character of which We are reminded by Section 1,
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 w
themselves define in their Constitution, cannot apply to a unitary state like the Republic of the Philippines. His opinion
in 1868 may apply to a Federal State like the United States, in order to secure and preserve the existence of the Fed
Republic of the United States against any radical innovation initiated by the citizens of the fifty (50) different states of
American Union, which states may be jealous of the powers of the Federal government presently granted by the Ame
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
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 th

Even if conclusiveness is to be denied to the truth of the declaration by the President in Proclamation No. 1102 that th
through their Citizens' Assemblies had overwhelmingly approved the new Constitution due regard to a separate, coor
co-equal branch of the government demands adherence to the presumption of correctness of the President's declara
presumption is accorded under the law and jurisprudence to officials in the lower levels of the Executive branch, there
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 Departm
Government and Community Development. (Annexes 1, to 1-E, Annexes 2 to 2-O to the compliance with manifestatio
the Solicitor General on behalf of the respondents public officers dated March 7, 1973). There is nothing in the record
contradicts, much less overthrow the results of the referendum as certified. Much less are We justified in reversing th
proof — by shifting it from the petitioners to the respondents. Under the rules on pleadings, the petitioners have the d
demonstrate by clear and convincing evidence their claim that the people did not ratify through the Citizens' Assembl
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 relaye
from private sources which could be biased and hearsay, aside from the fact that such reports are not contained in th
Proclamation No. 1102 is not just an ordinary act of the Chief Executive. It is a well-nigh solemn declaration which an
highest act of the sovereign people — their imprimatur to the basic Charter that shall govern their lives hereafter — m
decades, if not for generations.

Petitioners decry that even 15-year olds, ex convicts and illiterates were allowed to vote in the Citizens' Assemblies, d
admission that the term "Filipino people" in the preamble as well as "people" in Sections 1 and 5 of Article II of the 19
Constitution and in Section 1(3) of Article III of the Bill of Rights includes all Filipino citizens of all ages, of both sexes
literate or illiterate, whether peaceful citizens, rebels, secessionists, convicts or ex-convicts. Without admitting that ex
voted in the referendum, about which no proof was even offered, these sectors of our citizenry, whom petitioners see
with contempt or decision and whom petitioners would deny their sovereign right to pass upon the basic Charter that
their lives and the lives of their progenies, are entitled as much as the educated, the law abiding, and those who are 2
age or above to express their conformity or non conformity to the proposed Constitution, because their stake under th
Charter is not any less than the stake of the more fortunate among us. As a matter of fact, these citizens, whose jurid
personality or capacity to act is limited by age, civil interdiction or ignorance deserve more solicitude from the State th
of the citizenry. In the ultimate analysis, the inclusion of those from 15 years up to below 21 years old, the ex-convicts
ignorant, is more democratic as it broadens the base of democracy and therefore more faithful to the express affirma
Section 1 of Article II of the Declaration of Principles that "sovereignty resides in the people and all government autho
emanates from them."

Moreover, ex-convicts granted absolute pardon are qualified to vote. Not all ex-convicts are banned from voting. Only
had been sentenced to at least one year imprisonment are disenfranchised but they recover their right of suffrage upo
expiration of ten years after service of sentence (Sec. 102, 1971 Rev. Elec. Code). Furthermore, ex-convicts and imb
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
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 certific
results of the same from the Department of Local Governments. But there was such certification as per Annex 1 to 1-
Notes submitted by the Solicitor General counsel for respondents public officers. This should suffice to dispose of this
Even in the absence of such certification, in much the same way that in passing law, Congress or the legislative body
presumed to be in possession of the facts upon which such laws are predicated (Justice Fernando, The Power of Jud
Review, 1967 Ed., pp. 112-11 citing Lorenzo vs. Dir., etc., [1927] 50 Phil. 595 and O'Gonmore, et al: vs. Hartford, etc
U.S. 251), it should likewise be presumed that the President was in possession of the fact upon which Proclamation N
was based. This presumption is further strengthened by the fact that the Department of Local Governments, the Depa
National Defense and the Philippine Constabulary as well the Bureau of Posts are all under the President, which offic
alter ego, are presumptively acting for and in behalf of the President and their acts are valid until disapproved or repro
the President (Planas vs. Gil, 67 Phil. 62; Villen vs. Secretary of Interior, 67 Phil. 451). To deny the truth or the procla
the President as to the overwhelming majority vote in the Citizens' Assemblies in favor of the new Constitution, is to c
President with falsification, which is a most grievous accusation. Under the, rules of pleadings and evidence, the petit
the burden of proof by preponderance of evidence in civil cases and by proof beyond reasonable doubt in criminal pro
where the accused is always presumed to be innocent. Must this constitutional right be reversed simply because the
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
officers whose category in the official hierarchy is very much lower than that of the Chief of State. What reason is the
withhold such a presumption in favor of the President? Does the fact that the President belong to the party in power a
(4) of the five (5) senators who are petitioners in L-36165 belong to the opposition party, justify a discrimination again
President in matters of this nature? Unsupported as their word is by any credible and competent evidence under the
evidence, must the word of the petitioners prevail over that of the Chief Executive, because they happen to be former
and delegates to the Constitutional Convention? More than any of the petitioners herein in all these cases, the incum
President realizes that he risks the wrath of his people being visited upon him and the adverse or hostile verdict of his
because of the restrictions on the civil liberties of his people, inevitable concomitants of martial law, which necessarily
some degree of sacrifice on the part of the citizenry. Until the contrary is established or demonstrated, herein petition
grant that the Chief Executive is motivated by what is good for the security and stability of the country, for the progres
happiness of the people. All the petitioners herein cannot stand on the proposition that the rights under the 1935 Con
absolute and invulnerable to limitations that may be needed for the purpose of bringing about the reforms for which th
petitioners pretend to be clamoring for and in behalf of the people. The five (5) petitioners in L-36165 and four (4) of t
petitioners in L-36164 were all participants in the political drama of this country since 1946. They are witness to the fr
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 (
petitioners in L-36164 and L-36165 may not have participated in the systematic blocking of the desired reforms in Co
outside of it; but the question may be asked as to what exactly they did to support such reforms. For the last seven (7
since the turn of the century, for the last thirty-five (35) years since the establishment of the Commonwealth governm
and for the last twenty seven (27) years since the inauguration of the Republic on July 4, 1946, no tangible substantia
had been effected, funded and seriously implemented, despite the violent uprisings in the thirties, and from 1946 to 1
the violent demonstrations of recent memory. Congress and the oligarchs acted like ostriches, "burying their heads in
sand. "Now the hopes for the long-awaited reforms to be within a year or to are brighter. It would seem therefore to th
everyone including herein petitioners to give the present leadership the opportunity to institute and carry out the need
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 so

This Court in the Gonzales and Tolentino cases transcended its proper sphere and encroached upon the province ex
reserved to and by the sovereign people. This Court did not heed to the principle that the courts are not the fountain o
remedies for all wrongs. WE cannot presume that we alone can speak with wisdom as against the judgment of the pe
basic instrument which affects their very lives. WE cannot determine what is good for the people or ought to be their f
law. WE can only exercise the power delegated to Us by the sovereign people, to apply and interpret the Constitution
laws for the benefit of the people, not against them nor to prejudice them. WE cannot perform an act inimical to the in
Our principal, who at any time may directly exercise their sovereign power ratifying a new Constitution in the manner
to them.

It is pertinent to ask whether the present Supreme Court can function under the 1935 Constitution without being a pa
government established pursuant thereto. Unlike in the Borden case, supra, where there was at least another govern
claiming to be the legitimate organ of the state of Rhode Island (although only on paper as it had no established orga
Dorr who represented himself to be its head; in the cases at bar there is no other government distinct from and maint
position against the existing government headed by the incumbent Chief Executive. (See Taylor vs. Commonwealth, 
There is not even a rebel government duly organized as such even only for domestic purposes, let alone a rebel gove
engaged in international negotiations. As heretofore stated, both the executive branch and the legislative branch esta
under the 1935 Constitution had been supplanted by the government functioning under the 1973 Constitution as of Ja
1973. The vice president elected under the 1935 Constitution does not asset any claim to the leadership of the Repub
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
whom he calls the "hero of the American Bar," because during the American civil war he apparently had the courage
proclamation of President Lincoln suspending the privileges of the writ of habeas corpus in Ex parte Merryman (Fede
No. 9487 [1861]). But who exactly was Chief Justice Roger Brooke Taney? The Editorial Board of Vol. 21 of the Ency
Brit., 1966 ed. (pp. 778-779, 1969 ed., pp. 654-657), briefly recounts that he was born in 1777 in Calvert County, Mar
parents who were landed aristocrats as well as slave owners. Inheriting the traditional conservatism of his parents wh
to the landed aristocracy, Taney became a lawyer in 1799, practiced law and was later appointed Attorney General o
He also was a member of the Maryland state legislature for several terms. He was a leader of the Federalist Party, w
disintegrated after the war of 1812, compelling him to join the Democratic Party of Andrew Jackson, also a slave own
landed aristocrat, who later appointed him first as Attorney General of the United States, then Secretary of the Treasu
1836 Chief Justice of the United States Supreme Court to succeed Chief Justice John Marshall, in which position he
for 28 years until he died on October 21, 1864. His death "went largely unnoticed and unregretted." Because he hims
slave owner and a landed aristocrat, Chief Justice Taney sympathized with the Southern States and, even while Chie
hoped that the Southern States would be allowed to secede peacefully from the Union. That he had no sympathy for
was revealed by his decision in Dred Scott vs. Sandford (19 How. 398 [1857]) where he pronounced that the America
not entitled to the rights of an American citizen and that his status as a slave is determined by his returning to a slave
can therefore discern his hostility towards President Lincoln when he decided Ex parte Merryman, which animosity to
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 o
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 rhetor
Encyclopedia Britannica (Vol. 9, 1969 ed., pp. 508-509) to this effect. On the contrary, Encyclopedia Britannica (Vol.
Encyclopedia Brit., 1966 & 1969 eds., 732-733), refers to Marshal Henri Philippe Petain as the genuine hero or "Savi
Verdun"; because he held Verdun against the 1916 offensive of the German army at the cost of 350,000 of his Frenc
who were then demoralized and plotting mutiny. Certainly, the surviving members of the family of Marshal Petain wou
the error. And neither would the members of the clan of Marshal Foch acknowledge the undeserved accolade, althou
Foch has a distinct place in history on his own merits. The foregoing clarification is offered in the interest of true scho
historical accuracy, so that the historians, researchers and students may not be led astray or be confused by esteem
eloquence and mastery of the spoken and written word as well as by his eminence as law professor, author of law bo
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 th
senators who are petitioners in L-36165 to also act as "heroes and idealists," to defy the President by holding session
themselves alone in a hotel or in their houses if they can muster a quorum or by causing the arrest of other senators
quorum and thereafter remove respondents Puyat and Roy (Avelino, et al. vs. Cuenco, et al. [1949] 83 Phil. 17), if the
most vehemently in the justice and correctness of their position that the 1973 Constitution has not been validly ratified
or acquiesced in by the people since January 18, 1973 until the present. The proclaimed conviction of petitioners in L
this issue would have a ring of credibility, if they proceeded first to hold a rump session outside the legislative building
is not unreasonable to demand or to exact that he who exhorts others to be brave must first demonstrate his own cou
Surely, they will not affirm that the mere filing of their petition in L-36165 already made them "heroes and idealists." T
challenge likewise seems to insinuate that the members of this Court who disagree with petitioners' views are materia
cowards or mercenary fence-sitters. The Court need not be reminded of its solemn duty and how to perform it. WE re
believe that petitioners and their learned as well as illustrious counsels, scholars and liberal thinkers that they are, do
recognize the sincerity of those who entertain opinions that clash with their own. Such an attitude does not sit well wit
dictum that "We can differ without being difficult; we can disagree without being disagreeable," which distinguished co
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 fin
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 S

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 c
amendment or the revised or new Constitution has been validly submitted to the people for ratification in accordance
procedure prescribed by the existing Constitution, is a justiciable question, accord all presumption of validity to the co
amendment or the revised or new Constitution after the government officials or the people have adopted or ratified or
in the new Constitution or amendment, although there was an illegal or irregular or no submission at all to the people
Gray, 4th Dec. Dig. 935 [1934], Hammond vs. Clark, 71 SE 482-483; People vs. Sours, 31 Colo. 369, 74 Pac. 167, 10
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.
574; Weston vs. Ryan, 70 Neb. 211, 97 NW 347; Combs vs. State, 81 Ga. 780, 8 SE 318; Woodward vs. State, 103 G
SE 522; Corre vs. Cooney, 70 Mont. 355, 225 P 1007, 1009). As late as 1971, the courts stressed that the constitutio
amendment or the new Constitution should not be condemned "unless our judgment its nullity is manifest beyond rea
doubt" (1971 case of Moore vs. Shanahan, 486 Pac. 2d 506, 207 Kan. 1, 645; and the 1956 case of Tipton vs. Smith
al., supra).

Mr. Justice Enrique M. Fernando, speaking for the Court, pronounced that the presumption of constitutionality must p
absence of factual foundation of record to overthrow such presumption (Ermita-Malate Hotel, etc. vs. City Mayor, L-2
31, 1967, 20 SCRA 849).

III

CONSTITUTIONAL CONVENTION — CO-EQUAL WITH AND INDEPENDENT OF CONGRESS, EXECUTIVE

JUDICIARY.

The Constitutional Convention is co-ordinate and co-equal with, as well as independent of, the three grand departme
Government, namely, the legislative, the executive and the judicial. As a fourth separate and distinct branch, to emph
independence, the Convention cannot be dictated to by either of the other three departments as to the content as we
form of the Charter that it proposes. It enjoys the same immunity from interference or supervision by any of the afores
branches of the Government in its proceedings, including the printing of its own journals (Tañada and Fernando, Con
the Philippines, 1952 ed., Vol. I, pp. 8 9; Malcolm and Laurel, Phil. Const. Law, p. 22; Frantz vs. Autry, 91 Pac. 193).
that independence, for the purpose of maintaining the same unimpaired and in order that its work will not be frustrate
Convention has the power to fix the date for the plebiscite and to provide funds therefor. To deny the Convention suc
prerogative, would leave it at the tender mercy of both legislative and executive branches of the Government. An uns
Congress would not be disposed to submit the proposed Constitution drafted by the Constitutional Convention to the
ratification, much less appropriate the necessary funds therefor. That could have been the fate of the 1973 Constitutio
the same abolished the Senate by creating a unicameral National Assembly to be presided by a Prime Minister who w
legislative and executive powers and is the actual Chief Executive, for the President contemplated in the new Constit
exercises primarily ceremonial prerogatives. The new Constitution likewise shortened abruptly the terms of the memb
present Congress (whose terms end on December 31, 1973, 1975 and 1977) which provides that the new Constitutio
effect immediately upon its ratification (Sec. 16, Article XVII, 1973 Constitution). The fact that Section 2 of the same A
secures to the members of Congress membership in the interim National Assembly as long as they opt to serve there
thirty (30) days after the ratification of the proposed Constitution, affords them little comfort; because the convening o
National Assembly depends upon the incumbent President (under Sec. 3[1], Art. XVII, 1973 Constitution). Under the
circumstances, the members of Congress, who were elected under the 1935 Constitution, would not be disposed to c
plebiscite and appropriate funds therefor to enable the people to pass upon the 1973 Constitution, ratification of whic
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 effec
possesses the power to call a plebiscite and to appropriate funds for the purpose, it inescapably must have the powe
the same to the President, who, in estimation of the Convention can better determine appropriate time for such a refe
well as the amount necessary to effect the same; for which reason the Convention thru Resolution No. 29 approved o
November 22, 1972, which superseded Resolution No. 5843 adopted on November 16, 1972, proposed to the Presid
a decree be issued calling a plebiscite for the ratification of the proposed new Constitution such appropriate date as h
determine and providing for the necessary funds therefor, ...," after stating in "whereas" clauses that the 1971 Constit
Convention expected to complete its work by the end of November, 1972 that the urgency of instituting reforms rende
imperative the early approval of the new Constitution, and that the national and local leaders desire that there be con
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 an
regulations to implement the law, this authority to delegate implementing rules should not be denied to the Constitutio
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
Constitutional Convention thru its Resolution No. 29, the organization of the Citizens' Assemblies for consultation on
issues, is comprehended within the ordinance-making power of the President under Section 63 of the Revised Admin
Code, which expressly confers on the Chief Executive the power to promulgate administrative acts and commands to
the organization or mode of operation of the government or re-arranging or re-adjusting any district, division or part o
Philippines "or disposing of issues of general concern ... ." (Emphasis supplied). Hence, as consultative bodies repre
localities including the barrios, their creation by the President thru Presidential Decree No. 86 of December 31, 1972,
successfully challenged.

The employment by the President of these Citizens' Assemblies for consultation on the 1973 Constitution or on wheth
was further need of a plebiscite thereon, — both issues of national concern — is still within the delegated authority re
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 plebisc
conducted by the Commission on Elections in accordance with the provisions of the 1971 Revised Election Code. If t
intention of the Constitutional Convention in making the delegation, it could have easily included the necessary phras
purpose, some such phrase like "to call a plebiscite to be supervised by the Commission on Elections in accordance
provisions of the 1971 Revised Election Code (or with existing laws)." That the Constitutional Convention omitted suc
can only mean that it left to the President the determination of the manner by which the plebiscite should be conducte
supervise the plebiscite, and who can participate in the plebiscite. The fact that said Resolution No. 29 expressly stat
copies of this resolution as approved in plenary session be transmitted to the President of the Philippines and the Co
Elections for implementation," did not in effect designate the Commission on Elections as supervisor of the plebiscite
of said resolution that were transmitted to the Commission on Elections at best serve merely to notify the Commission
Elections about said resolution, but not to direct said body to supervise the plebiscite. The calling as well as conduct
plebiscite was left to the discretion of the President, who, because he is in possession of all the facts funnelled to him
intelligence services, was in the superior position to decide when the plebiscite shall be held, how it shall be conducte
shall oversee it.

It should be noted that in approving said Resolution No. 29, the Constitutional Convention itself recognized the validit
validated Presidential Proclamation No. 1081 placing the entire country under martial law by resolving to "propose to
Ferdinand E. Marcos that a decree be issued calling a plebiscite ... ." The use of the term "decree" is significant for th
orders regulating the conduct of all inhabitants are issued in that form and nomenclature by the President as the Com
Chief and enforcer of martial law. Consequently, the issuance by the President of Presidential Decree No. 73 on Dec
1972 setting the plebiscite on January 15, 1973 and appropriating funds therefor pursuant to said Resolution No. 29,
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 s
does not need sufficient standards to circumscribe the exercise of the power delegated, and is beyond the competen
Court to nullify. But even if adequate criteria should be required, the same are contained in the "Whereas" clauses of
Constitutional Convention Resolution No. 29, thus:

WHEREAS, the 1971 Constitutional Convention is expected to complete its work of drafting a
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 Consti
become imperative;

WHEREAS, it is the desire of the national and local leaders that there be continuity in the imm
political transition from the old to the New Constitution;" (Annex "1" of Answer, Res. No. 29, C
Convention).

As Mr. Justice Fernando, with whom Messrs. Justices Barredo, Antonio and the writer concurred in the Plebiscite Ca

... Once this work of drafting has been completed, it could itself direct the submission to the pe
ratification as contemplated in Article XV of the Constitution. Here it did not do so. With Congr
being in session, could the President, by the decree under question, call for such a plebiscite?
such circumstances, a negative answer certainly could result in the work of the Convention be
rendered nugatory. The view has been repeatedly expressed in many American state court de
to avoid such undesirable consequence the task of submission becomes ministerial, with the p
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 Constitutio
done by him in his capacity as President, such an objection would indeed have been formidab
say insurmountable. If the appropriation were made in his capacity as agent of the Convention
that there be submission to the people, then such an argument loses force. The Convention it
have done so. It is understandable why it should be thus. If it were otherwise, then a legislativ
appropriating arm of the government, could conceivably make use of such authority to compe
Convention to submit to its wishes, on pain of being rendered financially distraught. The Presi
performing his role as its agent, could be held as not devoid of such competence. (pp. 2-3, co
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 o
18 and 19, 1972 on the Plebiscite Cases. But the inclusion of questionable or ambiguous provisions does not affect th
the ratification or adoption of the 1973 Constitution itself (Pope vs. Gray, 104 SO, 2d 841; 7th Dec. pp. 212-219, 1956

Alexander Hamilton, one of the leading founders and defenders of the American Constitution, answering the critics of
Constitution, stated that: "I never expect to see a perfect work from imperfect man. The result of the deliberations of a
bodies must necessarily be a compound, as well of the errors and prejudices as of the good sense and wisdom, of th
of whom they are composed. The compacts which are to embrace thirteen distinct States in a common bond of amity
must necessarily be a compromise of as many dissimilar interests and inclinations. How can perfection spring from su
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 beyo
power of the Constitutional Convention to propose.

This objection relates to the wisdom of changing the form of government from Presidential to Parliamentary and inclu
provisions as Section 3 of Article IV, Section 15 of Article XIV and Sections 3(2) and 12 of Article XVII in the 1973 Co

Article IV —

Sec. 3. The right of the people to be secure in their persons, houses, papers, and effects agai
unreasonable searches and seizures of whatever nature and for any purpose shall not be viol
search warrant or warrant of arrest shall issue except upon probable cause to be determined
judge, or such other responsible officer as may be authorized by law, after examination under
affirmation of the complainant and the witnesses may produce, and particularly describing the
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
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 do
incumbent President shall be part of the law of the land, and shall remain valid, legal, binding
effective even after lifting of martial law or the ratification of this Constitution, unless modified,
superseded by subsequent proclamations, orders, decrees, instructions, or other acts of the in
President, or unless expressly and explicitly modified or repealed by the regular National Asse

xxx xxx xxx

Sec. 12. All treaties, executive agreements, and contracts entered into by the Government, or
subdivision, agency, or instrumentality thereof, including government-owned or controlled corp
are hereby recognized as legal, valid and binding. When the national interest so requires, the
President of the Philippines or the interim Prime Minister may review all contracts, concession
or other forms of privileges for the exploration, development, exploitation, or utilization of natu
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), Chi
Roberto Concepcion, concurred in by Justices Fernando, Barredo, Antonio and the writer, overruled this objection, th

... Regardless of the wisdom and moral aspects of the contested provisions of
proposed Constitution, it is my considered view that the Convention was legall
to propose — save perhaps what is or may be insistent with what is now know
particularly in international law, as Jus Cogens — not only because the Conve
exercised sovereign powers delegated thereto by the people — although insof
the determination of the proposals to be made and formulated by said body is
— but also, because said proposals cannot be valid as part of our Fundament
unless and until "approved by the majority of the votes cast at an election whic
proposals "are submitted to the people for their ratification," as provided in Sec
 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 Constitut
Convention has the authority to "entirely overhaul the present Constitution and propose an entirely new Constitution b
ideology foreign to the democratic system ...; because the same will be submitted to the people for ratification. Once
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
constitutional convention ..., is practically limitless" (citing Cf. Koehler vs. Hill, 14 NW 738, 60 Iowa 543 [1883]; Hatch
6 P 734, 66 Cal. 632 [1885]; MacMillan v. Blattner, 25 NW 245, 67 Iowa 287 [1895]; State v. Powell, 27 SO 297, 77 M
[1900]; Hammond v. Clark, 71 SE 479, 136 Ga. 313 [1911]; Hamilton v. Vaughan, 179 NW 533, 212 Mich. 31 [1920];
Smith, 138 NE 881, 105 Ohio St. 570 [1922]; Looney vs. Leeper, 292 P 365, 145 Okl. 202 [1930]; School District vs.
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 ele
delegates to the Convention and when the delegates themselves were campaigning, such limitation of the scope of th
and objective was not in their minds."

1973 CONSTITUTION DULY ADOPTED AND

PROMULGATED.

Petitioners next claim that the 1971 Constitutional Convention adjourned on November 30, 1972 without officially pro
the said Constitution in Filipino as required by Sections 3(1) of Article XV on General Provisions of the 1973 Constitu
claim is without merit because their Annex "M" is the Filipino version of the 1973 Constitution, like the English version
the certification by President Diosdado Macapagal of the Constitutional Convention, duly attested by its Secretary, th
proposed Constitution, approved on second reading on the 27th day of November, 1972 and on third reading in the C
291st plenary session on November 29, 1972 and accordingly signed on November 1972 by the delegates whose sig
thereunder affixed. It should be recalled that Constitutional Convention President Diosdado Macapagal was, as Presi
Republic 1962 to 1965, then the titular head of the Liberal Party to which four (4) of the petitioners in L-36165 includin
counsel, former Senator Jovito Salonga, belong. Are they repudiating and disowning their former party leader and be

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 Constitutio
approved by a majority of the votes cast at an election at which the amendments are submitted to the people for ratifi

But petitioners construe the aforesaid provision to read: "Such amendments shall be valid as part of this Constitution
approved by a majority of the votes cast at an election called by Congress at which the amendments are submitted fo
by the qualified electors defined in Article V hereof, supervised by the Commission on Elections in accordance with th
election law and after such amendments shall have been published in all the newspapers of general circulation for at
months prior to such election."

This position certainly imposes limitation on the sovereign people, who have the sole power of ratification, which impo
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 C
This is a clear case of usurpation of sovereign power they do not possess — through some kind of escamotage. This
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 wit
procedure prescribed by the Constitution and/or the law, nullifies the proposed amendment or the new Constitution, t
procedure prescribed by the state Constitution is so detailed that it specifies that the submission should be at a gener
election, or at the election for members of the State legislature only or of all state officials only or of local officials only
state and local officials; fixes the date of the election or plebiscite limits the submission to only electors or qualified ele
prescribes the publication of the proposed amendment or a new Constitution for a specific period prior to the election
plebiscite; and designates the officer to conduct the plebiscite, to canvass and to certify the results, including the form
ballot which should so state the substance of the proposed amendments to enable the voter to vote on each amendm
separately or authorizes expressly the Constitutional Convention or the legislature to determine the procedure or cert
thereof. See the State Constitutions of Alabama [1901]; Arizona [1912]; Arkansas [1874]; Colorado [1976]; Connectic
Florida [1887]; Georgia [1945]; Illinois [1970]; Indiana [1851]; Iowa [1857]; Kansas [1861]; Kentucky [1891]; Louisiana
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 leg
the manner following: The proposed amendments shall be read in the house in which they ori
three several days, and, if upon the third reading, three-fifths of all the members elected to tha
shall vote in favor thereof, the proposed amendments shall be sent to the other house, in whic
likewise be read on three several days, and if upon the third reading, three-fifths of all the mem
elected that house shall vote in favor of the proposed amendments, the legislature shall order
by the qualified electors of the state upon such proposed amendments, to be held either at the
election next succeeding the session of the legislature at which the amendments are propose
another day appointed by the legislature, not less than three months after the final adjournme
session of the legislature at which the amendments were proposed. Notice of such election, to
the proposed amendments, shall be given by proclamation of the governor, which shall be pu
every county in such manner as the legislature shall direct, for at least eight successive week
preceding the day appointed for such election. On the day so appointed an election shall be h
vote of the qualified electors of the state upon the proposed amendments. If such election be
day of the general election, the officers of such general election shall open a poll for the vote o
qualified electors upon the proposed amendments; if it be held on a day other than that of a g
election, officers for such election shall be appointed; and the election shall be held in all thing
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 ma
secretary of state, and counted, in the same manner as in elections for representatives to the
and if it shall thereupon appear that a majority of the qualified electors who voted at such elec
the proposed amendments voted in favor of the same, such amendments shall be valid to all i
purposes as parts of this Constitution. The result of such election shall be made known by pro
the governor. Representation in the legislature shall be based upon population, and such basi
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
 of this Constitution, the substance or subject matter of each proposed amendment shall be so
the nature thereof shall be clearly indicated. Following each proposed amendment on the ball
printed the word "Yes" and immediately under that shall be printed the word "No". The choice
elector shall be indicated by a cross mark made by him or under his direction, opposite the wo
expressing his desire, and no amendment shall be adopted unless it receives the affirmative v
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 sess
may propose amendments to this Constitution, and, if the same be agreed to by a majority of
members, elected to each house, such proposed amendments shall be entered on the journa
yeas and nays, and published in at least one newspaper in each county, where a newspaper
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 app
rejection, and if a majority of the electors voting at such election adopt such amendments, the
become a part of this Constitution; but no more than three amendments shall be proposed or
the same time. They shall be so submitted as to enable the electors to vote on each amendm
separately.

Constitution of Kansas (1861):

Article XIV. Amendments.

Sec. 1. Proposal of amendments; publications; elections. Propositions for the amendment of t

constitution may be made by either branch of the legislature; and if two thirds of all the membe
to each house shall concur therein, such proposed amendments, together with the yeas and n
be entered on the journal; and the secretary of state shall cause the same to be published in a
newspaper in each county of the state where a newspaper is published, for three months prec
next election for representatives, at which time, the same shall be submitted to the electors, fo
approval or rejection; and if a majority of the electors voting on said amendments, at said elec
adopt the amendments, the same shall become a part of the constitution. When more than on
amendment shall be submitted at the same time, they shall be so submitted as to enable the e
vote on each amendments separately; and not more than three propositions to amend shall b
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 proclamat

General Assembly may propose Amendments to this Constitution; provided that each Amendm
be embraced in a separate bill, embodying the Article or Section, as the same will stand when
and passed by three fifths of all the members elected to each of the two Houses, by yeas and
entered on the Journals with the proposed Amendment. The bill or bills proposing amendmen
amendments shall be published by order of the Governor, in at least two newspapers, in each
where so many may be published, and where not more than one may be published, then in th
newspaper, and in three newspapers published in the City of Baltimore, once a week for four
 immediately preceding the next ensuing general election, at which the proposed amendment o
amendments shall be submitted, in a form to be prescribed by the General Assembly, to the q
voters of the State for adoption or rejection. The votes cast for and against said proposed ame
amendments, severally, shall be returned to the Governor, in the manner prescribed in other c
it shall appear to the Governor that a majority of the votes cast at said election on said amend
amendments, severally, were cast in favor thereof, the Governor shall, by his proclamation, de
said amendment or amendments having received said majority of votes, to have been adopte
people of Maryland as part of the Constitution thereof, and henceforth said amendment or am
shall be part of the said Constitution. When two or more amendments shall be submitted in th
aforesaid, to the voters of this State at the same election, they shall be so submitted as that e
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 a
proposed by the general assembly or by the initiative shall be submitted to the electors for the
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 th
which he may submit any of the amendments. No such proposed amendment shall contain m
one amended and revised article of this constitution, or one new article which shall not contain
one subject and matters properly connected therewith. If possible, each proposed amendmen
published once a week for two consecutive weeks in two newspapers of different political faith
county, the last publication to be not more than thirty nor less than fifteen days next preceding
election. If there be but one newspaper in any county, publication of four consecutive weeks s
made. If a majority of the votes cast thereon is in favor of any amendment, the same shall tak
the end of thirty days after the election. More than one amendment at the same election shall
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 submiss
ratification. As heretofore stated, it does not specify what kind of election at which the new Constitution shall be subm
does it designate the Commission on Elections to supervise the plebiscite. Neither does it limit the ratification to the q
electors as defined in Article V of the 1935 Constitution. Much less does it require the publication of the proposed Co
any specific period before the plebiscite nor does it even insinuate that the plebiscite should be supervised in accorda
the existing election law.

(2) As aforequoted, Article XV does not indicate the procedure for submission of the proposed Constitution to the peo
ratification. It does not make any reference to the Commission on Elections as the body that shall supervise the plebi
Article XV could not make any reference to the Commission on Elections because the original 1935 Constitution as ra
May 14, 1935 by the people did not contain Article X on the Commission on Elections, which article was included the
pursuant to an amendment by that National Assembly proposed only about five (5) years later — on April 11, 1940, ra
people on June 18, 1940 as approved by the President of the United States on December 1940 (see Sumulong vs. C
70 Phil. 703, 713, 715; Gonzales, Phil. Const. Law, 1966 ed., p. 13). So it cannot be said that the original framers of t
Constitution as ratified May 14, 1935 intended that a body known as the Commission on Elections should be the one
supervise the plebiscite, because the Commission on Elections was not in existence then as was created only by Com
Act No. 607 approved on August 22, 1940 and amended by Commonwealth Act No. 657 approved on June 21, 1941
Tañada & Carreon, Political Law of the Philippines, Vol. I, 1961 ed., pp. 475-476; Sumulong vs. Commission, 170 Ph
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 Interio
Department of Local Governments and Community Development) supervised the plebiscites on the 1937 amendmen
woman's suffrage, the 1939 amendment to the Ordinance appended to the 1935 Constitution (Tydings-Kocialkowski
U.S. Congress) and the three 1940 amendments on the establishment of a bicameral Congress, the re-election of the
and the Vice-President, and the creation of the Commission on Elections (ratified on June 18, 1940). The supervision
plebiscites by the then Department of Interior was not automatic, but by virtue of an express authorization in Common
Nos. 34, 49 and 517.

If the National Assembly then intended that the Commission on Elections should also supervise the plebiscite for ratif
constitutional amendments or revision, it should have likewise proposed the corresponding amendment to Article XV
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 q
voters under Article V of the 1935 Constitution should participate in the referendum on any amendment or revision th
could have provided the same in 1935 or in the 1940 amendment by just adding a few words to Article XV by changin
phrase to "submitted for ratification to the qualified electors as defined in Article V hereof," or some such similar phras

Then again, the term "people" in Article XV cannot be understood to exclusively refer to the qualified electors under A
the 1935 Constitution because the said term "people" as used in several provisions of the 1935 Constitution, does no
uniform meaning. Thus in the preamble, the term "Filipino people" refer, to all Filipino citizens of all ages of both sexe
Section 1 of Article II on the Declaration of Principles, the term "people" in whom sovereignty resides and from whom
government authority emanates, can only refer also to Filipino citizens of all ages and of both sexes. But in Section 5
Article II on social justice, the term "people" comprehends not only Filipino citizens but also all aliens residing in the c
ages and of both sexes. Likewise, that is the same connotation of the term "people" employed in Section 1(3) of Artic
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 th
the election of senators and congressmen. Section 2 Article VI expressly provides that the senators "shall be chosen
the qualified electors of the Philippines as may provided by law." Section 5 of the same Article VI specifically provides
congressmen shall "be elected by the qualified electors." The only provision that seems to sustain the theory of petitio
the term "people" in Article XV should refer to the qualified electors as defined in Article V of the 1935 Constitution is
provision that the President and Vice-President shall be elected "by direct vote of the people." (Sec. 2 of Art. VII of the
Constitution). But this alone cannot be conclusive as to such construction, because of explicit provisions of Sections 2
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 proced
ratification of amendments to or revision of said Constitutions and expressly require ratification by qualified electors, n
generic term "people".

The proposal submitted to the Ozamis Committee on the Amending Process of the 1934-35 Constitutional Conventio
that the amendment shall be submitted to qualified election for ratification. This proposal was not accepted indicating
1934-35 Constitutional Convention did intend to limit the term "people" in Article XV of the 1935 Constitution to qualifi
only. As above demonstrated, the 1934-35 Constitutional Convention limits the use of the term "qualified electors" to
public officials. It did not want to tie the hands of succeeding future constitutional conventions as to who should ratify
proposed amendment or revision.

(4) It is not exactly correct to opine that Article XV of 1935 Constitution on constitutional amendment contemplates th
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 the
of a statute expressly authorizing the application of the election laws to plebiscites of this nature. Thus, Com. Act No.
woman's suffrage amendment enacted on September 30, 1936, consists of 12 sections and, aside from providing tha
shall be held a plebiscite on Friday, April 30, 1937, on the question of woman's suffrage ... and that said amendment
published in the Official Gazette in English and Spanish for three consecutive issues at least fifteen (15) days prior to
election, ... and shall be posted in a conspicuous place in its municipal and provincial office building and in its polling
later than April 22, 1937" (Sec. 12, Com. Act No. 34), specifies that the provisions of the Election Law regarding, the
a special election, insofar as said provisions are not in conflict with it, should apply to the said plebiscite (Sec. 3, Com
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 t
plebiscites. Yet the subsequent laws, namely, Com. Act Nos. 492 and 517 and Rep. Act No. 73 calling for the plebisc
constitutional amendments in 1939, 1940 and 1946, including the amendment creating the Commission on Elections,
provided that the provisions of the existing election law shall apply to such plebiscites insofar as they are not inconsis
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 t
Constitution adopted by the National Assembly on September 15, 1939, consists of 8 sections and provides that the p
amendments to the Constitution adopted in Resolution No. 39 on September 15, 1939 "shall be submitted to the Filip
for approval or disapproval at a general election to be held throughout the Philippines on Tuesday, October 24, 1939
amendments to said Constitution proposed in "Res. No. 38, adopted on the same date, shall be submitted at followin
local officials," (Sec. 1, Com. Act No. 492) that the said amendments shall be published in English and Spanish in thr
consecutive issues of the Official Gazette at least ten (10) days prior to the elections; that copies thereof shall be pos
than October 20, 1939 (Sec. 2, Com. Act 492); that the election shall be conducted according to provisions of the Ele
insofar as the same may be applicable; that within thirty (30) days after the election, Speaker of the National Assemb
request the President to call a special session of the Assembly for the purpose of canvassing the returns and certify t
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:
plebiscite on the constitutional amendments providing bicameral Congress, re-election of the President and Vice-Pre
the creation of a Commission on Elections shall be held at a general election on June 18, 1940 (Sec. 1); that said am
shall be published in three consecutive issues of the Official Gazette in English and Spanish at least 20 days prior to
and posted in every local government office building and polling place not later than May 18, 1940 (Sec. 2); that the e
be conducted in conformity with the Election Code insofar as the same may be applicable (Sec. 3) that copies of the
be forwarded to the Secretary of National Assembly and the Secretary of Interior (Sec. 7); that the National Assembly
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 sec
provides that the Amendment "shall be submitted to the people, for approval or disapproval, at a general election wh
held on March 11, 1947, in accordance with the provisions of this Act" (Sec. 1, R.A. No. 73); that the said amendmen
be published in English and Spanish in three consecutive issues of the Official Gazette at least 20 days prior to the e
copies of the same shall be posted in a conspicuous place and in every polling place not later than February 11, 194
R.A. No. 73); that the provisions of Com. Act No. 357 (Election Code) and Com. Act No. 657 creating the Commissio
Elections, shall apply to the election insofar as they are not inconsistent with this Act (Sec. 3, R.A. No. 73); and that w
days after the election, the Senate and House of Representatives shall hold a joint session to canvass the returns an
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
automatic application of the election law; and even at that, not all the provisions of the election law were made applic
because the various laws aforecited contain several provisions which are inconsistent with the provisions of the Revis
Code (Com. Act No. 357). Moreover, it should be noted that the period for the publication of the copies of the propose
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,
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 nee
Congress to expressly provide therefor in the election laws enacted after the inauguration of the Commonwealth gove
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 Stat
Constitutions of the American Union (with few exceptions), Article XV does not state that only qualified electors can v
plebiscite. As above-intimated, most of the Constitutions of the various states of the United States provide for very de
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 J
1967 and superseded Republic Act No. 2370, expanded the membership of the barrio assembly to include citizens w
least 18 years of age, whether literate or not, provided they are also residents of the barrio for at least 6 months (Sec
3590).

Sec. 4. The barrio assembly. — The barrio assembly shall consist of all persons who are resid
barrio for at least six months, eighteen years of age or over, citizens of the Republic of the Ph
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 cou
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-Tent
members of the barrio assembly.

No meeting of the barrio assembly shall take place unless notice is given one week prior to th
except in matters involving public safety or security in which case notice within a reasonable t
sufficient. The barrio captain, or in his absence, the councilman acting as barrio captain, or an
member selected during the meeting, shall act as presiding officer at all meetings of the barrio
The barrio secretary or in his absence, any member designated by the presiding officer to act
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, i
necessary that at least one-fifth of the members of the barrio assembly be present to constitut
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 follo

a. To recommend to the barrio council the adoption of measures for the welfar
barrio;

b. To decide on the holding of a plebiscite as provided for in Section 6 of this A

c. To act on budgetary and supplemental appropriations and special tax ordina

 submitted for its approval by the barrio council; and

d. To hear the annual report council concerning the activities and finances of t
assembly.

Sec. 6. Plebiscite. — A plebiscite may be held in the barrio when authorized by a majority vote
members present in the barrio assembly, there being a quorum, or when called by at least fou
of the barrio council; Provided, however, That no plebiscite shall be held until after thirty days
approval by either body, and such plebiscite has been given the widest publicity in the barrio,
date, time, and place thereof, the questions or issues to be decided, action to be taken by the
such other information relevant to the holding of the plebiscite.

All duly registered barrio assembly members qualified to vote may vote in the plebiscite. Votin
procedures may be made either in writing as in regular election, and/or declaration by the vote
board of election tellers. The board of election tellers shall be the same board envisioned by s
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 plebi
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 as
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
age or over, able to read and write, who has been a resident of the barrio during the six month
immediately preceding the election, duly registered in the list of voters kept by the barrio secre
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
imprisonment, within two years after service of his sentence;

b. Any person who has violated his allegiance to the Republic of the Philippine

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
of any member of the barrio council or on a budgetary, supplemental appropriation, or special ordinances, a valid act
requires "a majority vote of all of the barrio assembly members registered in the list of the barrio secretary" (par. 5, Se
No. 3590). Such plebiscite may be authorized by a majority vote of the members present in the barrio assembly, ther
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
residents of the barrio during the 6 months immediately preceding the election and duly registered in the list of voters
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 ... eithe
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 v
plebiscite," cannot sustain the position of petitioners in G.R. No. L-36165 that only those who are 21 years of age and
who possess all other qualifications of a voter under Section 10 of R.A. No. 3590, can vote on the plebiscites referred
Section 6; because paragraph 3 of Section 6 does not expressly limit the voting to those with the qualifications under
as said Section 6 does not distinguish between those who are 21 or above on the one hand and those 18 or above b
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 lo
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 i
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
whether literate or not. Republic Act No. 3590 could simply have restated Section 4 of Republic Act No. 2370, the old
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 participa
enactment of Republic Act No. 3590 and should have known the intendment of Congress in expanding the membersh
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 a
electors for barrio plebiscites, this prerogative can also be exercised by the Chief Executive as delegate of the Consti
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
overwhelmingly ratified by the people through the Citizens' Assemblies in a referendum conducted from January 10 to
should be accorded the presumption of correctness; because the same was based on the certification by the Secreta
Department of Local Government and Community Development who tabulated the results of the referendum all over
The accuracy of such tabulation and certification by the said Department Secretary should likewise be presumed; bec
done in the regular performance of his official functions aside from the fact that the act of the Department Secretary, a
ego of the President, is presumptively the act of the President himself unless the latter disapproves or reprobates the
(Villena vs. Secretary of Interior, 67 Phil. 451 ). The truth of the certification by the Department Secretary and the Chi
on the results of the referendum, is further strengthened by the affidavits and certifications of Governor Isidro Rodrigu
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
to the 1935 Constitution, the 1940 amendments establishing the bicameral Congress, creating the Commission on El
providing for two consecutive terms for the President, and the 1947 parity amendment, cannot be invoked; because t
amendments were proposed by the National Assembly as expressly authorized by Article V of the 1935 Constitution
woman suffrage and as a constituent assembly in all the other amendments aforementioned and therefore as such, C
had also the authority to prescribe the procedure for the submission of the proposed amendments to the 1935 Consti

In the cases at bar, the 1973 Constitution was proposed by an independent Constitutional Convention, which as here
discussed, has the equal power to prescribe the modality for the submission of the 1973 Constitution to the people fo
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 fo
extrapolation of the Citizens' Assemblies in all the other provinces, cities and municipalities in all the other provinces,
municipalities, and the affirmative votes in the Citizens' Assemblies resulting from such extrapolation would still const
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 Communit
Development that in Rizal there were 1,126,000 Yes votes and 100,310 No votes, the certification of Governor Isidro
of Rizal, shows only 614,157 Yes votes against 292,530 No votes. In Cavite province, there were 249,882 Yes votes
12,269 No votes as disclosed in Annex 1-A of respondents' Compliance (the certification by the Department of Local
and Community Development), while the alleged certification of Governor Lino Bocalan of Cavite shows only 126,163
and 5,577 No votes. If such a ratio is extended by way of extrapolation to the other provinces, cities and towns of 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 certificati
March 16, 1973, he states that since the declaration of martial law and up to the present time, he has been under hou
his residence in Urdaneta Village, Makati, Rizal; that he never participated in the conduct of the Citizens' Assemblies
10 15, 1973 in the province of Cavite; that the acting chairman and coordinator of the Citizens' Assemblies at that tim
Governor Dominador Camerino; and that he was shown a letter for his signature during the conduct of the Citizens' A
which he did not sign but which he referred to Vice-Governor Camerino (Annex 1-Rejoinder of the Sol. Gen. dated M
1973).

Mayor Pablo Cuneta likewise executed an affidavit dated March 16, 1973 stating that on January 15, 1973, he cause
preparation of a letter addressed to Secretary Jose Roño of the Department of Local Government and Community De
showing the results of the referendum in Pasay City; that on the same day, there were still in any Citizens' Assemblie
referendum in Pasay City, for which reason he did not send the aforesaid letter pending submittal of the other results
said Citizens' Assemblies; and that in the afternoon of January 15, 1973, he indorsed the complete certificate of resul
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
stating that a certain Atty. Delia Sutton of the Salonga Law Office asked him for the results of the referendum; that he
her that he had in his possession unsigned copies of such results which may not be considered official as they had th
knowledge whether the original thereof had been signed by the mayor; and that in spite of his advice that said unsign
were not official, she requested him if she could give her the unofficial copies thereof, which he gave in good faith (An
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 Pet
Notes in L-36165). The fact that a certain Mrs. Remedio Gutierrez, wife of alleged barrio treasurer Faustino Gutierrez
South Triangle, Quezon City, states that "as far as we know, there has been no Citizens' Assembly meeting in our Ar
particularly in January of this year," does not necessarily mean that there was no such meeting in said barrio; for she
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
there was no meeting at all in the other barrios of Quezon City. The barrio captain or the secretary of the barrio assem
have been a credible witness.

Councilor Eduardo T. Paredes, chairman of the Secretariat of Quezon City Ratification and Coordinating Council, cer
March 12, 1973 that as such chairman he was in charge of the compilation and tabulation of the results of the referen
the Citizens' Assemblies in Quezon City based on the results submitted to the Secretariat by the different Citizens' As
but many results of the referendum were submitted direct to the national agencies having to do with such activity and
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 Presid
January 15, 1973 informing him of the results of the referendum in Rizal, in compliance with the instruction of the Nat
Secretariat to submit such letter 2 or 3 days from January 10 to show the trend of voting in the Citizens' Assemblies;
figures 614,157 and 292,530 mentioned in said letter were based on the certificates of results in his possession as of
1973, which results were made the basis of the computation of the percentage of voting trend in the province; that his
never intended to show the final or complete result in the referendum in the province as said referendum was then sti
from January 14-17, 1973, for which reason the said letter merely stated that it was only a "summary result"; and that
January 15, 1973, he sent to the National Secretariat all the certificates of results in 26 municipalities of Rizal for final
(Annex 3-Rejoinder of the Sol. Gen.; emphasis supplied).

Lydia M. Encarnacion, acting chief of the Records Section, Department of Local Government and Community Develo
issued a certificate dated March 16, 1973 that she was shown xerox copies of unsigned letters allegedly coming from
Lino Bocalan dated January 15, 1973 and marked "Rejoinder Annex Cavite" addressed to the President of the Philipp
through the Secretary of the Department of Local Government and Community Development and another unsigned le
reportedly from Mayor Pablo Cuneta dated January 15, 1973 and marked "Rejoinder Annex Pasay City" addressed to
Secretary of the Department of Local Government and Community Development; that both xerox copies of the unsign
contain figures showing the results of the referendum of the Citizens' Assemblies in those areas; and that the said let
not received by her office and that her records do not show any such documents received by her office (Annex 2-Rejo
Sol. Gen.).

Thus it would seem that petitioners in L-36165 have attempted to deceive this Court by representing said unsigned le
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
summary report of Governor Rodriguez of Rizal as well as those contained in the alleged report of Governor Lino Boc
Cavite who repudiated the same as not having been signed by him for he was then under house arrest, on the one ha
number of votes certified by the Department of Local Government and Community Development, on the other, to the
even assuming the correctness of the figures insisted on by counsel for petitioners in L-36165, if they were extrapolat
applied to the other provinces and cities of the country, the Yes votes would still be overwhelmingly greater than the N
applies equally to the alleged discrepancy between the figures contained in the certification of the Secretary of the De
Local Government and Community Development and the figures furnished to counsel for petitioners in L-36165 conc
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 fav
plebiscite to be held later than those against, only serve to emphasize that there was freedom of voting among the m
the Citizens' Assemblies all over the country during the referendum from January 10 to 15, 1973 (Annex-6 Camarines
Rejoinder of Petitioners in L-36165). If there was no such freedom of choice, those who wanted a plebiscite would no
those against holding such plebiscite.

The letter of Governor Felix O. Alfelor, Sr. dated January 1973 confirms the "strong manifestation of approval of the n
Constitution by almost 97% by the members of the Citizens' Assemblies in Camarines Sur" (Annex-Camarines Sur to
of Petitioners in L-36165).

The report of Governor Efren B. Pascual of Bataan shows that the members of the Citizens' Assemblies voted overw
favor of the new Constitution despite the fact that the second set of questions including the question "Do you approve
Constitution?" was received only on January 10. Provincial Governor Pascual stated that "orderly conduct and favora
of the referendum" were due not only to the coordinated efforts and cooperation of all teachers and government empl
area but also to the enthusiastic participation by the people, showing "their preference and readiness to accept this n
of government to people consultation in shaping up government policies." (Annex-Bataan to Rejoinder of Petitioners i

As heretofore stated, it is not necessary that voters ratifying the new Constitution are registered in the book of voters;
that they are electors voting on the new Constitution (Bott vs. Wurts, 40 A 740 [1898]; 43 A 744, 881 [1899]; 45 LRA
fact that the number of actual voters in the referendum in certain localities may exceed the number of voters actually
for the 1971 elections, can only mean that the excess represents the qualified voters who are not yet registered inclu
who are at least 15 years of age and the illiterates. Although ex-convicts may have voted also in the referendum, som
might have been granted absolute pardon or were sentenced to less than one year imprisonment to qualify them to v
201, 1971 Rev. Election Code). At any rate, the ex-convicts constitute a negligible number, discounting which would n
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 lette
March 13, 1973 that he does not "feel authorized by the proper authorities to confirm or deny the data" concerning th
participants, the Yes votes and No votes in the referendum on the new Constitution among the members of the Citize
Assemblies in Caloocan City, does not necessarily give rise to the inference that Mayor Samson of Caloocan City is b
intimidated, having been recently released from detention; because in the same letter of Mayor Samson, he suggeste
counsel for petitioners in L-36165 that he can secure "the true and legitimate results of the referendum" from the Offic
President (Annex Caloocan-B to Rejoinder of Petitioners in L-36165). Why did not learned and eminent counsel heed
suggestion?

Counsel for petitioners in L-36165, to sustain their position, relies heavily on the computation of the estimated turnove
Citizens' Assemblies referendum on January 10 to 15, 1973 by a certain Professor Benjamin R. Salonga, of the Mapu
of Technology, ostensibly a close relative of former Senator Jovito R. Salonga, eminent counsel for petitioners in L-36
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
the Bureau of Census and Statistics, in his letter dated March 16, 1973 address to the Secretary of the Department o
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-yea
(1972) will have to be estimated in order to give a 101.9% estimate of the percentage participa
"15-20 year old plus total number of qualified voters" which does not deem to answer the prob
computation apparently fails to account for some 5.6 million persons "21 years old and over" w
not registered voters (COMELEC), but who might be qualified to participate at the Citizen's As

2) The official population projection of this office (medium assumption) for "15 year olds and o
January 1, 1973 is 22.506 million. If total number of participants at the Citizens' Assembly Ref
held on January 10-15, 1973 was 16.702 million, participation rate will therefore be the ratio o
figure to the former which gives 74.2%.

3) 1 cannot also understand c-2 "Solution to Problem 11." The "difference or implied number o
year olds" of 5,039,906 would represent really not only all 15-year olds and over who participa
Citizens' Assembly but might not have been registered voters at the time, assuming that all th
11,661,909 registered voted at Citizens' Assembly. Hence, the "estimate percentage participa
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 gro
was estimated to be 4.721 million as of January 1, 1973 by the population of "15 years old and
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 a
dead. It cannot therefore be assumed that all of them participated at the Citizens' Assembly. It
therefore be inferred that "a total number of persons 15 and over unqualified/disqualified to vo
more than 10,548,197 and hence the "difference or implied number of registered voters that p
will be less than 6,153,618.

I have reservations on whether an "appropriate number of qualified voters that supposedly vot
be meaningfully estimated.
 5) The last remark will therefore make the ratio (a) [Solution to Problem] more than 1.71 and t
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 pr
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

If the registered electors as of the election of November 8, 1971 numbered 11,661,909, the difference between 16,70
participated in the referendum and the registered electors of 11,661,909 for the November 8, 1971 elections, is 5,040
may include not only the 15-year olds and above but below 21 but also the qualified electors who were not registered
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
votes as against about 3,000,000 votes for his rival LP Senator Sergio Osmeña, Jr., garnering a majority of from abou
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
not vote in favor of the 1973 Constitution during the referendum from January 10 to 15, 1973. It should also be stress
many of the partisans of the President in the 1969 Presidential elections, have several members in their families and
who are qualified to participate in the referendum because they are 15 years or above including illiterates, which fact
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
fear to disagree with the President and Commander-in-Chief of the Armed Forces of the Philippines and therefore ca
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 in
Even without martial law, the penal, civil or administrative sanction provided for the violation of ordinarily engenders f
individual which persuades the individual to comply with or obey the law. But before martial law was proclaimed, man
individuals fear such sanctions of the law because of lack of effective equal enforcement or implementation thereof —
compartmentalized justice and extraneous pressures and influences frustrated the firm and just enforcement of the la
fear that is generated by martial law is merely the fear of immediate execution and swift enforcement of the law and t
immediate infliction of the punishment or sanction prescribed by the law whenever it is transgressed during the period
law. This is not the fear that affects the voters' freedom of choice or freedom to vote for or against the 1973 Constituti
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
laws. But the 1935 Constitution does not require secret voting. We search in vain for such guarantee or prescription i
organic law. The Commission on Elections under the 1940 Amendment, embodied as Article X is merely mandated to
"free, orderly and honest election." Congress, under its plenary law-making authority, could have validly prescribed in
law open voting in the election of public officers, without trenching upon the Constitution. Any objection to such a stat
concerns its wisdom or propriety, not its legality or constitutionality. Secret balloting was demanded by partisan strife
for elective officials. Partisanship based on party or personal loyalties does not generally obtain in a plebiscite on pro
constitutional amendments or on a new Constitution. We have seen even before and during martial law that voting in
government agencies or private organizations is usually done openly. This is specially true in sessions of Congress, p
boards, city councils, municipal boards and barrio councils when voting on national or local issues, not on personalitie

Then again, open voting was not a universal phenomenon in the Citizens' Assemblies. It might have been true in cert
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 w
by acclamation presided over by its former president, petitioner Eduardo Monteclaro in L-36236 (see Bulletin Today,
3, 1973 issue). There can be no more hardboiled group of persons than newspapermen, who cannot say that voting a
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
Constitution. They will not deny that there are those who favor the same, even among the 400,000 teachers among w
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 drive
driver, bus driver, pedestrian, salesman, or salesgirl — does not want the new Constitution, or the reforms provided f

(8) Petitioners likewise claim that there was no sufficient publicity given to the new Constitution. This is quite inaccura
even before the election in November, 1970 of delegates to the Constitutional Convention, the proposed reforms wer
discussed in various forums and through the press as well as other media of information. Then after the Constitutiona
Convention convened in June, 1971, specific reforms advanced by the delegates were discussed both in committee h
well as in the tri-media — the press, radio and television. Printed materials on the proposed reforms were circulated b
proponents. From June, 1971 to November 29, 1972, reforms were openly discussed and debated except for a few d
the proclamation of martial law on September 21, 1972. From the time the Constitutional Convention reconvened in O
1972 until January 7, 1973, the provisions of the new Constitution were debated and discussed in forums sponsored
organizations universities and debated over the radio and on television. The Philippines is a literate country, second o
Japan in the Far East, and more literate perhaps than many of mid-western and southern states of the American Unio
Spain. Many residents in about 1,500 towns and 33,000 barrios of the country have radios. Even the illiterates listene
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, 19
"Otto Lang, Hollywood producer director (Tora, Tora, Tora) went around the country doing a 30-minute documentary
Philippines for American television stated that what impressed him most in his travel throughout the country was the g
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, M
Secretary of the United States Senate, who conducted a personal survey of the country as delegate of Senator Mike
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
Marcos has been prompt and sure-footed in using the power of presidential decree under mar
this purpose. He has zeroed in on areas which have been widely recognized as prime sources
nation's difficulties — land tenancy, official corruption, tax evasion and abuse of oligarchic eco
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 alternative
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 popul
like the reforms stipulated in the new Constitution, as well as the decrees, orders and circulars issued to implement th
should be recalled, as hereinbefore stated, that all these reforms were the subject of discussion both in the committee
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 thereo
the media of information before the proclamation of martial law on September 21, 1972. This is the reason why the C
Convention, after spending close to P30 million during the period from June 1, 1971 to November 29, 1972, found it e
accelerate their proceedings in November, 1972 because all views that could possibly be said on the proposed provis
1973 Constitution were already expressed and circulated. The 1973 Constitution may contain some unwise provision
objection to such unwise or vague provisions, as heretofore stated, refers to the wisdom of the aforesaid provisions, w
is not for this Court to decide; otherwise We will be substituting Our judgment for the judgment of the Constitutional C
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 w
legislative powers, is sustained by the ruling in the 1949 case of Kuroda vs. Jalandoni, et al. (83 Phil. 171, 177-178) w
reiterates the 1945 case of Yamashita vs. Styer (75 Phil. 563, 571-72). The trial of General Kuroda was after the surr
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 Preside
Philippines has acted in conformity with the generally accepted principles and policies of inter
which are part of our Constitution.

The promulgation of said executive order is an exercise by the President of his powers as Com
Chief of all our armed forces, as upheld by this Court in the case of Yamashita vs. Styver (L-1
Gaz., 664) when we said —

"War is not ended simply because hostilities have ceased. After cessation of a
hostilities, incidents of war may remain pending which should be disposed of a
war. "An important incident to a conduct of war is the adoption measures by th
command not only to repel and defeat the enemies but to seize and subject to
measures those enemies who in their attempt to thwart or impede our military
violated the law of war." (Ex parte Quirin, 317 U.S., 1; 63 Sup. Ct., 2.) Indeed,
to create a military commission for the trial and punishment of war criminals is
of waging war. And, in the language of a writer, a military commission "has jur
long as the technical state of war continues. This includes the period of an arm
military occupation, up to the effective date of treaty of peace, and may extend
treaty agreement." (Cowles, Trial of War Criminals by Military Tribunals, Amer
Association Journal, June, 1944).

Consequently, the President as Commander-in-Chief is fully empowered to consummate this

aspect of war, namely the trial and punishment of war criminals, through the issuance and enf
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 conc
opinion in Duncan vs. Kahanamoku (327 U.S. 304 [1946]), he defined martial law as "the exercise of the power which
the executive branch of the government to preserve order and insure the public safety in times of emergency, when o
branches of the government are unable to function, or their functioning would itself threaten the public safety." (Emph
supplied). There is an implied recognition in the aforesaid definition of martial law that even in places where the court
function, such operation of the courts may be affected by martial law should their "functioning ... threaten the public s
possible that the courts, in asserting their authority to pass upon questions which may adversely affect the conduct of
campaign against rebels, secessionists, dissidents as well as subversives, martial law may restrict such judicial funct
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 dictatorsh
no other purposes than the preservation of the independence of the state, the maintenance of
constitutional order, and the defense of the political and social liberties of the people. It is impo
recognize the true and limited ends of any practical application of the principle of constitutiona
dictatorship. Perhaps the matter may be most clearly stated in this way: the government of a f
proceeding on its way and meeting the usual problems of peace and normal times within the l
framework of its established constitutional order. The functions of government are parceled ou
number of mutually independent offices and institutions; the power to exercise those functions
circumscribed by well-established laws, customs, and constitutional prescriptions; and the peo
whom this government was instituted are in possession of a lengthy catalogue of economic, p
social rights which their leaders recognize as inherent and inalienable. A severe crisis arises —
country is invaded by a hostile power, or a dissident segment of the citizenry revolts, or the im
world-wide depression threatens to bring the nation's economy in ruins. The government mee
by assuming more powers and respecting fewer rights. The result is a regime which can act a
and even dictatorially in the swift adaption of measures designed to save the state and its peo
destructive effects of the particular crisis. And the narrow duty to be pursued by this strong go
this constitutional dictatorship? Simply this and nothing more: to end the crisis and restore no
The government assumes no power and abridges no right unless plainly indispensable to that
extends no further in time than the attainment of that end; and it makes no alteration in the po
and economic structure of the nation which cannot be eradicated with the restoration of norma
short, the aim of constitutional dictatorship is the complete restoration of the status quo ante b
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 t
all institutions of government, and the principle of constitutional dictatorship remains eternally
matter how often and seriously it may have been violated in practice. (Constitutional Dictators
ed., by Clinton L. Rossiter, p. 7; emphasis supplied.)

Finally, Rossiter expressly recognizes that during martial law, the Chief Executive exercises legislative power, whethe
temporary or permanent character, thus:

The measures adopted in the prosecution of a constitutional dictatorship should never be perm
character or effect. Emergency powers are strictly conditioned by their purpose and this purpo
restoration of normal conditions. The actions directed to this end should therefore be provision
example, measures of a legislative nature which work a lasting change in the structure of the
constitute permanent derogations from existing law should not be adopted under an emergen
act, at least not without the positively registered approval of the legislature. Permanent laws, w
adopted in regular or irregular times, are for parliaments to enact. By this same token, the dec
sentences of extraordinary courts should be reviewed by the regular courts after the terminatio
crisis.

But what if a radical act of permanent character, one working lasting changes in the political a
fabric, is indispensable to the successful prosecution of the particular constitutional dictatorsh
answer can be: it must be resolutely taken and openly acknowledged. President Lincoln found
necessary to proceed to the revolutionary step of emancipation in aid of his conservative purp
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
the positive approval of the people or of their representatives in the legislature. (P. 303, emph
 supplied).

From the foregoing citations, under martial law occasioned by severe crisis generated by revolution, insurrection or e
depression or dislocation, the government exercises more powers and respects fewer rights in order "to end the crisis
restore normal times." The government can assume additional powers indispensable to the attainment of that end —
complete restoration of peace. In our particular case, eradication of the causes that incited rebellion and subversion a
secession, is the sine qua non to the complete restoration of normalcy. Exercise of legislative power by the President
Commander in Chief, upon his proclamation of martial law, is justified because, as he professes, it is directed towards
institution of radical reforms essential to the elimination of the causes of rebellious, insurgent or subversive conspirac
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 th
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?" T
dilemma that vexed President Lincoln during the American Civil War, when without express authority in the Constituti
laws of the United States, he suspended one basic human freedom — the privilege of the writ of habeas corpus — in
preserve with permanence the American Union, the Federal Constitution of the United States and all the civil liberties
American people. This is the same dilemma that presently confronts the Chief Executive of the Republic of the Philipp
more than the Courts and Congress, must, by express constitutional mandate, secure the safety of our Republic and
as well as lives of the people against open rebellion, insidious subversion secession. The Chief Executive announced
that in choosing to proclaim martial law, the power expressly vested in him by the 1935 Constitution (Sec. 10[2], Art. V
Constitution) to insure our national and individual survival in peace and freedom, he is in effect waging a peaceful, de
revolution from the center against the violent revolution and subversion being mounted by the economic oligarchs of
right, who resist reforms to maintain their economic hegemony, and the communist rebels a Maoist oriented secessio
extreme left who demand swift institution of reforms. In the exercise of his constitutional and statutory powers, to save
and to protect the citizenry against actual and threatened assaults from insurgents, secessionists and subversives, do
concepts and principles, no matter how revered they may be by jurisprudence and time, should not be regarded as p
commands; otherwise the dead hand of the past will regulate and control the security and happiness of the living pres
contrary view would be to deny the self-evident proposition that constitutions and laws are mere instruments for the w
peace, security and prosperity of the country and its citizenry. The law as a means of social control is not static but dy
Paraphrasing Mr. Justice Frankfurter, the Constitution is neither a printed finality nor the imprisonment of the past, bu
enfolding of the future. In the vein of Mr. Justice Holmes, the meaning of the words of the Constitution is not to be det
merely opening a dictionary. Its terms must be construed in the context of the realities in the life of a nation it is intend
Because experience may teach one generation to doubt the validity and efficacy of the concepts embodied in the exis
Constitution and persuade another generation to abandon them entirely, heed should be paid to the wise counsel of s
learned jurists that in the resolution of constitutional questions — like those posed before Us — the blending of idealis
practical wisdom or progressive legal realism should be applied (see Alexander M. Bickel, the Supreme Court and the
Progress, 1970 ed., pp. 19-21). To Justice Frankfurter, law is "a vital agency for human betterment" and constitutiona
applied politics using the word in its noble sense." (Frankfurter, Law and Politics, 1939 ed., pp. 3 & 6; emphasis supp
Brandeis gave utterance to the truth that "Our Constitution is not a straight jacket. It is a living organism. As such, it is
growth — or expansion and adaptation to new conditions. Growth implies changes, political, economic and social." (B
Papers, Harvard Law School; emphasis supplied). Harvard Professor Thomas Reed Powell emphasizes "practical wi
"the logic of constitutional law is the common sense of the Supreme Court." (Powell, the Validity of State Legislation,
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 o
well as man-made institutions are not immutable. Civilized men organize themselves into a State only for the purpose
their supreme interest — their welfare. To achieve such end, they created an agency known as the government. From
savage era thru ancient times, the Middle Ages, the Dark Ages and the Renaissance to this era of sophisticated elect
nuclear weaponry, states and governments have mutated in their search for the magic instrument for their well-being
and error then as it is still now. Political philosophies and constitutional concepts, forms and kinds of government, had
adopted, overturned, discarded, re-adopted or modified to suit the needs of a given society at a particular given epoc
true of constitutions and laws because they are not "the infallible instruments of a manifest destiny." No matter how w
law to be stable, it cannot stand still. As Mr. Justice Holmes aptly observed, every "constitution is an experiment as a
experiment," (Abrahms vs. U.S., 250 US 616, 631) for "the life of the law is not logic, but experience." In the pontifica
Mr. Justice Benjamin Nathan Cardozo, "so long as society is inconstant, there can be no constancy in law," and "ther
change whether we will it or not." As Justice Jose P. Laurel was wont to say, "We cannot, Canute-like, command the
progress to halt."

Thus, political scientists and jurists no longer exalt with vehemence a "government that governs least." Adherents the
poetic dictum of Alexander Pope: "For forms of government let fools contest; whatever is best administered is best." (
Pope, 1931 Cambridge ed., p. 750). In between, the shades vary from direct democracy, representative democracy,
states, socialist democracy, mitigated socialism, to outright communism which degenerated in some countries into to
or authoritarianism.

Hence, even the scholar, who advances academic opinions unrelated to factual situations in the seclusion of his ivory
must perforce submit to the inexorable law of change in his views, concepts, methods and techniques when brought
actual arena of conflict as a public functionary — face to face with the practical problems of state, government and pu
administration. And so it is that some learned jurists, in the resolution of constitutional issues that immediately affect t
liberties and fortunes of the citizens and the nation, recommend the blending of idealism with practical wisdom which
thinkers prefer to identify as progressive legal realism. The national leader, who wields the powers of government, mu
to innovate if he must govern effectively to serve the supreme interests of the people. This is especially true in times
crises where the need for a leader with vision, imagination, capacity for decision and courageous action is greater, to
the unity of people, to promote their well-being, and to insure the safety and stability of the Republic. When the metho
rebellion and subversion have become covert, subtle and insidious, there should be a recognition of the correspondin
on the part of the Commander-in-Chief of the Armed Forces to utilize all the available techniques to suppress the per
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 forme
of the United States, who personifies the progressive liberal, spoke the truth when he said that some men "ascribe m
preceding age a wisdom more than human, and suppose what they did to be beyond amendment. ... But I know also
and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more
as new discoveries are made, new truths disclosed and manners and opinions change, with the change of circumstan
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 adeq
fairly appraised within the present ambience, charged as it is with so much tension and emotion, if not partisan passio
analytical, objective historians will write the final verdict in the same way that they pronounced judgment on Presiden
Lincoln who suspended the privilege of the writ of habeas corpus without any constitutional or statutory authority ther
President Franklin Delano Roosevelt who approved the proclamation of martial law in 1941 by the governor of Hawai
the Hawaiian territory. President Lincoln not only emancipated the Negro slaves in America, but also saved the Fede
of the United States from disintegration by his suspension of the privilege of the writ of habeas corpus, which power t
American Constitution and Congress did not then expressly vest in him. No one can deny that the successful defense
preservation of the territorial integrity of the United States was due in part, if not to a great extent, to the proclamation
law over the territory of Hawaii — main bastion of the outer periphery or the outpost of the American defense perimet
Pacific — which protected the United States mainland not only from actual invasion but also from aerial or naval bom
by the enemy. Parenthetically, the impartial observer cannot accurately conclude that the American Supreme Court a
courage in its decision in the cases of Ex parte Milligan and Duncan vs. Kahanamoku (filed on May 10, 1865 argued
to 13, 1866, decided on April 3, 1866, and opinion delivered on December 17, 1866) after the lifting of the proclamatio
suspending the privilege of the writ of habeas corpus, long after the Civil War and the Second World ended respectiv
9 or 26, 18-65 (Vol. 1, Encyclopedia Britannica, 1969 ed., pp. 730, 742) and on September 2, 1945 (Vol. 23, Encyclop
Britannica, 1969 ed., p. 799). Was the delay on the part of the American Supreme Court in deciding these cases aga
position of the United States President — in suspending the privilege of the writ of habeas corpus in one case and ap
proclamation of martial law in the other — deliberate as an act of judicial statesmanship and recognition on their part
adverse court ruling during the period of such a grave crisis might jeopardize the survival of the Federal Republic of t
States in its life-and-death struggle against an organized and well armed rebellion within its own borders and against
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
Philippines even on the assumption that the 1935 Constitution still subsists; because pursuant to the doctrine of sepa
powers under the 1935 Constitution, the processes of this Court cannot legally reach a coordinate branch of the gove
its head. This is a problem that is addressed to the Senate itself for resolution; for it is purely an internal problem of th
a majority of the senators can convene, they can elect a new Senate President and a new Senate President Pro Tem
they have no quorum, those present can order the arrest of the absent members (Sec. 10[2], Art. VI, 1935 Constitutio
fails, then there is no remedy except an appeal to the people. The dictum ubi jus, ubi remedium, is not absolute and c
does not justify the invocation of the power of this Court to compel action on the part of a co-equal body or its leaders
was emphasized with sufficient clarity by this Court in the 1949 case of Avelino vs. Cuenco (83 Phil. 17, 22,24), with w
distinguished counsels for the petitioners in L-36164 and L-36165 are familiar. We stress that the doctrine of separati
powers and the political nature of the controversy such as this, preclude the interposition of the Judiciary to nullify an
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 mo
a magic formula which should be disregarded by this Court, forgetting that this magic formula constitutes an essentia
constitutional fabric of our government, which, together with other basic constitutional precepts, conserves the unity o
people, strengthens the structure of the government and assures the continued stability of the country against the for
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 depen
place of session; for the Constitution does not designate the place of such a meeting. Section 9 of Article VI imposes
Congress to convene in regular session every year on the 4th Monday of January, unless a different date is fixed by l
special session called by the President. As former Senator Arturo Tolentino, counsel for respondents Puyat and Roy
stated, the duty to convene is addressed to all members of Congress, not merely to its presiding officers. The fact tha
of Congress are padlocked, will not prevent the senators — especially the petitioners in L-36165 — if they are minded
from meeting elsewhere — at the Sunken Gardens, at the Luneta Independence Grandstand, in any of the big hotels
in their own houses, or at the Araneta Coliseum, which is owned by the father-in-law of petitioner Gerardo Roxas in L

However, a session by the Senate alone would be purely an exercise in futility, for it cannot validly meet without the lo
(Sec. 10[5], Art. VI, 1935 Constitution). Hence, this petition by five former senators for mandamus in L-36165 is usele

And as pointed out by former Senator Arturo Tolentino, counsel for respondents Puyat and Roy, mandamus will lie on
a law imposing on the respondents the duty to convene the body. The rule imposing such a duty invoked by petitione
36165 is purely an internal rule of the Senate; it is not a law because it is not enacted by both Houses and approved
President.

The Constitutional provision on the convening of Congress, is addressed to the individual members of the legislative
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 Con
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
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 unco
The proposed Constitution is an act of the Constitutional Convention, which is co-equal and coordinate with as well a
independent of either Congress or the Chief Executive. Hence, its final act, the 1973 Constitution, must have the sam
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
of Article VIII of the 1935 Constitution in relation to Section 9 of the Judiciary Act or Republic Act No. 296, as amende
be ten (10) under Section 2(2) of Article X of the 1973 Constitution. Should the required vote of eight (8) or ten (10), a
may be, for the declaration of invalidity or unconstitutionality be not achieved, the 1973 Constitution must be deemed
in force and operative.

ARTICLE OF FAITH

WE yield to no man as devotees of human rights and civil liberties. Like Thomas Jefferson, We swear "eternal hostilit
any form of tyranny over the mind of man" as well as towards bigotry and intolerance, which are anathema to a free s
human rights and civil liberties under a democratic or republican state are never absolute and never immune to restri
essential to the common weal. A civilized society cannot long endure without peace and order, the maintenance of w
primary function of the government. Neither can civilized society survive without the natural right to defend itself again
dangers that may destroy its life, whether in the form of invasion from without or rebellion and subversion from within.
first law of nature and ranks second to none in the hierarchy of all values, whether human or governmental. Every citi
prides himself in being a member or a civilized society under an established government, impliedly submits to certain
on his freedom for the general welfare and the preservation of the State itself, even as he reserves to himself certain
constitute limitations on the powers of government. But when there is an inevitable clash between an exertion of gove
authority and the assertion of individual freedom, the exercise of which freedom imperils the State and the civilized so
which the individual belongs, there can be no alternative but to submit to the superior right of the government to defen
preserve the State. In the language of Mr. Justice Holmes — often invoked by herein petitioners — "when it comes to
involving its (state life, the ordinary rights of individuals must yield to what he (the President) deems the necessities o
moment. Public danger warrants the substitution of executive process for judicial process. (See Keely vs. Sanders, 9
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 ob
although it was disputed, that the same is true of temporary detention to prevent apprehended harm." (Moyer vs. Pea
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 sho
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,
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
institution of the needed reforms. The people have been victimized by such bargaining and dilly-dallying. To vert a ter
blood bath and the breakdown of the Republic, the incumbent President proclaimed martial law to save the Republic
overrun by communists, secessionists and rebels by effecting the desired reforms in order to eradicate the evils that p
society, which evils have been employed by the communists, the rebels and secessionists to exhort the citizenry to ri
the government. By eliminating the evils, the enemies of the Republic will be decimated. How many of the petitioners
counsels have been utilizing the rebels, secessionists and communists for their own personal or political purposes an
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 o
they should be willing to give the incumbent Chief Executive a chance to implement the desired reforms. The incumb
President assured the nation that he will govern within the framework of the Constitution and if at any time, before no
restored, the people thru their Citizens' Assemblies, cease to believe in his leadership, he will step down voluntarily fr
Presidency. But if, as apprehended by the petitioners, he abuses and brutalizes the people, then to the battlements w
to man the ramparts against tyranny. This, it is believed, he knows only too well; because he is aware that he who rid
will eventually end inside the tiger's stomach. He who toys with revolution will be swallowed by that same revolution.
replete with examples of libertarians who turned tyrants and were burned at stake or beheaded or hanged or guillotin
very people whom they at first championed and later deceived. The most bloody of such mass executions by the wra
wronged people, was the decapitation by guillotine of about 15,000 Frenchmen including the leaders of the French re
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 sign
November 30, 1972; in L-36165, to compel respondents Gil Puyat and Jose J. Roy, President and President Pro-Tem
respectively, of the Senate under the 1935 Constitution, to convene the Senate in regular session which should have
January 22, 1973; to nullify Proclamation No. 1102 of the President, issued on January 17, 1973, which declared the
of the Constitution on November 30, 1972, by the Filipino people, through the barangays or Citizens Assemblies esta
under Presidential Decree No. 86 issued on December 31, 1972, which were empowered under Presidential Decree
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 Ma
September 21, 1972.

2. The Convention was not empowered to incorporate certain provisions in the 1972 Constitution because they are hi
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 th
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 o
The petitions were not given due course immediately but were referred to the Solicitor General as counsel for the res
comment, with three members of the Court, including the undersigned, voting to dismiss them outright. The comment
considered motions to dismiss which were set for hearing and extensively argued. Thereafter both parties submitted
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 an
judicial determination?

2. Was the new Constitution of November 30, 1972, ratified in accordance with the amending process prescribed by A
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 main
Court should abstain from assuming jurisdiction, but, instead, as an act of judicial statesmanship, should dismiss the
resolving whether or not the question presented is political, joint discussion of issues Nos. 1, 3 and 4 is necessary so
at a logical conclusion. For after the acceptance of a new Constitution and acquiescence therein by the people by pu
practical operation, any question regarding its validity should be foreclosed and all debates on whether it was duly or
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 a
forth in the majority and dissenting opinions in the Plebiscite cases decided on January 22, 1973, and need not be re
here.

Petitioners seek to set at naught Proclamation No. 1102 and Presidential Decrees Nos. 86 and 86-A, claiming that th
of the new Constitution pursuant to the said decrees is invalid and of no effect. Presidential Decree No. 86 organized
barangays or Citizens Assemblies composed of all citizens at least fifteen years of age, and through these assemblie
proposed 1972 Constitution was submitted to the people for ratification. Proclamation No. 1102 of the President anno
declared the result of the referendum or plebiscite conducted through the Citizens Assemblies, and that 14,976,561 m
thereof voted for the ratification of the new Constitution and 743,869 voted against it. Petitioners assail these two acts
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 sou
invalidated is the new Constitution itself — the very framework of the present Government since January 17, 1973. T
obvious. The Presidential decrees set up the means for the ratification and acceptance of the new Constitution and P
No. 1102 simply announced the result of the referendum or plebiscite by the people through the Citizens Assemblies.
Government under the new Constitution has been running on its tracks normally and apparently without obstruction in
organized resistance capable of jeopardizing its existence and disrupting its operation. Ultimately the issue is whethe
Constitution may be set aside by this Court. But has it the power and authority to assume such a stupendous task wh
result of such invalidation would be to subject this nation to divisive controversies that may totally destroy the social o
the Government under the new Constitution has been admirably protecting and promoting under Martial Law? That th
Constitution has taken deep root and the people are happy and contended with it is a living reality which the most art
critics of the new order cannot deny. 95 out of 108 members of the House of Representatives have opted to serve in
National Assembly provided for under the new Constitution. 15 out of 24 Senators have done likewise. The members
Congress did not meet anymore last January 22, 1973, not because they were really prevented from so doing but be
serious effort on their parts to assert their offices under the 1935 Constitution. In brief, the Legislative Department und
Constitution is a thing of the past. The Executive Department has been fully reorganized; the appointments of key exe
officers including those of the Armed Forces were extended and they took an oath to support and defend the new Co
The courts, except the Supreme Court by reason of these cases, have administered justice under the new constitutio
government offices have dealt with the public and performed their functions according to the new Constitution and law
promulgated thereunder.

If the real purpose of the petitions is to set aside the new Constitution, how can this Court justify its assumption of juri
when no power has ... conferred upon it the jurisdiction to declare the Constitution or any part thereof null and void? I
height of absurdity and impudence for a court to wage open war against the organic act to which it owes its existence
situation in which this Court finds itself does not permit it to pass upon the question whether or not the new Constituti
entered into force and has superseded the 1935 Constitution. If it declares that the present Constitution has not been
ratified, it has to uphold the 1935 Constitution as still the prevailing organic law. The result would be too anomalous to
for then this Court would have to declare that it is governed by one Constitution or the 1935 Constitution, and the legi
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
no other choice but to uphold the new Constitution as against any other one? In the circumstances it would be bereft
attributes as the matter would then be not meet for judicial determination, but one addressed to the sovereign power
people who have already spoken and delivered their mandate by accepting the fundamental law on which the govern
Republic is now functioning. To deny that the new Constitution has been accepted and actually is in operation would
the face of reason and pounding one's bare head against a veritable stone wall or a heavily reinforced concrete, or si
"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 p
thereto by the organization of the government provided therein and observance of its prescriptions by public officers c
thereunder, is indicative of approval. Courts should be slow in nullifying a Constitution claimed to have been adopted
accordance with constitutional or statutory directives [Miller vs. Johnson, 92 Ky. 589; 189 S.W. 522; Taylor vs Commo
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 th
law. Great interests have already arisen under it; important rights exist by virtue of it; persons
convicted of the highest crimes known to the law, according to its provisions; the political pow
government has in many ways recognized it; and, under such circumstances, it is our duty to
regard it as a valid constitution, and now the organic law of our state. We need not consider th
the amendments made after the convention reassembled. If the making of them was in exces
power, yet as the entire instrument has been recognized as valid in the manner suggested, it
equally an abuse of power by the judiciary, and violative of the rights of the people, — who ca
properly should remedy the matter, if not to their liking, — if it were to declare the instrument o
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 n
 constitution, and not an amendment, because the judicial power presupposes an established
and if the authority of that government is annulled and overthrown, the power of its courts is a
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 ce
court, and it would be incapable of pronouncing a judicial decision upon the question before it
decides at all, it must necessarily affirm the existence of the government under which it exerci
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 enforcin
execution, and appointing judges to expound and administer them. The acceptance of the jud
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
if a State court should enter upon the inquiry proposed in this case, and should come to concl
the government under which it acted had been put aside and displaced by an opposing gover
would cease to be a court, and be incapable of pronouncing a judicial decision upon the ques
undertook to try. If it decides at all as a court, it necessarily affirms the existence and authority
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 Consti
no state with which we maintain diplomatic relations has withdrawn its recognition of our government. (For particulars
executive acts done under the new Constitution, see pages 22-25 of the Comments of the Solicitor General, dated Fe
1973.)

Certainly the invalidation of Proclamation No. 1102 and Presidential Decrees Nos. 86 and 86-A by this Court would s
plain political meddling which is described by the United States Supreme Court as "entering a political thicket" in Cole
Green, 328 U.S. p. 549. At this juncture it would be the part of wisdom for this Court to adopt the proper attitude towa
upheavals and realize that the question before Us is political and not fit for judicial determination. For a political quest
entrusted to the people for judgment in their sovereign capacity (Tañada vs. Cuenco, G.R. No. L-10520, Feb. 28,196
1101), or to a co-equal and coordinate branch of the Government (Vera vs. Arellano, 77 Phil. 192; Mabanag vs. Lope
Phil. 1; Alejandrino vs. Quezon, 46 Phil. 35; Cabili vs. Francisco, G.R. No. 4638, May 8, 1931). A case involves a poli
question when there would be "the impossibility of undertaking independent resolutions without expressing a lack of r
to coordinate branches of government", or when there is "the potentiality of embarrassment from multifarious pronoun
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
in that vast range of legal problems often strongly entangled in popular feeling on which this Court must pronounce",
harken to the following admonition of Justice Frankfurter in his dissent in Baker vs. Carr, 369 U.S. 186; 82 S. Ct. 691;
663:

The Court's authority — possessed neither of the purse nor the sword — ultimately rests on s
public confidence in its moral sanction. Such feeling must be nourished by the Court's comple
detachment, in fact and appearance, from political entanglements and abstention from injectin
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 n
plenitude of its efficacy and vigor. We are now living under its aegis and protection and only the cynics will deny this.
should not in the least attempt to act as a super-legislature or a super-board of canvassers and sow confusion and di
among our people by pontificating there was no valid ratification of the new Constitution. The sober realization of its p
and delicate function and its consciousness of the limitations on its competence, especially situations like this, are mo
keeping with the preservation of our democratic tradition than the blatant declamations of those who wish the Court to
their brand of activism and would not mind plunging it into the whirlpool of passion and emotion in an effort to capture
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 Constit
Convention of 1971 had been ratified in accordance with the provisions of Article XV of the 1935 Constitution. In the p
cases, which were decided by this Court on January 22, 1973 , I held the view that this issue could be properly resolv
1

Court, and that it was in the public interest that this Court should declare then whether or not the proposed Constitutio
validly ratified. The majority of this Court, however, was of the view that the issue was not squarely raised in those ca
the Court, as a body, did make any categorical pronouncement on the question of whether or not the Constitution pro
the 1971 Convention was validly ratified. I was the only one who expressed the opinion that the proposed Constitutio
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 Const
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 mention
that issue is a political question that cannot be decided by this Court. This contention by the Solicitor General is unten
political question relates to "those questions which under the Constitution are to be decided by the people in their sov
capacity or in regard to which full discretionary authority has been delegated to the legislative, or to the executive, bra
government.  The courts have the power to determine whether the acts of the executive are authorized by the Constit
2

the laws whenever they are brought before the court in a judicial proceeding. The judicial department of the governm
exercises a sort of controlling, or rather restraining, power over the two other departments of the government. Each o
departments, within its proper constitutional sphere, acts independently of the other, and restraint is only placed on o
department when that sphere is actually transcended. While a court may not restrain the executive from committing a
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
declare a law enacted by the legislature to be unconstitutional.  It is a settled doctrine that every officer under a const
3

government must act according to law and subject to its restrictions, and every departure therefrom, or disregard ther
subject him to the restraining and controlling power of the people, acting through the agency of the judiciary. It must b
remembered that the people act through the courts, as well as through the executive or the legislature. One departme
representative as the other, and judiciary is the department which is charged with the special duty of determining the
which the law places upon all official actions  . In the case of Gonzales v. Commission on Elections , this Court ruled
4 5

issue as to whether or not a resolution of Congress acting as a constituent assembly violates the Constitution is not a
question and is therefore subject to judicial review. In the case of Avelino v. Cuenco , this Court held that the exceptio
6

that courts will not interfere with a political question affecting another department is when such political question invol
issue as to the construction and interpretation of the provision of the constitution. And so, it has been held that the qu
whether a constitution shall be amended or not is a political question which is not in the power of the court to decide,
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
United States — where, after all, our constitutional system has been patterned to a large extent — made me arrive at
considered view that it is in the power of this Court, as the ultimate interpreter of the Constitution, to determine the va
proposal, the submission, and the ratification of any change in the Constitution. Ratification or non-ratification of a con
amendment is a vital element in the procedure to amend the constitution, and I believe that the Court can inquire into
on, the question of whether or not an amendment to the constitution, as in the present cases, has been ratified in acc
with the requirements prescribed in the Constitution that was amended. And so, in the cases now before Us, I believe
question of whether or not the Constitution proposed by the 1971 Constitutional Convention had been validly ratified
justiciable question.

The Chief Justice, in his opinion, has discussed lengthily the subject on whether or not, the cases, before Us involve
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 va
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 d
accordance with the provisions of Section 1, Article XV of the 1935 Constitution of the Philippi
reads:

"Section 1. The Congress in joint session assembled by a vote of three fourths

Members of the Senate and of the House of Representatives voting separately
propose amendments to the Constitution or call a convention for that purpose.
amendments shall be valid as part of this Constitution when approved by a ma
votes cast at an election at which the amendments are submitted to the people
ratification."

It is in consonance with the abovequoted provision of the 1935 Constitution that on March 16,
Congress of the Philippines Resolution No. 2 calling a convention to propose amendments to
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 c

part of the Constitution when approved by a majority of the votes cast in an ele
which they are submitted to the people for their ratification pursuant to Article X
Constitution.

It follows that from the very resolution of the Congress of the Philippines which called for the 1
Constitutional Convention, there was a clear mandate that the amendments proposed by the 1
Convention, in order to be valid and considered part of the Constitution, must be approved by
the votes cast in an election at which they are submitted to the people for the ratification as pr
the Constitution.

This Court, in the case of Tolentino vs. Commission Elections, L-35140, October 16, 1971 (41
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 Con
the Philippines. This Convention has not been called by the people directly as
of a revolutionary convention which drafts the first Constitution of an entirely n
government born of either a war of liberation from a mother country or of revol
against an existing government or of a bloodless seizure of power a la coup d'
such kind of conventions, it is absolutely true that the convention is completely
restraint and omnipotent all wise, and it as to such conventions that the remark
Delegate Manuel Roxas of the Constitutional Convention of 1934 quoted by S
Pelaez refer. No amount of rationalization can belie the fact that the current co
came into being only because it was called by a resolution of a joint session of
acting as a constituent assembly by authority of Section 1, Article XV of the pr
 Constitution ... ."

x x x           x x x          x x x

"As to matters not related to its internal operation and the performance of its a
mission to propose amendments to the Constitution, the Convention and its of
members are all subject to all the provisions of the existing Constitution. Now
even as to its latter task of proposing amendments to the Constitution, it is sub
provisions of Section 1 of Article XV."

In Proclamation No. 1102, issued on January 17, 1973, the President of the Philippines certifie
result of the voting before the barangays (Citizens Assemblies) 14,976,561 members of the ba
voted for the adoption of the proposed Constitution, as against 743,869 who voted for its rejec
the basis of the overwhelming majority of the votes cast by the members of all the barangays
the Philippines, the President proclaimed that the Constitution proposed by the 1971 Convent
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
XV of the Constitution of 1935 were not complied with. It is not necessary that evidence be pro
before this Court to show that no elections were held in accordance with the provisions of the
Code. Proclamation No. 1102 unequivocally states that the proposed Constitution of 1972 wa
upon by the barangays. It is very clear, therefore, that the voting held in these barangays is no
election contemplated in the provisions of Section 1, Article XV, of the 1935 Constitution. The
contemplated in said constitutional provision is an election held in accordance with the provisi
election law, where only the qualified and registered voters of the country would cast their vote
official ballots prepared for the purpose are used, where the voters would prepare their ballots
inside the voting booths in the polling places established in the different election precincts thro
country, where the election is conducted by election inspectors duly appointed in accordance
election law, where the votes are canvassed and reported in a manner provided for in the elec
was this kind of election that was held on May 14, 1935, when the Constitution of 1935 was ra
April 30, 1937, when the amendment to the Constitution providing for Women's Suffrage was
June 18, 1940, when the 1940 Amendments to the Constitution were ratified; on March 11, 19
the Parity Amendment to the Constitution was ratified; and on November 14, 1967 when the a
to the Constitution to increase the number of Members of the House of Representatives and t
Members of Congress to run in the elections for Delegates to the Constitutional Convention of
rejected.

I cannot see any valid reason why the practice or procedure in the past, in implementing the c
provision requiring the holding, of an election to ratify or reject an amendment to the Constitut
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
1972 Constitution thru a voting in the barangays and make said result the basis for proclaimin
ratification of the proposed constitution. It is very clear, to me, that Proclamation No. 1102 was
complete disregard or in violation, of the provisions of Section 1 of Article X of the 1935 Const

Proclamation No. 1102 mentions, furthermore, that on the question as to whether or not the p
still like a plebiscite to be called to ratify the new Constitution, 14,298,814 members of the bar
answered that there was no need for a plebiscite but that the vote of the barangays should be
a vote in a plebiscite. It would thus appear that the barangays assumed the power to determin
plebiscite as ordained in the Constitution be held or not. Indeed, the provision of Section 1, Ar
the Constitution was completely disregarded.

The affirmative votes cast in the barangays are not the votes contemplated in Section 1 of Art
the 1935 Constitution. The votes contemplated in said constitutional provision are votes obtain
the election processes as provided by law.

"An election is the embodiment of the popular will, the expression of the sover
of the people. In common parlance, an election is the act of casting and receiv
ballots, counting them, and making the return." (Hontiveros vs. Altavas, 24 Ph

"Election" implies a choice by an electoral body at the time and substantially in

and with the safeguards provided by law with respect to some question or issu
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 p

matters submitted to them — the election of officers, national, state, county, to
the passing on various other questions submitted for their determination." (29
citing Iowa-Illinois Gas & Elec. Co. v. City of Bettendorf, 41 N.W. 2d 1, 5, 241 I

"Election" is expression of choice by voters of body politic. (Ginsburg v. Giles,

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 req
as have been set by the legislature." (People ex rel. Rago v. Lipsky, 63 N.E. 2
III. App. 63; Rothfels v. Southworth, 356 P. 2d 612, 11 Utah 2d 169 in 29 C.J.S
(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 ple
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 v
regular or special election or in any plebiscite, he must be registered in the permanent list of v
city, municipality or municipal district in which he resides: Provided, that no person shall regist
than once without first applying for cancellation of his previous registration." (Emphasis suppli
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 ass
are 15 years of age or over. Under the provision of Section I of Article V of the 1935 Constituti
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 ins
done by the raising of hands by the persons indiscriminately gathered to participate in the voti
even children below 15 years of age were included. This is a matter of common observation, o
common knowledge, which the Court may take judicial notice of. To consider the votes in the
as expressive of the popular will and use them as the basis in declaring whether a Constitutio
or rejected is to resort to a voting by demonstrations, which is would mean the rule of the crow
only one degree higher than the rule by the mob. Certainly, so important a question as to whe
Constitution, which is the supreme law of the land, should be ratified or not, must not be decid
simply gathering people and asking them to raise their hands in answer to the question of whe
vote for or against a proposed Constitution. The election as provided by law should be strictly
determining the will of the sovereign people in a democracy. In our Republic, the will of the pe
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
but the will of the people must be expressed in a manner as the law and the demands a well-o
society require. The rule of law must prevail even over the apparent will of the majority of the p
that will had not been expressed, or obtained, in accordance with the law. Under the rule of la
questions must be decided in accordance with the Constitution and the law. This is specially t
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 propose
Constitution of 1972 had been validly ratified, or not:

"When it is said that "the people" have the right to alter or amend the constituti
not be understood that term necessarily includes all the inhabitants of the state
question of the adoption or rejection of a proposed new constitution or constitu
amendment must be answered a vote, the determination of it rests with those
existing constitution, are accorded the right of suffrage. But the qualified electo
understood in this, as in many other cases, as representing those who have no
to participate in the ballot. If a constitution should be abrogated and a new one
by the whole mass of people in a state acting through representatives not chos
"people" in political sense of the term, but by the general body of the populace
movement would be extra-legal." (BIack's Constitutional Law, Second Edition,

"The theory of our political system is that the ultimate sovereignty is in the peo
whom springs all legitimate authority. The people of the Union created a nation
constitution, and conferred upon it powers of sovereignty on certain subjects, a
people of each State created a State government, to exercise the remaining p
sovereignty so far as they were disposed to allow them to be exercised at all. B
constitution which they establish, they not only tie up the hands of their official
but their own hands as well; and neither the officers of the State, nor the whole
an aggregate body, are at liberty to take action in opposition to this fundament
(Cooley's Constitutional Limitations, 8th Edition, Vol. I, p. 81 cited in Graham v
So. 2d. 761, 782).

"The theory that a favorable vote by the electorate, however unanimous, on a

amend a constitution, may cure, render innocuous, all or any antecedent failur
observe commands of that Constitution in respect of the formulation or submis
proposed amendments thereto, does not prevail in Alabama, where the doctrin
stated theory was denied, in obvious effect, by the pronouncement 60 years a
wholesome constitutional principles in Collier v. Frierson, supra, as quoted in t
opinion, ante. The people themselves are bound by the Constitution; and, bein
are powerless, whatever their numbers, to change or thwart its mandates, exc
the peaceful means of a constitutional convention, or of an amendment accord
mode therein prescribed, or through the exertion of the original right of revoluti
Constitution may be set aside by revolution, but it can only be amended in the
provides," said Hobson, C.J., in McCreary v. Speer, 156 Ky. 783, 791, 162 S.W
(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 a
by the Constitution, is not sufficient to make a change in that instrument. Whet
proposed amendment has been legally adopted is a judicial question, for the c
uphold and enforce the Constitution as written until it is amended in the way w
provides for." Wood v. Tooker, 15 Mont. 8, 37 Pac 840, 25 L.R.A. 560; McCon
State, 106 Minn. 409, 119 N.W. 408; Oakland Paving Company v. Hilton, 69 C
Pac. 3; Utter v. Mosely, 16 Idaho 274, 100 Pac. 1958, 133 Am. St. Rep. 94, 18
723. (McCreary v. Speer, 162 S.W. 99, 104).

"Provisions of a constitution regulating its own amendment, ... are not merely d
are mandatory; and a strict observance of every substantial mandatory; and a
observance of every substantial requirement is essential to the validity of the p
amendment. These provisions are as binding on the people as on the legislatu
former are powerless by vote of acceptance to give legal sanction to an amend
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 r
the Court's action in declaring the proposed constitutional amendment void. Th
statement is grossly and manifestly inaccurate. If confusion and chaos should
not be due to the action of the Court but will be the result of the failure of the d
resolution to observe, follow and obey the plain essential provisions of the Con
Furthermore, to say that, the Court disregards its sworn duty to enforce the Co
chaos and confusion will result, is an inherently weak argument in favor of the
constitutionality of the proposed amendment. It is obvious that, if the Court we
countenance the violations of the sacramental provisions Constitution, those w
thereafter desire to violate it disregard its clear mandatory provisions would re
scheme of involving and confusing the affairs of the State then simply tell the C
was powerless to exercise one of its primary functions by rendering the proper
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
because the requirements of the law were not complied with. In the case of Monsale v. Nico, 8
Monsale and Nico were both candidates for the office of Municipal Mayor of Miagao, Iloilo, in t
of November 11, 1947. Monsale had duly filed his certificate of candidacy before the expiratio
period for the filing of the same. However, on October 10, 1947, after the period for the filing o
certificate of candidacy, Monsale withdrew his certificate of candidacy. But on November 7, 19
attempted to revive his certificate of candidacy by withdrawing the withdrawal of certificate of c
The Commission on Elections, November 8, 1947, ruled that Monsale could no longer be a ca
Monsale nevertheless proceeded with his candidacy. The boards of inspectors in Miagao, how
not count the votes cast for Monsale upon the ground that the votes cast for him were stray vo
because he was considered as having no certificate of candidacy. On the other hand, the boa
inspectors credited Nico with 2,291 votes, and Nico was proclaimed elected. Monsale filed a p
against the election of Nico in the Court of First Instance of Iloilo. In the count of the ballots du
proceedings in the trial court, it appeared that Monsale had obtained 2,877 votes while Nico o
2,276 votes, or a margin of 601 votes in favor of Monsale. The Court of First Instance of Iloilo
election protest in favor of Monsale. Upon appeal by Nico, this Court reversed the decision of
court. This Court declared that because Monsale withdrew his certificate of candidacy, his atte
revive it by withdrawing his withdrawal of his certificate of candidacy did not restore the effecti
his certificate of candidacy, and this Court declared Nico the winner in spite of the fact that Mo
 obtained more votes than he.

We have cited this Monsale case to show that the will of the majority of the voters would not b
effect, as declared by this Court, if certain legal requirements have not been complied with in
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 (
is not the election that is provided for in the 1935 Constitution for the ratification of the amendm
Constitution, the affirmative votes cast in those assemblies can not be made the basis for dec
ratification of the proposed 1972 Constitution, in spite of the fact that it was reported that 14,9
members of the citizens assemblies voted for the adoption as against 743,869 for the rejection
the votes thus obtained were not in accordance with the provisions of Section 1 of Article XV o
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
as provided in Presidential Decree No. 73, is that there is no freedom on the part of the people
their right of choice because of the existence of martial law in our country. The same ground h
regards to the voting of the barangays on January 10 to 15, 1973. More so, because by Gene
No. 20, issued on January 7, 1973, the President of the Philippines ordered "that the provision
3 of Presidential Decree No. 73 in so far as they allow free public discussion of the proposed c
as well as my order of December 17, 1972 temporarily suspending the effects of Proclamation
for the purpose of free and open debate on the proposed constitution, be suspended in the me
is, therefore, my view that voting in the barangays on January 10, 1973 was not free, and so t
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 s
invalid, and should not be given effect. The Constitution of 1972 proposed by the 1971 Consti
Convention should be considered as not yet ratified by the people of this Republic, and so it s
given force and effect.

It is urged by the Solicitor General, however, that the voting in the citizens assemblies was a substantial compliance w
provisions of Article XV of the 1935 Constitution. The Solicitor General maintains that the primary thrust of the provisi
XV of the 1935 Constitution is that "to be valid, amendments must gain the approval of the majority recognition of the
postulate that sovereign resides in the people." It is not disputed that in a democratic sovereignty resides in the peopl
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, in Section 2 of Article VII of the 1935 Constitution, it is provided
8

President shall hold his office during a term of four years and, together with the Vice-President chosen for the same t
be elected by direct vote of the people..." Certainly under that constitutional provision, the "people" who elect directly
President and the Vice-President are no other than the persons who, under the provisions of the same Constitution, a
the right to vote. In like manner the provision in Section 1 of Article II of the 1935 Constitution which says "Sovereignt
the people and all government authority emanates from them", the "people" who exercise the sovereign power are no
the persons who have the right to vote under the Constitution. In the case of Garchitorena vs. Crescini , this Court, sp
9

through Mr. Justice Johnson, said, "In democracies, the people, combined, represent the sovereign power of the Stat
sovereign authority is expressed through the ballot, of the qualified voters, in duly appointed elections held from time
means of which they choose their officials for definite fixed periods, and to whom they entrust, for the time being, as t
representatives, the exercise of the powers of government." In the case of Moya v. Del Fierro,   this Court, speaking
10

Justice Laurel, said, "As long as popular government is an end to be achieved and safeguarded, suffrage, whatever m
modality and form devised, must continue to be the means by which the great reservoir of power must be emptied int
receptacular agencies wrought by the people through their Constitution in the interest of good government and the co
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."
case of Abanil v. Justice of the Peace of Bacolod,   this Court said: "In the scheme of our present republican governm
11

the people are allowed to have a voice therein through the instrumentality of suffrage to be availed of by those posse
certain prescribed qualifications. The people, in clothing a citizen with the elective franchise for the purpose of securin
consistent and perpetual administration of the government they ordain, charge him with the performance of a duty in
of a public trust, and in that respect constitute him a representative of the whole people. This duty requires that the pr
bestowed exclusively for the benefit of the citizen or class of citizens professing it, but in good faith and with an intellig
the general benefit and welfare of the state. (U.S. v. Cruikshauk, 92 U.S. 588)..." There is no question, therefore, that
talk of sovereign people, what is meant are the people who act through the duly qualified and registered voters who v
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 ter
as used in the Provisions of Section 4 of the Philippine Independence Act of the Congress of the United States, popu
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
provisions of this act, it shall be submitted to the people of the Philippine Islands for their ratifi
rejection at an election to he held within months after the date of such certification, on a date t
by the Philippine Legislature at which election, the qualified voters of the Philippine Islands sh
opportunity to vote directly or against the proposed constitution and ordinances append there
election shall be held in such manner as may prescribed by the Philippine Legislature to which
of the election shall be made. The Philippine Legislature shall certify the result to the Governo
the Philippine Islands, together with a statement of the votes cast, and a copy of said constitu
ordinances. If a majority of the votes cast shall be for the constitution, such vote shall be deem
expression of the will of the people of the Philippine Independence, and the Governor-Genera
within thirty days after receipt of the certification from the Philippine Legislature, issue a procla
the election of officers of the government of the Commonwealth of the Philippine Islands provi
the Constitution...

It can safely be said, therefore, that when the framers of the 1935 Constitution used, the word "election" in Section I A
the 1935 Constitution they had no other idea in mind except the elections that were periodically held in the Philippine
choice of public officials prior to the drafting of the 1935 Constitution, and also the "election" mentioned in the Indepen
at which "the qualified voters of the Philippine Islands shall have an opportunity to vote directly for or against the prop
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
the term "election" was understood, and practiced, when the 1935 Constitution as drafted. The alleged referendum in
assemblies — participated in by persons aged 15 years or more, regardless of whether they were qualified voters or
by raising their hands, and the results of the voting reported by the barrio or ward captain, to the municipal mayor, wh
submitted the report to the provincial Governor, and the latter forwarding the reports to the Department of Local Gove
without the intervention of the Commission on Elections which is the constitutional body which has exclusive charge o
enforcement and administration of all laws, relative to the conduct of elections — was not only a non-substantial com
the provisions of Section 1 of Article XV of the 1935 Constitution but a downright violation of said constitutional provis
be indulging in sophistry to maintain that the voting in the citizens assemblies amounted to a substantial compliance w
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 Conv
not ratified in accordance with the provisions of Section 1 of Article XV of the 1935 Constitution, the fact is that after t
of the Philippines had issued Proclamation No. 1102 declaring that the said proposed Constitution "has been ratified
overwhelming majority of all the votes cast by the members of all the barangays (citizens assemblies) throughout the
and had thereby come into effect" the people have accepted the new Constitution. What appears to me, however, is t
practically it is only the officials and employees under the executive department of the Government who have been p
their duties apparently in observance of the provisions of the new Constitution. It could not be otherwise, because the
of the Philippines, who is the head of the executive department, had proclaimed that the new Constitution had come i
and his office had taken the steps to implement the provisions of the new Constitution. True it is, that some 92 memb
House of Representatives and 15 members of the Senate, of the Congress of the Philippines had expressed their op
in the interim National Assembly that is provided for in Section 2 of Article XVII of the proposed Constitution. It must b
however, that of the 15 senators who expressed their option to serve in the interim National Assembly only one them
oath of office; and of the 92 members of the House of Representatives who opted to serve in the interim National Ass
22 took their oath of office. The fact that only one Senator out of 24, and only 22 Representative out of 110, took their
office, is an indication that only a small portion of the members of Congress had manifested the acceptance of the ne
Constitution. It is in the taking of the oath of office where the affiant says that he swears to "support and defend the C
that the acceptance of the Constitution is made manifest. I agree with counsel petitioners in L-36165 (Gerardo Roxas
Alejandro Melchor, et al.) when he said that the members of Congress who opted to serve in the interim National Ass
only ex abundante cautela, or by way of a precaution, making sure, that in the event the new Constitution becomes d
effective and the interim National Assembly convened, they can participate in legislative work in the capacity as duly
representatives of the people, which otherwise they could not do if they did not manifest their option to serve, and tha
to be made within 30 day from January 17, 1973, the date when Proclamation No. 110 was issued. Of course, if the p
Constitution does not become effective, they continue to be members of Congress under the 1935 Constitution. Let it
considered that the members of the House of Representatives were elected in 1969 to serve a term which will yet exp
December 31, 1973. Whereas, of the Senators who opted to serve in the interim National Assembly, the term of som
will yet expire on December 31, 1973, some on December 31, 1975, and the rest on December 31, 1977. Let if be no
Senators did not opt to serve in the interim National Assembly, and 18 members of the House of Representatives als
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 reporte
affirmative votes in the citizens assemblies as a true and correct expression by the people of their approval, or accep
proposed Constitution. I have my serious doubts regarding the freedom of the people to express their views regarding
proposed Constitution during the voting in the citizens assemblies, and I have also my serious doubts regarding the t
and accuracy of the reports of the voting in the citizens assemblies. This doubt has been engendered in my mind afte
examination and study of the records of these cases, particularly with respect to the reports of the voting in the citizen
assemblies. Perhaps, it may be said that the people, or the inhabitants of this country, have acquiesced to the new C
in the sense that they have continued to live peacefully and orderly under the government that has been existing sinc
17, 1973 when it was proclaimed that the new Constitution came into effect. But what could the people do? In the sam
the people have lived under martial law since September 23, 1972, they also have to live under the government as it
and as it has existed since the declaration of martial law on September 21, 1972, regardless of what Constitution is o
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 ne
state in this opinion. I cannot agree, therefore, with my worthy colleagues in the Court who hold the view that the peo
accepted the new Constitution, and that because the people have accepted it, the new Constitution should be consid
force, regardless of the fact that it was not ratified in accordance with the provisions of Section 1 of Article XV of the 1
Constitution.

It is my honest view that the Constitution proposed by the 1971 Constitutional Convention has not come into effect. I
however, that the proposed Constitution is invalid. To me, the validity of the proposed Constitution is not in issue in th
before Us. What the petitioners assail is not the validity of the proposed Constitution but the validity of Presidential Pr
No. 1102 which declares the proposed Constitution as having been ratified and has come into effect. It being my con
that the ratification of the proposed Constitution, as proclaimed in Proclamation No. 1102, is not in accordance with th
provisions of Section 1 of Article XV, of the 1935 Constitution, I hold that Proclamation No. 1102 is invalid and should
given force and effect. Their proposed Constitution, therefore, should be considered as not yet validly ratified, and so
force. The proposed Constitution may still be submitted to a plebiscite in conformity with Section 1 of Article XV of the
Constitution. Incidentally, I must state that the Constitution is still in force, and this Court is still functioning under the 1
Constitution.

I sincerely believe that the proposed Constitution may still be submitted to the people in an election or plebiscite held
accordance with the provisions of Section 1 of Article XV of the 1935 Constitution. In fact, as we have adverted to in t
this was the mandate of Congress when, on March 16, 1967, it passed Resolution No. 2 calling a convention to propo
amendments to the 1935 Constitution. The Court may take judicial notice of the fact that the President of the Philippin
reassured the nation that the government of our Republic since the declaration of martial law is not a revolutionary go
and that he has been acting all the way in consonance with his powers under the Constitution. The people of this Rep
reason to be happy because, according to the President, we still have a constitutional government. It being my view t
1935 Constitution is still in force, I believe Congress may still convene and pass a law calling for an election at which
Constitution proposed by the 1971 Constitutional Convention will be submitted to the people their ratification or reject
plebiscite called pursuant to Section 1 of Article XV of the 1935 Constitution is an assurance to our people that we sti
our country the Rule of Law and that the democratic system of government that has been implanted in our country by
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 democra
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
Constitution had not been complied with, We will be opening the gates for a similar disregard of the Constitution in th
What I mean is that if this Court now declares that a new Constitution is now in force because the members of the cit
assemblies had approved the said new Constitution, although that approval was not in accordance with the procedur
requirements prescribed in the 1935 Constitution, it can happen again in some future time that some amendments to
Constitution may be adopted, even in a manner contrary to the existing Constitution and the law, and then said propo
amendment is submitted to the people in any manner and what will matter is that a basis is claimed that there was ap
the people. There will not be stability in our constitutional system, and necessarily no stability in our government. As a
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 asse
clear violation of the 1935 Constitution, what I say in this opinion is simply an endeavor on my part to be true to my oa
to defend and support the 1935 Constitution. I am inspired by what the great jurist and statesman, Jose P. Laurel, sa

Let our judges be as it were the vestal keepers of the purity and sanctity of our Constitution, a
protection and vindication of popular rights will be safe and secure in their reverential guardian

I only wish to help prevent, if I can, democracy and the liberties of our people from vanishing in our land, because, as
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 b
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
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
distant future as that posed by these petitions. For while the specific substantive issue is the validity of Presidential P
No. 1102, an adverse judgment may be fraught with consequences that, to say the least, are far-reaching in its implic
stressed by respondents, "what petitioners really seek to invalidate is the new Constitution."  Strict accuracy would of
1

qualify such statement that what is in dispute, as noted in the opinion of the Chief Justice, goes only as far as the vali
ratification. It could very well be though that the ultimate outcome is not confined within such limit, and this is not to de
under its aegis, there have been marked gains in the social and economic sphere, but given the premise of continuity
under a fundamental law, which itself explicitly recognizes the need for change and the process for bringing it about, 2

me that the more appropriate course is this Court to give heed to the plea of petitioners that the most serious attentio
their submission that the challenged executive act fails to meet the test of constitutionality. Under the circumstances,
and with due respect for the opinion of my brethren, I must perforce dissent. It would follow therefore that the legal po
by the Chief Justice as set forth with his usual lucidity and thoroughness has, on the whole, my concurrence, subject,
to reservations insofar as it contains views and nuances to which I have in the past expressed doubts. Nonetheless, I
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 g
utterances of eternal verities, but certainly it is more than just a keen but passive observer of the contemporary scene
virtue of its role under the separation of powers concept, involved not necessarily as a participant in the formation of g
policy, but as an arbiter of its legality. Even then, there is realism in what Lerner did say about the American Supreme
"the focal point of a set of dynamic forces which [could play] havoc with the landmarks of the American state and dete
power configuration of the day."  That is why there is this caveat. In the United States as here, the exercise of the pow
3

judicial review is conditioned on the necessity that the decision of a case or controversy before it so requires. To repe
Justices of the highest tribunal are not, as Justice Frankfurter made clear, "architects of policy. They can nullify the po
others, they are incapable of fashioning their own solutions for social problems."  Nonetheless, as was stressed by Pr
4

Black  and Murphy,  a Supreme Court by the conclusion it reaches and the decision it renders does not merely check
5 6

coordinate branches, but also by its approval stamps with legitimacy the action taken. Thus in affirming constitutional
the political departments could seek the aid of the judiciary. For the assent it gives to what has been done conduces
support in a regime where the rule of law holds sway. In discharging such a role, this Court must necessarily take in a
only what the exigent needs of the present demand but what may lie ahead in the unexplored and unknown vistas of
must guard against the pitfall of lack of understanding of the dominant forces at work to seek a better life for all, espe
suffering from the pangs of poverty and disease, by a blind determination to adhere to the status quo. It would be trag
clear case of its being recreant to its trust, if the suspicion can with reason be entertained that its approach amounts m
militant vigilantism that is violently opposed to any form of social change. It follows then that it does not suffice that re
had only to what passes for scholarship in the law that could be marred by inapplicable erudition and narrow legalism
due recognition, such factors, however, I cannot, for reasons to be set more lengthily and in the light of the opinion of
Justice, reach the same result as the majority of my brethren. For, in the last analysis, it is my firm conviction that the
of judicial review speaks too clearly for the point to be missed that official action, even with due allowance made for th
faith that invariably inspires the step taken, has to face the gauntlet of a court suit whenever there is a proper case wi
appropriate parties.

1. Respondents are acting in the soundest constitutional tradition when, at the outset, they would seek a dismissal of
petitions. For them, the question raised is political and thus beyond the jurisdiction of this Court. Such an approach ca
indicted for unorthodoxy. It is implicit in the concept of the rule of law that rights belong to the people and the governm
possesses powers only. Essentially then, unless such an authority may either be predicated on express or implied gr
Constitution or the statutes, an exercise thereof cannot survive an inquiry as to its validity. Respondents through Solic
General Mendoza would deny our competence to proceed further. It is their view, vigorously pressed and plausibly as
since what is involved is not merely the effectivity of an amendment but the actual coming into effect of a new constitu
matter is not justiciable. The immediate reaction is that such a contention is to be tested in the light of the fundamenta
separation of powers that it is not only the function but the solemn duty of the judiciary to determine what the law is a
it in cases and controversies that call for decision.  Since the Constitution pre-eminently occupies the highest rung in
7

hierarchy of legal norms, it is in the judiciary, ultimately this Tribunal, that such a responsibility is vested. With the 193
Constitution containing, as above noted, an explicit article on the subject of amendments, it would follow that the pres
be indulged in is that the question of whether there has been deference to its terms is for this Court to pass upon. Wh
the Gonzales,  Tolentino  and Planas   cases speak unequivocally to that effect. Nor is it a valid objection to this conc
8 9 10

what was involved in those cases was the legality of the submission and not ratification, for from the very language o
controlling article, the two vital steps are proposal and ratification, which as pointed out in Dillon v. Gloss,   "cannot b
11

unrelated acts, but as succeeding steps in a single endeavor."   Once an aspect thereof is viewed as judicial, there w
12
justification for considering the rest as devoid of that character. It would be for me then an indefensible retreat, derivin
justification from circumstances of weight and gravity, if this Court were to accede to what is sought by respondents a
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 ter
13

made applicable to controversies clearly non-judicial and therefore beyond its jurisdiction or to an issue involved in a
appropriately subject to its cognizance, as to which there has been a prior legislative or executive determination to wh
deference must be paid. It has likewise been employed loosely to characterize a suit where the party proceeded agai
President or Congress, or any branch thereof. If to be delimited with accuracy, "political questions" should refer to suc
under the Constitution be decided by the people in their sovereign capacity or in regard to full discretionary authority
either in the President or Congress. It is thus beyond the competence of the judiciary to pass upon. Unless clearly fal
the formulation, the decision reached by the political branches whether in the form of a congressional act or an execu
could be tested in court. Where private rights are affected, the judiciary has no choice but to look into its validity. It is
lost sight of that such a power comes into play if there be an appropriate proceeding that may be filed only after each
branch has acted. Even when the Presidency or Congress possesses plenary powers, its improvident exercise or the
thereof, if shown, may give rise to a justiciable controversy. For the constitutional grant of authority is usually unrestric
are limits to what may be done and how it is to be accomplished. Necessarily then, the courts in the proper exercise o
review could inquire into the question of whether or not either of the two coordinate branches has adhered to what is
by the Constitution. The question thus posed is judicial rather than political."   The view entertained by Professor Dod
14

dissimilar. For him such a term "is employed to designate certain types of functions committed to the political organs
government (the legislative and executive departments, or either of them) and not subject to judicial investigation."   A15

thorough study of American judicial decisions, both federal and state, he could conclude: "The field of judicial nonenfo
important, but is not large when contrasted with the whole body of written constitutional texts. The exceptions from ju
enforceability fall primarily within the field of public or governmental interests."   Nor was Professor Weston's formula
16

different. As was expressed by him: "Judicial questions, in what may be thought the more useful sense, are those wh
sovereign has set to be decided in the courts. Political questions, similarly, are those which the sovereign has entrust
so-called political departments of government or has reserved to be settled by its own extra-governmental action."   W 17

appears undeniable then both from the standpoint of Philippine as well as American decisions is the care and circum
required before the conclusion is warranted that the matter at issue is beyond judicial cognizance, a political question
raised.

2. The submission of respondents on this subject of political question, admittedly one of complexity and importance, d
be pursued further. They would derive much aid and comfort from the writings of both Professor Bickel   of Yale and 18

Freund   of Harvard, both of whom in turn are unabashed admirers of Justice Brandeis. Whatever be the merit inhere
19

lack of enthusiasm for a more active and positive role that must be played by the United States Supreme Court in con
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 Am
sovereignty, there has sprung a tradition of what has been aptly termed as judicial activism. Such an approach could
the valedictory address before the 1935 Constitutional Convention of Claro M. Recto. He spoke of the trust reposed i
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 wou
appear that even then this Court was expected not to assume an attitude of timidity and hesitancy when a constitution
is posed. There was the assumption of course that it would face up to such a task, without regard to political consider
with no thought except that of discharging its trust. Witness these words Justice Laurel in an early landmark case, Pe
Vera,   decided in 1937: "If it is ever necessary for us to make vehement affirmance during this formative period of po
21

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 pop
unafraid of criticism in the accomplishment of our sworn duty as we see it and as we understand it."   The hope of co
22

that such assertion of independence impartiality was not mere rhetoric. That is a matter more appropriately left to oth
determine. It suffices to stake that what elicits approval on the part of our people of a judiciary ever alert to inquire int
breaches of the fundamental law is the realization that to do so is merely to do what is expected of it and that thereby
invasion of spheres appropriately belonging to the political branches. For it needs to be kept in kind always that it can
when there is a suit with proper parties before it, wherein rights appropriate for judicial enforcement are sought to be
Then, too, it does not approach constitutional questions with dogmatism or apodictic certainty nor view them from the
cliffs of perfection. This is not to say though that it is satisfied with an empiricism untroubled by the search for jural co
and rational coherence. A balance has to be struck. So juridical realism requires. Once allowance made that for all its
circumspection this Court manned by human beings fettered by fallibility, nonetheless earnestly and sincerely striving
the public acceptance of its vigorous pursuit of the task of assuring that the Constitution be obeyed is easy to underst
not in the past shirked its responsibility to ascertain whether there has been compliance with and fidelity to constitutio
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 jurisdiction, even in the face
23 24

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
able associates presents the whole picture. On the question of judicial review, it is not a case of black and white; ther
shaded areas. It goes too far, in my view, if the perspective is one of dissatisfaction, with its overtones of distrust. Thi
expression of disapproval has not escaped Dean Rostow of Yale, who began one of his most celebrated legal essays
Democratic Character of Judicial Review, thus: "A theme of uneasiness, and even of guilt, colors the literature about
review. Many of those who have talked, lectured, and written about the Constitution have been troubled by a sense th
review is undemocratic."   He went on to state: "Judicial review, they have urged, is an undemocratic shoot on an oth
25

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 review, to be exercised by s
26

the government, is implicit in the conception of a written constitution delegating limited powers. A written constitution
promote discord rather than order in society if there were no accepted authority to construe it, at the least in case of c
action by different branches of government or of constitutionally unauthorized governmental action against individuals
limitation and separation of powers, if they are to survive, require a procedure for independent mediation and constru
reconcile the inevitable disputes over the boundaries of constitutional power which arise in the process of governmen
than that, he took pains to emphasize: "Whether another method of enforcing the Constitution could have been devis
answer is that no such method developed. The argument over the constitutionality of judicial review has long since be
by history. The power and duty of the Supreme Court to declare statutes or executive action unconstitutional in appro
is part of the living Constitution. 'The course of constitutional history,' Mr. Justice Frankfurter recently remarked, 'has
responsibilities upon the Supreme Court which it would be "stultification" for it to evade.' "   Nor is it only Dean Rostow
28

point Frankfurter, reputed to belong to the same school of thought opposed to judicial activism, if not its leading advo
his long stay in the United States Supreme Court, as one fully cognizant of the stigma that attaches to a tribunal whic
to meet the demands of judicial review. There is a statement of similar importance from Professor Mason: "In Stein v.
York Frankfurter remarked, somewhat self-consciously perhaps, that the 'duty of deference cannot be allowed imperc
slide into abdication.' "   Professor Konefsky, like Dean Rostow, could not accept characterization of judicial review a
29

undemocratic. Thus his study of Holmes and Brandeis, the following appears: "When it is said that judicial review is a
undemocratic feature of our political system, it ought also to be remembered that architects of that system did not equ
constitutional government with unbridled majority rule. Out of their concern for political stability and security for private
they designed a structure whose keystone was to consist of barriers to the untrammeled exercise of power by any gro
perceived no contradiction between effective government and constitutional checks. To James Madison, who may leg
regarded as the philosopher of the Constitution, the scheme of mutual restraints was the best answer to what he view
chief problem in erecting a system of free representative government: 'In framing a government which is to be admini
men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the
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 w
eminent authorities on the subject evince at the most fears that the American Supreme Court might overstep the bou
to the judiciary? It cannot be a denial of the fitness of such competence being vested in judges and of their being call
fulfill such a trust whenever appropriate to the decision of a case before them. That is why it has been correctly maint
notwithstanding the absence of any explicit provision in the fundamental law of the United States Constitution, that di
American constitutional historian, Professor Corwin, could rightfully state that judicial review "is simply incidental to th
courts to interpret the law, of which the Constitution is part, in connection with the decision of cases."   This is not to d
31
there are those who would place the blame or the credit, depending upon one's predilection, on Marshall's epochal op
in Marbury v. Madison.   Curtis belonged to that persuasion. As he put it: "The problem was given no answer by the C
32

A hole was left where the Court might drive in the peg of judicial supremacy, if it could. And that is what John Marsha
any rate there was something in the soil of American juristic thought resulting in this tree of judicial power so precario
by Marshall striking deep roots and showing wonderful vitality and hardiness. It now dominates the American legal sc
Through it, Chief Justice Hughes, before occupying that exalted position, could state in a lecture: "We are under a Co
but the Constitution is what the judges say it is ... ."   The above statement is more than just an aphorism that lends it
34

inclusion in judicial anthologies or bar association speeches. It could and did provoke from Justice Jackson, an expon
judicial restraint school of thought, this meaningful query: "The Constitution nowhere provides that it shall be what the
it is. How, did it come about that the statement not only could be but could become current as the most understandab
comprehensive summary of American Constitutional law?"   It is no wonder that Professor Haines could pithily and su
35

sum up the place of the highest American tribunal in the scheme of things in this wise: "The Supreme Court of the Un
has come to be regarded as the unique feature of the American governmental system."   Let me not be misunderstoo
36

here no attempt to close one's eyes to a discernible tendency on the part of some distinguished faculty minds to look
what for them may be inadvisable extension of judicial authority. For such indeed is the case as reflected in two leadi
recent vintage, Baker v. Carr,   decided in 1962 and Powell v. MacCormack,   in 1969, both noted in the opinion of th
37 38

Justice. The former disregarded the warning of Justice Frankfurter in Colegrove v. Green 39 about the American Sup
declining jurisdiction on the question of apportionment as to do so would cut very deep into the very being of Congres
him, the judiciary "ought not to enter this political thicket." Baker has since then been followed; it has spawned a host
cases.   Powell, on the question of the power of a legislative body to exclude from its ranks a person whose qualificat
41

uncontested, for many the very staple of what is essentially political, certainly goes even further than the authoritative
decision of Vera v. Avelino,   It does look then that even in the United States, the plea for judicial self-restraint, even
42

voice by those competent in the field of constitutional law, has fallen on deaf ears. There is in the comments of respo
excerpt from Professor Freund quoting from one of his essays appearing in a volume published in 1968. It is not with
to note that in another paper, also included therein, he was less than assertive about the necessity for self-restraint a
apparently mindful of the claims of judicial activism. Thus: "First of all, the Court has a responsibility to maintain the c
order, the distribution of public power, and the limitations on that power."   As for Professor Bickel, it has been said th
43

counsel for the New York Times in the famous Vietnam papers case,   he was less than insistent on the American Su
44

Court exercising judicial self-restraint. There are signs that the contending forces on such question, for some an uneq
are now quiescent. The fervor that characterized the expression of their respective points of view appears to have be
minimized. Not that it is to be expected that it will entirely disappear, considering how dearly cherished are, for each g
convictions, prejudices one might even say, entertained. At least what once was fitly characterized as the booming gu
rhetoric, coming from both directions, have been muted. Of late, scholarly disputations have been centered on the sta
should govern the exercise of the power of judicial review. In his celebrated Holmes lecture in 1959 at the Harvard La
Professor Wechsler advocated as basis for decision what he termed neutral principles of constitutional law.   It has b
45

a plethora of law review articles, the reaction ranging from guarded conformity to caustic criticism.   There was, to be
46

clear call to a court in effect abandoning the responsibility incumbent on it to keep governmental agencies within cons
channels. The matter has been put in temperate terms by Professor Frank thus: "When allowance has been made fo
it nevertheless seems to me that the doctrine of political questions ought to be very sharply confined to where the fun
reasons justify it and that in a give involving its expansion there should be careful consideration also of the social con
which may militate against it. The doctrine has a certain specious charm because of its nice intellectualism and becau
fine deference it permits to expertise, to secret knowledge, and to the prerogatives of others. It should not be allowed
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 sig
judicial review in the United States. I cannot resist the conclusion then that the views advanced on this subject by dis
counsel for petitioners, with Senators Lorenzo M. Tañada and Jovito Salonga at the van, rather than the advocacy of
Solicitor-General, possess the greater weight and carry persuasion. So much then for the invocation of the political qu
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 Proclam
1102 manifests fidelity to the explicit terms of Article XV. There is, of course, the view not offensive to reason that a s
realities should temper the rigidity of devotion to the strict letter of the text to allow deference to its spirit to control. W
recognition of its force in constitutional litigation,   if my reading of the events and the process that led to such proclam
48

clearly set forth in the opinion of the Chief Justice, is not inaccurate, then it cannot be confidently asserted that there
compliance. It would be to rely on conjectural assumptions that did founder on the rock of the undisputed facts. Any o
conclusion would, for me, require an interpretation that borders on the strained. So it has to be if one does not lose si
the article on amendments is phrased. A word, to paraphrase Justice Holmes may not be a crystal, transparent and u
but it is not, to borrow from Learned Hand, that eminent jurist, a rubber band either. It would be unwarranted in my vie
assert that the requirements of the 1935 Constitution have been met. There are American decisions,   and they are n
49

number, which require that there be obedience to the literal terms of the applicable provision. It is understandable wh
be thus. If the Constitution is the supreme law, then its mandate must be fulfilled. No evasion is tolerated. Submission
commands can be shown only if each and every word is given meaning rather than ignored or disregarded. This is no
that a recognition conclusive effect attached to the electorate manifesting its will to vote affirmatively on the amendme
proposed poses an obstacle to the judiciary being insistent on the utmost regularity. Briefly stated, substantial compli
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 Cou
upon to give meaning and perspective to what could be considered words of vague generality, pregnant with uncerta
whatever obscurity it possesses is illumined when the light of the previous legislation is thrown on it. In the first Comm
Act,   submitting to the Filipino people for approval or disapproval certain amendments to the original ordinance appe
51

1935 Constitution, it was made that the election for such purpose was to "be conducted in conformity with the provisio
Election Code insofar as the same may be applicable."   Then came the statute,   calling for the plebiscite on the thre
52 53

amendments providing for the plebiscite on the three 1930 amendments providing for a bicameral Congress or a Sen
House of Representatives to take the place of a unicameral National Assembly,   reducing the term of the President t
54

but allowing his re-election with the limitation that he cannot serve more than eight consecutive years,   and creating
55

independent Commission on Elections.   Again, it was expressly provided that the election "shall be conducted in con
56

the provisions of the Election Code in so far as the same may be applicable."   The approval of the present parity am
57

was by virtue of a Republic Act   which specifically made applicable the then Election Code.   There is a similar provi
58 59

legislation,   which in cotemplation of the 1971 Constitutional Convention, saw to it that there be an increase in the m
60

of the House of Representatives a maximum of one hundred eighty and assured the eligibility of senators and repres
become members of such constituent body without forfeiting their seats, as proposed amendments to be voted on in
elections.   That is the consistent course of interpretation followed by the legislative branch. It is most persuasive, if n
61

controlling. The restraints thus imposed would set limits to the Presidential action taken, even on the assumption that
agent of the Constitutional Convention or under his martial law prerogatives, he was not devoid of power to specify th
ratification. On two vital points, who can vote and how they register their will, Article XV had been given a definitive co
That is why I fail to see sufficient justification for this Court affixing the imprimatur of its approval on the mode employ
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. Ind
of the lack of validity of the ratification of the new Constitution, if it be accepted by the people, in whom sovereignty re
according to the Constitution,   then this Court cannot refuse to yield assent to such a political decision of the utmost
62

conclusive in its effect. Such a fundamental principle is meaningless if it does not imply, to follow Laski, that the natio
whole constitutes the "single center of ultimate reference," necessarily the possessor of that "power that is able to res
disputes by saying the last word."   If the origins of the democratic polity enshrined in the 1935 Constitution with the d
63

that the Philippines is a republican state could be traced back to Athens and to Rome, it is no doubt true, as McIver p
that only with the recognition of the nation as the separate political unit in public law is there the juridical recognition o
composing it "as the source of political authority."   From them, as Corwin did stress, emanate "the highest possible e
64

of human will,"   which is supreme and must be obeyed. To avoid any confusion and in the interest of clarity, it should
65

expressed in the manner ordained by law. Even if such is not the case, however, once it is manifested, it is to be acce
final and authoritative. The government which is merely an agency to register its commands has no choice but to sub
officials must act accordingly. No agency is exempt such a duty, not even this Court. In that sense, the lack of regular
method employed to register its wishes is fatal in its consequences. Once the fact of acceptance by people of a new
law is made evident, the judiciary is left with no choice but to accord it recognition. The obligation to render it obeisan
the courts as well.

There are American State decisions that enunciate such a doctrine. While certainly not controlling, they are not entire
persuasive significance. In Miller v. Johnson,   decided in 1892, it was set forth in the opinion of Chief Justice Holt tha
66

1890, an act was passed in Kentucky, providing for the calling of a convention for the purpose of framing a new cons
the election of delegates. It provided that before any form of constitution made by them should become operative, it s
submitted to the vote of the state and ratified by a majority of those voting. The constitution then in force authorized th
legislature, the preliminary steps having been taken, to call a convention "for the purpose of readopting, amending, or
it contained no provision giving the legislature the power to require a submission of its work to a vote of the people. T
convention met in September, 1890. By April, 1891, it completed a draft of a constitution, submitted it to a popular vo
adjourned until September following. When the convention reassembled, the delegates made numerous changes in i
As thus amended, it was promulgated by the convention of September 28, 1891, as the new constitution. An action w
to challenge its validity. It failed in the lower court. In affirming such judgment dismissing the action, Chief Justice Hol
a set of men, not selected by the people according to the forms of law, were to formulate an instrument and declare it
constitution, it would undoubtedly be the duty of the courts to declare its work a nullity. This would be revolution, and
courts of the existing government must resist until they are overturned by power, and a new government established.
convention, however, was the offspring of law. The instrument which we are asked to declare invalid as a constitution
made and promulgated according to the forms of law. It is a matter of current history that both the executive and legis
branches of the government have recognized its validity as a constitution, and are now daily doing so. ... While the ju
should protect the rights of the people with great care and jealousy, because this is its duty, and also because; in time
popular excitement, it is usually their last resort, yet it should at the same time be careful not to overstep the proper b
power, as being perhaps equally dangerous; and especially where such momentous results might follow as would be
instance, if the power of the judiciary permitted, and its duty requires, the overthrow of the work of the convention."    67

Commonwealth,   a 1903 decision, it was contended that the Virginia Constitution reclaimed in 1902 is invalid as it w
68

and promulgated by the convention without being submitted for ratification or rejection by the people. The Court rejec
view. As stated in the opinion of Justice Harrison: "The Constitution of 1902 was ordained and proclaimed by a conve
called by direct vote of the people of the state to revise and amend the Constitution of 1869. The result of the work of
convention has been recognized, accepted, and acted upon as the only valid Constitution of the state by the Governo
swearing fidelity to it and proclaiming it, as directed thereby; by the Legislature in its formal official act adopting a join
July 15, 1902, recognizing the Constitution ordained by the convention which assembled in the city of Richmond on th
of June, 1901, as the Constitution of Virginia; by the individual oaths of members to support it, and by enforcing its pr
and the people in their primary capacity by peacefully accepting it and acquiescing in it, by registering as voters unde
extent of thousands throughout the state, and by voting, under its provisions, at a general election for their representa
Congress of the United States. The Constitution having been thus acknowledged and accepted by the office administ
government and by the people of the state, and there being no government in existence under the Constitution of 186
or denying its validity, we have no difficulty in holding that the Constitution in question, which went into effect at noon
day of July, 1902, is the only rightful, valid, and existing Constitution of this state, and that to it all the citizens of Virgin
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 h
accepted by the Filipino people. What is more, so it has been argued, it is not merely a case of its being implied. Thro
Citizens Assemblies, there was a plebiscite with the result as indicated in Proclamation No. 1102. From the standpoin
respondents then, they could allege that there was more than just mere acquiescence by the sovereign people. Its wi
expressed formally and unmistakably. It may be added that there was nothing inherently objectionable in the informal
followed in ascertaining its preference. Nor is the fact that Filipinos of both sexes above the age of fifteen were given
opportunity to vote to be deplored. The greater the base of mass participation, the more there is fealty to the democra
It does logically follow likewise that such circumstances being conceded, then no justifiable question may be raised. T
to respect what had thus received the people's sanction. That is not for me though whole of it. Further scrutiny even t
entirely foreclosed. There is still an aspect that is judicial, an inquiry may be had as to whether such indeed was the r
is no more than what the courts do in election cases. There are other factors to bear in mind. The fact that the Presid
certified is well-nigh conclusive. There is in addition the evidence flowing from the conditions of peace and stability. T
appears to be conformity to the existing order of things. The daily course of events yields such a conclusion. What is
officials under the 1935 Constitution, including practically all Representatives and a majority of the Senators, have sig
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 t
during a period of martial law. It would have been different had there been that freedom of debate with the least interf
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.
a clear-cut decision either way. One could be certain as to the fact of the acceptance of the new or of adherence to th
is not to deny that votes are cast by individuals with their personal concerns uppermost in mind, worried about their im
needs and captive to their existing moods. That is inherent in any human institution, much more so in a democratic po
it open to any valid objection because in the final analysis the state exists for the individuals who in their collectivity co
Whatever be their views, they are entitled to respect. It is difficult for me, however, at this stage to feel secure in the c
that they did utilize the occasion afforded to give expression to what was really in their hearts. This is not to imply tha
could not be dispelled by evidence to the contrary. If the petitions be dismissed however, then such opportunity is for

5. With the foregoing legal principles in mind, I find myself unable to join the ranks of my esteemed brethren who vote
dismissal of these petitions. I cannot yield an affirmative response to the plea of respondents to consider the matter c
proceedings terminated once and for all. It is not an easy decision to reach. It has occasioned deep thought and cons
soul-searching. For there are countervailing considerations that exert a compulsion not easy to resist. It can be asser
truth, especially in the field of social and economic rights, that with the revised Constitution, there is an auspicious be
further progress. Then too it could resolve what appeared to be the deepening contradictions of political life, reducing
governmental authority to near impotence and imparting a sense of disillusionment in democratic processes. It is not
say therefore that there had indeed been the revision of a fundamental law to vitalize the very values out of which dem
grows. It is one which has all the earmarks of being responsive to the dominant needs of the times. It represents an o
cognizant of the tensions of a turbulent era that is the present. That is why for some what was done represented an a
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
are being further considered, the least interference, with the executive department. The President in the discharge of
functions is entitled to obedience. He remains commander-in-chief with all the constitutional powers it implies. Public
go about their accustomed tasks in accordance with the revised Constitution. They can pursue even the tenor of their
are free to act according to its tenets. That was so these past few weeks, even petitions were filed. There was not at
any thought of any restraining order. So it was before. That is how things are expected to remain even if the motions
were not granted. It might be asked though, suppose the petitions should prevail? What then? Even so, the decision
need not be executory right away. Such a disposition of a case before this Court is not novel. That was how it was do
Emergency Powers Act controversy.   Once compliance is had with the requirements of Article XV of the 1935 Const
70

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 stan
actuality. What is more, it may give the impression of reliance on what may, for the practical man of affairs, be no mo
gossamer distinctions and sterile refinements unrelated to events. That may be so, but I find it impossible to transcen
me are the implications of traditional constitutionalism. This is not to assert that an occupant of the bench is bound to
undeviating rigidity doctrines which may have served their day. He could at times even look upon them as mere scrib
sands to be washed away by the advancing tides of the present. The introduction of novel concepts may be carried o
though. As Cardozo put the matter: "The judge, even when he is free, is still not wholly free. He is not to innovate at p
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
consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to ex
discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to "the primordial ne
order in the social life." Wide enough in all conscience is the field of discretion that remains."   Moreover what made i
71

this Court to apply settled principles, which for me have not lost their validity, is traceable to the fact that the revised C
was made to take effect immediately upon ratification. If a period of time were allowed to elapse precisely to enable th
power to be exercised, no complication would have arisen. Likewise, had there been only one or two amendments, n
problem would be before us. That is why I do not see sufficient justification for the orthodoxies of constitutional law no
operate.

Even with full realization then that the approach pursued is not all that it ought to have been and the process of reaso
without its shortcomings, the basic premises of a constitutional democracy, as I understand them and as set forth in t
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 b
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
by the members of all the Barangays (Citizens Assemblies) throughout the Philippines, and has thereby come into ef

More specifically, the issue submitted is whether the purported ratification of the proposed Constitution by means of t
Assemblies has substantially complied with the mandate of Article XV of the existing Constitution of 1935 that duly pr
amendments thereto, in toto or parts thereof, "shall be valid as part of this Constitution when approved by a majority 
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
by the 1971 Constitutional Convention may be said also to have substantially complied with its own mandate that "(T)
Constitution shall take immediately upon its ratification by a majority of the votes cast in a plebiscite called for the pur
except as herein provided, shall supersede the Constitution of Nineteen hundred and thirty-five and all amendments t

Respondents contend that "(A)lthough apparently what is sought to be annulled is Proclamatio

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 "politic
character" and that "what is sought to be invalidated is not an act of the President but of the p

— "(T)he fact of approval of the new Constitution by an overwhelming majority of the votes ca

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 un
law. ... Alternatively, or contemporaneously, he did so as "agent" of the Constitutional Conven

— "alleged defects, such as absence of secret voting, enfranchisement of persons less than 2

years, non supervision (by) the Comelec are matters not required by Article XV of the 1935 C
(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 rati
 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 pop
direct participation of the citizenry ... ."
3

To test the validity of respondents' submittal that the Court, in annulling Proclamation No. 1102 would really be "invali
new Constitution", the terms and premises of the issues have to be defined.

— Respondents themselves assert that "Proclamation No. 1102 ... is plainly merely declarato
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
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

Constitution, dealing with the procedure or manner of amending the fundamental law are bind
the Convention and the other departments of the government. It must be added that ... they ar
less binding upon the people." 7

— In the same Tolentino case, this Court further proclaimed that "as long as any amendment
formulated and submitted under the aegis of the present Charter, any proposal for such amen
which is not in conformity with the letter, spirit and intent of the Charter for effecting amendme
receive the sanction of this Court." 8

— As continues to be held by a majority of this Court, proposed amendments to the Constituti

be ratified in only one way, that is, in an election or plebiscite held in accordance with law and
in only by qualified and duly registered voters"  and under the supervision of the Commission
9

Elections. 10

— Hence, if the Court declares Proclamation 1102 null and void because on its face, the purp
ratification of the proposed Constitution has not faithfully nor substantially observed nor comp
mandatory requirements of Article XV of the (1935) Constitution, it would not be "invalidating"
proposed new Constitution but would be simply declaring that the announced fact of ratificatio
means of the Citizens Assemblies referendums does not pass the constitutional test and that
proposed new Constitution has not constitutionally come into existence.

— Since Proclamation 1102 is acknowledged by respondent to be "plainly merely declaratory"

disputed fact of ratification, they cannot assume the very fact to be established and beg the is
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 immediate
effect upon the issuance on January 17, 1973 of Proclamation 1102 and the question of whether "confusion and diso
government affairs would (not) result" from a judicial declaration of nullity of the purported ratification is raised by the
General on behalf of respondents.

A comparable precedent of great crisis proportions is found in the Emergency Powers cases,   wherein the Court in i
11

Resolution of September 16, 1949 after judgment was initially not obtained on August 26, 1949 for lack of the require
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 inoperativ
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 o
"issued in good faith and with the best of intentions by three successive Presidents, and some of them may have alre
produced extensive effects on the life of the nation" — in the same manner as may have arisen under the bona fide a
President now in the honest belief that the 1972 Constitution had been validly ratified by means of the Citizens Assem
referendums — and indicated the proper course and solution therefor, which were duly abided by and confusion and
well as harm to public interest and innocent parties thereby avoided as follows:

Upon the other hand, while I believe that the emergency powers had ceased in June 1945, I a
prepared to hold that all executive orders issued thereafter under Commonwealth Act No. 671
se null and void. It must be borne in mind that these executive orders had been issued in good
with the best of intentions by three successive Presidents, and some of them may have alread
extensive effects in the life of the nation. We have, for instance, Executive Order No. 73, issue
November 12, 1945, appropriating the sum of P6,750,000 for public works; Executive Order N
issued on January 7, 1946, amending a previous order regarding the organization of the Supr
Executive Order No. 89, issued on January 1, 1946, reorganizing Courts of First Instance; Exe
Order No. 184, issued on November 19, 1948, controlling rice and palay to combat hunger; an
executive orders appropriating funds for other purposes. The consequences of a blanket nullif
these executive orders will be unquestionably serious and harmful. And I hold that before null
them, other important circumstances should be inquired into, as for instance, whether or not th
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 litig
facto officers; acts and contracts of parties acting in good faith; etc. It is my opinion that each
order must be viewed in the light of its peculiar circumstances, and, if necessary and possible
precautionary measures should be taken to avoid harm to public interest and innocent parties

Initially, then Chief Justice Moran voted with a majority of the Court to grant the Araneta and Guerrero petitions holdin
void the executive orders on rentals and export control but to defer judgment on the Rodriguez and Barredo petitions
declarations of nullity of the executive orders appropriating the 1949-1950 fiscal year budget for the government and
for the holding of the 1949 national elections. After rehearsing, he further voted to also declare null and void the last t
executive orders appropriating funds for the 1949 budget and elections, completing the "sufficient majority" of six aga
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 g
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 executive orders in question appears remote and uncertain, I am compelled to, and do he
my unqualified concurrence in the decision penned by Mr. Justice Tuason declaring that these
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 posit
compliance with the Constitution by the other branches of the Government, which is our prime
all these cases, would be effected, and indefinite deferment will produce the opposite result be
would legitimize a prolonged or permanent evasion of our organic law. Executive orders which
opinion, repugnant to the Constitution, would be given permanent life, opening the way or pra
may undermine our constitutional structure.

The harmful consequences which, as I envisioned in my concurring opinion, would come to pa

the said executive orders be immediately declared null and void are still real. They have not d
by reason of the fact that a special session of Congress is not now forthcoming. However, the
now lies in the hands of the Chief Executive and of Congress, for the Constitution vests in the
 power to call a special session should the need for one arise, and in the latter, the power to pa
appropriations act.

That Congress may again fail to pass a valid appropriations act is a remote possibility, for und
circumstances it fully realizes its great responsibility of saving the nation from breaking down;
furthermore, the President in the exercise of his constitutional powers may, if he so desires, co
Congress to remain in special session till it approves the legislative measures most needed by
country.

Democracy is on trial in the Philippines, and surely it will emerge victorious as a permanent w
this country, if each of the great branches of the Government, within its own allocated sphere,
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 m
firm and strong, hard as the best of steel, so as to insure its growth and development along so
stable and vigorous democracy.  14

The late Justice Pedro Tuason who penned the initial majority judgment (declaring null and void the rental and export
executive orders) likewise observed that "(T)he truth is that under our concept of constitutional government, in times o
perils more than in normal circumstances 'the various branches, executive, legislative, and judicial,' given the ability t
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
the President's public manifestation of adherence to constitutional processes and of working within the proper constit
framework as per his press conference of January 20,1973, wherein he stated that "(T)he Supreme Court is the final
the Constitution. It can and will probably determine the validity of this Constitution. I did not want to talk about this bec
actually there is a case pending before the Supreme Court. But suffice it to say that I recognize the power of the Supr
With respect to appointments, the matter falls under a general provision which authorizes the Prime Minister to appoi
members to the Supreme Court. Until the matter of the new Constitution is decided, I have no intention of utilizing tha

Thus, it is that as in an analogous situation wherein the state Supreme Court of Mississippi held that the questions of
submission of the proposed constitutional amendment of the State Constitution providing for an elective, instead of an
judiciary and whether the proposition was in fact adopted, were justifiable and not political questions, we may echo th
therein of Chief Justice Whitfield that "(W)e do not seek a jurisdiction not imposed upon us by the Constitution. We co
we would, escape the exercise of that jurisdiction which the Constitution has imposed upon us. In the particular instan
we are now acting, our duty to know what the Constitution of the state is, and in accordance with our oaths to suppor
maintain it in its integrity, imposed on us a most difficult and embarrassing duty, one which we have not sought, but o
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 c
maintaining a firm and strict — perhaps, even rigid — stand that the Constitution is a "superior paramount law, uncha
ordinary means" save in the particular mode and manner prescribed therein by the people, who, in Cooley's words, s
(not only) the hands of their official agencies, but their own hands as well"   in the exercise of their sovereign will or a
18

flexible stand that would consider compliance with the constitutional article on the amending process as merely direct
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
otherwise exclusively "by approval by a majority of the votes cast an election at which the amendments are submitted
people for their ratification",   participated in only by qualified and duly registered voters twenty-one years of age or o
19
duly supervised by the Commission on Elections,   in accordance with the cited mandatory constitutional requiremen
21

The alternative choice of a liberal stand would permit a disregard of said requirements on the theory urged by respon
"the procedure outlined in Article XV was not intended to be exclusive of other procedures especially one which conte
popular and direct participation of the citizenry",   that the constitutional age and literacy requirements and other statu
22

safeguards for ascertaining the will of the majority of the people may likewise be changed as "suggested, if not presc
people (through the Citizens Assemblies) themselves",   and that the Comelec is constitutionally "mandated to overs
23

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  2

Supreme Court's power of judicial review and to declare void laws repugnant to the Constitution, there is no middle g
between these two alternatives. As Marshall expounded it: "(T)he Constitution is either a superior paramount law, unc
by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, alterable when the legislature
to alter it. If the former part of the alternative be true, then a legislative act, contrary to the Constitution, is not law; if th
be true, then written constitutions are absurd attempts on the part of a people, to limit a power, in its own nature, illim

As was to be restated by Justice Jose P. Laurel a century and a third later in the 1936 landmark case of Angara vs. E
Commission,   "(T)he Constitution sets forth in no uncertain language the restrictions and limitations upon governmen
26

and agencies. If these restrictions and limitations are transcended it would be inconceivable if the Constitution had no
for a mechanism by which to direct the course of government along constitutional channels, for then the distribution o
would be mere verbiage, the bill of rights mere expressions of sentiment, and the principles of good government mere
apothegms. Certainly, the limitations of good government and restrictions embodied in our Constitution are real as th
be in any living Constitution."

Justice Laurel pointed out that in contrast to the United States Constitution, the Philippine Constitution as "a definition
powers of government" placed upon the judiciary the great burden of "determining the nature, scope and extent of su
and stressed that "when the judiciary mediates to allocate constitutional boundaries, it does not assert any superiority
other departments ... but only asserts the solemn and sacred obligation entrusted to it by the Constitution to determin
claims of authority under the Constitution and to establish for the parties in an actual controversy the rights which the
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,"
27

never forget that it is a constitution we are expounding," — termed by Justice Frankfurter as "the single most importa
in the literature of constitutional law — most important because most comprehensive and comprehending."   This end 29

concept to my mind permeated to this Court's exposition and rationale in the hallmark case of Tolentino, wherein we
contentions on the Convention's behalf "that the issue ... is a political question and that the Convention being a legisla
the highest order is sovereign, and as such, its acts impugned by petitioner are beyond the control of Congress and t
Courts." 30

This Court therein made its unequivocal choice of strictly requiring faithful (which really includes substantial) complia
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
Constitutional Convention's Organic Resolution No. 1 proposing to amend Article V, section 1 of the Constitution by lo
voting age to 18 years (vice 21 years) 30a "without prejudice to other amendments that will be proposed in the future
portions of the amended section", this Court stated that "the constitutional provision in question (as proposed) presen
which may be resolved in favor of respondents and intervenors. We do not believe such doubt can exist only because
that the end sought to be achieved is to be desired. Paraphrasing no less than the President of Constitutional Conven
1934, Claro M. Recto, let those who would put aside, invoking grounds at best controversial, any mandate of the fund
law purportedly in order to attain some laudable objective bear in mind that someday somehow others with purported
laudable objectives may take advantage of the precedent and continue the destruction of the Constitution, making tho
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 missio
propose amendments to the Constitution, the Convention and its officers and members are al
all the provisions of the existing Constitution. Now We hold that even as to its latter task of pro
amendments to the Constitution, it is subject to the provisions of Section 1 of Article XV. This
because it is plain to Us that the framers of the Constitution took care that the process of ame
same should not be undertaken with the same ease and facility in changing an ordinary legisl
Constitution making is the most valued power, second to none, of the people in a constitutiona
democracy such as the one our founding fathers have chosen for this nation, and which we of
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 cou
those subject to its sovereignty, every degree of care is taken in preparing and drafting it. A co
worthy of the people for deliberation and study. It is obvious that correspondingly, any amendm
Constitution is of no less importance than the whole Constitution itself, and perforce must be c
and prepared with as much care and deliberation. From the very nature of things, the drafters
original constitution, as already observed earlier, operate without any limitations, restraints or
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 t
their handiwork is not lightly treated and as easily mutilated or changed, not only for reasons p
personal but more importantly, because written constitutions are supposed to be designed so
for some time, if not for ages, or for, at least, as long as they can be adopted to the needs and
of the people, hence, they must be insulated against precipitate and hasty actions motivated b
less passing political moods or fancies. Thus, as a rule, the original constitutions carry with the
limitations and conditions, more or less stringent, made so by the people themselves, in regar
process of their amendment. And when such limitations or conditions are so incorporated in th
constitution, it does not lie in the delegates of any subsequent convention to claim that they m
and disregard such conditions because they are powerful and omnipotent as their original cou

3. This Court in Tolentino likewise formally adopted the doctrine of proper submission first advanced in Gonzales vs.
thus:

We are certain no one can deny that in order that a plebiscite for the ratification of an amendm
Constitution may be validly held, it must provide the voter not only sufficient time but ample ba
an intelligent appraisal of the nature of amendment per se as well as its relation to the other p
Constitution with which it has to form a harmonious whole. In the context of the present state o
where the Convention hardly started considering the merits of hundreds, if not thousands, pro
amend the existing Constitution, to present to people any single proposal or a few of them can
with this requirement. We are of the opinion that the present Constitution does not contemplat
1 of Article XV a plebiscite or "election" wherein the people are in the dark as to frame of refer
can base their judgment on. We reject the rationalization that the present Constitution is a pos
of reference, for the simple reason that intervenors themselves are stating the sole purpose o
proposed amendment is to enable the eighteen year olds to take part in the election for the ra
the Constitution to be drafted by the Convention. In brief, under the proposed plebiscite, there
the language of Justice Sanchez, speaking for the six members of the Court in Gonzales, sup
proper submission.' " 34
4. Four other members of the Court   in a separate concurrence in Tolentino, expressed their "essential agreement" w
35

Sanchez' separate opinion in Gonzales on the need for "fair submission (and) intelligent rejection" as "minimum requ
that must be met in order that there can be a proper submission to the people of a proposed constitutional amendme

... amendments must be fairly laid before the people for their blessing or spurning. The people
be mere rubber stamps. They are not to vote blindly. They must be afforded ample opportunit
over the original provisions, compare them with the proposed amendments, and try to reach a
as the dictates of their conscience suggest, free from the incubus of extraneous or possibly in
influences. We believe the word "submitted" can only mean that the government, within its ma
capabilities, should strain every effort to inform every citizen of the provisions to be amended,
proposed amendments and the meaning, nature and effects thereof. By this, we are not to be
as saying that, if one citizen or 100 citizens or 1,000 citizens cannot be reached, then there is
submission within the meaning of the word as intended by the framers of the Constitution. Wh
Constitution in effect directs is that the government, in submitting an amendment for ratificatio
put every instrumentality or agency within its structural framework to enlighten the people, edu
with respect to their act of ratification or rejection. For as we have earlier stated, one thing is s
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 inten
Article XV, section 1 of the Constitution, in this wise:

A number of doubts or misgivings could conceivably and logically assail the average voter. W
the voting age be lowered at all, in the first place? Why should the new voting age be precisel
and not 19 or 20? And why not 17? Or even 16 or 15? Is the 18-year old as mature as the 21-
that there is no need of an educational qualification to entitle him to vote? In this age of permis
and dissent, can the 18-year old be relied upon to vote with judiciousness when the 21-year o
past elections, has not performed so well? If the proposed amendment is voted down by the p
the Constitutional Convention insist on the said amendment? Why is there an unseemly haste
of the Constitutional Convention in having this particular proposed amendment ratified at this
time? Do some of the members of the Convention have future political plans which they want
subserve by the approval this year of this amendment? If this amendment is approved, does i
mean that the 18-year old should not also shoulder the moral and legal responsibilities of the
Will he be required to compulsory military service under the colors? Will the contractual conse
reduced to 18 years? If I vote against the amendment, will I not be unfair to my own child who
years old, come 1973?

The above are just samplings from here, there and everywhere — from a domain (of searchin
the bounds of which are not immediately ascertainable. Surely, many more questions can be
already long litany. And the answers cannot except as the questions are debated fully, ponder
purposefully, and accorded undivided attention.

Scanning the contemporary scene, we say that the people are not, and by election time will no
be, sufficiently informed of the meaning, nature and effects of the proposed constitutional ame
They have not been afforded ample time to deliberate thereon conscientiously. They have bee
effectively distracted from a full and dispassionate consideration of the merits and demerits of
proposed amendment by their traditional pervasive involvement in local elections and politics.
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 o
the sovereign people to express their decision on the proposed amendments" as "anachronistic in the real constitutio
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 'Filipi
imploring the aid of Divine Providence.' Section 1 of Article XV is nothing than a part of the Co
thus ordained by the people. Hence, in construing said section, We must read it as if the peop
'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.' ... Accor
real issue here cannot be whether or not the amending process delineated by the present Con
may be disregarded in favor of allowing the sovereign people to express their decision on the
amendments, if only because it is evident that the very idea of departing from the fundamenta
is anachronistic in the realm of constitutionalism and repugnant to the essence of the rule of la
is whether or not the provisional nature of the proposed amendment and the manner of its sub
the people for ratification or rejection conform with the mandate of the people themselves in s
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
of these perspectives, if the Court were to allow itself in deciding this case to be carried astray by considerations othe
the imperatives of the rule of law and of the applicable provisions of the Constitution. Needless to say, in a larger me
when it binds other departments of the government or any other official or entity, the Constitution imposes upon the C
sacred duty to give meaning and vigor to the Constitution, by interpreting and construing its provisions in appropriate
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 reconsid
succinctly restated this Court's position on the fundamentals, as follows:

— On the premature submission of a partial amendment proposal, with a "temporary provision

tentative character": — "... a partial amendment would deprive the voters of the context which
necessary for them to make a reasonably intelligent appraisal of the issue submitted for their
or rejection. ... Then, too, the submission to a plebiscite of a partial amendment, without a def
of reference, is fraught with possibilities which may jeopardize the social fabric. For one thing,
door to wild speculations. It offers ample opportunities for overzealous leaders and members
political camps to unduly exaggerate the pros and cons of the partial amendment proposed. In
apt to breed false hopes and create wrong impressions. As a consequence, it is bound to und
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 incomplet
although inconsistent with the letter and spirit of the Constitution: "The view, has, also, advanc
foregoing considerations are not decisive on the issue before Us, inasmuch as the people are
and the partial amendment involved in this case is being submitted to them. The issue before
whether or not said partial amendment may be validly submitted to the people for ratification "
plebiscite coincide with the local elections in November 1971," and this particular issue will no
submitted to the people. What is more, the Constitution does not permit its submission to the
question sought to be settled in the scheduled plebiscite is whether or not the people are in fa
reduction of the voting age.

— On a "political" rather than "legalistic" approach: "Is this approach to the problem too "legal
term has possible connotations. It may mean strict adherence to the law, which in the case at
the Supreme Law of the land. On point, suffice it to say that, in compliance with the specific m
Supreme Law, the members of the Supreme Court taken the requisite "oath to support and de
Constitution." ... Then, again, the term "legalistic" may be used to suggest inversely that the so
 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 re
will of the people, specially the youth. This course of action favors, in effect, adoption of a poli
approach, inasmuch as the advisability of the amendment and an appraisal of the people's fee
thereon political matters. In fact, apart from the obvious message of the mass media, and, at
pulpit, the Court has been literally bombarded with scores of handwritten letters, almost all of
the penmanship and the signature of girls, as well as letterhead of some sectarian educationa
institutions, generally stating that the writer is 18 years of age and urging that she or he be allo
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 polit
questions beyond our province. In fact, respondents and the intervenors originally maintained
have no jurisdiction to entertain the petition herein, upon the ground that the issue therein rais
political one. Aside from the absence of authority to pass upon political question, it is obviousl
and unwise for the bench to develop into such questions owing to the danger of getting involv
politics, more likely of a partisan nature, and, hence, of impairing the image and the usefulnes
of justice as objective and impartial arbiters of justiciable controversies.

Then, too, the suggested course of action, if adopted, would constitute a grievous disservice t
and the very Convention itself. Indeed, the latter and the Constitution it is in the process of dra
essentially for the Rule of Law. However, as the Supreme Law of the land, a Constitution wou
worthy of its name, and the Convention called upon to draft it would be engaged in a futile und
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 e
overlooked a circumvention of said tenets and provisions, because of the good intention with w
Resolution No. 1 is animated, the Court would thereby become the Judge of the good or bad
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
statesmanship in deciding the present case. Indeed, "politics" is the word commonly used to e
compromise, even with principles, for the sake of political expediency or the advancement of t
power of a given political party. Upon the other hand, statesmanship is the expression usually
to refer to high politics or politics on the highest level. In any event, politics, political approach,
expediency and statesmanship are generally associated, and often identified, with the dictum
end justifies the means." I earnestly hope that the administration of justice in this country and
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 pro
amendment lowering the voting age to the plebiscite on November 8, 1971 is to enable the youth 18 to 20 years who
more than three (3) million of our population to participate in the ratification of the new Constitution in so far as "to allo
people who would be governed by the Constitution to be given a say on what kind of Constitution they will have" is a
end, ... those urging the vitality and importance of the proposed constitutional amendment and its approval ahead of t
complete and final draft of the Constitution must seek a valid solution to achieve it in a manner sanctioned by the ame
process ordained by our people in the present Constitution"   — so that there may be "submitted, not piece-meal, but
41

complete and final amendments as an integrated whole (integrated either with the subsisting Constitution or with the
proposed Constitution)..."

9. The universal validity of the vital constitutional precepts and principles above-enunciated can hardly be gainsaid. I
the attempted distinction of restricting their application to proposals for amendments of particular provisions of the Co
and not to so-called entirely new Constitutions. Amendments to an existing Constitution presumably may be only of c
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 c
and prepared with as much care and deliberation", it would appeal that the reverse would equally be true; which is to
the adoption of a whole new Constitution would be of no less importance than any particular amendment and therefo
necessary care and deliberation as well as the mandatory restrictions and safeguards in the amending process ordai
people themselves so that "they (may) be insulated against precipitate and hasty actions motivated by more or less p
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 a majority of the votes cast at an election at which the (duly proposed) amendments are submitted to the people fo
ratification."

The people ordained in Article V, section 1 that only those thereby enfranchised and granted the right of suffrage may
"will of the body politic", viz, qualified literate voters twenty one years of age or over with one year's residence in the m
where they have registered.

The people, not as yet satisfied, further provided by amendment duly approved in 1940 in accordance with Article XV
creation of an independent Commission on Elections with "exclusive charge" for the purpose of "insuring free, orderly
elections" and ascertaining the true will of the electorate — and more, as ruled by this Court in Tolentino, in the case
constitutional amendments, insuring proper submission to the electorate of such proposals.  42

2. A Massachussets case   with a constitutional system and provisions analogous to ours, best defined the uses of th
43

term "people" as a body politic and "people" in the political sense who are synonymous with the qualified voters grant
to vote by the existing Constitution and who therefore are "the sole organs through which the will of the body politic ca
expressed."

It was pointed out therein that "(T)he word 'people' may have somewhat varying significations dependent upon the co
which it is used. In some connections in the Constitution it is confined to citizens and means the same as citizens. It e
aliens. It includes men, women and children. It comprehends not only the sane, competent, law-abiding and educated
those who are wholly or in part dependents and charges upon society by reason of immaturity, mental or moral defici
of the common essentials of education. All these persons are secured fundamental guarantees of the Constitution in
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 comm
"social compact ... for the common good" and in another sense of "people" in a "practical sense" for "political purpose
therein fittingly stated that in this sense, "people" comprises many who, by reason of want of years, of capacity or of t
educational requirements of Article 20 of the amendments of the Constitution, can have no voice in any government a
are entitled to all the immunities and protection established by the Constitution. 'People' in this aspect is coextensive 
the body politic. But it is obvious that 'people' cannot be used with this broad meaning of political signification. The 'pe
connection means that part of the entire body of inhabitants who under the Constitution are intrusted with the exercis
sovereign power and the conduct of government. The 'people' in the Constitution in a practical sense means those w
existing Constitution possess the right to exercise the elective franchise and who, while that instrument remains in for
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 govern
national and state, have been limited by constitutions, and they have themselves thereby set bounds to their own pow
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
election at which the amendments are submitted to the people for their ratification", it seems obvious as above-stated
"people" as therein used must be considered synonymous with "qualified voters" as enfranchised under Article V, sec
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 im
statutes to ascertain and record the will of the people in free, orderly and honest elections supervised by the Comelec
imperative that there be strict adherence to the constitutional requirements laid down for the process of amending 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: "
6. Plebiscite. — A plebiscite may be held in the barrio when authorized by a majority vote of the members present in
assembly, there being a quorum, or when called by at least four members of the barrio council: Provided, however, T
plebiscite shall be held until after thirty days from its approval by either body, and such plebiscite has been given the
publicity in the barrio, stating the date, time and place thereof, the questions or issues to be decided, action to be take
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 member
to vote may vote in the plebiscite. Voting procedures may be made either in writing as in regular elections, and/or dec
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 o
member of the barrio council. A plebiscite shall be called to approve any budgetary, supplemental appropriations or s
ordinances" and the required majority vote is specified: "(F)or taking action on any of the above enumerated measure
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 qualif
49

Article V, section 1 of the Constitution and provide that "(S)EC. 10. Qualifications of Voters and Candidates. — Every
the Philippines, twenty one years of age or over, able to read and write, who has been a resident of the barrio during
months immediately preceding the election, duly registered in the list of voters by the barrio secretary, who is not othe
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 constitu
articles have not been complied with and that no election or plebiscite for ratification as therein provided as well as in
of Article XVII of the proposed Constitution itself   has been called or held, there cannot be said to have been a valid
51

2. Petitioners raised serious questions as to the veracity and genuineness of the reports or certificates of results purp
showing unaccountable discrepancies in seven figures in just five provinces   between the reports as certified by the
52

of Local Governments and the reports as directly submitted by the provincial and city executives, which latter reports
respondents disclaimed inter alia as not final and complete or as not signed;   whether the reported votes of approva
53

proposed Constitution conditioned upon the non-convening of the interim National Assembly provided in Article XVII,
thereof,   may be considered as valid; the allegedly huge and uniform votes reported; and many others.
54

3. These questions only serve to justify and show the basic validity of the universal principle governing written constit
proposed amendments thereto or in replacement thereof may be ratified only in the particular mode or manner prescr
by the people. Under Article XV, section 1 of our Constitution, amendments thereto may be ratified only in the one wa
provided, i.e. in an election or plebiscite held in accordance with law and duly supervised by the Commission on Elec
which is participated in only by qualified and duly registered voters. In this manner, the safeguards provided by the el
generally assure the true ascertainment of the results of the vote and interested parties would have an opportunity to
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 Proclama
itself which shows on its face, as already stated, that the mandatory amending process required by the (1935) Consti
not observed, the cases at bar need not reach the stage of answering the host of questions, raised by petitioners aga
procedure observed by the Citizens Assemblies and the reported referendum results — since the purported ratificatio
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 November 22, 1973, and "as agent of the Convention the Pre
55

devise other forms of plebiscite to determine the will of the majority vis-a-vis the ratification of the proposed Constituti

The minutes of November 22, 1972, of the Convention, however, do not at all support this contention. On the contrary
minutes fully show that the Convention's proposal and "agency" was that the President issue a decree precisely callin
a plebiscite for the ratification of the proposed new Constitution on an appropriate date, under the charge of the Com
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, t
resolution portion of which read as follows:

"RESOLVED, AS IT IS HEREBY RESOLVED, that the 1971 Constitutional Co

propose to President Ferdinand E. Marcos that a decree be issued calling a pl
the ratification of the proposed New Constitution on such appropriate date as h
determine and providing for the necessary funds therefor, and that copies of th
resolution as approved in plenary session be transmitted to the President of th
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
November 1972 according to the Convention's timetable, it would be necessary to lay the grou
the appropriate agencies of the government to undertake the necessary preparation for the pl

xxx xxx xxx

12.2 Interpellating, Delegate Pimentel (V.) contended that the resolution was unnecessary bec
section 15, Article XVII on the Transitory Provision, which had already been approved on seco
third readings, provided that the new constitution should be ratified in a plebiscite called for th
by the incumbent President. Delegate Duavit replied that the provision referred to did not inclu
the appropriation of funds for the plebiscite and that, moreover, the resolution was intended to
formal notice to the President and the Commission on Elections to initiate the necessary prep

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 signif
the new charter. Delegate Duavit agreed, adding that this was precisely why the resolution wa
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 o
adoption of the new Constitution would not suffice considering that under Section 15 of the Tr
Provisions, the President would be duty-bound to call a plebiscite for its ratification. Delegate
replied in the negative, adding that the resolution was necessary to serve notice to the proper
to prepare everything necessary for the plebiscite.

12.6 In reply to Delegate Britanico, Delegate Duavit stated that the mechanics for the holding
the plebiscite would be laid down by the Commission on Elections in coordination with the Pre

12.7 Delegate Catan inquired if such mechanics for the plebiscite could include a partial lifting
law in order to allow the people to assemble peaceably to discuss the new Constitution. Deleg
suggested that the Committee on Plebiscite and Ratification could coordinate with the COMEL
matter.

12.8 Delegate Guzman moved for the previous question. The Chair declared that there was o
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
in view of the provision of section 15, Article XVII on the Transitory Provisions. Delegate Duav
disagreed, pointing out that the said provision did not provide for the funds necessary for the p

13. Delegate Ozamiz then moved to close the debate and proceed to the period of amendmen

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
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 h

I, therefore, vote to deny respondents' motion to dismiss and to give due course to the petitions.

Promulgated: Ju

ANTONIO, J., concurring:

In conformity with my reservation, I shall discuss the grounds for my concurrence.

It is my view that to preserve the independence of the State, the maintenance of the existing constitutional order and
of the political and social liberties of the people, in times of a grave emergency, when the legislative branch of the gov
unable to function or its functioning would itself threaten the public safety, the Chief Executive may promulgate meas
legislative in character, for the successful prosecution of such objectives. For the "President's power as Commander-
been transformed from a simple power of military command to a vast reservoir of indeterminate powers in time of em
In other words, the principal canons of constitutional interpretation are ... set aside so far as concerns both the scope
national power and the capacity of the President to gather unto himself all constitutionally available powers in order th
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 po
government in a constitutional democracy entails the concentration of governmental power. "The more complete the
of powers in a constitutional system, the more difficult, and yet the more necessary" according to Rossiter, "will be the
time of crisis... The power of the state in crisis must not only be concentrated and expanded, it must be freed from the
system of constitutional and legal limitations. One of the basic features of emergency powers is the release of the gov
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 perso
Chief Executive. "Energy in the executive," according to Hamilton, "is essential to the protection of the community aga
attacks ... to the protection of property against those irregular and high-handed combinations which sometimes interru
ordinary course of justice; to the security of liberty against the enterprises and assaults of ambition, of faction, and of
(The Federalist, Number 70). "The entire strength of the nation", said Justice Brewer in the Debs case (158 U.S. 564;
1092), "may be used to enforce in any part of the land the full and free exercise of all national powers and the securit
entrusted by the constitution to its care." The marshalling and employment of the "strength of the nation" are matters
discretion of the Chief Executive. The President's powers in time of emergency defy precise definition since their exte
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 Pres
the Executive power, with the added specific grant of power under the "Commander-in-Chief" clause of the constitutio
contours of such powers have been shaped more by a long line of historical precedents of Presidential action in times
rather than judicial interpretation. Lincoln wedded his powers under the "commander-in-chief" clause with his duty "to
that the laws be faithfully executed," to justify the series of extraordinary measures which he took — the calling of vo
military service, the augmentation of the regular army and navy, the payment of two million dollars from unappropriate
the Treasury to persons unauthorized to receive it, the closing of the Post Office to "treasonable correspondence", the
of southern ports, the suspension of the writ of habeas corpus, the arrest and detention of persons "who were repres
him" as being engaged in or contemplating "treasonable practices" — all this for the most part without the least statu
authorization. Those actions were justified by the imperatives of his logic, that the President may, in an emergency th
him to require it, partially suspend the constitution. Thus his famous question: "Are all laws but one to be unexecuted
Government itself go to pieces lest that one be violated?" The actions of Lincoln "assert for the President", according
"an initiative of indefinite scope and legislative in effect in meeting the domestic aspects of a war emergency." (Corwi
President: Office & Powers, p. 280 [1948]). The facts of the civil war have shown conclusively that in meeting the dom
problems as a consequence of a great war, an indefinite power must be attributed to the President to take emergency
The concept of "emergency" under which the Chief Executive exercised extraordinary powers underwent correlative e
during the first and second World Wars. From its narrow concept as an "emergency" in time of war during the Civil W
World War I, the concept has been expanded in World War II to include the "emergency" preceding the war and even
"The Second World War" observed Corwin and Koenig, was the First World War writ large, and the quasi-legislative p
Franklin Roosevelt as "Commander-in-Chief in wartime"... burgeoned correspondingly. The precedents were there to
most of them from the First World War, but they proliferated amazingly. What is more, Roosevelt took his first step to
some fifteen months before our entrance into shooting war. This step occurred in September, 1940, when he handed
so-called overage destroyers to Great Britain. The truth is, they were not overage, but had been recently reconditione
recommissioned. ... Actually, what President Roosevelt did was to take over for the nonce Congress's power to dispo
property of the United States (Article IV, Section 3) and to repeal at least two statutes." (Corwin & Koenig, The Presid
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 W
on the basis of his powers under the "Commander-in-Chief" clause created "offices" which were copied in lavish scale
President Roosevelt in World War II. In April 1942, thirty-five "executive agencies" were purely of Presidential creation
7, 1941 on the basis of his powers as "Commander-in-Chief", he issued an executive order seizing the North America
plant of Inglewood, California, where production stopped as a consequence of a strike. This was justified by the gove
the exercise of presidential power growing out of the "duty constitutionally and inherently resting upon the President t
civil and military as well as his moral authority to keep the defense efforts of the United States a going concern" as we
obtain supplies for which Congress has appropriated money, and which it has directed the President to obtain." On a
justification, other plants and industries were taken over by the government. It is true that in Youngstown Sheet & Tub
Sawyer (343 U.S. 579; 72 S. Ct. 863; 96 L. Ed. 1153, [1952]), the Supreme Court of the United States did not sustain
that the President could, as the Nation's Chief Executive and Commander-in-Chief of the armed forces, validly order
of most of the country's steel mills. The Court however did not face the naked question of the President's power to se
plants in the absence of any congressional enactment or expressions of policy. The majority of the Court found that th
legislative occupation of the field made untenable the President's claim of authority to seize the plants as an exercise
executive power or as Commander-in-Chief. Justice Clark, in his concurrence to the main opinion of the Court, explic
that the President does possess, in the absence of restrictive legislation, a residual or resultant power above or in con
of his granted powers, to deal with emergencies that he regards as threatening the national security. The same view
with vague qualification by Justices Frankfurter and Jackson, two of the concurring Justices. The three dissenting Jus
speaking through Chief Justice Vinson, apparently went further by quoting with approval a passage extracted from th
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 c
sustained the power of the President to order withdrawals from the public domain not only without Congressional san
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 Pres
times of a grave crisis does not possess a residual power above or in consequence of his granted powers, to deal wit
emergencies that he regards as threatening the national security. The lesson of the Steel Seizure case, according to
Koenig, "Unquestionably ... tends to supplement presidential emergency power to adopt temporary remedial legislatio
Congress has been, in the judgment of the President, unduly remiss in taking cognizance of and acting on a given sit
(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
prerogative as described by John Locke, of a power to wit, to fill needed gaps in the law, or even to supersede it so fa
requisite to realize the fundamental law of nature and government, namely, that as much as may be all the members
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 po
Presidential Decree Nos. 86 and 86-A as well as Proclamation No. 1102, since these measures were considered indi
to effect the desired reforms at the shortest time possible and hasten the restoration of normalcy? It is unavailing for p
to contend that we are not faced by an actual "shooting war" for today's concept of the emergency which justified the
those powers has of necessity been expanded to meet the exigencies of new dangers and crisis that directly threaten
nation's continued and constitutional existence. For as Corwin observed: "... today the concept of 'war' as a special ty
emergency warranting the realization of constitutional limitations tends to spread, as it were, in both directions, so tha
not only "the war before the war," but the 'war after the war.' Indeed, in the economic crisis from which the New Deal
to have issued, the nation was confronted in the opinion of the late President with an 'emergency greater than war'; a
sustaining certain of the New Deal measures the Court invoked the justification of 'emergency.' In the final result cons
practices of wartime have moulded the Constitution to greater or less extent for peacetime as well, seem likely to do s
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 op
large numbers of citizens who are engaged in violent insurrection against enforcement of its la
 bent on capturing it illegally or destroying it altogether. The third crisis, one recognized particu
modern times as sanctioning emergency action by constitutional governments, is economic de
The economic troubles which plagued all the countries of the world in the early thirties involve
governmental methods of an unquestionably dictatorial character in many democracies. It was
acknowledged that an economic existence as a war or a rebellion. And these are not the only
which have justified extraordinary governmental action in nations like the United States. Fire,
drought, earthquake, riots, great strikes have all been dealt with by unusual and of dictatorial m
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 regar
tenets of free enterprise, hardships caused by the eruptions of nature cannot be mitigated lett
take its course. The Civil War, the depression of 1933 and the recent global conflict were not a
not have been successfully resolved by governments similar to those of James Buchanan, Wi
Howard Taft, or Calvin Coolidge. (Rossiter, Constitutional Dictatorship — Crisis of Governme
Modern Democracies, p. 6 [1948).

II

We are next confronted with the insistence of Petitioners that the referendum in question not having been done inacc
with the provisions of existing election laws, which only qualified voters who are allowed to participate, under the supe
the Commission on Elections, the new Constitution, should therefore be a nullity. Such an argument is predicated upo
assumption, that Article XV of the 1935 Constitution provides the method for the revision of the constitution, and auto
apply in the final approval of such proposed new Constitution the provisions of the election law and those of Article V
the old Constitution. We search in vain for any provision in the old charter specifically providing for such procedure in
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 r

the whole constitution. The act of amending a constitution, on the other hand, envisages a change of only specific pro
The intention of an act to amend is not the change of the entire constitution but only the improvement of specific parts
existing constitution of the addition of provisions deemed essential as a consequence of new constitutions or the elim
parts already considered obsolete or unresponsive to the needs of the times.  The 1973 Constitution is not a mere am
1

the 1935 Constitution. It is a completely new fundamental charter embodying new political, social and economic conc

According to an eminent authority on Political Law, "The Constitution of the Philippines and that of the United States e
provide merely for methods of amendment. They are silent on the subject of revision. But this is not a fatal omission.
nothing that can legally prevent a convention from actually revising the Constitution of the Philippines or of the United
even were such conventions called merely for the purpose of proposing and submitting amendments to the people. F
final analysis, it is the approval of the people that gives validity to any proposal of amendment or revision." (Sinco, Ph
Political Law, p. 49).

Since the 1935 Constitution does not specifically provide for the method or procedure for the revision or for the appro
constitution, should it now be held, that the people have placed such restrictions on themselves that they are not disa
exercising their right as the ultimate source of political power from changing the old constitution which, in their view, w
responsive to their needs and in adopting a new charter of government to enable them to rid themselves from the sha
traditional norms and to pursue with new dynamism the realization of their true longings and aspirations, except in the
and form provided by Congress for previous plebiscites? Was not the expansion of the base of political participation,
inclusion of the youth in the process of ratification who after all constitute the preponderant majority more in accord w
and philosophy of the constitution that political power is inherent in the people collectively? As clearly expounded by J
Makasiar, in his opinion, in all the cases cited where the Courts held that the submission of the proposed amendmen
due to the absence of substantial compliance with the procedure prescribed by the constitution, the procedure prescr
state Constitution, is so detailed, that specified the manner in which such submission shall be made, the persons qua
vote for the same, the date of election and other definite standards, from which the court could safely ascertain wheth
the submission was in accordance with the Constitution. Thus the case of In re McConaughy (119 N.E. 408) relied up
the dissenting opinions involved in the application of the provisions of the state Constitution of Minnesota which clear
prescribed in detail the procedure under which the Constitution may be amended or revised.  This is not true with our
2

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 re
the entire constitution, and if such was their intention, they could and should have so provided. Precedents were not w
The constitutions of the various states of the American Union did provide for procedures for their amendment and me
their revision.
4

Certainly We cannot, under the guise of interpretation, modify, revise, amend, remodel or rewrite the 1935 Charter. T
what the law is, or has been, is a judicial power, but to declare what the law shall be is not within Our judicial compete
authority.

Upon the other hand, since our fundamental charter has not provided the method or procedure for the revision or com
change of the Constitution, it is evident that the people have reserved such power in themselves. They decided to ex
through their legislature, but through a Convention expressly chosen for that purpose. The Convention as an indepen
sovereign body has drafted not an amendment but a completely new Constitution, which decided to submit to the peo
approval, not through an act of Congress, but by means of decrees to be promulgated by the President. In view of the
Congress to act, it was within the constitutional powers of the President, either as agent of the Constitutional Conven
under his authority under martial law, to promulgate the necessary measures for the ratification of the proposed new
The adoption the new Charter was considered as a necessary basis for all the reforms set in motion under the new s
root out the causes of unrest. The imperatives of the emergency underscored the urgency of its adoption. The people
accepting such procedure and in voting overwhelmingly for the approval of the new Constitution have, in effect, ratifie
method and procedure taken. "When the people adopt completely revised or new constitution," said the Court in Whe
Board of Trustees (37 SE 2nd 322, 326-330), "the framing or submission of the instrument is not what gives it binding
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 a
on their authority and instituted for their benefit. Thus Section 1 of Article II of the 1935 Constitution declares that: "So
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 g
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
it has been accepted and acquiesced in by the people as shown by their compliance with the decree promulgated the
their cooperation in its implementation, and is now maintained by the Government that is in undisputed authority and

Of course it is argued that acquiescence by the people can be deduced from their acts of conformity, because under
martial law the people are bound to obey and act in conformity with the orders of the President, and has absolutely no
choice. The flaw of this argument lies in its application of a mere theoretical assumption based on the experiences of
nations on an entirely different factual setting. Such an assumption flounders on the rock of reality. It is true that as a
martial law is the use of military forces to perform the functions of civil government. Some courts have viewed it as a
regime which can be imposed in emergency situations. In other words, martial rule exists when the military rises supe
civil power in the exercise of some or all the functions of government. Such is not the case in this country. The govern
functions thru its civilian officials. The supremacy of the civil over the military authority is manifest. Except for the impo
curfew hours and other restrictions required for the security of the State, the people are free to pursue their ordinary c

In short, the existing regime in this Country, does not contain the oppressive features, generally associated with a reg
Martial law in other countries. "Upon the other hand the masses of our people have accepted it, because of its manifo
blessings. The once downtrodden rice tenant has at long last been emancipated — a consummation devoutly wished
Philippine President since the 1930's. The laborer now holds his head high because his rights are amply protected an
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 S
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 ma
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
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 ha
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
United States Senate. "President Marcos has been prompt and sure-footed in using the power of presidential decree
martial law for this purpose. He has zeroed in on areas which have been widely recognized as prime sources of the n
difficulties — land tenancy, official corruption, tax evasion and abuse of oligarchic economic power. Clearly he knows
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 le
approve urgently needed reforms. He found his second term further frustrated by spread riots
uprising in Luzon and a much more serious Moslem insurrection in the southern islands from
across the Sulu archipelago to the frontier regions of Malaysia and Indonesia. Manila claims th
Maoist-coordinated.

Mr. Marcos has now in effect taken all the reins of power and makes no promise as to when h
relinquish them. But, while fettering a free press, terminating Congress and locking up some o
(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
funds. New roads have been started. The educational system is undergoing revision, a corrup
diminished. In non-communist Asia it is virtually impossible to wholly end it and this disagreea
phenomenon still reaches very high.

Mr. Marcos, an imaginative, gifted man, hopes to reshape society by creating an agrarian mid
replace the archaic sharecropper-absentee landlord relationship. He is even pushing for a birt
program with the tacit acceptance of the Catholic Church. He has started labor reforms and in
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 petitioner

The new Constitution is considered effective "if the norms created in conformity with it are by and large applied and o
soon as the old Constitution loses its effectiveness and the new Constitution has become effective, the acts that appe
subjective meaning of creating or applying legal norms are no longer interpreted by presupposing the old basic norm,
presupposing the new one. The statutes issued under the old Constitution and not taken over are no longer regarded
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, w
assailed is not merely the validity of Proclamation No. 1102 of the President, which is merely declaratory of the fact o
or ratification, but the legitimacy of the government. It is addressed more to the framework and political character of th
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 ju
expound and administer them. If it decides at all as a court, it necessarily affirms the existence and authority of the go
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 Cour
existence is affected by such change is, in the words of Mr. Melville Fuller Weston, "precluded from passing upon the
change by a logical difficulty which is not to be surmounted."  Such change in the organic law relates to the existence
5

point in the Court's "chain of title" to its authority and "does not relate merely to a question of the horizontal distributio
powers."  It involves in essence a matter which "the sovereign has entrusted to the so-called political departments of
6

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 C
consistently recognized," said Justice Frankfurter, in his illuminating dissent in Baker v. Carr, 369 U.S. 186, 7 L. Ed. 2
726, 727), "a class of controversies which do not lend themselves to judicial standards and judicial remedies. To clas
various instances as "political questions" is rather a form of stating this conclusion than revealing of analysis ... The c
matter is that courts are not fit instruments of decision where what is essentially at stake is the composition of those l
contests of policy traditionally fought out in non-judicial forums, by which governments and the actions of government
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 o
"wrong" views of the Constitution. It is one of attitudes and values. For there is scarcely any principle, authority or inte
which has not been countered by the opposite. At bottom, it is the degree of one's faith — in the nation's leadership a
maturity of judgment of our people.

IN VIEW OF THE FOREGOING, the dismissal of these five cases, and the conclusion of this
judgment of March question becomes wholly moot except for this consideration, that, when th
individuals or as a body of individuals come to decide which king or which constitution they wi
and assert to represent, it may often be good judgment for them to follow the lead of the men
practical matter are likely to be looked to by the people as more representative of themselves
conversely are likely to be more directly in touch with popular sentiment. If, however, the judge
strong views of their own to be able to take this course, they may follow their own leads at the
hazard. No question of law is involved. (Political Questions, 38 Harvard Law Review [1924-25
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 leg
The secretary of state shall prepare a ballot title and proposition summarizing each proposed amendment, and shall p
on the ballot for the next statewide election. If a majority of the votes cast on the proposition favor the amendment, it
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
shall place on the ballot for the next general election the question: "Shall there be a Constitutional Convention?" If a m
the votes cast on the question are in the negative, the question need not be placed on the ballot until the end of the n
period. If a majority of the votes cast on the question are in the affirmative, delegates to the convention shall be chose
next regular statewide election, unless the legislature provides for the election of the election delegates at a special e
secretary of state shall issue the call for the convention. Unless other provisions have been made by law, the call sha
as nearly as possible to the act calling the Alaska Constitutional Convention of 1955, including, but not limited to, num
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
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 Sen
Assembly, and if two-thirds of all the members elected to each of the houses shall vote in favor thereof, such propose
amendment or amendments shall be entered in their Journals, with the yeas and nays taken thereon; and it shall be t
the Legislature to submit such proposed amendment or amendments to the people in such manner, and at such time
such publication as may be deemed expedient. Should more amendments than one be submitted at the same electio
be so prepared and distinguished, by numbers or otherwise, that each can be voted on separately. If the people shall
and ratify such amendment or amendments, or any of them, by a majority of the qualified electors voting thereon suc
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 sha
necessary to revise this Constitution, they shall recommend to the electors to vote at the next general for or against a
for that purpose, and if a majority of the electors voting at such election on the proposition for a Convention shall vote
thereof, the Legislature shall, at its next session, provide by law for calling the same. The Convention shall consist of
delegates not to exceed that of both branches of the Legislature, who shall be chosen in the same manner, and have
qualifications, as Members of the Legislature. The delegates so elected shall meet within three months after their elec
place as the Legislature may direct. At a special election to be provided for by law, the Constitution that may be agre
such Convention shall be submitted to the people for their ratification or rejection, in such manner as the Convention
determine. The returns of such election shall, in such manner as the Convention shall direct, be certified to the Execu
State, who shall call to his assistance the Controller, Treasurer, and Secretary of State, and compare the returns so c
him; and it shall be the duty of the Executive to declare, by his proclamation, such Constitution, as may have been ra
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 m
elected to each house, recommend to the electors of the state, to vote at the next general election for or against a co
to revise, alter and amend this constitution; and if a majority of those voting on the question shall declare in favor of s
convention, the general assembly shall, at the next session, provide for the calling thereof. The number of members o
convention shall be twice that of the senate and they shall be elected in the same manner, at the same places, and in
districts. The general assembly shall, in the act calling the convention, designate the day, hour and place of its meetin
pay of its members and officers, and provide for the payment of the same, together with the necessary expenses of th
convention. Before proceeding, the members shall take an oath to support the constitution of the United States, and o
of Colorado, and to faithfully discharge their duties as members of the convention. The qualifications of members sha
same as of members of the senate; and vacancies occurring shall be filled in the manner provided for filling vacancie
general assembly. Said convention shall meet within three months after such election and prepare such revisions, alt
amendments to the constitution as may be deemed necessary; which shall be submitted to the electors for their ratific
rejection at an election appointed by the convention for that purpose, not less than two nor more than six months afte
adjournment thereof; and unless so submitted and approved by a majority of the electors voting at the election, no su
alteration or amendment shall take effect.

Sec. 2. Amendments to constitution; how adopted. Any amendment or amendments to this constitution may be propo
either house of the general assembly, and if the same shall be voted for by two-thirds of all the members elected to e
such proposed amendment or amendments, together with the ayes and noes of each house hereon, shall be entered
their respective journals; the proposed amendment or amendments shall be published with the laws of that session o
general assembly, and the secretary of state shall also cause the said amendment or amendments to be published in
more than one newspaper of general circulation in each county, for four successive weeks previous to the next gener
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 votin
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
separately and votes thereon cast shall be separately counted the same as though but one amendment was submitte
general assembly shall have no power to propose amendments to more than six articles of this constitution at the sam

4. Delaware (1897) — Art. XVI. Amendments and Conventions.

Sec. 1. Proposal of constitutional amendments in general assembly; procedure. Any amendment or amendments to t
Constitution may be proposed in the Senate or House of Representatives; and if the same shall be agreed to by two-
the members elected to each House, such proposed amendment or amendments shall be entered on their journals, w
yeas and nays taken thereon, and the Secretary of State shall cause such proposed amendment or amendments to b
three months before the next general election in at least three newspapers in each County in which such newspaper
published; and if in the General Assembly next after the said election such proposed amendment or amendments sha
and nay vote be agreed to by two-thirds of all the members elected to each House, the same shall thereupon become
Constitution.

Sec. 2. Constitutional conventions; procedure; compensation of delegates; quorum; powers and duties; vacancies. T
Assembly by a two-thirds vote of all the members elected to each House may from time to time provide for the submi
qualified electors of the State at the general election next thereafter the question, "Shall there be a Convention to rev
Constitution and amend the same?;" and upon such submission, if a majority of those voting on said question shall de
favor of a Convention for such purpose, the General Assembly at its next session shall provide for the election of dele
such convention at the next general election. Such Convention shall be composed of forty-one delegates, one of who
chosen from each Representative District by the qualified electors thereof, and two of whom shall be chosen from Ne
County, two from Kent County and two from Sussex County by the qualified electors thereof respectively. The delega
chosen shall convene at the Capital of the State on the first Tuesday in September next after their election. Every del
receive for his services such compensation as shall be provided by law. A majority of the Convention shall constitute
for the transaction of business. The Convention shall have the power to appoint such officers, employees and assista
may be deem necessary, and fix their compensation, and provide for the printing of its documents, journals, debates
proceedings. The Convention shall determine the rules of its proceedings, and be the judge of the elections, returns a
qualifications of its members. Whenever there shall be a vacancy in the office of delegate from any district or county b
failure to elect, ineligibility, death, resignation or otherwise, a writ of election to fill such vacancy shall be issued by the
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
ordinary session thereof called for such purpose either in the governor's original call or any amendment thereof, may
revision or amendment of any portion or portions of this Constitution. Any such revision or amendment may relate to
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 e
upon their respective journals with the yeas and nays and published in one newspaper in each county where a newsp
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 o
for approval or rejection at the next general election, provided, however, that such revision or amendment may be su
approval or rejection in a special election under the conditions described in and in the manner provided by Section 3
XVII of the Constitution. If a majority of the electors voting upon the amendment adopt such amendment the same sh
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 bo
shall determine that a revision of this Constitution is necessary, such determination shall be entered upon their respe
Journals, with yea's and nay's thereon. Notice of said action shall be published weekly in one newspaper in every cou
which a newspaper is published, for three months preceding the next general election of Representatives, and in thos
where no newspaper is published, notice shall be given by posting at the several polling precincts in such counties fo
next preceding said election. The electors at said election may vote for or against the revision in question. If a majorit
electors so voting be in favor of revision, the Legislature chosen at such election shall provide by law for a Conventio
the Constitution, said Convention to be held within six months after the passage of such law. The Convention shall co
number equal to the membership of the House of Representatives, and shall be apportioned among the several coun
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 i
branch of the legislature, and if the same shall be agreed to by two-thirds of all the members of each of the two house
separately, such proposed amendment or amendments shall, with the yeas and nays thereon, be entered on their jou
shall be the duty of the legislature to submit such amendment or amendments to the electors of the state at the next g
election, and cause the same to be published without delay for at least six consecutive weeks, prior to said election, i
than one newspaper of the general circulation published in each county; and if a majority of the electors shall ratify th
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 l
shall deem it necessary to call a convention to revise or amend this Constitution, they shall recommend to the elector
the next general election, for or against a convention, and if a majority of all the electors voting at said election shall h
for a convention, the legislature shall at the next session provide by law for calling the same; and such convention sh
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 ea
year thereafter, and also at such times as the General Assembly may, by law, provide, the question, "Shall there be a
to revise the Constitution, and amend the same?" shall be decided by the electors qualified to vote for members of th
Assembly; and in case a majority of the electors so qualified, voting at such election, for and against such proposition
decide in favor of a Convention for such purpose, the General Assembly, at its next session, shall provide by law for t
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
constitution may be proposed in the senate or house of representatives. If the same shall be agreed to by 2/3 of the m
elected to each house, such amendment or amendments shall be entered on the journals, respectively, with the yeas
taken thereon; and the same shall be submitted to the electors at the next spring or autumn election thereafter, as the
shall direct; and, if a majority of the electors qualified to vote for members of the legislature voting thereon shall ratify
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 s
year thereafter and at such times as may be provided by law, the question of a General Revision of the Constitution s
submitted to the Electors qualified to vote for members of the Legislature. In case a majority of the Electors voting on
question shall decide in favor of a Convention for such purpose, at an Election to be held not later than four months a
Proposal shall have been certified as approved, the Electors of each House of Representatives District as then organ
Elect One Delegate for each Electors of each Senatorial District as then organized shall Elect One Delegate for each
Senator to which the District is entitled. The Delegates so elected shall convene at the Capital City on the First Tuesd
October next succeeding such election, and shall continue their sessions until the business of the convention shall be
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
unless by the assent of a majority of all the delegates elected to the convention, the yeas and nays being entered on
Any proposed constitution or amendments adopted by such convention shall be submitted to the qualified electors in
provided by such convention on the first Monday in April following the final adjournment of the convention; but, in cas
of at least 90 days shall not intervene between such final adjournment and the date of such election. Upon the approv
constitution or amendments by a majority of the qualified electors voting thereon such constitution or amendments sh
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 o
houses of the legislature shall deem it necessary to alter or amend this Constitution, they may proposed such alterati
or amendments, which proposed amendments shall be published with the laws which have been passed at the same
and said amendments shall be submitted to the people for their approval or rejection at any general election, and if it
appear, in a manner to be provided by law, that a majority of all the electors voting at said election shall have voted fo
ratified such alterations or amendments, the same shall be valid to all intents and purposes as a part of this Constitut
more alterations or amendments shall be submitted at the same time, it shall be so regulated that the voters shall vot
against each separately.

Sec. 2. Revision of constitution. Whenever two-thirds of the members elected to each branch of the legislature shall t
necessary to call a convention to revise this Constitution, they shall recommend to the electors to vote at the next gen
election for members of the legislature, for or against a convention; and if a majority of all the electors voting at said e
have voted for a convention, the legislature shall, at their next session, provide by law for calling the same. The conve
consist of as many members as the House of Representatives, who shall be chosen in the same manner, and shall m
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 consti
submit any revision thereof by said convention to the people of the State of Minnesota for their approval or rejection a
general election held not less than 90 days after the adoption of such revision, and, if it shall appear in the manner p
law that three-fifths of all the electors voting on the question shall have voted for and ratified such revision, the same
constitute a new constitution of the State of Minnesota. Without such submission and ratification, said revision shall b
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 propose
Senate or Assembly; and if the same shall be agreed to by a Majority of all the members elected to each of the two h
proposed amendment or amendments shall be entered on their respective journals, with the Yeas and Nays taken th
referred to the Legislature then next to be chosen, and shall be published for three months next preceding the time of
such choice. And if in the Legislature next chosen as aforesaid, such proposed amendment or amendments shall be
by a majority of all the members elected to each house, then it shall be the duty of the Legislature to submit such pro
amendment or amendments to the people, in such manner and at such time as the Legislature shall prescribe; and if
shall approve and ratify such amendment or amendments by a majority of the electors qualified to vote for members
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 M
elected to each house, shall determine that it is necessary to cause a revision of this entire Constitution they shall rec
the electors at the next election for Members of the Legislature, to vote for or against a convention, and if it shall appe
majority of the electors voting at such election, shall have voted in favor of calling a Convention, the Legislature shall,
session provide by law for calling a Convention to be holden within six months after the passage of such law, and suc
Convention shall consist of a number of Members not less that of both branches of the legislature. In determining wha
majority of the electors voting such election, reference shall be had to the highest number of vote cast at such electio
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 town
places in this state, in warning the first annual meetings for the choice of senators, after the expiration of seven years
adoption of this constitution, as amended, to insert expressly in the warrant this purpose, among the others for the me
wit, to take the sense of the qualified voters on the subject of a revision of the constitution; and, the meeting being wa
accordingly, and not otherwise, the moderator shall take the sense of the qualified voters present as to the necessity
revision; and a return of the number of votes for and against such necessity, shall be made by the clerk sealed up, an
to the general court at their then next session; and if, it shall appear to the general court by such return, that the sens
people of the state has taken, and that, in the opinion of the majority of the qualified voters in the state, present and v
meetings, there is a necessity for a revision of the constitution, it shall be the duty of the general court to call a conve
purpose, otherwise the general court shall direct the sense of the people to be taken, and then proceed in the manne
mentioned. The delegates to be chosen in the same manner, and proportioned, as the representatives to the general
provided that no alterations shall be made in this constitution, before the same shall be laid before the towns and unin
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 Constitu

proposed in either branch of the Legislature, and if the same shall be agreed to by a majority of all the members elec
of the two houses, such proposed amendment or amendments shall, with yeas and nays thereon, be entered in their
and referred by the Secretary of State to the people for their approval or rejection, at the next regular general election
when the Legislature, by a two-thirds vote of each house, shall order a special election for that purpose. If a majority
the electors voting at such election shall vote in favor of any amendment thereto, it shall thereby become a part of thi
Constitution.

If two or more amendments are proposed they shall be submitted in such manner that electors may vote for or agains
separately.

No proposal for the amendment or alteration of this Constitution which is submitted to the voters shall embrace more
general subject and the voters shall vote separately for or against each proposal submitted; provided, however, that i
submission of proposals for the amendment of this Constitution by articles, which embrace one general subject, each
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 L
propose alterations, revisions, or amendments to this Constitution, or to propose a new Constitution, unless the law p
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 elec
State at a general or special election and be approved by a majority of the electors voting thereon, before the same s
effective Provided, That the question of such proposed convention shall be submitted to the people at least once in e
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 ei
of the legislative assembly, and if the same shall be agreed to by a majority of all the members elected to each of the
houses, such proposed amendment or amendments shall, with the yeas and nays thereon, be entered in their journa
referred by the secretary of state to the people for their approval or rejection, at the next regular election, except whe
legislative assembly shall order a special election for that purpose. If a majority of the electors voting on any such am
shall vote in favor thereof, it shall thereby become a part of this Constitution. The votes for and against such amendm
or amendments, severally, whether proposed by the legislative assembly or by initiative petition, shall be canvassed b
secretary of state in the presence of the governor, and if it shall appear to the governor that the majority of the votes c
election on said amendment, or amendments, severally, are cast in favor thereof, it shall be his duty forthwith after su
by his proclamation, to declare the said amendment, or amendments, severally, having received said majority of vote
been adopted by the people of Oregon as part of the Constitution thereof, and the same shall be in effect as a part of
Constitution from the date of such proclamation. When two or more amendments shall be submitted in the manner af
the voters of this state at the same election, they shall be so submitted that each amendment shall be voted on separ
convention shall be called to amend or propose amendments to this Constitution, or to propose a new Constitution, u
law providing for such convention shall first be approved by the people on a referendum vote at a regular general ele
article shall not be construed to impair the right of the people to amend this Constitution by vote upon an initiative pet
therefor.

Sec. 2. Method of revising constitution. (1) In addition to the power to amend this Constitution granted by section 1, A
and section 1 of this Article, a revision of all or part of this Constitution may be proposed in either house of the Legisl
Assembly and, if the proposed revision is agreed to by at least two-thirds of all the members of each house, the propo
revision shall, with the yeas and nays thereon, be entered in their journals and referred by the Secretary of State to th
their approval or rejection, notwithstanding section 1, Article IV of this Constitution, at the next regular state-wide prim
election, except when the Legislative Assembly orders a special election for that purpose. A proposed revision may d
more than one subject and shall be voted upon as one question. The votes for and against the proposed revision sha
canvassed by the Secretary of State in the presence of the Governor and, if it appears to the Governor that the major
votes cast in the election on the proposed revision are in favor of the proposed revision, he shall, promptly following t
declare, by his proclamation, that the proposed revision has received a majority of votes and has been adopted by th
the Constitution of the State of Oregon, as the case may be. The revision shall be in effect as the Constitution or as a
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 eith
the Legislature, and if two-thirds of all the members elected of the two houses, shall vote in favor thereof, such propo
amendment or amendments shall be entered on their respective journals with the yeas and nays taken thereon; and
Legislature shall cause the same to be published in at least one newspaper in every county of the State, where a new
published, for two months immediately preceding the next general election, at which time the said amendment or ame
shall be submitted to the electors of the State, for their approval or rejection, and if a majority of the electors voting th
approve the same, such amendment or amendments shall become part of this Constitution. If two or more amendme
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 th
Legislature, shall deem it necessary to call a convention to revise or amend this Constitution, they shall recommend
electors to vote at the next general election, for or against a convention, and, if a majority of all the electors, voting at
election, shall vote for a convention. The Legislature, at its next session, shall provide by law for calling the same. Th
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 b
the legislature, and, if the same shall be agreed to by two-thirds of all the members of the two houses, voting separat
proposed amendment or amendments shall, with the yeas and nays thereon, be entered on their journals, and it shal
of the legislature to submit such amendment or amendments to the electors of the state at the next general election,
one newspaper of general circulation, published in each county, and if a majority of the electors shall ratify the same,
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 ele
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 le
shall deem it necessary to call a convention to revise or amend this constitution, they shall recommend to the elector
the next general election for or against a convention, and if a majority of all the electors voting at such election shall h
for a convention, the legislature shall at the next session provide by a law for calling the same; and such convention s
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 submitte
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 withdra
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 Electi
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. 96
McAdams v. Henley, 273 S.W. 355; Egbert v. City of Dunseith, 74 N.D. 1, 168 A.L.R. 621, 24
907; State ex rel. Landis, Atty. Gen. v. Thompson, 163 So. Rep. 270; St. Louis Brewing Assoc
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,
1968; Fernandez v. P. Cuerva & Co., L-21114, Nov. 25, 1967; Gonzales v. Commission on El
28224, Nov. 29, 1967; Bara Lidasan v. COMELEC, L-28089, Oct. 25, 1967; Mun. of San Juan
NAWASA, L-22047, Aug. 31, 1967; Mun. of San Joaquin v. Siva, L-19870, Mar. 18, 1967; Pel
Auditor General, L-23825, Dec. 24, 1965; Philippine Constitution Association v. Gimenez, L-2
18, 1965; Mun. of La Carlota v. NAWASA, L-20232, Sept. 30, 1964; Guevara v. Inocentes, L-2
15, 1966; Gillera v. Fernandez, L-20741, Jan. 31, 1964; Siguiente v. Secretary of Justice, L-20
29, 1963; Mun. of Naguilian v. NAWASA, L-18540, Nov. 29, 1963; Herrera v. Liwag, L-20079,
1963; Aytona v. Castillo, L-19313, Jan. 19, 1962; La Mallorca, etc. v. Ramos, et al., L-15476,
1961; Tan v. De Leon, et al., L-15254, Sept. 16, 1961; Macias v. Commission on Elections, L-
Sept. 14, 1961; Philippine Tobacco Flue-Curing & Redrying Corp. v. Sabugo, et al., L-16017,
1961; Miller v. Mardo, L-15138, July 31, 1961; Cu Bu Liong v. Estrella, et al., L-14212, July 31
Pampanga Sugar Development Co., Inc. v. Fuentes, et al., L-14738, July 31, 1961; Earnshaw
Honolulu Iron Works v. Mardo, et al., L-14759, July 31, 1961; Liwanag v. Central Azucarera D
L-15372, July 31, 1961; Lecura v. Regional Office No. 3, etc., L-15582, July 31, 1961; Pitogo
Trading Co., et al., L-15693, July 31, 1961; Pascual v. Sec. of Public Works and Communicat
10405, Dec. 29, 1960; Corominas, Jr. v. Labor Standards Commission, L-14837, June 30, 196
Baguio v. NAWASA, L-12032, Aug. 31, 1959; City of Cebu v. NAWASA, L-12892, April 20,196
v. Civil Service Board of Appeals, 101 Phil. 490, Rutter v. Esteban, 93 Phil. 68; Araneta v. Din
Phil. 368; Borromeo v. Mariano, 41 Phil. 322.

18 G.R. Nos. L-35925, L-35929, L-35940, L-35941, L-35942, L-35948, L-35953, L-35961,
L-35965 and L-35979, decided on January 22, 1973..

19 L-33964, Teodosio Lansang, et al. v. Brigadier-General Eduardo M. Garcia; L-33965, Roge

Arienda v. Secretary of National Defense, et al.; L-33973, Luzvimindo David v. Gen. Eduardo
al.; L-33962, Felicidad G. Prudente v. General Manuel Yan, et al.; L-34004, Domingo E. de La
Brigadier-General Eduardo M. Garcia; L-34013, Reynaldo Rimando v. Brig. Gen. Eduardo M.
34039, Carlos C. Rabago v. Brig. Gen. Eduardo Garcia, et al.; L-34265, Antolin Oreta, Jr. v. G
Eduardo Garcia, et al.; and L-34339, Gary B. Olivar, et al. v. Gen. Eduardo Garcia, et al.

20 5 Phil. 87.

21 91 Phil. 882.

22 G.R. Nos. L-28196 and L-28224, Nov. 9, 1967.

23 78 Phil. 1.

24 Supra.

25 In re McConaughy, 119 N.W. 408, 417.

26 103 Phil. 1051, 1067.

27 119 N.W. 408, 411, 417.

28 92 Ky. 589,18 S.W. 522, 523.

29 Citing Koehler v. Hill, 60 Iowa 543, 14 N.W. Rep. 738, and 15 N.W. Rep. 609; State v. Tufl
391, 12 Pac. Rep. 835.

30 Angara v. Electoral Commission, 63 Phil. 139, 157. Emphasis ours.

31 12 L. ed. 581 (1849).

32 Luther v. Borden, supra, p. 598. Emphasis ours.

33 In re McConaughy, supra, p. 416. Emphasis ours.

34 369 U.S. 186, 7 L. ed. 2d. 663, 82 S. Ct. 691 (March 26, 1962).

35 395 U.S. 486, 23 L. ed. 2d. 491, 89 S. Ct. 1944 (1969).

36 In re McConaughy, 119 N.W. 408, 415. Emphasis ours. The observation as to the uniformi
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.

39 Emphasis ours.

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 o
a foreign power, twenty-one years of age or over, who shall have been a resident of the Philip
one year and of the municipality in which he shall offer to vote for six months next preceding t
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 o
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 fo
purposes for a period not less than one year prior to the date of the election, or who annually
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, h
sentenced by final judgment to suffer not less than eighteen months of imprisonment, such dis
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
sworn statement to the satisfaction of the board of inspectors at any of its two meetings for reg
and revision, that they are incapacitated preparing their ballots due to permanent physical disa
present themselves at the hour of voting as incapacitated, irrespective whether such incapacit
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. V
procedures may be made either in writing as in regular elections, and/or declaration by the vo
board of election tellers. The board of election tellers shall be the same board envisioned by s
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; Ellin
(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 con
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 conferr
by the constitution itself."

Since suffrage, according to Webster, is a voice given not only in the choice of a man for an o
but, also, in deciding a controverted question, it follows, considering the said ruling in Alcantar
constitutional qualifications for voters apply equally to voters in elections to public office and to
plebiscite.

Similarly, the Revised Election Code provides in its section 2 that all elections of public officer
people and all votings in connection with plebiscites shall be conducted in conformity with the
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 otherw
disqualified by law, twenty-one years of age or over, able to read and write, who shall have re
Philippines for one year and in the city, municipality or municipal district wherein he proposes
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 le
year, such disability not having been removed by plenary pardon: Provided, however, That an
disqualified to vote under this paragraph shall automatically reacquire the right to vote upon e
ten years after service of sentence unless during such period, he shall have been sentenced b
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 violat
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 impris
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.
Phil. 258.

54 Baldauf v. Gunson, 8 P. 2d. 265. See, also, Martin v. McGarr, 117 P. 323, Glenn v. Gnau,
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

of procedure. Two members of the Commission shall constitute a quorum. The concurrence o
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
necessary for the efficient performance of its functions and duties, all of whom shall be appoin
Commission in accordance with the Civil Service Law and rules.

"The executive officer of the Commission, under the direction of the Chairman, shall, have cha
administrative business of the Commission, shall have the power to administer oaths in conne
all matters involving the business of the Commission, and shall perform such, other duties as
required of him by the Commission.

"SEC. 6. Power of the Commission to Investigate and to Hear Controversy and Issue Subpoe
Commission or any of the members thereof shall, in compliance with the requirement of due p
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 investiga
hearing pending before it, and delegate such power to any officer of the Commission who sha
member of the Philippine Bar. In case of failure of a witness to attend, the Commission, upon
service of the subpoenae to said witness, may issue a warrant to arrest the witness land bring
the Commission or officer before whom his attendance is required. The Commission shall hav
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 decide
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
supervision any of its final decisions, orders, instructions or rulings.

"Any decision, order or ruling of the Commission on election controversies may be reviewed b
Supreme Court by writ of a certiorari in accordance with the Rules of Court or such applicable
may enacted.

"Any violation of any final executory decision, order or ruling of the Commission shall constitut
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. En
L-35540, Soliven, et al. v. Secretary of National Defense, et al.; L-35546, Aquino, Jr., et al. v.
et al.; L-35547, Garcia II v. Hon. Enrile, et al.; L-35567 Doronila, et al. v. Secretary of National
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 bara
(citizens assemblies) have so far been established, the people would like to decide themselve
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 e
the views of the people on important national issues;

"WHEREAS, such barangays (citizens assemblies) desire that they be given legal status and
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 referend
certain specified questions such as the ratification of the new Constitution, continuance of ma
convening of Congress on January 22, 1973, and the elections in November 1973 pursuant to
Constitution.

"NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of t

vested in me by the Constitution as Commander-in-Chief of all Armed Forces of the Philippine
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
December 31, 1972, shall constitute the base for citizen participation in governmental affairs a
collective views shall be considered in the formulation of national policies or programs and, wh
practicable, shall be translated into concrete and specific decision;

"2. Such barangays (citizens assemblies) shall consider vital national issues now confronting
like the holding of the plebiscite on the new Constitution, the continuation of martial rule, the c
Congress on January 22, 1973, and the holding of elections in November 1973, and others in
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 re
on important national issues, including those specified in paragraph 2 hereof, and submit the r
thereof to the Department of Local Governments and Community Development immediately th
pursuant to the express will of the people as reflected in the reports gathered from the many t
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
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. Bry
N.W. 121; State ex rel. Shriver v. Hayes, 76 N.E. 2d. 869; Smith v. Bangham, 76 p 2d. 1022. M
Brast, 117 S.E. 875; Head v. Wood, 107 So. 854; State ex rel. Watson v. Pigg, 46 N.E. 2d. 23

71 See cases cited in the preceding footnote. See, also, Tiegs v. Patterson, 318 P. 2d. 588; S
Brown v. St. Joseph Circuit Court, 95 N.E. 2d. 632; Williamson v. State Election Board, 431 P
Baker v. Conway, 108 So. 18; Cohoon v. Swain, 5 S.E. 2d. 1; State ex rel. Mitchell v. Walcott,
762; Doyle v. Ries, 285 N.W. 480; Grossglaus v. Board of Elections of Stark County, 88 N.E.
Walker v. Hughes, 36 A. 2d. 47; Reese v. Dempsey, 152 P. 2d. 157; Dodd v. Gower, 62 S.W.
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
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, 5
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
v. Inocentes, L-25577, March 15, 1966.

82 Which, in some respects, is regarded as an organ of the Administration, and the news item
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
dissenting opinion when the Court denied a motion for reconsideration, and voted in favor of t
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
submission of which to a plebiscite was declared invalid by this Court in Tolentino vs. COMEL
became a reality of an even more far-reaching import — since fifteen-year olds were included
Citizens Assemblies.

* According to the Solicitor General 92 Congressmen and 15 Senators (both numbers constitu
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. Come
L-35929, January 22, 1973; Gerardo Roxas, etc., et al. vs. Comelec, et al., L-35940, January
Eddie B. Monteclaro vs. Comelec, et al., L-35941, January 22, 1973; Sedfrey A. Ordoñez, et a
National Treasurer of the Philippines, et al., L-35942, January 22, 1973; Vidal Tan, et al., vs. C
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;
Gonzales vs. Comelec, et al., L-35965, January 22, 1973 and Ernesto Hidalgo vs. Comelec, e
35979, January 22, 1973.

2 Executive Agreements are not included in the corresponding provision of the 1935 Constitut

3 It Must be recalled that in the Tolentino case, the Constitutional Convention intended to sub
amendment which was to form part of the Constitution still being prepared by it separately from
the other parts of such constitution still unfinished, and We held that a piece-meal submission
improper. We had no occasion to express any view as to how a whole new Constitution may b

* In 1880, he also wrote his "Constitutional Law." Judge Cooley, who was born in Attica, New
1824, died in 1898. Judge Cooley was also professor and later dean of the Law Department o
University of Michigan and Justice of the State Supreme Court of Michigan from 1864 to 1885
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. Commissio

Elections, L-35929; Gerardo Roxas, etc., et al. v. Commission on Elections, et al., L-35940; E
Monteclaro v. The Commission on Elections, et al., Sedfrey A. Ordoñez, et al. v. The National
of Philippines, et al., L-35942; Vidal Tan, et al. v. Commission on Elections, et al., L-35948; Jo
Diokno, et al. v. The Commission on Elections, L-35953; Jacinto Jimenez v. Commission on E
al., L-35961; Raul M. Gonzales v. The Honorable Commission on Elections, et al., L-35965; E
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. Se
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
fourths of all the members of the Senate and of the House of Representatives voting separate
propose amendments to this Constitution or call a convention for that purpose. Such amendm
be valid as part of this Constitution when approved by a majority of the votes cast at an electio
the amendments are submitted to the people for their ratification." Art. XV, Section 1.

3 Lerner, Ideas are Weapons, 426 (1939). Earlier, in this collection of essays, Lerner made th
entirely-inaccurate observation: "No governmental institution that consists of a group of legal t
appointed for life can ever hope to cope with, much less solve, the exigent problems of our po
231. He was referring of course to the Supreme Court of the United States.

4 Frankfurter, Mr. Justice Holmes and the Supreme Court, 25-26 (1938).

5 Black, The People and the Court (1960).

6 Murphy, Elements of Judicial Strategy (1964).

7 Cf. Angara v. Electoral Commission, 63 Phil. 139 (1936); Tañada v. Cuenco, 103 Phil. 1051
Vera v. Arca, L-25721, May 26, 1969, 28 SCRA 351.

8 Gonzales v. Commission on Elections, L-28196, Nov. 9, 1967, 21 SCRA 774.

9 Tolentino v. Commission on Elections, L-24150, Oct. 16, 1971, 41 SCRA 702.

10 Planas v. Commission on Elections, L-35925, Jan. 25, 1973.

11 256 US 368 (1921).

12 Ibid, 374-375.

13 L-33964, Dec. 11, 1971, 42 SCRA 448.

14 Ibid, 504-505.

15 Dodd, Judicially Nonenforceable Provisions of Constitutions, in I Selected Essays on Cons

Law 355, 387 (1938).

16 Ibid, 395.

I7 Weston, Political Questions, I Selected Essays an Constitutional Law 418, 422 (1938)..

18 Cf. Bickel, The Least Dangerous Branch (1962).

19 Cf. Freund, On Understanding the Supreme Court (1950). Also his The Supreme Court of
States (1962).

20 Laurel, S., VII Proceedings of the Philippine Constitutional Convention (1934-1935), Appen

21 65 Phil. 56 (1937).

22 Ibid, 96.

23 63 Phil. 139 (1936).

24 L-35925, January 22, 1973.

25 Rostow, The Democratic Character of Judicial Review in Selected Essays on Constitutiona

1962, 1, 2 (1963).

26 Ibid.

27 Ibid, 3.

28 Ibid, 3-4. The decision of Justice Frankfurter referred to is that of Rochin v. People of Califo
US 165 (1952).

29 Mason, The Supreme Court from Taft to Warren, 154 (1967). The words of Justice Frankfu
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 Poli
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
52, 11 L ed 2d 512, 84 S Ct (1964); Reynolds v. Sims, 377 US 533, 12 L ed 2d 506, 84 S Ct 1
WMCA v. Lomenzo, 377 US 633, 12 L ed 2d 568, 84 S Ct. (1964); Maryland Committee v. Ta
US 656, 12 L ed 2d 595, 84 S Ct. 1442 (1964); Davis v. Mann, 377 US 678, 12 L ed 2d 609, 8
1453 (1964); Roman v. Sincock, 377 US 695, 12 L ed 2d 620, 84 S.Ct. 1462 (1964); Lucas v.
General Assembly, 377 US 713, L ed 2d 632, 84 S Ct. 1472 (1964); Fortson v. Dorsey, 379 u
ed 2d 401, 85 S Ct. 498 (1965); Burns v. Richardson, 384 US 73, 16 L ed 2d 376, 86 S Ct. 12
Sailors v. Kent Board of Education, 387 US 105, 18 L ed 2d 650, 87 S Ct. 1549 (1967); Dusch
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
first essay in his Principles, Politics and Fundamental Law.

46 The principal articles are: Pollak, Constitutional Adjudication: Relative or Absolute Neutralit
Pub. L. 48 (1962); Rostow, American Legal Realism and the Sense of Profession, 34 Rocky M
123, 136-46 (1962); Henkin, Some Reflections on Current Constitutional Controversy, 109 U.
637 (1961); Henson, A Criticism of Criticism: In re Meaning, 29 Fordham L. Rev. 553 (1961); M
Note on the Criticism of Supreme Court Decisions, 10 J. Pub. L. 139 (1961), Wright, The Supr
Cannot be Neutral, 40 Texas L. Rev. 599 (1961); Arnold, Professor Hart's Theology, 73 Harv.
1298 (1960); Black, The Lawfulness of the Segration Decisions, 69 Yale L. J. 421 (1960); Gris
Time and Attitudes: Professor art and Judge Arnold, 74 Harv. L. Rev. 81 (1960); Karst, Legisla
in Constitutional Litigation, 1960 Supreme Court Rev. 75; Miller and Howell The Myth of Neutr
Constitutional Adjudication, 27U. Chi. L. Rev. 661 (1960); Mueller & Schwartz, The Principle o
Principles, 7 U.C.L.A.L. Rev. 571 (1960); Hart, Forward, The Time Chart of the Justices, 73 H
84 (1959); Pollak, Racial Domination and Judicial Integrity: A Reply to Professor Wechsler, 10
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. Toll
Ark. 545 (1871); Koehler v. Hill, 60 Iowa 543, 14 NW 738 (1883); McMillan v. Blattner, 67 Iowa
NW 245 (1885); State v. Davis, 2D Neb. 220, 19 Pac. 894 (1888); State v. Tooker, 15 Mont. 8
840 (1894); Russie v. Brazzell, 128 Mo. 93, 30 SW 526 (1895); State v. Powell, 77 Miss. 543,
(1900); State v. Brookhart, 113 Iowa 250, 84 NW 1064 (1901); In re Denny, 156 Ind. 104, 59 N
(1901); Utter v. Moseley, 16 Idaho 274, 100 P. 1058 (1909); Willis v. Kalbach, 109 Va. 475, 64
(1909); People ex rel. Swift v. Luce, 74 Misc. Rep. 551, 133 US 9 (1912); McCreary v. Speer,
783, 162 SW 99 (1914); State v. Donald, 160 Wis. 21, 151 NW 331 (1915); State v. Marcus, 1
354, 152 NW 419 (1915); State v. Campbell, 94 Ohio St. 403, 115 NE 29 (1916); In re Opinion
Justices, 226 Mars. 607, 115 NE 921 (1917); Scott v. Vouchan, 202 Mich. 692, 168 NW 709 (
Hooper v. State, 89 So. 593, 206 Ala. 371 (1921); Switzer v. State, 103 Ohio St. 306, 133 NE
Johnson v. Craft, 87 So. 375, 205 Ala. 386 (1921); In re Opinion of the Justices, 237 Mars. 58
202 (1921); Power v. Robertson, 130 Miss. 188, 93 So. 769 (1922); Hamilton v. Deland, 191 N
221 Mich. 541 (1923); In re Initiative Petition, 89 Okl. 124, 214 P. 186 (1923); Armstrong v. Ki
207, 126 A. 263 (1924); McAdams v. Henley, 169 Ark. 97, 273 SW 355 (1925); Heinitsh v. Flo
434, 126 SE 336 (1925); State v. Zimmerman, 187 Wis. 180, 204 NW 803 (1925); Brown v. C
York, 125 Misc. Rep. 1, 210 NYS 786 (1926); State ex rel. Bahns v. City of New Orleans, 163
718 (1927); Duncan v. Record Pub. Co., 145 SC 196, 143 SE 31 (1928); Lane v. Lukens, 48 I
283 P. 532 (1929); School Dist. of City of Pontiac v. City of Pontiac, 262 Mich. 338, 247 NW 4
Collier v. Gray, 116 Fla. 845, 157 So. 40 (1934); In re Opinion to Governor, 55 R.I. 56, 178 A.
State ex rel Landis v. Thompson, 120 Fla. 860,163 So. 270 (1935); Tausig v. Lawrence, 328 P
A. 235 (1938); Downs v. City of Bromingham, 240 Ala. 177, 198 So. 231 (1940); Graham v. Jo
La. 507, 3 So. 2d 761 (1941); Pearson v. Taylor, 159 Fla. 775, 32 So. 2d 826 (1947); Palmer
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,
(1889); State v. Grey, 21 Nev. 378, 32 Pac. 190 (1893); Nesbit v. People, 19 Colo. 441, 36 Pa
(1894); Hays v. Hays, 5 Idaho 154, 47 P. 732 (1897); Lovett v. Ferguson, 10 SD 44, 71 NW 7
Russell v. Grey, 164 Mo. 69, 63 SW 849 (1901); Gabbert v. Chicago, R.I. Ry. Co. 171 Mo. 84
(1902); People v. Sours, 31 Colo. 369, 102 74 P. 167 (1903); People v. Loomis, 135 Mich. 55
262 (1904); West v. State, 50 Fla. 154, 39 So. 412 (1905); State v. Winnett, 78 Neb. 379, 110
(1907); Farrell v. Port of Columbia, 50 Or. 169, 93 P. 254 (1908); In re Mcconaughy, 106 Minn
NW 408 (1909); Fletcher v. Gifford, 20 Idaho 18, 115 P. 824 (1911); Hammond v. Clark, 136 G
SE 479 (1911), Crawford v. Gilchrist, 64 Fla. 41, 59 So. 963 (1912); Cudihee v. Phelps, 76 Wa
136 P. 367 (1913); State v. Fairley, 76 Wash. 332, 136 P. 374 (1913); Tabor v. City of Walla W
Wash. 579, 137 P. 1040 (1914); State v. Alderson, 49 Mont. 387, 142 P. 210 (1914); Ramsey
Persinger, 43 Okl. 41,141 P. 13 (1914); Cress v. Estes, 43 Okl. 213 P. 411 (1914); Cooney v.
Ga. 647, 83 SE 537 (1914); Hildreth v. Taylor, 117 Ark. 465, 175 SW 40 (1915); Jones v. McD
Ala. 230, 75 So. 988 (1917); State v. Wetz, 40 N.D. 299, 168 NW 835 (1918); Ex Parte Ming,
472, 181 P. 319 (1919); Lee V. Price, 54 Utah, 474, 181 P. 948 (1919), Erwin v. Nolan, 280 M
SW 752 (1922); Boyd v. Olcott, 102 Or. 327, 202 P. 431 (1921); Thompson v. Livingston, 116
107 SE 581 (1921); Thrailkill v. Smith, 106 Ohio St. 1, 138 NE 532 (1922); Brawner v. Curran,
586, 119 A. 250 (1922); Fahey v. Hackmann, 291 Mo. 351 SW 752 (1922); Goolsby v. Stephe
529, 117 SE 439 (1923); Manos v. State, 98 Tax. Cr. 87, 263 SW 310 (1924); State v. Zimme
Wis. 180, 208 NW 803 (1925); Taylor v. King, 284 Pa. 235, 130 A. 407 (1925); Board of Liquid
State Debt of Louisiana v. Whitney-Central Trust and Savings Bank, 168 La. 560, 122 So. 850
State v. Cline, 118 Neb. 150, 224 NW 6 (1929); California Teacher's Ass'n. v. Collins, 1 Cal. 2
2d 134 (1934); Collier v. Gray, 116 Fla. 845, 157 So. 40 (1934); State ex rel. v. State Bldg. Co
Smith, 335 Mo. 840, 74 SW 2d 27 (1934); Mayer v. Adams, 182 Ga. 524, 186 SE 420 (1936);
State ex rel. Mobile County, 233 Ala. 287, 171 So. 504 (1937); Swanson v. State, 132 Neb. 82
264 (1937); Stonns v. Heck, 238 Ala. 196, 190 So. 78 (1939); Graham v. Jones, 198 La. 507,
761 (1941); In re Initiative Petition No. 224, 197 Okl. 432, 172 P. 2d 324 (1946); City of Jackso
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 Commis
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 Num
Hundred and fifty-seven, otherwise known as the Election Code, and Commonwealth Number
hundred and fifty-seven, entitled "An Act to Reorganize the Commission on Elections," is so fa
are not inconsistent herewith, are hereby made applicable to the election provided for in this A

60 Republic Act 4913 (1967).

61 Section 3 of Republic Act 4913 reads thus: "The provisions of Republic Act Numbered One
eighty, as amended, insofar as they are not inconsistent herewith, are made applicable to the
provided for in this Act." It is to be remembered that in the plebiscite held, the two proposals la
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
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
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) a
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; emphas

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
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 t
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
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 beyon
as formulated in this decision, may, we trust, also serve to answer the vehement plea that for
Nation, the President should retain his extraordinary powers as long as turmoil and other ills d
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

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
retained the "permissive" language of section 1, Art. V. Thus, the proposed amendment read
Suffrage may be exercised by (male) citizens of the Philippines not otherwise disqualified by l
(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 a
prohibited its submittal at the 1971 elections for lack of proper submission since it did not "pro
voter ... ample basis for an intelligent appraisal of the amendment. "Dec. of October 16, 1971,
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
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
judgment to suffer one year or more of imprisonment "within two years after service" or who h
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 an
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 h
seventy six thousand five hundred sixty one (14,976,561) members of all the Barangays voted
adoption of the proposed Constitution, as against seven hundred forty-three thousand eight hu
nine (743,869) who voted for its rejection; but a majority of those who approved the new Cons
conditioned their votes on the demand that the interim National Assembly provided in its Tran
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 no
the same with favor, since the constitutional point (that the Comelec has exclusive charge of t
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

et. al. in the plebiscite case L-359042, par. 12 of petition and admitted in par. 4 of answer of th
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 y
changed, repaired and altered house, or do you have a new house? Some of the material con
the old house may be used again, some of the rooms may be constructed the same, but this d
alter the fact that you have altogether another or a new house. We conclude that the instrume
contained in Ga. L. 1945, pp. 8 to 89, inclusive, is not an amendment to the constitution of 187
the contrary it is a completely revised or new Constitution." (Wheeler v. Board of Trustees, 37
322, 327).

"Every proposal which affects a change in a Constitution or adds or takes away from it is an "a
while a "revision" implies a re-examination and statement of the Constitution, or some part of
corrected or improved form." (Const. Secs. 196, 197, Staples v. Gilmer, 33 S.E. 2d 49, 53 183

"Amendment" and "revision" of constitution are separate procedures each having a substantia
application not mere alternative procedures in the same field." (McFadden v. Jordan, 196 P. 2
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, Nevad
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 acti
pursuant to any provision of the constitution itself; and by revision, which implies action pursua
procedural provision in the constitution. This distinction is concerned with the quare and not w
the quantum of change. It may be significant, however, that the alleged alteration does or doe
purport to affect the existence of the court itself. In the nature of things, a revolutionary charge
admit judicial power as such to determine the fact of its occurrence. If revolutionary constitutio
court differently constituted from the pre-revolutionary court, neither tribunal is confronted with
substantial problem, for neither can deny the act by which it was created without denying the f
creation. Thus the Supreme Court in Luther v. Borden (supra) uses language substantially pa
what has been indicated above as logical explanation of the Duke of York's case. For the cou
serious judicial consideration to such a question would present "the singular spectacle of a co
a court to declare that we are not a court." (Brittle v. People, 2 Neb. 198, 214 [1873].) And eve
alleged new constitution purports to leave intact the former court and to permit its work to go o
hiatus, the decision which the judges must make is still an individual choice to be made by the
matter of practical politics. Two commissions are being held out to them, and if they will act as
they must assess under which commission they are acting. To put the matter another way, it m
that in the first case above — of two constitutions purporting to establish two different courts, 
who were judges under the old regime and the men who are called to be judges under the new
to decide as individuals what they are to do; and it may be that they choose at grave peril with
factional outcome still uncertain. And, although it is equally obvious, the situation is logically id
where the same men are nominated to constitute the court under both the old and new constit
time when the alleged change is occurring — if it is — peaceably and against a placid popula
background. Men under such circumstances may write most praiseworthily principles of states
upon sovereignty and, its nature modes of action, and upon the bases of government, to justif
between the two commissions. They can assert their choice in the course of purported judicia
they cannot decide as a court, for the decision, once made, by a retroactive hypothesis exclud
 assumption of controversiality in the premises..

"Where the alleged change occurs not through revolutionary measures but through what has b
revision, these logical difficulties disappear in one aspect, but become far more embarrassing
Where the alteration purports to be made along the lines of a procedural method laid down in
constitution, there is a standard which the court can apply and, by so doing, it can perceive jud
whether or not the change has followed the prescribed lines. If it has, there is no difficulty in p
as a matter of law its accomplishment. Only one exception is possible, namely, the ease wher
alteration purports at once to abolish the court or to depose its personnel. Then, although ther
a question of law to be decided, it may be wondered who there is to decide it. Suppose, howe
mode of change has failed in some way to conform to a directory provision of the amending cl
constitution; is the court to declare the attempt at alteration unsuccessful? It would seem as a
law that it must do so; and yet what is the situation if the proponents of the change say, "It is t
measure failed under the amending clause, but as a revolutionary measure it was a success a
upon its recognition." Clearly the members of the court are now more badly than ever entangle
logical difficulties which attend a purported judicial pronouncement upon the achievement or n
achievement of revolutionary change. For the temptation will be great to treat the matter as a
question. The times are peaceful. The changes probably do no affect the tenure of many offic
branch of the government. The popular inertia is likely to allow the court successfully to assum
question to be one of law. The path of fallacy is not too strikingly fallacious to the uncritical ob
may lead to just results. The judges' personal inclinations will be to show deference to the exp
popular sentiment which has been given. And yet, if they declare the change in force, they are
making a personal declaration that they believe the change to be the directly expressed will of
sovereign, which will they assert to be law, but the fact of existence of which will — and this is
decision — is not ascertainable in the given case by any legal means. It is submitted that this
that the conclusions offered in the discussion of revolutionary change are true, also, whether
the quantum of change involved be vast or almost negligible.

"The net result of the preceding discussion is this: that in almost the whole field of problems w
the Duke of York's case and the American constitutional amendment cases present, the court
is precluded from passing upon the fact of change by a logical difficulty which is not to be surm
follows that there is no room for considering whether the court ought graciously and deferentia
to the executive or legislative for a decision that a change has or has not taken place.

6 & 7 Ibid. pp. 301, 305.

APPENDIX TO OPINION.

@ The inclusion in the Appendix of provisions for Amendment and Revision in State Constitut
adopted after 1935, is only to stress the fact that the distinction between Amendment and Rev
Constitution, which existed at the time of the adoption of the 1935 Constitution, has continued
present.

The Lawphil Project - Arellano Law Foundation